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war reached England. However criminal, therefore, THE the obtaining such a license might have been in time of MARY, known war, in a time of supposed peace it was perfect- STAFFORD, ly justifiable and innocent: it was also absolutely ne- MASTER. cessary in the present case; the adventure could not have proceeded without a license. The British government was, in fact, bound to give it, by the universal custom of nations. Every nation is under a similar obligation. Our own government has authorized the president to grant such licenses.

But it has been said, that though the obtaining of the first license may be justified in this manner, yet the second, having been procured after knowledge of the war, will not admit of the same justification. Little need be added to what has already been said on this point. The second license was merely a renewal of the first: they are both, indeed, to be considered, but one license. The first having been granted, the second was required, under the circumstances of this case, by the law of nations; or, if not, it was, at any rate, required by good faith. Se the British government thought, and so they acted. This case is widely different from those of the Aurora and the Julia.

With regard to the president's instruction of 28th August, we contend that the Mary comes within both the letter and spirit of that instruction. Her national character is clearly shown by her register and other documents : she is proved to be owned by J. B. Kennedy, of South Carolina: and it is clear that she sailed on the faith of the repeal of the orders in council.


The power of the president to issue instructions to the privateers of the United States, has already been considered. Congress has given him a two-fold power over this part of the armed force of the nation. He is authorized to grant and to revoke their commissions, But omne majus continet in se minus : he may therefore grant with limitation, and he may revoke in part. In issning the instructions in question, he has done nothing more than he had full power and authority to do.

Tuesday, March 15th. Absent.... MARSHALL, Ch. J,

The Court made the following order;


It is ordered that the Claimant have leave to make MARY, further proof, by affidavits, as to the following points : STAFFORD, MASTER. 1. As to his own citizenship.

2. As to the names of the heirs of general Fişber who are interested in the property, the places of their residence, and their national character.

3. As to the time when Mr. Nanning J. Visscher went to England; the objects which he had in view in going thither; how long he regided there;. when the cargo claimed by him was purchased; and when he returned to the United States. And,

4. As to the instructions which the Paul Jones had on board at the time of the capture of the Mary; and particularly, whether the instructions of the president of the 28th August, 1812, had been delivered to the captain, or had come to the knowledge of the captain at the time of the capture; or whether the Paul Jones had been in port after the 28th of August, 1812, and before the capture.

It is further ordered, that the captors be also at liber. ty to make further proof as to these several matters,

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The forfeiture THIS was an appeal from the sentence of the of goods, for Circuit Court for the district of Maryland, which reviolation of the non-inter

stored a quantity of coffee which had been seized and course act of libelled for violating the non-intercourse act of March 1809, takes 1st, 1809, vol. 9, p. 245,9 4, $ 5. place upon the commission of The Claimants in the Court below alleged, by way of the offence, and avoids' a plea, that the coffee was regularly entered and the duties

secured according to law, after which, they became the U. STATES purchasers for valuable consideration. They also donied that it was imported contrary to law.

1960 BAGS



to an innocent

The United States demurred to that part of the plea COFFEE. which states the purchase, &c. and took issue upon that part of the plea which denies the illegal importation, subsequentsile By the sentence of the district Court the demurrer was

purchaser, aloverruled, and the coffee restored; which sentence was though there afirmed in the Circuit Court, and the United States ap- been a regular pealed to this Court.

permit for

landing the The cause was elaborately argued, by the Attorney though the du.

goals, and als General, PINKNEY, for the United States, and by Boyd ties may have and HARPER, for the Claimants, at last term, and again at this.

been paid.

The words of the statute, which create the forfeiture. are : « That whenever any articles, the importation of o which is prohibited by this act, shall, aftor the 20th 6 of May next, be imported into the United States," « all such articles” « shall be forfeited.”

PINKNEY, late Attorney General for the United States.

Two objections have been made to the claim of the United States, for this forfeiture.

1. That the right of the United States does not vest until seizure and condemnation, and

2. That the United States are bound by the act of their officer in receiving the duties and permitting the goods to be entered.

