13 U.S. 126

9 Cranch 126

3 L.Ed. 678

THE MARY, STAFFORD, MASTER

Feb. 20, 1815

Absent. TODD, J.

APPEAL from the sentence of the Circuit Court for the

district of Rhode Island, condemning the cargo of the Mary, as prize to theprivateer Paul Jones.

This cause was argued at last term by STOCKTON and PINKNEY for theClaimants, and J. WOODWARD for the (ante, vol. 8, p. 388,) when leavewas given by this Court, for further proof, by affidavits, on the followingpoints.

1. As to the citizenship of N. J. Visscher.

2. As to the names of the other heirs of general Fisher, who are interestedin the property; the place of their residence, and their national character.

3. As to the time when N. J. Visscher, went to England; the object he hadin view in going thither; how long he resided there; when the cargo waspurchased; and when he returned to the United States.

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

The captors also had leave to make further proof as to the same points.

The further proof now offered consisted of the affidavits of the Claimant,N. J. Visscher, Jacob S. Pruyn, and David Gelston, collector of thecustoms for the port of New York. The affidavit of N. J. Visscher stated,in substance, that he, and sundry other persons, (whose names and places

of residence are mentioned, and who are all citizens and residents of theUnited States,) are the sole heirs at law and personal representatives of thelate general Garret Fisher. who died in London intestate. That he, in behalfof himself and as agent for the other heirs, went to England, (having firstobtained leave from the war department, he being a military officer in theservice of the United States,) in consequence of an agreement betweenhim and the other heirs, dated June 19th, 1811, (which original agreementis annexed to the affidavit.) He arrived, in England on the 22d of August,1811, and obtained letters of administration on the estate of general Fisher,collected the effects, converted them into cash, paid the debts, and wasprepared to remit the balance to the United States long before the war wasknown in England; and was waiting for a favorable opportunity ofinvesting the same in property that could be advantageously sent to theUnited States, the balance of exchange being then greatly against him, andnot being able to invest the whole in United States' stock. That as soon asthe revocation of the English orders in council took place, supposing thatit would be followed by the repeal of the non-importation law of theUnited States, he gave orders for the purchase of British goods to nearlythe whole amount of the balance remaining in his hands, which purchase,including the goods now in question, was made by Harman Visger, hisagent, before the war was known in England, who caused them to be sentto Bristol to be shipped, where they arrived in July and August; whencethey were shipped early in August on board the American brig Mary. Thatthe goods were the sole property of the Claimant, for himself and theother heirs of general Fisher. That he left England as soon as his businesswas settled, and arrived in the United States, on the 19th of October, 1812.

The affidavit of Mr. Pruyn confirms that of Mr. Visscher, as to theresidence and citizenship of the Claimant and the others interested in thecargo.

The affidavit of Mr. Gelston states the fact that a copy of the president'sinstruction of the 28th of August, 1812, was given to the commander ofthe Paul Jones, before she sailed on the cruize in which she captured theMary.

No further proof was offered on the part of the Captors.

STOCTON, for the Claimant ,

After reading the further proof offered by the Claimant, said he shouldrest the case, in the opening, upon the argument formerly made.

J. WOODWARD, for the Captors ,

Was directed by the Court to show wherein this case differs from that ofthe Thomas Gibbons, decided at last term, upon the effect of thepresident's instruction of the 28th of August, 1812.

WOODWARD. The Thomas Gibbons was an American vessel and sailedso early as to be presumed to have sailed in consequence of the repeal ofthe orders in council. But we contend that the Mary, sailing from Ireland,under a British license, as late as April, 1813, (which license was obtainedfor the vessel and cargo, by a British subject in his own name,) and ladenwith British goods, must be taken to be a British vessel, and not as sailingin consequence of the repeal of the British orders in council, within themeaning of the instruction of the 28th of August. But the fact that thevessel has not been claimed, is clear proof that she was British.

The voyage from Ireland in April, 1813, as far as respects thoseinstructions, is a voyage de novo, whatever it may be considered to beupon more general principles of law.

The intent of these instructions was to protect American vessels and theircargoes, sailing from England under the impression that the repeal of theorders in council would have been followed by a repeal of our non-importation law, and a cessation of hostilities; but not to protect vesselssailing with a full knowledge that those consequences had not, andprobably would not follow the repeal of the orders in council. At the timethe Mary sailed all such expectations had ceased. The instructions arederogatory to the rights of war, and the party wishing to protect himselfthereby must bring himself strictly within their meaning and intent. Thevessel and cargo were safe at Waterford, and the political relation betweenthe two countries was then well understood, there was no necessity of hersailing from thence; she knew that the war was raging with increasedviolence.

