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THE tion to go thither; and it is a well known rule of law ALEXAN- that the bare intention to commit an illegal act is not
DER, punishable. Again, it cannot be contended that the PICKET, sailing to Ireland was illegal, as the vessel was forci. MASTER. bly carried in there by the enemy.
3. This is a case, which comes within the additional instruction of the president of the United States to our public and private armed vessels, issued August 28th, 1812. That 'instruction prohibits the interruption, by our public and private armed vessels, of “ any vessels belonging to citizens of the United States, coming from British ports to the United States laden with British merchandize, in consequence of the alleged repeal of the British orders in council.” Kehew, the commander of the privateer, bad received this instruction.
As to the power of the president to issue such instructions, there can be no doubt. Even if there were no act of Congress relating to the subject, the general power of the executive to direct all hostile operations, gives him the particular power in question. But congress has sanctioned the instruction in question by the proviso contained in the 1st sec. of the act of 13th July, 1813. Laws U. States, vol. 12, p. 16.
But it will be said, perhaps, that this instruction is applicable only to vessels sailing from a British port after the repeal of the orders in council, and before the knowledge of the war. Such a construction is erroneous. By the act of congress last mentioned it is pro ided, That nothing in the said act con: tained shall extend to any capture made by private armed vessels, in violation of the additional instructions of the president of 28th Aug. 1812, after the captor “ shall have been” apprized thereof. From the use of the phrase, * shall have been," it is clear that the instructions were in force as late as the date of the act of 13th July, i. e. nearly a year after the instructions in question were first given by the president. Government also continued to issue these instructions to the privateers, up to the time of the trial of this cause in the district Court, and afterwards. Now to what vessels coming from a British port and laden with British merchandize, could
those, instructions apply which were issued more than a year after the declaration of war? Surely not to ves- ALEXANsels which sailed while the orders in council were sup DER, posed to be repealed, and which had not heard of the PICKET, war : it would be absurd to suppose that there were MASTER. any such, so long after the event had taken place. The instructions, therefore, must be considered as having been originally intended to apply to vessels sailing with a knowledge of the war, as well as to those sailing without that knowledge. Again, what was the great object government had in view in issuing these instructions ? No doubt to give our citizens an opportunity of withdrawing their property from the enemy's country, and bringing it to the United States. Our citizens had immense funds in England. The whole commercial capital of the United States was there. It was an object of vast importance to get it home; and so long as Great Britain would permit us to withdraw it, it was our interest to afford to our citizens every possible facility in aid of that permission. This was the policy of our government, and this the source of the instructions.
3. This was not a capture jure belli. The eruizcr was afraid of running the risk of damages for an illegal capture. An understanding was, therefore, had be tween the parties, which was considered as being mutually beneficial, that the captor should preserve his claim to any British goods which might be found on board, and that the residue should remain to the Claimants. A single man only, not a prize crew, was put on board the Alexander. The prize master' alone was utterly unable to secure the vessel against a rescue, should oné be attempted. He was utterly unable to bring her into port, without the aid of the hands originally belonging to her. How, then, can it be considered as a capture ? But if the Court should finally decide it to be a capture, we shall contend that it was only partial, a capture of the British goodş only.
PITMAN, contra, contended, on behalf of the captors,
1. That Samuel Welles being in England at the time of the purchase of the cargo, he is to be presumed there animo manendi, and is clothed with a British character.
2. That the suppression of papers connected with the ALEXAN- origin of the voyage, affords a sufficient presumption of
DER, a concealment of enemy interests, to subject the vessel
3. That the vessel and cargo, being taken in trade
As to the first point. It appearing that S. Welles was residing in England at the time of the purchase of the property in question, it is incumbent on him to explain the circumstances of his residence there. This has not been done. The presumption, then, must be that he was in England animo manendi ; that the property was, of course, hostile and liable to condemnation. i.
103. The Bernon.
On the second point little need be said. Suppression of papers is always a suspicious circumstance. In the present case it will, no doubt, have its due weight with the Court.
