Goods, the property of merchants actually domiciled in the
enemy's country at the breaking out of a war, are subject to
capture and confiscation as prize.
The President's instructions of 28 August, 1812, must have been
actually known to the commanders of vessels of war at or before the
seizure in order to invalidate captures made contrary to the
instructions.
An alien may be the commander of a privateer without
invalidating a capture made by him.
This was a claim by Mr. Richardson for a portion of the cargo of
the same ship mentioned in the preceding cause, which portion was
condemned in the district and circuit courts. The claimant, a
native of Great Britain, and a naturalized citizen of the United
States, was a resident merchant of Liverpool at the breaking out of
the late war, but returned to this country in the month of May,
1813, after knowledge of the capture and pending the proceedings in
the district court. The capture was made on 3 September, 1812,
within 18 miles of Sandy Hook in 13 fathoms of water, where vessels
are frequently passing and anchoring, and the privateer had
previously spoken at sea another privateer and a pilot boat
schooner from Philadelphia.
Page 14 U. S. 47
There was also contradictory testimony as to whether the
commander of the privateer had knowledge of the President's
additional instructions of 26 August, 1812, before the capture,
which, as it is noticed in the opinion of the Court, it is
unnecessary to state. By those instructions the public and private
armed vessels of the United States was not to interrupt any vessels
belonging to citizens of the United States coming from British
ports to the United States laden with British merchandise in
consequence of the alleged repeal of the British Orders in Council,
but were, on the contrary, to give aid and assistance to the same
in order that such vessels and their cargos might be dealt with on
their arrival as might be decided by the competent authorities.
Page 14 U. S. 54
JOHNSON, J., delivered the opinion of the Court.
It is not necessary to go into a consideration of the national
character or future designs of the claimant in this case. It has
been solemnly settled, and must henceforth be considered as the
positive law of this Court, that shipments made by merchants,
actually domiciled in the enemy's country at the breaking out of a
war, partake of the nature of
Page 14 U. S. 55
enemy trade, and, as such, are subject to belligerent capture.
Whatever doubts may have once been entertained on this bench with
regard to the necessity or propriety of adopting the principle into
the jurisprudence of this country, they are now either dissipated
or discarded, and the character, views, and even the subsequent
acts of such a shipper cannot vary the conclusion of law upon his
claim.
Page 14 U. S. 56
Stress has been laid in the argument before this Court on the
fact that Charles Johnson, the commander of the
Tickler,
is an alien enemy, but on this point we are unanimous that it makes
no difference
Page 14 U. S. 57
in the case. Admitting that this circumstance should bear at all
upon the decision of the Court, the utmost that could result from
it would be the condemnation of his interest to the government as a
droit of admiralty. The owners and crew of the
Tickler are as much parties in this Court as the
commander, and his national character can in nowise affect their
rights. But this Court can see no reason why an alien enemy should
not be commissioned as commander of a privateer. There is no
positive law prohibiting it, and it has been the universal practice
of nations to employ foreigners and even deserters to fight their
battles. Such an individual knows his fate should he fall into the
hands of the enemy, and the right to punish in such case is
acquiesced in by all nations. But, unrestrained by positive law, we
can see no reason why this government should be incapacitated to
delegate the exercise of the rights of war to any individual who
may command its confidence, whatever may be his national
character.
The only grounds, then, on which the right of restitution can be
contended for in this case arise out of the President's
instructions of 28 August, 1812. On these, three points are
made:
1st. That Johnson had in fact or ought from circumstances to be
presumed to have had notice of those instructions.
2d. If he had not at the time of the capture, yet, having
received them before the arrival of the prize in port, he was bound
then to have discharged her.
3d. That notice of the instructions was in fact unnecessary, as
the instructions of the President had,
Page 14 U. S. 58
as to the conduct of privateers, all the operation of laws.
On the second and third of these points there exists but one
opinion in this Court. Although some doubt may be entertained
relative to the form or nature of the notice necessary, yet we all
agree that some notice is necessary, and that notice must precede
the capture. Instruction,
ex vi termini, is individual.
