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2d. The instructions themselves.

THE

RAPID, 1st. The United States did not mean to relinquish PERRY, the broad ground of jus belli, as to British property MASTER. coming to the United States.

The declaration of war and the prize act, being subsequent to the non-intercourse law, are to be considered as having abrogated or superseded that law.

But if this should not be admitted, we contend that these acts may exist together without any inconsistency. There is room enough for the non-intercourse and the prize act both. It has been decided by this Court, that trading with the enemy is, per se, a ground of confiscation. There, then, the prize act may operate. But many hostile cargoes may escape capture, and reach the United States. Many such cargoes may be imported by neutrals. Here is room for the operation of the non-intercourse act.

The act of 13th July, 1813, relinquishing to the captors the claims of the United States to the captured property, is conclusive to show that the United States did not mean to relinquish the rights of war. That act describes the property to which the United States give up their claim, as property captured on the high seas, without limitation.

2d. As to the president's instructions. These instructions do not apply to vessels sailing after knowledge of the declaration of war.

But we contend that the president, not having the power of war and peace, had no authority to give such instructions: he could only control the privateers by the power he had of revoking their commissions. There is a difference between his power over these vessels and his power over the public armed ships of the U. States.

The prizes taken by privateers under the prize act, are forfeitures, and are to be appropriated differently from those captured under the non-intercourse act.

To show that the capture, and not the condemnation,

is the foundation of the captor's right of property, the, Court is referred to 1, Wils. 211, Morrough v. Comyns.

THE RAPID, PERRY, MASTER

IRVING, contra.

By the 3d section of the prize act, privateers are bound to observe all the laws of the United States. Supposing, therefore, the non-intercourse act to have been in force, they had no right to seize for a violation of that act. Besides, the mode of prosecution under the non-intercourse act is essentially different from that directed to be pursued under the prize act. There is also a difference in the manner of distributing the captured property.

PINKNEY. The rights of the captors depend not upon the non-intercourse act. Both that and the prize act may be in force at the same time, and operate on the same thing. The first seizure decides which mode of condemnation, &c. shall be adopted.

HARPER, in reply.

There is a distinction between importations made by citizens of the United States, and those made by foreigners. The latter cannot be affected by the non-intercourse act, until the goods have arrived within the United States. They commit no offence till the goods are actually imported. But with regard to citizens of the United States, the case is different. They are guilty of a violation of the act by the mere shipment of prohibited goods in a foreign country, with intent to import the same into the United States. The law, as to them, has an extra-territorial operation ; it binds them wherever they are. By the shipment, therefore, at In-. dian island with intent to import into the United States, the property in the present case, was immediately forfeited ; and the right of the United States to the forfeiture, at that moment became complete.

For the opinion of the Court on the foregoing question, respecling the claim of the United States, under the non-intercourse act, see the opinion in the case of the Sally, delivered by STORY, J. 15th March, 1814, in which the Court decided in favor of the captors.

THE ALEXANDER, PICKET, MASTER.

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THIS was an appeal from the sentence of the Cir- A vessel, owti. cuit Court for the district of Massachusetts.

ed by citizens of the United

States, sails The following were the material facts in the case :

from Naples, in the year

1812, for the The brig Alexander, William S. Picket, master, sail- United States,

with a

cargo ed from Naples, on the 22d June, 1812, with a cargo

and a British of brandy, wine and cream of tartar, with a British li- license to carcense to carry the same from Naples to England. She ry. the same

to England. touched at Gibralter, and there left her deck-load, con-On her

passisting of brandy, and sailed from thence for the Uni. sage, hearing ted States. On the 3d of August, 1812, she received that war had intelligence of the war between the United States and tween Great Great Britain, and changed her course for England. Britain and the She was afterwards captured by the British, and sent she alters her:

for into Cork, Ireland, and acquitted, and there disposed course of her cargo. After seven months detention in Cork, captured by she proceeded to Liverpool, in ballast. At Liverpool, the British, she took in the cargo in question, purchased by Samuel carried into Welles, one of the Claimants, then in England, from led, and acthe proceeds of the cargo brought from Naples, and quitted upon

her license; sailed from Liverpool for Boston, May 9th, 1813. On sells her cargo, the 2d of June following, she was captured by the priva- and, after a de teer America, John Kelew, commander, and libelled, as

ven months in prize, in the district of Massachusetts.

