A vessel sailing to an enemy's country after knowledge of the
war, and captured bringing from that country a cargo consisting
chiefly of enemy goods, is liable to confiscation as prize of
war.
Suppression of papers, where it appears to have been intentional
and fraudulent and attended with other suspicious circumstances, is
good cause for refusing further proof.
But where the suppression appears to be owing to accident or
mistake and no other suspicious circumstances appear in the case
further proof may be allowed.
Page 12 U. S. 435
The material facts of the case were as follow:
The ship
St. Lawrence, Silas Webb master, was captured
on 20 June, 1813, by the private armed vessel
America,
and, with her cargo, libeled as prize in the District Court of New
Hampshire. On the proceedings which were had there, it appeared
that the
St. Lawrence, owned by Robert Dickey of New York
and Hugh Thompson of Baltimore, arrived at Liverpool from Sweden in
April, 1813, with a cargo of iron and deals. In the month of May,
1813, the agent of Dickey and Thomson entered into a contract for
the sale of the
St. Lawrence with the house of Ogden,
Richards & Selden of Liverpool, the contract to be ratified or
disaffirmed by Dickey & Thompson and the bill of sale to be
executed by them, in case of affirmance, to Andrew Ogden and James
Heard of New York, or either of them. On 5 May, 1813, a license was
granted by the Privy Council of Great Britain to Thomas White of
London and others permitting them to export direct to the United
States an enumerated cargo in the
St. Lawrence, provided
she cleared out before the last day of that month. On the 30th of
May 1813, she sailed from Liverpool for the United States with the
cargo specified in the license. Mr. Alexander McGregor and his
family were passengers on board.
Upon the return of the monition in the district court, Andrew
Ogden interposed a claim in behalf of himself and McGregor to the
ship and part of the cargo. He also claimed another part of the
cargo as his sole property. He likewise interposed a claim in favor
of Selah Strong and Son, of John Whitten, of the firm of Howard,
Phelps & Co. -- of Abraham and George Smedes -- of Peter and
Ebenezer Irving & Co. -- of Henry Van Wart -- of Irving &
Smith -- of Jabez Harrison -- of Hugh R. Toler -- and of Thomas C.
Butler. This claim was an affidavit of Mr. Ogden in which he swore
that he had not a full knowledge of the concerns of all the persons
for whom he claimed, but verily and fully believed that many of the
said goods on board the
St. Lawrence were sent in payment
of debts due previous to the war to several of the persons for whom
he claimed. This claim was filed on 17 August, 1813.
Page 12 U. S. 436
William Penniman, of Baltimore, also interposed a claim for five
chests of merchandise, which he swore were purchased for him by
John Barnet of London prior to the war with funds which he had in
England eighteen months before the declaration of war and in
pursuance of orders given by him nine months previous to that
event. He also swore that he had at Baltimore the original invoice
of the purchase of said goods and other documentary evidence to
prove the aforesaid fact.
There was also a claim of the master for two cases and five
trusses of merchandise and six bolts of Russia duck.
In none of these claims was there a designation of the marks or
numbers of the casks, bales, or cases which belonged to the
different parties for whom the property was claimed.
The master, in answer to the 12th standing interrogatory, said
that for the names of the respective laders, he referred to the
bills of lading. That the goods were mostly, if not all, consigned
"to order." That the goods were to be delivered to order at such
place as the owners or consignees should appoint, but that he did
not know what interest any of the consignees or the shipper might
have in the goods.
In answer to the 16th interrogatory, the captain stated that his
letter bags, two in number, had been taken possession of and sent
to the custom house, and that, as to any letter he had directed to
the consignees or owners, he had done what he had a right to do,
and that all his other papers had been forcibly taken away.
By Mr. McGregor's answer to the 9th interrogatory, it appeared
that he was interested one-half part in the ship; that his sole
object in becoming interested in the ship was that of returning to
the United States; that he also owned one-half of the copperas and
of the earthenware on board, shipped by Ogden, Richards &
Selden and, as he believed, one-half of the coal, but that as to
the last article, he was not positive, no invoices of said goods
having been delivered to the deponent.
