THE

The commission of the Atas was granted on the 24th THOMAS of September, 1812, and was accompanied by a copy of GIBBONS, the president's instruction to privateers, of the 28th of ROCK- August, 1812, by which the public and private armed WELL, vessels of the United States are directed not to interMASTER. rupt "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.'

fully captured during the voy

age. The president's instruction of 28th August 1812, was meant to protect all British mer

chandize on board an American ship,

JONES, for the captors,

99

Contended that the ship and cargo were enemy property.

I. Constructively so, by the maritime law of nations. without any according to which law the hostile character is imexception on pressed.

account of British proprietary interest.

1. By being placed, by the enemy's pass or license, infra præsidium hostis; and by the employment and course of traffic. 1 Rob. 10, 11, The Vigilantia.

2. By direct trading with the enemy, flagrante bello.

II. Actually so, with regard to a great proportion of the cargo, according to the principles of municipal law, as recognized and acted upon by prize Courts, in administering the maritime law of nations; according to which,

1. Goods shipped without previous orders or authority, although expressed to be on account and risk of the consignee, continue the property and at the risk of the enemy shipper, until accepted by the citizen consignee.

2. General orders (transmitted in time of peace) to ship goods, are, ipso facto, superseded, if war intervene and render the act unlawful as well as dangerous.

3. Particular orders (given during the operation of the orders in council and the non-intercourse act) to ship when the trade opened," or "at proper seasons," or" as soon as it was legal to ship to the United

States," could not authorize a shipment, merely upon THE the conditional revocation of the orders in council, THOMAS whilst the American non-intercourse act continued in GIBBONS, force: a fortiori if war should supervene.

ROCK

WELL,

4. The proprietary interest in goods shipped with an MASTER. understanding that they are to become the property of the citizen consignee, upon arriving at the port of destination, continues in the enemy shipper until arrival and delivery, without regard to the terms in which the consignment is ostensibly made. 2 Rob. 111, The Packet de Bilboa.

That, therefore, goods captured in itinere, under either of the foregoing predicaments, were to be treated as the property and at the risk of the shipper, and as partaking of his national character.

The principal question, he said, which would now be agitated was, whether the instruction of the president of the United States to American privateers, of 28th August, 1812, extended to the case now under consideration. He contended that it did not: or if it did, that it could not legally avoid the capture, nor in any manner affect the rights of the captors, quoad the prize in question, but could only be enforced (as originally intended) by the exercise of executive discretion and authority over the commission of the privateer. That, according to the decision in the case of the Sally, that the prize act operates as a grant from the United States to the captors, the president could not deprive them of their rights under that act. That the power of the president to instruct must be limited by the rights so granted to the captors. That the authority with which he was invested by congress, was only given him to regulate the conduct of our privateersmen, and to prevent abusesnot to limit their rights already vested. That he had no general authority to limit the rights of war, as was clear from the passage of particular acts of congress investing him with the respective powers of removing British subjects, of giving licenses to depart, &c. which would have been wholly unnecessary had he possessed a general power over these matters. That the position contended for, was further supported by the terms employed in the third section of the prize act, in which the owners, &c. of privateers are required to give bond

4

THE to the United States that they will observe “the inTHOMAS structions which shall be given them according to law, GIEBONS, for the regulation of their conduct:" also by the letter of ROCA- the secretary of state (Mr. Monroe) to Mr. Russell, of WELL, August 31st, 1812, written under the eye of the presiMASTER. dent, in which the secretary says, that it was not in the power of the president to control the privateers, except by an indiscriminate revocation of their commissions. But,

2. That, admitting the power of the president to issue the instruction under consideration, the present case was not embraced thereby. That the property in question, having been shipped after a full knowledge of the war, could not be considered as shipped in consequence of the alleged repeal of the orders in council. That the only time in which the shipments contemplated by the instruction, could be made, was that which intervened between the repeal of the orders in council and the knowledge of the declaration of war; after which it was unreasonable to calculate on the safety of property shipped for the United States. That the ship, also, was not within the description of vessels intended by the instruction to be exempted from capture, because she was engaged in an illicit intercouse with the enemy, under an enemy passport issued after the knowledge of the war in England, and was therefore quasi enemy proper ty. That, at all events, the property intended to be protected, by the instruction from capture, was American property, and not British, and therefore that, as to the latter, the capture was certainly rightful.

