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6 of this act, passports for the safe transportation of BROWN “ any ship or other property belonging to British subjects, and which is now within the limits of the United U.STATES, “ States."
The phraseology of this law shows that the property of a British subject was not considered by the legislature as being vested in the United States by the declaration of war; and the anthority which the act confers on the president, is manifestly considered as one which he did not previously possess.
The proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy within the territory of the belligerent, is believed to be entirely free from doubt. Is there in the act of congress, by which war is declared against Great Bri, tain, any expression which would indicate such an intention ?
That act, after placing the two nations in a state of war, authorizes the president of the United States to use the whole land and naval force of the United States to
carry the war into effect, and « to issue to private armed vessels of the United States, commissions or « letters of marque and general reprisal against the “ vessels, goods and effects of the government of the “ united kingdom of Great Britain and Ireland, and “ the subjects thereof."
That reprisals may be made on chemy property found within the United States at the declaration of war, if such be the will of the nation, has been admitted; but it is not admitted that, in the declaration of war, the nation has expressed its will to that effect.
It cannot be necessary to employ argument in showing that when the attorney for the United States institates proceedings at law for the confiscation of enemy property found on land, or floating in one of our creeks, in the care and custody of one of our citizens, he is not acting under the authority of letters of marque and reprisal, still less under the authority of such letters issued to a private armed vessel.
The “ act concerning letters of marque, prizes and
prize goods," certainly contains nothing to authorize D:STATES. this seizure.
There being no other act of congress which bears upon the subject, it is considered as proved that the legislature has not confiscated enemy property which was within the United States at the declaration of war, and that this sentence of condemnation cannot be sustained.
One view, however, has been taken of this subject which deserves to be further considered.
It is urged that, in executing the laws of war, the executive may
seize and the Courts condemn all property which, according to the modern law of nations, is subject to confiscation, although it might require an act of the legislature to justify the condemnation of that propertỳ which, according to modern usage, ought not to be confiscated.
This argument must assume for its basis the position that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovepeign power. This position is not allowed. This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.
The rule is, in its nature, flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political considerations which may continually vary.
Commercial nations, in the situation of the United States, bave always a considerable quantity of property in the possession of thrir neighbors. When war breaks out, the question, what sall be done with enemy property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of
our citizens. Like all other questions of policy, it is BROWN proper for the consideration of a department which can modify it at will; not for the consideration of a depart- U.STATES. ment which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary.
It appears to the Court, that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration
The Court is therefore of opinion that there is error in the sentence of condemnation pronounced in the the Circuit Court in this case, and doth direct that the same be reversed and annulled, and that the sentence of the District Court be affirmed.
In this case, I have the misfortune to differ in opinion from my brethren ; and as the grounds of the decree were fully stated in an opinion delivered in the Court below, I shall make no apology for reading it in this place.
“This is a prize allegation filed by the district attorney, in behalf of the United States, and of John Delano, against 550 tons of pine timber, part of the cargo of the American ship Emulous, which was seized as enemies' property, about the 5th day of April, 1813, after the same had been discharged from said ship, and while afloat in a creek or dock at New Bedford, where the tide ebbs-and flows.
From the evidence in this case, it appears that the ship Emulous is owned by the said John Delano, John Johnson, Levi Jenny, and Joshua Delano of New Bedford, and citizens of the United States. On the 3d day of February 1812, the owners, by their agents, entered into a charter-party with Elijah Brown as agent of Messrs. Christopher Idle, Brother and Co. and James Brown, of London, merchants, for said ship, to proceed from the port of Charleston, South Carolina, (where the ship then lay,) to Savannah, in Georgia, and there take on board a cargo of timber and staves, at a certain VOL. VIII.