Page 12 U. S. 437
In relation to the vessel, Mr. McGregor deposed that the only
document relative to the sale of the ship he believed to be a
letter to the former owners from their agent requesting them to
make a bill of sale transferring said ship to Andrew Ogden and
James Heard, or either of them, which he gave to Andrew Ogden.
It appeared further from the examination of Mr. McGregor that he
was born in Scotland, was naturalized in the United States in 1795,
had lived the last seven years in Liverpool, and was returning in
the
St. Lawrence with his family to the United States.
The goods claimed by Ogden as his sole property were shipped by
the house of Ogden, Richards & Selden. The two gentlemen last
named resided at Liverpool.
The district court condemned the
St. Lawrence and all
the cargo, except the parts claimed by McGregor and the master.
Both parties appealed from this decree to the circuit court, where
the ship and whole cargo were condemned. From this decree the
claimants appealed to the Supreme Court.
Page 12 U. S. 440
LIVINGSTON, J. after stating the facts of the case, delivered
the opinion of the Court as follows:
Page 12 U. S. 441
From the manner in which the appellants have argued this cause,
it does not appear that they are very sanguine in their
expectations of our reversing the decree of the circuit court on
the evidence on which that court and the district court proceeded,
but that their chief hope is derived from the further proof which
they have it in their power to produce, provided an opportunity by
afforded them for that purpose. Except as to the property claimed
by Mr. Penniman and Mr. McGregor, this Court does not perceive how
the circuit court could have done otherwise, upon the proof before
it, than confiscate the cargo of the
St. Lawrence as prize
of war. Without meaning to decide at present on the right of an
American citizen having funds in England to withdraw them after a
declaration of war, or of the latitude which he may be allowed in
the exercise of such a right, if it exists, we think the evidence
would have justified the court in considering this property as
belonging to enemies of the United States.
The
St. Lawrence had gone to England after the war was
known, and had sailed from a British port nearly one year after war
had been declared. She was loaded in the country of the enemy, and
by person carrying on trade there. She was furnished with a British
license, which extended both to British and American property, and
the bills of lading, not being in a very common form, were well
calculated to excite suspicion. But these circumstances, strong as
they are, might, if everything had been fair, have been so
explained as to have convinced the court that the property was
truly American. Was this done, or even attempted? If we look at the
conduct of the master and the claimants, we find them both acting
in a way which left the court no other safe conclusion but that the
cargo of the
St. Lawrence was enemy property. The captain,
instead of delivering it to the captors or bringing into court the
letters to the consignees, which no doubt covered invoices and
bills of lading, lets us know in a way not to be misunderstood that
he had delivered or sent them to the parties to whom they were
addressed. Taking is examination with the usual course of business,
which is to accompany every shipment with a letter, no doubt can
remain that such letters were not only on board, but that they have
been regularly received by the respective
Page 12 U. S. 442
consignees, for it is not pretended by the master that they were
taken from him by the captors. Here then is not only a subduction
of very important papers by the master, but an acquiescence in such
conduct on the part of the consignees and a continued suppression
of the same papers to this day. The only proof, then, which the
court had of the interest of the claimants, except of Mr. Penniman,
the master, and Mr. McGregor, is in the claim of Mr. Ogden, who
states that he is not acquainted with their concerns, but believes
they had an interest in the cargo, without, however, attempting to
designate the packages belonging to either of them. The court below
therefore might fairly consider the claimants as having not only
failed in making out a legal title to the property, but as
concealing papers which would have shown a title elsewhere.