HARPER, contra.

It has been said, on the part of the captors, that the president had no authority to issue the instruction of 28th August, either on general principles, or under the prize act. We contend that his authority to issue it, may be established on either of these grounds.

1. On general principles. The president, as commander in chief of the army and navy of the United States, has, in time of war, the whole public armed force of the nation under his control. The privateers of the United States constitute a part of the public arm

ed force this appears from their commissions, without THE which they would be pirates. On general principles, THOMAS therefore, the president was authorized to issue the in- GIBBONS, struction in question.

ROCK

WELL,

2. By the 8th section of the prize act, the president MASTER.1 is authorized to establish and order suitable instructions for the better governing and directing the conduct of the privateers of the United States. Now this " governing and directing" their conduct, we conceive, may be applied as well to the designation of the objects of hostility as to the mode of attack, &c. It is applicable, in our opinion, to their whole conduct.

But it is contended, that the present case is not em braced in the instruction. It is said that the ship did not sail in consequence of the repeal of the orders in council. What, then, we would ask, was the motive for sailing at the particular time this vessel sailed? What could have induced the master to sail after knowledge of the war, but a confidence that the repeal of the orders in council would have put a period to hostilities ? It is well known that such a confidence did exist among the merchants in England generally, and that it continued until it was ascertained in that country that the repeal of the orders had not produced the expected effect. The act of congress of 2d January, 1813, remit ting certain fines, forfeitures, &c. has fixed upon the 15th of September as the period when it was known in England that this effect had not been produced. This vessel sailed' on the 16th of August preceding. We insist, therefore, that notwithstanding the existence of hostilities was known in England at the time the Thomas Gibbons sailed, yet she sailed in consequence of the repeal of the orders in council.

The expression in Mr. Munroe's letter of 31st August, was probably accidental-certainly incidental, and not a particular object of the letter.

The expression, British merchandize, in the instruction of 28th August, was not intended to designate the right of property, but the kind of goods. It was the policy of Government to protect British as well as AmeriVOL. VIII.

54.

THE can property shipped under the particular circumstances THOMAS mentioned in the instruction.

GIBBONS,

ROCK

WELL,

MASTER.

PINKNEY, on the same side.

The president cannot coerce the privateers of the United States to do what he pleases, but he may restrain them, as he thinks proper.

It has been said that the license under which this vessel sailed, was issued after knowledge of the war in England. This must be a mistake :—it is dated on the 21st of July, 1812, when the war was not known in England ; and it is to be presumed that it was issued at the time it bears date. Being issued, therefore, before knowledge of the war, it does not give a hostile character to the vessel.

HARPER. The property is vested in the captors only when legally taken, it is vested sub modo.

STORY, J. That is the rule as laid down in the opinion of the Court delivered this morning in the case of the Sally: The prize act vests only property lawfully captured.

JONES, in reply. »

The captors may be punished, if guilty; but the captured property must vest in them notwithstanding. The instruction applies only to American vessels: but the license, we still contend, gave the vessel in question a hostile character.

Where the instruction speaks of British merchandize, the meaning is, British merchandize belonging to American citizens. This construction is consistent with all the acts of congress on the subject, especially the act of 2d January, remitting forfeitures, &c. It is consistent also with Mr. Russell's declarations to the British: mer chants. See 2d vol. of reports of committees, p. 30.

Wednesday, March 16th.

Absent MARSHALL, Ch. J. and JOHNSON, J.

STORY, J. delivered the opinion of the Court.