1. The forfeiture occurs at the moment of committing the offence. The statute says whenever the act is done, the thing shall be forfeited. No other time is mentioned. The seizure is the consequence of the forfeiture, not its cause. The thing is first forfeited, and then seized. The forfeiture immediately follows the offence. The seizure is merely to ascertain the fact. This is the plain construction, or rather the letter of the statute.

There is a distinction between forfeitures at common




V. STATES law, and those accruing under a statute. 3 Cranch,

331, United States v. Grundy & al. 1960 BAGS

In that case the Ch. Justice said, “ Where a forfei. 66 ture is given by a statute, the rules of the common “ law may be dispensed with, and the thing forfeited “may either vest immediately, or on the performance “ of some particular act, as shall be the will of the legis• lature. This must depend upon the construction of “ the statute.” The reason why the Court decided in that case that the right to the ship. did not vest in the United States immediately upon taking the false oath, was, that the United States bad an alternative, either to take the vessel or its value, and until the United States had made their election, the right did not vest.

But there are two cases at common law, where the forfeiture relates back to the time of the offence and avoids intermediate alienations.-deodand, and suicide. So also in the case of felony and flight. So also in all cases where the punishment for the offence is the forfeiture of the thing by which the offence was committed, or where the punishment cannot be inflicted on the person. In treason and felony, the forfeiture of personal chattels is not the punishment but a corollary, or consequence of the disability imposed on the person. But in regard to lands, the forfeiture relates to the time of the offence committed. With regard to purchasers the rule is caveat cmptor. This is said to be a hard case, but there are other cases equally heard depending on the same rule. If goods are deposited with a merchant to keep, and he sell them, unless in market overt, (and we have no market overt in this country) the sale is void and the owner inay recover them from the purchaser who bought them without notice. This too is a hard case, but it is every days practice.

To show that the forfeiture attaches at the moment of the offence committed, he cited 5 T. R. 112, Wilkins v. Despard. 'Salle 223 f. 12 Mod. 92, Rsbert v. Wither. .ed. 1 T. R. 252, Lockyer v. Ojley.


2. As to the second point, he said it was impossible to contend that the United States were bound by their officer's ignorance of the fact of the forfeiture when he received the duties and granted the permit.

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The demurrer admits that the coffee was properly 1960 BAGS, entered, that the duties were paid, and that there was a bona fide sale and transfer of the coffee, for a valuable COFFEE. consideration, before seizure. A forfeiture cannot overreach a bona fide sale to third person. That this is the rule at the common law is clearly proved by the very learned and elaborate argument of judge Winchester in giving his opinion in the case of the Anthony Mangin, (3 Cranch, 356 ) and the principle has been recognized by this Court in the same case (3 Cranch, 350, United States v. Grundy and al.) A forfeiture by statute is not more operative than a forfeiture at common law. There is no expression in the statute to justify the distinction. The common law says whenever a man shall commit treason or felony he shall forfeit bis goods and chattels to the king.

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Bona fide purchasers are favored at common law. 10
Ves. jr. 104, exparte Edwards1 East. 94, 95--2 Esp. N.
P. Ca. 731-12 Mod. 92-2 Cranch, 390—3 Cranch, 356
6 Cranch, 133-5 Bac. ab. 229. The forfeiture must be
followed by seizure and condemnation before the property
can vest in the United States. Thiş principle has been de-
cided by this Court in the St. Domingo cases, where the law
being temporary and having expired after condemnation
in the Court below and before hearing in this Court, the
property was restored, which could not have been the
case if the property was vested in the United States by
the commission of the offence. If the title of the United
States was complete at the time of the offence, and if
the seizure was merely to ascertain the fact, the expira-
tion of the law could not divest that title out of the Uni-
ted States, and this Court must have affirmed the sen-
tence of condemnation. Yeuton and al. v. the United
States, 5 Cranch, 281. If the United States had not
discovered the offence for three years, the art of limita-
tions. would have barred their claim. 2 Cranch, 336,
Adams v. Wood. If the coffee had been destroyed, the
United States could not have recovered the duties, be-
cause the goods were not legally imported.

pert the

2. The United States are estopped from claiming the property by the acts of their officer, in granting the perVOL. VIII.


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