But if there was a defect of proof below, it is thought the
claimants are entitled to time for further proof, and that if this
be allowed, they will be able to show that the property in question
was purchased with American funds which were in England previous to
the war, and that the claimants were the true and
bona
fide owners thereof. It is certainly not a matter of course in
this Court to make an order for further proof. When the parties are
fully apprised of the nature of the proof which their case requires
and have it in their power to produce it, an appellate court should
not readily listen to such an application; but when it appears that
the parties who ask this indulgence have most pertinaciously
withheld from the court letters and other documentary testimony
which must be supposed in this particular case to have been in
their possession, they come with a very ill grace to ask for any
further time to make out their title. But if we examine the
affidavits which have been made to obtain further time, we shall
find them all silent as to the papers which they must have received
by the
St. Lawrence, for in not one of them is a letter of
that kind or an invoice mentioned, nor do they deny that such
letters or invoices were received by them. Under such
circumstances, this Court thinks that it cannot, consistent with
the circumspection with which such applications ought always to be
received, allow the appellants time for further proof. The master's
adventure, it is said, has been given up.
Page 12 U. S. 443
Of Mr. Penniman's claim the Court thinks more favorably. In the
claim which he filed personally, he not only swears that the
property belongs to him, but states very particularly how and when
it was purchased. He states further that the original invoice and
other documentary evidence were at Baltimore, and in the affidavit
made by Mr. Campbell during the present term there is such a full
and distinct history given of this whole transaction, founded upon
original letters and bills of exchange, that it is impossible to
harbor one moment's doubt that the five chests of merchandise
claimed by Mr. Penniman did, at the time of shipment and long
before, belong to him. To this affidavit is also annexed the
original letter and invoice which he received by the
St.
Lawrence, which must dissipate every doubt on the question, if
any had previously existed. Where so strong a case is made out, the
Court is willing to impute to accident or mistake the nonproduction
of these papers below. Perhaps Mr. Penniman thought he did
sufficient in stating they were in his possession. Certain it is he
could have no motive for suppressing papers which would have
established so conclusively his title to the merchandise which he
claimed. The Court therefore allows him until next term to make
proof by affidavit and the production of documents of his right to
the property claimed at the time of its shipment at Liverpool, and
the same indulgence is allowed to the captors.
In regard to the claim of McGregor to a part of the cargo, there
is also some difference between his case and that of many others of
the claimants. He swears positively to his interest, but that no
invoice was delivered to him by the shippers, Ogden, Richards and
Seldon. Ogden also swears to the interest of Mr. McGregor. Perhaps
this testimony is sufficient to satisfy a court, as it did satisfy
the district court, that the property really belonged to Mr.
McGregor. But if that be the case, other questions will arise of
too much importance to be decided on the last day of the term and
when the Court is not full. Whether an American citizen has a right
to withdraw his funds from the country of a belligerent after a
war, or if he have, whether he have a right to charter a vessel for
that purpose, and, if he may go thus far, whether he may bring
British
Page 12 U. S. 444
goods on freight to this country without affecting thereby the
safety of his own goods are questions which the Court does not now
decide, and will therefore suspend at present giving any final
opinion on the claim of Mr. McGregor to a part of the cargo, who in
the meantime is also at liberty to make further proof on the same
points with Mr. Penniman, the captors having the same right.
It may be well doubted whether Mr. Ogden and Mr. McGregor have
any title to the
St. Lawrence, but whether she belong to
them or to Messrs. Dickey & Thompson, her fate seems
necessarily involved in the decision of the
Rapid, which
was made this term. She went to England since the war, and is taken
bringing a cargo from that country. If the whole of the cargo had
belonged to Mr. McGregor or any other American returning with his
property to the United States, the Court means not to say whether
it would or would not have been cause of forfeiture, but when we
find but a small portion of the cargo in that predicament, there
can be no escape for her. The
St. Lawrence was certainly
guilty of trading with the enemy, and being taken on her way from
one of his ports of the United States, she is liable, on that
ground to be confiscated as prize of war to whomever she might
belong at the time.
Upon the whole, the sentence of the circuit court is
Affirmed in all its parts, with costs, except so far as it
condemned those portions of the cargo which were claimed by Mr.
Penniman and Mr. McGregor, respecting which this Court will advise
until the next term.
