commencing to return, until August 1813, when he engaged a passage on board the Robert Burns.

THE FRANCES, (THOMPAs to the 66 boxes of merchandize, the moiety of soN & AL. which was still claimed by Robert and James Thomp- CLAIson and William Steele, they prayed, on bringing up MANTS,) the cause to this Court, to be allowed to make further BOYER, proof of their property in the said goods; and offered, MASTER. as further proof, the affidavit of James Thompson that they were the joint property of the house of Dalgleish and Frame and of Messrs. Thompsons and Steele, under a contract made by two letters which were exhibited, and which he said were original. In addition to this, James Thompson swore that he gave his bill for the moiety of these goods, which bill he had paid, and that he was prevented from notifying this contract to his partners in his letter to them, by the hurry produced by the shipment. The Claimants offered, also, the affidavit of William Steele, stating that, some time after the papers of the ship Frances were opened, he received the invoice and letters annexed to his affidavit in an envelope with some other papers. That the letters were in the hand-writing of John Frame and James Thompson. That, before he received them, he was convinced, from the marks, that the goods in the invoice were, in some respects, the joint property of his house and of Dalgleish and Frame; which fact he stated, to the agents of the captors as well as the judge of the Circuit Court, at the trial in June, 1813; and that James Thompson was in the habit of taking goods on joint account from houses in Scotland, and sending them to the house in America, without specifying whe ther they were on joint account or on commission.

The letters referred to, were, one from Dalgleish and Frame, dated Glasgow, 27th June, 1812, and addressed to Mr. James Thompson, Glasgow, in which they say the goods were printed in consequence of his orders; and express a hope that he will take the whole contained in the invoice; or, if not, that he will allow them to go to his house on joint account. The other was a letter addressed to Messrs. Dalgleish and Frame, signed James Thompson, and dated Glasgow, 1st July, 1812, in which he acknowledges the receipt of their letter of the 27th of June, 1812, and says, that as there are VOL. VII.

43.

THE great many more goods in the invoice than he had orFRANCES, dered, and as he did not wish to take so large a quanti(THOMP- ty, he would send them on joint account.

SON & AL.

CLAI- The invoice, or rather bill of parcels, is dated GlasMANTS,) gow, 27th of June, 1812, and was headed" Messrs. R. BOYER, and J. Thompson and W. Steele bought of Dalgleish MASTER. and Frame.”

1

The affidavit of John Frame, taken in Glasgow, was also exhibited, in which he swears that the goods are the joint property of Messrs. R. and J. Thompson and Wm. Steele and of Dalgleish and Frame.

Such was the further proof offered.

In the Frances were two letters from James Thompson to Wm. Steele. The first was dated Glasgow, July 13th, 1812, in which he says "I annex a list of goods consigned by the Frances. These consignments are the safest and surcst trade for us, and it was from this conviction that I allowed of so many consignments." In the annexed list of consignments, referred to in the foregoing letter, were the goods shipped by Messrs. Dalgleish and Frame. In this letter, he writes on the business of the house, speaks of the consignments generally, recommends that the goods should be promptly sold at the market price, and accounts of sales returned; but makes no allusion to any interest in the goods of Dalgleish and Frame.

IRVING, for Appellants, after stating the facts of the case, and the claim of Robert and James Thompson and William Steele, contended,

That British property shipped on board an American vessel, before a knowledge of the war, was not liable to capture, either under the laws of the United States or the president's instructions to the commanders of privateers. That the commissions issued by the president to the private armed vessels of the United States, only authorized them to seize, 1st. British vessels and the property found on board: 2d. All property liable to capture by the laws of war; and that the property, in the present case, did not come under either of these de

THE

scriptions. Acts of congress of June 18th, and June 26th, 1812, Laws U. S. vol. 11, p. 227 and 238. See, also, FRANCES, the instructions of the president to the private armed ves- (THOMPsels of the United States.

SON & AE.

CLAI

Enemies' property in possession of the nation de- MANTS,) claring war, at the time of the declaration, is not liable BOYER, to seizure as prize of war: it can only be sequestered MASTER. by municipal regulation. The Court having jurisdiction in cases of this kind, sits as a municipal, not as a 5 Rob. 207, prize Court. 1 Rob. 238, The Rebeckah. The Boeders Lust. 2 Azuni, 224.

The property, in the present case, is to be consider. ed as committed to the public faith The circumstances under which it was shipped, and afterwards sailed, were very peculiar. The non-intercourse act and the several acts supplementary thereto, the revocation of the French decrees, the president's proclamation of 24 November, 1810, the letter of the American secretary of state (Mr. Monroe) to Mr. Foster, the British minister, under date of July 26th, 1811, the revocation of ́the British orders in council, and the assurances of Mr. Russel, the American charge d'affaires in Great Britain, presented a state of things on which the British merchants, and the American merchants in Great Britain, confidently relied for the security of their property shipped, under these circumstances, to the United States.

