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have no standing in Court for the purpose of claiming THE the same.
PERRY, In support of this point he cited the following cases. MASTER. 2 Rob. 72, 77. The Walsingham Packet.-5 Rob. 28, 32. The Cornelis and Maria.--Rob348. The Recovery.
2. That all intercourse with the enemy being illegal, the vessel and cargo in question are subjected to confiscation as prize. The following cases were cited as going to establish this point. Duponceau's Bynkershoek p. 24. 5 Rob. 224, 253, 4. The Abby.id. 302. The Jonge Cassini.1 Rob. 208, 2:8. The Odin.-id. 178, 2:2. C use of the Fortuna, cited in the case of the Hoop:--Edwards' Alm. Rep. 32.
The Comet 1 Rob. 76. The Siinta Cruz.-id. 196. The Hoop.-id. 74, 89. The Ringende Jacob.-1 Bos. and Pul. 349. Case of the Louisa Margaretha, cited in Bell 4. Gibson.-8 Ť. R. 556. Case of St. Philip, cited in Potts v. Bel.-id. 561. Loril Kenyon's opinion.-3 Rob. Apx. B. p. 7, 294. The Higelique. Rob. 289, 355. The Venus.-id. 206, 251. The Nayade.- 1 Rob. 126, 150. The Vrow Judith.-id. 78, 93. The Betsey-id. 141, 170. The Neptunus.-id. 184, 219, Case of the Nelly cited in note to the case of the Hoop.-4 Rob. 161, 195. Madonna delle Gracie.-5 Rob. 141. Juffrow Catharina.
PINKNEY, on the same side.'
By the constitution of the United States, congress has power to declare war. War, in the present case, had been declared. After knowledge of the declaration of war, the Claimant fitted out a vessel to go to the enemies country to bring away his property. The voyage was accordingly prosecuted, and the property brought away. By this interconrse with the enemy the vessel and cargo are to be considered as having adhered to the enemy, and as being, pro hac vice, hostile.
With regard to the general principle, that trade with an enemy is illegal, there can be no doubt: the principle is recognized by the common law and by the maritime codes of all the European nations. By these laws all intercourse with an enemy, not sanctioned by the sovereign power, is prohibited. Tbis principle is founded on the strongest reasons.
Without this salu
THE tary provision, what a wide door would be opened RAPID, tor cvery species of treasonable intercourse. The EnPERRY, glish authoritics are almost omnipotent on this subject. MASTER. Vid. 8, T. R. 554, Potts v. Bell.
Sir J. Nicholl's argument, and the cases there cited. Many of these authorities are judicial decisions in casi's which occurred before the revolution. The principle contended for was therefore brought over, before that time, by the English emigrants to this country, and is consequently to be considered of equal force here as in England.
The doctrine, then, may be considered as established.
The voyage, in this case, was undertaken by Harrison with full knowledge of the war against his double duty-in violation both of the non-importation act and of the rizhts of war.
But the Appeliants have attempted to take a distinction between a purchase made before the declaration of war and a purchase made since; and they contend that, as the purchase, in the present casc, was made previous to the declaration of war, the property is not liable to confiscation, no trading having been carried on with the enemil. But all the cases on this subject condemn such a distinction. Any commercial intercourse with the enemy is trading, within the meaning of the term as used in prize law; and that. for the very obvious reason before assigned, viz: that if commercial intercourse of any kind were permitted, it would facilitate the means of carrying on a traitorous correspondence.
The case of Hallet v. Jenks, 3, Cranch, 210, cited by the Appellants, was a case of clear compulsion. The transaction in the present case was perfectly voluntary,
HARPER, in reply.
No case has been cited by the Claimant's counsel, in which there was not a trading with the enemy. Here, we contend, there was none. In the case of Escott, cited in the case of the Hoop, 1, Rob. 182, the goods were the product of a trade long carried on, and shipped under fictitious names. IIcre they were shipped openly, No circumstances of suspicion attended the transaction.
In some of the cases cited, part of the goods were purchased after the declaration of war. All the cases cited RAPID, are either new acts of trade, or a continuation of trade PERRY, in the regular course of employment of the parties, and MASTER. are also attended with circumstances of suspicion.
