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dent from the decision in the case of the Venus (antep. 253,) TRAnces, to which decision, and the argument on behalf of the (THOMP- captors in that case, we beg leave to refer the Court. SON & AL.
To return, then, to the 130 packages. It being clear MANTS,) that they were British property, the only question is, BOYER, whether such property is liable to condemnation, as prize MASTER. of war.
The case, as stated and argued upon by the captors, is not justified by the facts; the real state of the case is materially different. The Frances was captured, not in port, but on the high seas. She did not enter the port upon the faith of the nation, but was brought in as prize.
The counsel for the Claimants, admitting the goods now in dispute, to be British property, has said that American property similarly situated would not be condemned in England; and that therefore, by the rule of reciprocity, protection ought to be extended by the American government to these goods. But even the rule of reciprocity, if it were one which this Court could enforce, would not avail the Claimants in the present case; for the British Government do not themselves respect the rule: They have captured and condemned our vessels sailing towards England, though ignorant of the war.
The declaration of war is expressed in terms as general as possible. The instructions of the president to the privateers of the United States give them a general authority to capture all property liable to capture by the laws of war.
Thc public faith was not pledged so as to protect this vessel. If it was pledged to repeal the non-intercourse law, there was no pledge that war should not be declared; and we claim condemnation under the declaration
As to the president's instructions of 26th August, it appears that they were issued only two days previous to the capture of the Frances. The captors, consequently, had no notice of their existence. They sailed with instructions authorizing this capture : and we contend
that the new instructions were no instructions to these THE captors, until they had received notice of their being in FRANCES, force.
SON & AL. It has been said, on the part of the Appellants, that if their claim is rejected, the United States, and not the MANTS,) captors, will be entitled to the property. We reply that BOYER, the United States have now abandoned their claim; so MASTER. that the property, if condemned, must be condemned to the captors.
HARPER, for Appellants.
The reasons on which we ground our prayer for further proof, are the following:
1st. Certain bales of carpeting appear, by the invoice and bill of lading, to be the property of Steele. In the letter of 13th July, 1812, from James Thompson to Steele, they are stated to be a consignment. The further proof which we would offer, 'in regard to this apparent inconsistency, goes to show that upon these goods, 'although stated to be consigned to Steele, James Thompson & Co. had made advances to the owners, to the amount of 1000l. sterling, which created a lien upon the goods. This lien, we contend, was the property of James Thompson & Co. Again, certain other goods appear, in like manner, by the bill of lading and invoice, to be the property of Steele ; but, by the letter, to be the property of Dalglish and Frame and James 'Thompson. The further proof we offer here, is, that we were joint owners with Dalgleish and Frame.
It is a general rule of prize law, that further proof shall be allowed on an appeal, where the preparatory evidence was doubtful or ambiguous. The present case, we conceive, comes within this rule.
On this point of further proof, cited the two following cases. 6 Rob. 24. (Amer. Ed.) The Marianna-to show that an equitable lien is no ground of restitution in prize causes and 5 Rob. 196. The To'ago, where it is decided that a bottomry bond given in time of peace, gives
110 such title to the obligee as will enable him to supFRANCES, port a claim for restitution after a declaration of war.
(THOMP- He contended that a captor takes eum onere, only when SON & AL. the onus is visible and direct.
Further proof, under the circumstances of this case, ought not to be allowed. The goods were shipped when war was expected. The intention of the shipper was te give a neutral character to the property. James Thompson knew the facts relative to the transaction as well when he made the shipment, as now. He had reason to expect and did expect war: Hence the color given to the transaction. If the Court allows further proof in a case like this, they will hereafter be inundated with fraud and perjury. It is a general rule of the prize Courts, that further proof which goes to contradict the ship's papers, shall not be admitted. If there had been really an American interest in this case, it was James Thompson's duty as well as interest to let it appear upon the ship's papers. The original claim, of the Appellants was stated in the alternative-either they had a lien on the goods for money advanced by them through James Thompson, or the goods were consigned to them on joint account.