Ireland, purchases a re

turn cargo in When the Alexander sailed from Naples, she and her Liverpool, cargo were owned, one half by the Claimants, and the sails for the

United States, other half by W. and S. Robinson, of New York.

and is captured by a United

States' privaThe master, on his examination upon the standing teere vessel interrogatories, stated that the vessel belonged to J. and and cargo con,

:

demned as S. Welles and W. and S. Robinson.

prize to the

captors. He also stated that, on his arrival in the United Capture good, States, he delivered to the chief clerk of J. and S. Welles, prize master of Boston, bills of lading, invoices and letters relating put on board. to the vessel and goods. These papers were never produced by the Claimants.

tention of se.

1

John Welles, of Boston, claims the vessel and cargo
VOL. VIII.

22

THE

for himself and Samuel Welles, alleging that Samuel ALEXAN- Welles, in London, purchased, on their joint account,

DER, of the agent of W. and S. Robinson, their balf of the
PICKET, brig and the proceeds of the Naples' cargo, before the
MASTER. purchase of the cargo in question. The United States,

also, interposed a claim to the vessel and cargo, as for-
feited under the non-importation act.

1

In the district Court the claim of J. and S. Welles was rejected, and the property condemned to the United States. From this decree the captors and Claimants appealed.

In the Circuit Court the property was condemned to the captors. From this decree the United States and the Claimants appealed.

Rusu, Attorney General, stated that it was not the intention of government to interpose.

DEXTER, for Claimants.

There being no general rule of the law of nations, that every trading with the enemy is unlawful, and there being no municipal law on the subject, an American citizen, surprized abroad by an unexpected war, has a right to use all necessary means to save his property and to secure his return home, provided the means used for that purpose be not inconsistent with the interest of the nation to which he belongs. All the means employed in the present case were necessary to save the property in question: and were so far from being inconsistent with the interest of the United States, that they clearly tended to the national benefit.

That there is no general rule of the law of nations prohibiting all trade with the enemy, is a proposition which probably will not be controverted. Even sir William Scott does not deny the right to withdraw funds, upon the breaking out of a war; he allows that cases of this kind are entitled to be treated with indulgence : he only holds, that if a particular mode of withdrawing funds has been prescribed by the municipal law, as by license, for instance, the person who pursues a different mode is punishable. He has, however, expressly de

cided, that where circumstances rendered it impossible THE for the party to obtain a license, there the property ALEXANshall not be condemned, if it be a case where a license DER, ought to have been granted, if applied for. 2, Rob.' PICKET, 264, 322, the Harmony. 3, Rob. 37, 38, the Citto. 5, MASTER. Rob. 90, the Ocean. 4, Rob. 193, 234, the Dree Gebroeders.

No man is bound, on the breaking out of a war, to abandon his property to the enemy; and if no tribunal is established to decide in what cases property shall or shall not be withdrawn, every man must judge for himself.

In the case of Hallet v. Jenks, 3, Cranch, 210, there was an entire prohibition of trade; a prohibition more complete than any one which results from any provision of the law of nations ; yet this Court decided, in that case, that the party being forced into the prohibited port, and obliged by the public authorities of the place to sell, he might purchase a return cargo. In the present case, the captain of the Alexander, hearing of the war and believing it impossible to reach the United States without capture, conceived himself to be under the necessity of changing his course for England, or losing his vessel and cargo ; and, having a license, he determined to deceive the enemy. Being captured by a British cruizer and carried into Ireland, he was libelled, but acquitted upon his license. He was compelled to sell his cargo. What was he to do with the proceeds? Suppose he had sold for bank bills-must he bring them to this country? He could not bring specie; it is prohibited. The only way in which he could withdraw his property was to purchase a return cargo and obtain another license. This course he pursued : and we conceive that he was perfectly justified in so doing. The motivcs for withdrawing his property, after acquitted, were strong, one among others which might be mentioned was the danger that the deception he had practiced upon

the
enemy

would be detected.

2. But allowing, for the sake of argument, that sailing to England after a knowledge of the war, would have been an illegal act-it is clear, in this case, that there' was no sailing to England; there was only an inten

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