This doctrine, that the property of an enemy, found in the country at the breaking out of a war, is under the safe-guard of the public faith, is a principle of the common law. In England, property in this situation would not be condemned. Enemy goods which came down the Baltic, and were landed in England before a knowledge of the war, have been there held to be safe, Magna charta itself recognizes the principle. By the rule of reciprocity, therefore, protection ought to be extended by the American government to the property now in dispute.

It is said that we have not a standing in Court, that James Thompson is an alien enemy, and that an alien enemy cannot support a claim of this kind. But we

THE say that, admitting James Thompson to be an alien FRANCES, enemy, his agent in this country may have a standing (THOMP in Court, if the property in question be divested of its SON & AL. hostile character, which we contend is the case here. CLAI- 5 Rob. Nostra Madonna delle Gracie. 6 Rob. 1. id. 21, MANTS,) The Marianne. 2 Rob. 135, The Packet de Bilboa.

BOYER, MASTER.

But if these goods be hostile property, and the Claimants, on that account, have no right to them, still, we contend, the captors cannot support their claim: The property of the goods, if not in the Claimants, is in the United States, and liable to seizure under the non-intercourse act of March 1, 1809; which act is neither repealed by nor merged in the act declaring war, nor any other act. Laws U. S. vol. 9, p. 243. § 5, § 8, and § 18, of the act. The 3d sect. of the prize, act, (Laws U. S. vol. 11, p. 239,) requires that all the laws of the United States, then in force, be observed by the owners, officers and crews of privateers. The non-intercourse act was one of the laws of the United States then in force. The second set of instructions to the privateers of the United States, (issued 6th August, 1812,) interdicts the capture of American vessels having on board British goods: They are to be seized by the collectors of the respective ports. The United States have always asserted their prior right to such property. (See the circular letter from the comptroller of the treasury, of October 16th, 1812.) They have chosen to municipalize it-to reserve it to themselves Congress has resisted every attempt to the repeal the non-intercourse. The act of July 13th, 1813, (Laws U. S. vol. 12, p. 14,) shows that the United States have not relinquished their claim to property situated like that now in dispute. Their relinquishment only goes to such property as should be condemned as prize of war.

As to the first instructions of the president, they only authorize the private armed vessels of the United States. to capture eneiny property on board neutral or hostile yessels, and not that found on board American vessels returning to the United States, flying before the storm of war, and seeking the protection of their country. See of 26th

the circular letter of Mr. secretary G See

August, 1812. The second set of instructions, before referred to, prohibit the capture of American vessels returning to the United States with British property ship

CLAI

ped after the repeal of the orders in council, and before THE the declaration of war was known in England. These FRANCES, instructions were operative as soon as issued, and were (THOMPthe law for all the privateers of the United States. They soN & AL. made a cessation of hostilities as to the property above described; which if thereafter captured by a privateer, MANTS,) would be restored to the owners. The captors would BOYER, only be relieved from the payment of damages and 'MASTER. costs. 2 Azuni, 229, 230, 355, 263.-2 Dallas, 40. Bain v. Schr. Speedwell.-1 Rob. 154. The Mentor.

We would now, on behalf of the Claimants, move the Court to allow us further proof as to the ownership of the property. We wish to show that the goods are not, in truth, consigned property, but that one moiety belongs to the Claimants. We wish to explain the papers which the captors have considered as proving the property in question to be hostile. That we have a right to make this explanation, we refer the Court to the following cases. 6 Rob. 3.-id. 132, W. and J. Bells case. Rob. 161. Maddonna delle Gracie.-id. 21. The Josephine.-3 Rob. 268. The Sarah. That further proof may be allowed in an appellate Court, see 1 Rob. (Amer. Ed.) p. 7. Sir W. Scott and sir J. Nicholl's statement of the general principles of proceeding in the admiralty.

DEXTER, contra,

Said that the motion, on behalf of the Claimants, for further proof, was entirely unexpected-that there was nothing for them to found such a prayer upon-that the claim to the 130 packages was ambiguous, the ground upon which it was made being alternative, viz. either that the goods were shipped on joint account, or that the Claimants have an equitable lien on them, on account of advances made on the consignment."

That these 130 packages were wholly British property, is clear from the papers exhibited: they were consigned by British merchants to the Claimants, with orders to sell, and remit the proceeds.

The decision as to the residae of the property in dispute, viz. the third claimed by James Thompson, depends upon his national character. That this is hostile,is evi