The heading of the invoices was false, by their own admission. A letter appears among the papers in this cause, from Robert Sterling, junr. who had property on board, shipped in the name of Wm. Steele: this letter was evidently written in contemplation of war. James Thompson's letter of 13th July, contains a list of goods Consigned, in contradistinction to the goods belonging to the firm. The goods in question are among the consignments. By James Thompson's letter of 14th July, it appears that he knew of the war. From a second letter of Robert Sterliny, junr. dated 15th July, it is evident that he also knew of the war. In contradiction to such documents, further proof ought not to be admitted.
HARPER, in reply.
In the cases of the ottomry bond and the lien, cited by the counsel on the opposite side, the possession of the
property was in the captors. The lien was a lien without possession, it was only an incombrance. But here, FRANCES, the thing was in pussession of him who had the lien : (THOMPThe property was vested, so far as the lien extended for son & AL. the advances. Steele was Thompson's agent, and might CLAIhave retained the goods until the advances were repaid. MANTS,
BOYER, Although war was feared, peace was confidently ex- MASTER. pected. There was no motive for giving a neutral character to the property. No fraud was intended. There was no intention to defeat the non-intercourse law. Besides, an intent, even if it existed, to defeat a municipal law, is no ground for refusing further proof.
The letters referred to by the counsel for the captors, went with the invoices; and the accidental ambiguity which seems to exist in the papers was owing to the hur-ry occasioned by the endeavor to get the goods first to market, and to obtain the bounty on exportation.
DEXTER. In the cases cited, the property was not · more in the belligerent captor, than it was in the present case :--These goods never were in possession of the consignee ;-They were captured in the hands of the shipper :-They were not shipped as the property of James Thompson & Co. but as the property of the Scotch merchants.
IRVING, cited 1 Rob. 86. of further proof.
The Bernon, on the point
Monday, March 7th.
IRVING. As to the national character of James Thompson. It appears, from the testimony in this case, that James Thompson is a native of Scotland, that he came to the United States in 1793, was naturalized in 1797, and, in 1801, returned to Scotland where he continued to reside as a merchant, till some time subsea quent to the declaration of war.
Naturalization, under the laws of the United States, confers upon the subject of it all the rights and privileges of a native citizen, excepting that of becoming president of the United States. He has, therefore, the VOL. VIII.
THE same right to leave this country and go abroad which a FRANCES, native citizen possesses. The law of England is the (THOMP- same in this respect. When is the hostile character to son & AL. be fixed upon him ? Not until a war breaks out be
CLAI tween the two countries, and he continues, notwithMANTS, standing, to reside and carry on a hostile trade with BOYER, the enemy country. 2 Cranch, 120, Murray v. The MASTER. Charming Betsy. A citizen, whether native or natural
ized, surprised in a foreign country by a war, has a right to a reasonable time to withdraw his effects. 4 kob. 161, 195, Madonna delle Gracie. In Mr. Johnson's case ( 1 Rob. 17, 12, The Indian Chief) his engagements to his creditors were considered by the Court as a sufficient justification of his residence in Great Britain, and his property was restored. On the point of reasonable time to withdraw, see 5 Rob. 90, The Ocean. 1 Rob. 163, 196, The Hoop. '4 Rob. 191, 232, The Dree Gebroeders. Vattel, B. 3, ch. 4, 63.
Expectation of peace justifies delay in an enemy country, or explains the quo animo of the resident. 5 Rob. 60, The Diana.
In Bell v. Gilson, 1 Bos, and Pul. 355, it is decided that the goods of a British subject purcbased in an enemy's country after the commencement of hostilities, may, under certain circumstances, be sent to England. This decision, though now over-ruled in that country, in the case of Potts v. Bell, 8 T. R. 548, has not been overruled here.
The liberty to withdraw property in case of war, is expressly recognized by various treaties, which fix the time for withdrawing. See, among others, the treaty of 1794, between his Britannic majesty and the United States, art. 26. But these treaties do not create the principle.
If, then, we allow time to an enemy to withdraw his effects, shall we not allow at least the same indulgence to our own citizens ?
A cruizer cannot capture for violation of a municipal law. The seizure for a violation of the non-intercourse