If, upon the breaking oat of a war with this country, our
citizens have a right to withdraw their property from the enemy's
country, it must be done within a reasonable time. Eleven months
after the declaration of war is too late.
Appeal from the sentence of the Circuit Court for the District
of New Hampshire condemning the ship St. Lawrence
cargo. All the claims in this case, except those of McGregor and
Penniman for certain parts of the cargo, where settled at the last
term, and with regard to these further proof was ordered.
No further proof having been produced, the case was submitted to
the Court without argument.
STORY, J. delivered the opinion of the Court as follows:
Page 13 U. S. 121
The only claims in this case now remaining for the consideration
of the Court are those of Mr. Penniman and McGregor. Further proof
was directed at the last term to be made in respect to those
claims, and no additional evidence having been produced beyond that
which was then disclosed to the Court, the causes have been
submitted for a final decision.
In respect to the claim of Mr. Penniman, the evidence is very
strong that the goods were purchased sometime before the war by his
agent in Great Britain on his sole account. They were not, however,
shipped for the United States until the latter part of May,
It is not the intention of the Court to express any opinion as
to the right of an American citizen, on the breaking out of
hostilities, to withdraw his property purchased before the war from
an enemy country. Admitting such right to exist, it is necessary
that it should be exercised with due diligence and within a
reasonable time after the knowledge of hostilities. To admit a
citizen to withdraw property from an enemy country a long time
after the war under the pretense of its having been purchased
before the war would lead to the most injurious consequences and
hold out strong temptations to every species of fraudulent and
illegal traffic with the enemy. To such an unlimited extent we are
all satisfied that the right cannot exist. The present shipment was
not made until more than eleven months had elapsed after war was
declared, and we are all of opinion that it was then too late for
the party to make the shipment so as to exempt him from the penalty
attached to an illegal traffic with the enemy. The consequence is
that the property of Mr. Penniman must be condemned.
And this decision is fatal also to the claim of Mr. McGregor.
Independent indeed of this principle, there are many circumstances
in the case unfavorable to the latter gentleman. In the first
place, it is not pretended that the goods included in his claim
were purchased before the war. In the next place, he was the
projector of the present voyage, and became, as to one moiety, the
charterer or purchaser of the ship.
Page 13 U. S. 133
Nearly all the cargo consisted of goods belonging (as it must
now be deemed) exclusively to British merchants. He was therefore
engaged in an illegal traffic of the most noxious nature, a traffic
not only prohibited by the law of war but by the municipal
regulations of his adopted country. His whole property, therefore,
embarked in such an enterprise must alike be infected with the
taint of forfeiture.
The judgment of the circuit court must therefore, as to
these claims, be affirmed with costs.