BROWN freight stipulated in the charter-party, and proceed
with the same to Plymouth, in England, “ for orders to U.STATES. unload there or at any other of his majesty's dock-yards
in England." The ship accordingly proceeded to Savannah, took on board the agreed cargo, and was there stopped by the embargo laid by Congress on the 4th of April 1812. On the 25th of the same April, it was agreed between Mr. E. Brown and the master of the ship, that she should proceed with the cargo to, and lay at New Bedford, without prejudice to the charter-party. The ship accordingly proceeded for New Bedford, and arrived there in the latter part of May 1812, where, it seems, the cargo was finally, but the particular time is not stated, unloaded by the owners of the ship, the staves put into a warehouse, and the timber into a salt water creek or dock, where it has ever since remained, waterborne, under the custody of said John Delano, by whom the subsequent seizure was made, for his own benefit and the benefit of the United States. On the 7th November, 1812, Mr. Elijah Brown, as agent for the British owners, one of wiom, James Brown, is his brother,) sold the whole cargo to the present claimant, Mr. Armitz Brown (who it should seem is also his brother) fıs 2433 dollars and 67 cents, payable in nine months, for which the claimant gave his note accordingly. The master of the ship, Capt. Allen, swears that, at the time of entering into the charter-party, Mr. Elijah Brown stated to him that the British owners had contracted with the British government to furnish a large quantity of timber to be delivered in some of his majesty's dock-yards.
Besides the claim of Mr. Brown, there is a claim interposed by the owners of the ship Emulous, praying for an allowance to them of their expenses and charges in the premises.
A preliminary exception has been taken to the libel for a supposed incongruity in blending the rights of the United States and of the informer in the manner of a qui tam action at the common law.
I do not think this exception is entitled to much consideration. It is, at most, but an irregularity which cannot affect the nature of the proceedings, or oust the jurisdiction of this Court. If the informer cannot legal
ly take any interest, the United States have still a right, BROWN if their title is otherwise well founded, to claim a condemnation : Nor wonld a proceeding of this nature be deem- U.STATES. ed a fatal irregularity in Courts having jurisdiction of seizures, whose proceedings are governed by much more rigid rules than those of the admiralty. It is a principle clearly settled at the common law, that any person inight seize uncustomed goods to the use of himself and the king, and thereupon inform of the seizure; and if, in the exchequer, the informer be not entitled to any part, the whole shall, on such information, be adjudged to the king. For this doctrine we have the authority of lord Hale. Harg. law tracts, 227. And the solemn judgirent of the Court, in Roe v. Roe, Hardr. 185.—and Malden vi Bartlett, Parker, 105. The same rule most undoubtedly exists in the prize Court, and, as I apprehend, applies with greater latitude. All property captured belongs originally to the crown; and individuals can acquire a title thereto in no other manner than by grant from the
The Elsebe, 5. Rob. 173.-11. East, 619.- The Maria Francoise, 6 Rob. 282. This, however, does not preclude the right to seize; on the contrary, it is an indisputable principle in the English prize Courts, that a subject may seize hostile property for the use of the crown, wherever it is found ; and it rests in the discretion of the crown whether it will or will not ratify and consummate the seizure by proceeding to condemnation. But to the prize Court it is a matter of pure indifference whether the seizure proceeded originally from the crown, or has been adopted by it; and whether the crown would take jure coronae, by its transcendant prerogative, or jure admiralitatis, as a flower annexed by its grant to the office of lord high admiral. The cases of captures by noncommissioned vessels, by commanders on foreign stations, anterior to war, by private individuals in port or on the coasts, and by naval commanders on shore on unauthorised expeditions, are all very strong illustrations - of the principle. The Aquila, 1. Rob. 37.- The Twee. Gesuster, 2. Rob. 284, note.-The Rebeckah, 1. Rob. 227.
- The Gertruyda, 2. Rob. 211.--The Melonane, 5. Rob. 41- The Charlotte, 4. Rob. 282.- The Richmond, 5. Rob. 325.—Thorshaven, 1. Edw. 102.-Hale in Harg. lawi tracts, ch. 28. p. 245. And in cases where private captors' seek condemnation to themselves, it is the settled course of the Court, on failure of their title, to decree.