The new license although it refers to the old one bears a very differentcharacter. The old one was innocent because it was not then the license ofa belligerent, and did not give a belligerent character to what it protected;but the new had all the characters of a belligerent license, notwithstandingits connexion with the old. When she sailed, she knew, or might haveknown, and taken warning by the act of congress of the 2d of January,1813, which extends the protect on of the instructions only to vesselssailing before the 15th of September, 1812. The instructions merge in, orare controled by the provisions of that act. A vessel could not be protectedby the instructions unless she sailed not only in consequence of the repealof the orders in council, but before the 15th of September, 1812.

The necessity for a new license shews that it was a new voyage. She wasobliged to take new papers and a new clearance. But if a voyage be legalin its commencement, and before it be finished, become illegal, and theparty has an opportunity to put an end to it, he is bound to do so. Theprosecution of the voyage, after a knowledge of its illegality, and after anopportunity given to abandon it, must be considered as placing the party indelicto.

If this property was purchased after knowledge of the war had reachedEngland, it is liable to condemnation. The invoices are dated the 13th ofAugust, and the war was known in Liverpool on the 18th of July. By theorder for further proof the Claimant is called upon to prove the time whenthe cargo was purchased. No such proof is offered. The affidavit of Mr.Visscher, if it could be considered as proof, does not state the time, butmerely states in general terms that the purchase was made before the warwas known in England. This is not such proof as the order requires. Theproof of the fact if it exist, is in England, why has it not been obtained? Itis the most material fact in the case. The voluntary affidavit of the partyhimself, who is so deeply interested in the cause cannot be evidence. Atthe last term the Court wanted further evidence of that fact. They have notobtained it, nor is it shown that it was out of the power of the Claimant toproduce it. It was in his power. But it was not in our power to produceevidence of the contrary. It is not probable that the witnesses would haveconsented to a voluntary examination on our part and we had no means tocompel them to testify. We rely upon this defect of evidence.

EMMETT, on the same side.

The condemnation of the vessel, is final and conclusive, there being noappeal. Part of the cargo is in the same condition: 160 bundles of steel,worth about 1000 dollars, are unclaimed and of course no appeal wastaken and they belong to the Libellants. N. J. Visscher filed two claims,and therefore had time to rectify the mistake if any were made.

It is clear therefore that there were articles on board which did not belongto N. J. Visscher, and that he intended to disclaim certain parts of thecargo.

This case is not within the reason of the decision in the case of theThomas Gibbons. The intention of the instructions was to exempt theproperty from capture, not to give it an entire immunity. This could bedone only by the legislative power. The object of the instructions was tosuspend the prize act in this particular until the legislature could interfere.

In the case of the Thomas Gibbons, this Court, in delivering its opinionhas connected the instructions with the act of congress of 2d January,1813, and seems to hold out the idea that the time of sailing of a vesselmust be limited to the 15th of September, in order to be protected by theinstructions. The act of congress had made that definite which theinstructions had left undefined. If the instructions and the act are not thusto be connected and construed together, there is no time limited, and avessel may at any period of the war be protected by those instructions.

Does this vessel come within those instructions? Is she a vessel owned bycitizens of the United States? She has been condemned as enemy'sproperty. From that sentence there has been no appeal. It is conclusive.

But although that objection seems conclusive, yet there is a still strongerground of condemnation. She did not sail from Waterford until ninemonths after war was declared. Here was ample time for countermandingher voyage after knowing that the repeal of the orders in council would notproduce a cessation of hostilities. Can such a case be protected by theinstructions.

The further proof furnishes irresistable evidence of trading with theenemy. The order for further proof calls for evidence of the nationalcharacter of Visscher, and those interested with him in the claim, and ofthe time when the goods were purchased , as well as with regard to thequestion whether the instructions were on board the privateer. It is cleartherefore that the Court were not then satisfied as to any of those points.

No further competent evidence has been produced as to the time ofpurchase. The Court will not receive as proof the affidavit of the interestedparty himself, when it is clear that better evidence must have been in hispower. Why did he not produce the affidavit of his agent who made thepurchases, or the bills of parcels, which he must have in his possession, bywhich to settle with the other heirs. These bills of parcels also would haveshown whether other parts of the cargo as well as the 160 bundles of steel,did not belong to Harman Visger.

