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t.

Upon these facts, the principal point which will be contended for by the counsel for the claimants is, that E.STATES. this property was lawfully acquired, before the declaration of war by the United States against Great Britain; and that, it being found here at the time of the breaking out of the war, under the faith of the government, it is not, by the modern law of nations, nor by any law of the United States, liable to confiscation.

This question ought not to be decided upon the rigorous principles and the ancient practice of the law of nations; but according to the mitigated law of war, sanctioned by modern usage in civilized nations: For when the government of the United States was organized and finally established, it was not only its true policy, but its duty, to receive the law of nations in its modern state of purity and refinement." Per Judge Wilson in the case of Ware v. Hylton, 3 Dall. 281. It is contended by the counsel for the claimant in this case, that the principle and the usage adopted and sanctioned by the modern law of nations, is this, "that enemy's property found in this country at the breaking out of a war, is not liable to confiscation." A different practice, said to have prevailed in Great Britain with regard to property in this situation, found afloat in their ports and harbors, will be hereafter considered.

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The rule of the law of nations applicable to this case, is found in Vattel, p. 477. His words are, "The sovereign declaring war, can neither detain the persons nor the property of those subjects of the enemy who are "within his dominions at the time of the declaration. They came into his country under the public faith. By permitting them to enter and reside in his territories, he tacitly promised them fuil liberty and security for "their return. He is therefore bound to allow them a reasonable time for withdrawing with their effects; and if they stay beyond the time prescribed, he has a right to treat them as enemies, though as enemies unarmed. But if they are detained by an insurmountable impediment, as by sickness, he must necessarily and for the same reason grant them a sufficient exten"sion of the term." In order to shew the humane and liberal spirit with which the above rule is adopted by so

v.

vereigns in modern times, the same author adds, "At BROWN ❝present, so far from being wanting in this duty, sove"reigns carry their attention to humanity still further ; U.STATES. "so that foreigners who are subjects of the state against ❝ which war is declared, are frequently allowed full time "for the settlement of their affairs."

Are not these just and equitable rules of the modern law of nations of authority in the Judicial Courts of the United States? Upon what principle or policy, are they to be rejected, and those of an age dark, and even barbarous in comparison with the present, adopted in their stead? Does it comport with the interest and character of this government, to reject principles and usages, calcuiated to ameliorate and mitigate the state of war and to promote the interest of commerce, which it appears have been chearfully adopted by all the monarchies of Europe? The contract which was entered into by the agents of the parties in this case, was made upon the presumption that, in case of war, the property would be safe. This presumption arose from the uniform pračtice, in similar cases, in all countries upon which the law of nations is binding.

It has been suggested that this rule in Vattel is applicable only to such persons as may happen to be in the country at the time of the declaration of war. Such, indeed, is the letter of the rule: But when there is the same reason, there is the same law; and no good reason can be assigned why the property of an absent owner should not be protected, as well as that of those who may happen to be resident in the country declaring war. In addition to this, it may be observed, that the owners of this property were, in law, present during the whole negotiation relative to this cargo, by their agent, E. Brown, by whom it was purchased, and who had the whole care and charge of it, at the time that war was declared.

If the correctness or authority of Vattel should be questioned, he will be found to be supported by other writers of high character.

In Chitty's Law of Nations, p. 67, it is thus written : "In strict justice, the right of seizure can take effect VOL. VIII.

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BROWN "only on those possessions of the belligerent, which "have come to the hands of his adversary after the declaU.STATES. « ration of war." And again, in p. 80, "Such appears "to be, at present, the law and practice of civilized na❝tions, with respect to hostile property found within their dominions at the breaking out of war." These opinions are not only fairly collected from modern writers upon the law of nations, but are entitled to particular respect as coming from a man of high character for his professional talents, and legal science; and who has done and written more to improve and reduce to system the common law of England, than any other writer upon that subject for the last thirty years.

The principles and practice of the modern law of nations here advocated, will also be found conformable to the common law. In Magna Charta, that venerable foundation of English law and liberty, it is provided, that merchant strangers in the realm of England at the beginning of a war, shall be protected from harm in body and goods, until it shall be made known to the high authorities of the nation, how British merchants should be treated in the enemy's country, and they were to be dealt with according to such treatment. Magna Charta, chap. 30. These provisions are commented upon, and emphatically eulogised by Montesquieu, 2d vol. p. 12.

