THE

the country of the enemy and return home, are inapplicable, or apply but feebly, to citizens of this description. VENUS, Yet I think it is not for the United States, in such a case as this, to discriminate between them.

I will not pretend to say what distinctions may or may not exist between these two classes of citizens, in a contest of a different description. But in a contest between the United States and the naturalized citizen, in a claim set up by the United States to confiscate his property, he may, I think, protect himself by any defence which would protect a native American. In the prosecution of such a claim, the United States are, I think, if I may be excused for borrowing from the common law a term peculiarly appropriate, estopped from saying that they have not placed this adopted son on a level with those born in their family.

LIVINGSTON, J. concurred in opinion with the Chief

Justice.

RAE,

MASTER.

THE MERRIMACK.

THIS was an appeal from the decree of the Circuit Goods purchaCourt for the district of Maryland.

The following are the material facts of the case:

sed by British merchants, before the war,

between the

United States and Great Bri

ance of orders

agent of the

The ship Merrimack, owned by citizens of the United tain, in pursuStates, sailed from Liverpool for Baltimore, a few days from Ameriafter the declaration of war, by the United States can citizens, against Great Britain, was known in that country, shipped to the having on board a cargo of goods shipped by British British mersubjects, and consigned to citizens of the United States. chants in the On the 25th of October, 1812, she was captured, in the also an AmeriUnited States, Chesapeake bay, between Annapolis and Baltimore, by can citizen, the private armed vessel Rossie, Joshua Barney, com- and risk of an

mander.

on account

American citizen," and no circumstances

The goods, being libelled as prize in the District of fraud or an

THE MERRIMACK.

fairness appearing in the transaction

were vested in

the American citizens at the time of the

Court of Maryland, were severally claimed by sundry citizens of the United States.

These several claims, and the circumstances connected with them respectively, were thus stated by MARSHALL, Ch. J. in delivering the opinion of the Court:

1. William and Joseph Wilkins, merchants of Baltimore, claimed the goods contained in eleven cases and shipment, and one bale marked W. J. W.

are not liable

to condemna

tion, although

ed from En

These goods were made up for them, in pursuance the vessel sail- of their orders, before the war was known in Great gland after the Britain, by a manufacturing company, one member of declaration of which, Thomas Leich, resided in Leicester, in Great Britain, and the other, Edward Harris, was an Ameri

war was known

there.

Resti

tution. can citizen residing in the United States.

But if goods be purchased as

above, though

The bill of parcels was in the name of Messrs. Wilthe accompa- liam and Joseph Wilkins. This paper also served for nying invoices, bills of lading an invoice, and there was no other on board for these and letters be goods.

addressed by

the British consignors to

The bill of lading was in the name of Edward Har

the American ris, who was the consignee.

citizens for

whom the pur

chase was

made, and all

yet if these

letter from the

The goods were accompanied by a letter from Thoconcur to show mas Leich to Edward Harris, dated Leicester, the 29th the property of July, 1812, in which he says, "With this you will to be in them, 66 receive bill of lading of 11 cases of worsted and cotton documents are hosiery for Messrs. W. and J. Wilkins, Baltimore, inclosed in a 6 and with insurance to 8921. 5. It is a large sum, consignors to ❝but, from what I can learn, they are very respectable. Indeed Mr. Brown of the house of Chancellor & Co. came with him, and seemed almost offended that did not send the cotton hose he ordered before, and said he would guarantee the amount of the worsted goods, therefore must have offended him if did not comply. Have not sent but about half the cotton goods they "ordered," &c. "informed them that we thought it "necessary to secure our property to ship all to you, "as you could prove that they were American properreceived pay. "ty by making affidavit they are bona fide your properment from the ty. As our orders in council are repealed, hope your consignees in eash the pro- 66 government will be amicably inclined as well, and

their agent in the U. States, 6 though an American citi zen, directing liver the goods in case of the

him not to de

existence of certain circumstances,

nor until he should have

THE

MACK.

"that trade will be on regular footing again, but for "fear there should be some other points in dispute, I MERRI"shall send you, and our friends through your hands, "all the goods prepared for your market which you'll "perceive is very large." "Hope you will approve "of my sending all, and as there may have been some "alterations in some of your friends, shipping them to "you gives the power of keeping back to you."

perty in the said goods conBritish continued in the signors at the time of cap

ture. Con

Goods by the same ship,

There was also on board, a letter dated Leicester, demnation 22d July, 1812, signed Harris, Leich & Co. and addressed to Messrs. Wm. and Joseph Wilkins, mer- purchased as chants of Baltimore, in which they say, "The repeal above, & con❝of the orders in council having been agreed on by our agent of the signed to the "government, we have availed ourselves of the oppor- consignors, be"tunity of sending the greater part of your spring and ing an Ameri

can citizen, in

"fall orders," &c. "As we are not certain that your whose name "government will protect British property, we have also the bill of "thought it right to ship all ours under cover to Mr. out, but the lading is made ❝ Harris, who can claim as his own bona fide property, bill of parcels and he, being a citizen of the United States, thought the name of and invoice in • proper to use every precaution, having received some the American unpleasant accounts about your government having whom the "agreed on war with this country, which we hope will purchase was "not be the case.' 99

