v.

ing war, speaks no language adverse to the claim of BROWN the Appellant. Theprize act of the 26th of June, 1812, does not even glance at property in this situation. Will U.STATES. the Court assume the power, by implication, to condemn the property; and this, too, against the most explicit declarations of the public will, so far as they can be collected from measures of an analogous nature? Why is this case singled out? Why do not the district attornies enter the warehouses in the numerous sea-ports, and hunt for booty of this description? Such a proceeding would be as legal and as liberal as the present, though probably attended with serious mischief to the country, if retaliatory proceedings and measures should be adopted by the enemy; for it is a well known fact, that the amount of American property in England at the commencement of the war, was immensely greater than that of English property in America, at the same period.

It was stated, in the argument below, that the question relative to the confiscation of debts, or choses in action, is illustrative of that which relates to the confiscation of goods. The modern usage and law of nations, and of our own country, relative to the confiscation of debts, are equally favorable to the Claimant in this

case.

In the first place, it is distinctly denied, that there exists any power to confiscate the private debts of the enemy, excepting by a positive act of Congress. What figure would the attorney of the United States make, with a libel in the judicial Courts, praying for a confiscation of a private debt? The exclusive right of this kind of confiscation, and even of goods, is in the legislature-per Chase, Justice, in the case of Ware v. Hylton, 3, Dall. 281. The question which has been discussed by the writers upon the law of nations, is, whether it be lawful for the sovereign thus to confiscate. And although it is admitted that he may do it, yet, "in regard to the safety of commerce, all the sovereigns "of Europe have departed from this rigor; and as this "custom has been generally received, he who would act "contrary to it, would injure the public faith; for "strangers trusted his subjects upon the presumption that the general custom would prevail." Vattel, lib. S,

BROWN ch. 5, sect. 77. The laws and customs of the United States ought to be so expounded as to conform to the U.STATES. modern law of nations, which is adverse to the confiscating of debts. Indeed the confiscation of debts has become disreputable; and it has been feelingly observed by a late learned judge of this Court, that "not a single "confiscation of this kind stained the code of any European power engaged in the war which our revolution "produced"-3, Dall. 281.

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It will be admitted that the question relative to the confiscation of debts, or choses in action, is illustrative of the question relative to the confiscation of the private property of an enemy, found here under the faith of government at the breaking out of the war. Indeed the law and practice is, and ought to be, the same in both cases; and until a law of congress shall be produced, confiscating property of this description, the judicial Courts will not only proceed to do it with great reluctance, but will never assume an authority of that kind, unless furnished with it by a legislative act, any more than in the confiscation of a private debt. In addition to all this, it seems to be now perfectly settled by the modern law and practice of nations, that debts are never to be confiscated; that it has become a disgraceful act in any government that does it; that these debts are suspended, and the right to recover them necessarily taken away by the war; but that upon the return of peace, the debts are revived, and the right to recover them perfectly restored.

The condemnation of this property is demanded upon the ground that the embargo of the 4th of April, 1812, arrested and detained it until the act of congress took place declaring war; and that that act had a retroactive effect, and justifies the condemnation of this property. But to this it is answered: the embargo of the 4th of April was not a hostile, but a civil embargo; and no such construction was ever given to an embargo, not of a hostile character. That this embargo was not of this character is most manifest from this, that express provision was made for the departure of any foreign ships or vessels, either in ballast or with the goods, wares and merchandize, on board of such foreign ship or vessel when notified of the act. It was, therefore, the

being laden on board a vessel of the United States that BROWN prevented the departure of this property. If it had v. been on board a foreign, even a British, ship, it would U.STATES. not have been detained. That it was actually laden

on board, at the time of the notice of the embargo, manifestly appears from the record. This, it is con

ceived, is a sufficient answer to the claim of the government to this property, upon the ground that it was stopped by the embargo, and liable to confiscation by the retroactive operation of the act of congress declaring war. The authorities in support of the principles here contended for, respecting the difference between hostile and civil embargoes, must be familiar to the Court, and need not be cited.

But the practice of the British government is relied upon as a rule by which the Court are to be governed in the present case. It is admitted that the English Courts of admiralty have condemned vessels detained in port by an embargo, and found there at the breaking out of hostilities: but it is explicitly denied that they have ever condemned property found on land, in that situation. 1 Rob. 228.