Of similar character were the provisions of an ancient English statute, passed 27 Edwd. 3, Stat. 2, chap. 17, in which it is enacted, "that in case of war, merchants shall not be sent suddenly out of the kingdom,

but may go out of the kingdom freely, with their "goods, within forty days, and shall not be in any thing hindered or disturbed in their passage, or to make pro"fit of their merchandize if they wish to sell them; or, if in default of wind or ship, or any other adverse cause, they cannot go, they shall have other forty days, within which time they shall pass with their merchandize, or "sell the same as before.”

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It is respectfully contended, that no act or measure of the American government has ever indicated a disposition adverse to those humane and liberal provisions and usages of the common law, and of the law of nations. On the contrary, so far as the disposition and policy of

the government may be discerned by implication, it has BROWN manifested its entire acquiescence in, and its readiness

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to adopt them upon all proper occasions. The spirit U.STATES. and disposition of the government upon this subject, is apparent from the provisions in (I believe it may be said) every treaty which has been entered into since the establishment of the government. Articles for the protection and removal of the property of enemies found in this country at the breaking out of a war, are found in our treaties with France, Spain, Holland, Sweden, Prussia, Morocco, England and Algiers. It will not be contended, that the provisions of these treaties, especially that with England, can be binding, when the treaties themselves are not in force; but the uniform practice of those governments, in agreeing to these provisions, is evidence of the highest nature, that the government of the United States have adopted, and mean to adhere to the modern law of nations in this respect; that it approves the liberality of the modern usages, and rejects, and, I hope I may add, abhors the rigorous rules and contracted principles of the ancient jurists; that the spirit of the government, and the character of its policy, is to cherish and carry into practice every principle and every custom and usage, which is found favorable to commerce, and which will mitigate the evils incident to a state of war.

In the proceedings and measures of the government since the war, there can be found no expression of its will, that property in the situation of this cargo, should be confiscated or claimed for the use of the government on the contrary, there are indications of another and more benign complexion. By the act of July 6th, 1812, sect. 6, the president was authorized, within six months from the date of the act, "to give passports for the safe transportation of any ship or property belonging to British subjects, then within the limits of the United States." Nothing, therefore, can be more clear, than that it was not the wish or intention of government, to claim or confiscate property, belonging to the enemy, then in the United States. If such had been its policy, instead of the liberal provisions of this statute, provision would have been made in this -statute, or in the act declaring war, not only expressive

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of the public will upon this subject, but expressly declaring British property then within the United States U.STATES. liable to confiscation.

V.

By the provisions of this statute, it is apparent that if this property had been on board a British ship, or if a British ship had been found in which to transport it, it would have come directly within the authority of the president, as to its safe transportation. Surely, then, it could never have been the intention of Congress to have it confiscated upon the ground that it had been lawfully on board an American ship, in the regular course of trade, was there arrested by the embargo, and then, for the convenience of all parties, discharged from the ship, and placed in a proper situation for safe keeping, to abide the events of the embargo and the war.

The

The Court will also notice, that, previous to the expiration of the six months allowed by the act of congress, above quoted, for the exportation of British property, this cargo had been sold with the knowledge and approbation of the Libellant. This transfer, having been made bona fide, conferred other and new rights upon a third party, viz: the present Claimant. principle quoted and relied upon, that that transfer was void upon the ground that it was made by an alien enemy in time of war, was probably never contemplated or known by the parties to the contract; and this may furnish a satisfactory, though perhaps not strictly a legal reason, why this property was not exported under the president's passport. At any rate, if the Court should be satisfied that this property is not liable to confiscation, either by the law of nations or by any act of congress, they will not trouble themselves about the effect of the transfer, but leave the parties interested to settle that matter among themselves.

Before the Court will condemn this property, they will search for some proof of a decided intention, on the part of the government, that such property should be confiscated. It appears that all the acts of congress, so far as they can be interpreted with reference to this question, manifest a contrary spirit. The act declar