The mere act of going into the enemies' country is not illegal. Any man may go thither at any time, if the enemy will permit him. He violates no law of his own country by so doing. Those laws prohibit commercial intercourse only; and that, not because it gives an opportunity of affording information to the enemy and opens a door for the commission of traiterous practices, but because such prohibition is rendered necessary by the modern mode of warfare, which is intended to affect the enemy through his commerce. The principle and object of the rule, therefore, are not applicable to this case. The rule 'is contined to commercial transactions and commercial objects. If facility of treasonable intercourse were the reason on which the prohibition is founded, it would operate to prevent our citizens from going to the frontiers, or even towards them, an operation which was surely never intended to be given it. The question to be considered in every case of this nature is this: has the privilege of going to the enemics' country been applied to improper purposc3?
Monday, March 7th. Absent.... Topp, J.
JOHNSON, J. delivered the opinion of the Court as follows:
This capture was made on the high seas, about a month after the declaration of war. The Claimant, Harrison, had purchased a quantity of English goods in England,“ a long time," to use his own language, before the declaration of war, and deposited them on a small island, called Indian island, near to the line between Nova Scotia and these states. Upon the breaking out of the war, his agents in Boston hired the Rapid, a licensed vessel in the cod-fishery, to proceed to the place of deposit and bring away these goods. On her return, she was captured by the Jefferson privateer, and was condemned for trading with the enemy's couintry.
On the argument, it was contended, in behalf of the RAPID, Appellant, that this was not a trading within the meanPERRY, ing of the cases cited to support the condemnation; that, MASTER, on the breaking out of a war, every citizen had a right,
and it was the interest of the community to permit her citizens, to withdraw property lying in an enemy's country and purchased before the war; finally, that neither the declaration of war, nor the commission of the privateer authorized the capture of this vessel and cargo, as they were, in fact, American property.
It is understood that the claim of the United States for the forfeiture is not now interposed. The Court, therefore, enters upon this consideration unembarrassed by a claim which would otherwise ride over every question now before us.
This is the first case, since its organization, in which this Court las been called upon to assert the rights of war against the property of a citizen. It is with extreme hesitation, and under a deep sense of the delicacy of the duty which we are called upon to discharge, that ive proceed to adjudge the forfeiture of private right, upon principles of public law highly penal in their nature, and unfortunately too little understood.
But a new state of things has occurred—a new characier has been assumed by this nation, which involves it in new relations, and confers on it now rights; which imposes a new class of obligations on our citizens, and subjects them to new penalties.
The nature and consequences of a state of war must direct us to the conclusions which we are to form on
On this point there is really no difference of opinion among jurists : there can be none among those who will distinguish between what it is in itself, and what it ought to be under the influence of a benign morality and the modern practice of civilized nations.
In the state of war, nation is known to nation only by their armed exterior ; each threatening the other with conquest or annihilation. The individuals who com
pose the belligerent states, exist, as to each other, in a
THE state of utter occlusion. If they meet, it is only in combat. RAPID,
PERRY, War strips man of his social nature ; it demands of MASTER. him the suppression of those sympathies which claim man for a brother; and accustoms the ear of humanity to hear with indifference, perhaps exaltation, that thousands have been slain."
These are not the gloomy reveries of the bookman. From the earliest time of which historians have written or poets imagined, the victor conquered but to slay, and slew but to triumph over the body of the vanquished. Even when philosophy had done all that philosophy could do to soften the nature of man, war continued the gladiatorian combat : the vanquished bled wherever caprice pronounced her fiat. To the benign influence of the Christian religion it remained to shed a few faint rays upon the gloom of war; a feeble light but barely sufficient to disclose it horrors. Hence,, many rules have been introduced into modern warfare, at which humanity must rejoice, but which owe their existence altogether to mutual concession, and constitute so many voluntary relinquisliments of the rights of war. To understand what it is in itself, and what it is under the influence of modern practice, we have but too many opportunities of comparing the habits of savage, with those of civilized warfare.
On the subject which particularly affects this case, there has been no general relaxation. The universal sense of nations has acknowledged the demoralizing effects that would result from the admission of individual intercourse. The whole nation are embarked in one common bottom, and must be reconciled to submit to one common fate. Every individual of the one nation must acknowledge every individual of the other nation as his own enemy-because the enemy of his country. It is not necessary to quote the authorities on this subject; they are numerous, explicit, respectable, and have been ably commented upon in the argument,
But, after deciding what is the duty of the citizen, the question occurs, what is the consequence of a breach of that duty ? VOL. VIII.