If, however, the English Courts of admiralty have done wrong, and proceeded against the modern law of nations in these cases, this honorable Court will not, for that reason, adopt so unjust a practice. The condemnation of property, arrested in the ports of Great Britain by an embargo, to which a hostile character is afterwards given by a subsequent declaration of war. appears to be a departure from the modern usages of nations, and cannot be justified by or reconciled with the spirit of those usages. But as they have never condemned property in this situation, except such as has been found not only afloat, but in vessels detained in their ports by an embargo, their decisions can form no precedent in this case; for the property which is the subject of this prosecution, was either on land, or in such a situation as that it could not be the subject upon which an embargo could operate; or, in other words, the staves and lathwood were literally on the land; and the pine timber so discharged from the ship and so deposited, as to be entitled to the same protection as if actually landed and stored.

BROWN

The rule adopted in the English Court of Admiralty, as laid down in 2 Rob. 211, is this: All vessels detainU.STATES. ed in port, and found there at the breaking out of hostilities, are condemned, jure corono, to the king; and all coming in after hostilities, not voluntarily by revolt, but ignorant of the war, are condemned as droits of admiralty. This rule, both in its import and application, has been adopted, it is conceived, only in cases of vessels and their cargoes found in the ports of Great Britain. There can be no reason for their application in this country to property found on the land, or to property, although waterborne yet, in the same situation, in reason and in fact, as if found literally on land.

Of this description is the property in question. By referring to the record, particularly the depositions of E. Brown and of Silas Allen, the condition of this property, from the time it was discharged from the ship to the time it was seized by Delano, may be learned, from whence it will appear that the allegation in the libel, that the property was on the high seas, is wholly without foundation. The staves and lathwood were landed and on a wharf. With respect to these, there can be no doubt. The timber was discharged from the ship in the month of May, previous to the declaration of war; it is of such description that it did not admit of being stored; it would have been injured by lying on the land; and the only place proper to keep it in, was the one selected, a creek, or small cove, where the tide ebbs and flows, but which was not navigable even for boats or scows; for it seems it was necessary to clear it out to admit a scow into it. Moreover, it was necessary to secure the entrance of this creek by booms or timber laid across its mouth, fastened by piles or stakes driven into the flats. This timber was thus secured and stored in the usual way in which property of this description is managed; and was, to all intents and purposes, as much lodged and impounded in this place, under a bailment, and in civil hands, (1 Rob. p. 228) as if it had been in a ship yard. It must, therefore, be a great stretch of power and prerogative to extend the reason of the practice of Great Britain in condemning property found in its harbors and on board vessels, to property in the situation of that in question: and unless the practice of Great Britain has extended to the seizure

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and condemnation of enemies' property found on land BROWN at the time of breaking out of hostilities, no sanction can be derived from her practice in favor of the confis- U.STATES. eation of this property.

The case, was submitted by the Attorney General upon the argument contained in the opinion of the honorable judge Story, in the Circuit Court, which came up in the transcript of the record.

Wednesday, March 2d. Present....All the Judges.

MARSHALL, Ch. J. delivered the opinion of the Court, as follows:

The material facts in this case are these :

The Emulous owned by John Delano and others, citizens of the United States, was chartered to a company carrying on trade in Great Britain, one of whom was an American citizen, for the purpose of carrying a cargo from Savannah to Plymouth. After the cargo was put on board, the vessel was stopped in port by the embargo of the 4th of April, 1812. On the 25th of the same month, it was agreed between the master of the ship and the agent of the shippers, that she should proceed with her cargo to New Bedford, where her owners resided, and remain there without prejudice to the charter party. In pursuance of this agreement, the Emulous proceeded to New Bedford, where she continued until after the declaration of war. In October or November, the ship was unloaded and the cargo, except the pine timber, was landed. The pine timber was floated up a salt water creek, where, at low tide, the ends of the timber rested on the mud, where it was secured from floating out with the tide, by impediments fastened in the entrance of the creek. On the 7th of November, 1812, the cargo was sold by the agent of the owners, who is an American citizen, to the Clai mant, who is also an American citizen. On the 19th of April, a libel was filed by the attorney for the United States, in the district Court of Massachusetts, against the said cargo, as well on behalf of the United States of America as for and in behalf of John Delano and of all other persons concerned. It does not appear VOL. VIII.

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