Third point. That here was an actual trading with the enemy, the claimants do not attempt to deny ; but they would justify it on the ground of necessity. They say that the vessel was captured by the enemy and carried into Ireland, where she was compelled to sell her cargo, and had no other means of securing the proceeds, but by laying them out in the purchase of British goods. This plea of necessity comes with a very bad grace from the Claimants. If there were any necessity, it was une voluntarily brought upon themselves. They voluntarily, and, as we contend, unnecessarily, placed themselves and their property in the power of the enemy, after a knowledge of the war; and can therefore claim no indulgence on the ground of necessity.
The cases which have been cited in which sir William Scott speaks with indulgence of withdrawing funds, are inapplicable to the present case. Where the withdrawing of funds is spoken of, those funds only are meant which were in the enemy's country before the war; which was not the case here. Besides, the cases cited depend not on trade with the enemy, but on domicil.
A license to withdraw the property would not have been granted in such a case as the present, in England. The ALEXAN. president of the United States, acting on English prin DER, ciples, could not have granted a license, supposing him PICKET, to have the same power in relation to the subject which MASTER. the king of England has. But he has no such power. Congress has not invested him with it, though they might have done so; and this Court, it is presumed, will not undertake to say that the present is a case in which a license would have been granted, supposing the president to have possessed the power. No such power, then, having been granted by congress, it is to be presumed that they did not intend there should be any exception to the general rule, that trade with the enemy is unlawful.
But it has been urged that this case comes within the president's instructions of 28th of August, and that this capture, being in violation of those instructions, is void. The vessels contemplated by those instructions are described as vessels coming from British ports, “in consequence of the alleged repeal of the British orders in council.” Now it is clear that the Alexander did not sail from the enemy's port in consequence of that alleged repeal ; she cannot, therefore, be within the meaning of the instructions.
The delivery of the instructions to cruizers, after the case contemplated by them no longer existed, is quite unimportant, notwithstanding the great stress which has been laid upon that circumstance by the Claimants. The thing is very easily accounted for. The instructions may have continued to be issued through mere inattention : but the counsel for the Claimants, in the explanation which he has attempted, bas given to them a construction in direct hostility both with their letter and spirit..... See letter from the secretary of state to Mr. Russel, of August 21, 1812, accompanying the president's message of Dec. 1812.
It bas been also contended that there was no capture. But here is the property before the Court, and we trust they will not restore it, unless non-capture be fully proved; and even then there can be no restoration unless the Claimants prove their right; which they have not
yet done. They have produced no title papers, no ALEXAN- documents whatever, proving property in themselys.
DER, PICKET, On this point of non-capture, which was insisted on MASTER. in the Courts below, the District Court ordered further
- proof. We contend,
1. That as the preparatory examinations prove a capture, no further proof should have been ordered.
2. That the further proof establishes the fact of the capture.
3. That the proof upon this order offered by the Claimants, was inadmissible, being the depositions of the captain and mate, who were examined in preparatory.
As to the putting ne prize crew on board, that is a circumstance which in no degree alters the nature of the case; it is not essential to capture. The capture is always made before either a prize master or crew are put on board ; and if the circumstances of the captured vessel be such as to do away all apprehension of rescue, and inspire confidence that the crew will bring her into port, there is no reason why the property of the captor may not be retained as well by a prize master alone, as by a considerable crew. The object, in such cases, in putting a prize master on board, is merely to keep possession, and shew that the vessel is not abandoned. 6 Rob. 21. The Resolution. 4 Rob. 316, 386. The William and Mary.
PINKNEY, on the same side.
If the declaration of war is to be considered as confining captures to property belonging to British subjects, inunicipally speaking, there is an end of the belligerent rights of the United States upon the ocean. But it is not so to be considered; it is to be construed by the law of nations.
The Claimants seemingly deny that there was any capture in this case; but they in fact contend, not for non-capture, but abandonment. We contend that there was a capture, and that it has not been abandoned. It