Instruction to A., independent of legal privity or identification,
is not instruction to B. Not so with laws: their power floats on
the atmosphere we breathe. Necessity or convention or power, has
given them a legal ubiquity coextensive with the legislative power
of the government that enacts them. Notice here is altogether
unnecessary unless made so by the law itself. It is the
sic
volo, sic jobeo of sovereign power, of which every individual
subject to its jurisdiction is presumed to have notice, though time
and distance stamp absurdity on the supposition. Unquestionably the
same operation might by law have been given to instructions
emanating from the President, but this has not been done; on the
contrary, the clause itself which vests the power in the executive
holds out the idea of the necessity of notice. That this notice
must necessarily precede or accompany capture we are induced to
infer from this consideration. By capture, the individual acquires
an inchoate statutory right, an interest which can only be defeated
by the supreme legislative power of the Union.
Condemnation does nothing more than ascertain that each
individual case in within the prize act, and thus throws the
individual upon his right acquired by
Page 14 U. S. 59
belligerent capture. Should the prize act in the interim be
repealed or its operation be suspended by the provisions of a
treaty, there no longer exists a law to empower the courts to
adjudge the prize to the individual captor. We can see nothing in
the objects of the law authorizing the President to issue his
instructions nor in the instructions themselves which can support
the idea that that which was lawfully prize of war at the time of
capture should cease to be so upon subsequent notice of the
instructions. Both the act itself and the instructions, in their
plain and obvious sense, may well be construed so as to arrest the
arm of hostility before it has given the blow. But not only is
there nothing either in the act or instructions to which an
ulterior operation can be given, but the policy of the country, as
well as the fair claims of the prowess, perseverance, and expenses
of the individual forbid our giving an effect either to the act of
the instructions which will deprive the captor of the just fruits
of his bravery and enterprise. The fact of notice, then, alone
remains to be considered, and this must either be inferred from
circumstances or received upon the evidence of confession. On this
point computation of time becomes material.
The capture was made, as we collect from the officers and crew,
on 3 September, but as the nautical calculation of time commences
at noon, this may mean on the morning of 4 September. The
additional instructions bear date 28 of August, and were probably
forwarded by the mail of the 29th. It cannot, therefore, be
supposed that they were published in Philadelphia before 31
Page 14 U. S. 60
August, nor in New York before the 2d; at any rate, not before 1
September. This certainly leaves time enough for the information to
have been communicated from New York, but renders it impossible
that it could have been received either from the
Eagle or
the pilot boat, as they were both spoken off Charleston, and the
latter was seven days out, whereas the
Tickler left St.
Mary's, in Georgia, on the 24th. Whether such information was not
in fact communicated off New York is a point on which the evidence
would leave us little room for a contrariety of opinion were it not
for the loss of the logbook and journal. For this circumstance,
taken in conjunction with the evidence of confession, some of the
Court are inclined to entertain an unfavorable idea of the captor's
cause.
But the majority are of opinion that they cannot attach so much
importance to it. The evidence of Paine Ferris, and Warren, all
officers of the privateer, and at the time of testifying divested
of all interest in the capture, positively negatives the only fact
from which notice could be implied, to-wit, the speaking of any
vessel beside the
Eagle and the pilot boat previous to the
capture of the
Mary and Susan. And this, we think, is
supported by probability, when it is considered how very few
vessels at that time could venture to leave our ports; that there
is no probability the
Tickler could have ventured to lie
off and on the port of New York any length of time, and that, from
her leaving the port of St. Mary's to her arrival at New York,
there elapsed no more than the ordinary time of performing that
voyage. In addition to which considerations
Page 14 U. S. 61
we cannot but think that a copy of the journal of this voyage
was, as it ought to have been, deposited in the custom house, and
this circumstance, whilst it was calculated to make the captor less
careful in preserving the original, enabled the claimant to avail
himself of every advantage which could have been derived from the
original.
On the evidence of confession, we are not inclined to enter into
the consideration of the depositions, intended on the one hand to
support, and on the other to impugn, the credibility of Waldron and
Garnsey. Nothing can be more painful than the necessity of entering
upon such investigations; nothing more unsatisfactory than to found
a legal decision as to the credibility of a witness upon oral
testimony, unsupported by the
evidentia rei. In this case
we are induced to conclude that these witnesses misunderstood
Johnson; that the knowledge of which the latter spoke was that
acquired subsequent to the capture; that it could not have related
to any other knowledge we think incontestable from the single
consideration that the evidence in the case proves it to have been
inconsistent with the fact. It was not possible under the
circumstances of the cases that such knowledge could have been
communicated for want of the means of communication, and that it
was not is positively sworn to by three witnesses whose testimony
stands wholly unimpeached.
Sentence of the circuit court affirmed with costs.