66

merchants for

made; the shipment also being express

their account,

2. M.Kean and Woodland, citizens of the United ed to be on States, claim sundry parcels of goods, part of the same though the cargo, as their property.

goods are spoken of in the letter of the

perty; vested

These goods were purchased by Baily, Eaton and consignors as Brown, merchants of Sheffield, in pursuance of orders British profrom the Claimants. They were shipped to Robert in the AmeriHolladay, also an American citizen. The bill of lading can merchants was to Robert Holladay, "on account and risk of an shipment. American citizen." The invoice was also headed to The circumRobert Holladay.

at the time of

stance that the goods conti

nue, during

A letter from Baily, Eaton and Brown to Samuel the whole voyMcKean, dated 11th July, 1812, says, "A few days of the shippers, age, at the risk ❝ago we received a letter from Mr. Rogerson, of New is immaterial. "York, informing us that the partnership of Messrs. Restitution. "M⚫Kean and Woodland was dissolved, but he does

not say whether you or Mr. Woodland continue the ❝business, or whether both of you decline it. We have ❝ purchased about 3,000l. sterling of goods by order of

THE NERRIMACK.

"the late firm, and on their account, most of which "have been purchased and paid for by us, from fifteen "to eighteen months ago, and have been on our hands "waiting for shipment. We have this day given orders "to our shipper at Liverpool, to put them on board a “good American vessel sailing for your port with a "British license; but from the uncertainty we are in "respecting the particulars of your dissolution of part“nership, and, in fact, not knowing whether to consign "them to you or Mr. Woodland, we have finally con"cluded to consign them to Mr. Holladay, with whom 66 you will be pleased to make the necessary arrange❝ments respecting them." "We have addressed the "invoice to Mr. Holladay to your care; and directly ❝on receiving it, if he should not be in Baltimore, you "will please advise him of its arrival."

The residue of the letter contains their reasons for hoping that Mr. McKean will not insist on the usual credit, but will remit immediately on receiving the goods. This request is founded on their having been so long in advance for the purchase of them.

Messrs. Baily, Eaton and Brown addressed a letter to Mr. Holladay, dated the 10th of July, 1812, in which they say, "Enclosed you will receive invoices of sundry "goods for Messrs. M'Kean and Woodland, which "complete their orders." They then assign the same reason for shipping the goods to Mr. Holladay, that is given in their letter to Mr. M'Kean; and, after directing him to arrange with Mr. McKean, add, “We can"not view this consignment at all in the light of an in"tercepted shipment coming within the meaning of the "articles of agreement between you and us." letter also contained a proposition for immediate remittance, founded on the time which had elapsed since the goods were purchased. This proposition, they say, is made to all their friends in the United States, and they hope none will refuse to accede to it. "But," they add," in thus acting, we have left the matter to the free and unbiassed will of our friends, and they are certainly upon honor."

This

3. Messrs. Kimmel and Albert, merchants of Baltimore, claimed seven packages of goods on board the

Merrimack, which were purchased, in pursuance of their orders, by Baily, Eaton and Baily. The invoice, bill of lading, and letters, addressed (one by the consignors and the other by the shipper, who was their agent) to Messrs. Kimmel and Albert, concur in showing property in the Claimants. But all these documents and letters are inclosed in a letter of the 5th of August, 1812, written by Baily, Eaton and Baily to Samuel McKean. In this letter, the writers refer to a former letter of the 3d of July, in which they informed Mr. M⚫Kean that they should, on the recommendation of their general agent, Mr. Hollaway, inclose their invoices and bills of lading for the adjacent country to him, and requested him to make inquiries into the circumstances of their correspondents, and be regulated, as to putting the letletters, &c. into the post-office so as to reach the persons to whom they might be addressed, by the result of those inquiries. Messrs. Baily, Eaton and Baily indulge the hope that the repeal of the British orders in council will restore peace between the two countries, in which event M Kean is still to be governed by their letter of the 3d of July. "But," they add, " if, when ❝you receive our invoices and bills of lading, a state

of war should really continue, it will be proper not "to deliver these goods until you have received the amount of the invoices from the consignees, in cash."

4. John H. Browning & Co. were also Claimants of part of the cargo.

This claim stood on precisely the same principles with that of Kimmel and Albert. The documents given in evidence, were, in effect, the same, and were enclosed in the same letter from Baily, Eaton and Baily to Samuel McKean.

It was contended by the captors, in the District Court, that, from the papers and letters on board, it appeared that the goods were not sold and delivered in England, -so as to vest the property in the Claimants, but were sent to the agents of the shippers in the United States, -to be delivered or not, according to their discretion: consequently, that the property was not changed, and the goods, therefore, were liable to capture as British pro~perty.

VOL. VIII.

THE

MERRI

MACK