But this was a clear case of trading. Visscher was only to collect and remitthe proceeds of the estate. Instead of which he goes to trading with it forhis own benefit, not that of the heirs. By undertaking to ship goods he tookthe risk on himself, and if lost, he must account to the other heirs.

It is immaterial, however, whether the goods were purchased before orafter knowledge of the war. 8 T. R. 556, the case of St. Philip cited inPotts & Bell, from the MS. notes of sir E. Simpson.

LIVINGSTON, J. Was not this point settled in the case of the Rapid?

EMMETT, I think it was; but lest it should not have been, I refer the Courtto the case of the Juffrow Louisa Margaretha. 1 Rob. 170, (Amer. Ed.)cited in the case of the Hoop. 1 Rob. 177, The Eemgheid.—1 Rob. 178,The Fortuna.—1 Rob. 181, sir William Scott's judgment in the Hoop ,where he does not allow an excuse either of convenience or necessity. Alicense from the government of the United States ought to have beenobtained for the Mary, or the voyage abandoned. 1 Rob. 180, The William.

A distinction is attempted to be taken between this case and that of theRapid. It is said this vessel was in motion.

If a vessel has been in motion so far that there is no opportunity ofcountermanding the voyage, this distinction might be relied upon. Buthere there was time for countermanding. Upon this point see again thecase of the Fortuna. When was the Mary in motion? War was published inLondon on the 26th of July. This vessel did not begin to load till August,and did not sail from Bristol till three weeks after knowledge of the war.N. J. Visscher himself was present and might have countermanded thevoyage, which is a circumstance of great importance. 5 Rob. 142, (Eng.Ed.) Juffrow Catharina.

STORY, J. The case of the Rapid differs from this. She went from thiscountry to that of the enemy after knowledge of the war.

1 EMMETT. As to the Rapid, the condemnation was owing to the presence ofHarrison, who might have countermanded the voyage, but did not. Whether theparty be in the country at the time of the breaking out of the war, or goes thereafterward is immaterial; in each case he is equally bound to countermand thevoyage. The present case therefore is precisely that of the Rapid.

2 But N. J. Visscher was in England long after the Mary put into Waterford. Hedid not leave England till the 7th of September; the Mary arrived at Waterfordin August. He knew that the vessel must remain there till the spring, and thatshe could not arrive in the United States until nearly a year after the declarationof war. Why did he not apply to the United States for a license?

3 The sailing from Waterford was a new voyage. We are to consider thetransaction, not in a commercial point of view, but as it is affected by publicpolicy and national law. To every belligerented purpose it was a voyage denovo. It is not protected by the act of congress of 2d January, 1813. That act

requires that the vessel should have sailed before the 15th of September, 1812.and should have sailed in consequence of the repeal of the orders in council.The act has no prospective view. Visscher knew that it did not protect thisvessel. He traded at his peril. 1 Rob. 181, The Hoop.

4 But if, contrary to expectations, this property should be restored we trust it willbe with costs. There was no proof of property on board. She was found sailingwith a British license dated long after the war was known. She had sailed longafter the 15th of September, and did not appear by any documents on board tobe within the president's instructions of the 28th of August, 1812. It is not usualto give costs after an order for further proof. If the papers withheld, had beenproduced it is probable a great deal more of the property would be found tobelong to Harman Visger.

5 PINKNEY, in reply.

6 It is said that Mr. Visscher has been trading for his own benefit, upon the fundshe received. There is no foundation for such an assertion. The letters of HarmanVisger, and all the documents show that the goods were purchased and shippedfor the joint benefit of all the heirs. He did the best for the interest of allconcerned, according to his judgment, and agreeably to the agreement of theparties, which contemplates and provides for the case of his being obliged toremit goods, and binds him to cause them to be insured.

7 Two questions arise in this case,

8 1. Was the Mary the property of an American citizen?2. If so, was she, whencaptured, sailing in consequence of the repeal of the British orders in council?

9 1. Was the Mary the property of an American citizen?

10 All the documentary evidence shews that she was?

11 But it is contended that she was the property of one Smith a Scotsman, and thisassertion depends upon the evidence of the cook, who says be believed itbecause Smith ordered the men about. But it appears that this cook was shippedjust as the vessel sailed.

12 It is said also that the ship, not having been claimed, was condemned, and noappeal has been prayed, which shows conclusively that she was British

property.

13 The reason why she was not claimed appears in the evidence. She washypothecated for more than she was worth. If lost by capture the owner is notpersonally liable, but if he should claim, and the vessel should be restored, hewould be liable for the amount of the bottomry bond. Visscher, who held thebond, could not claim in his own name, for it has been decided that such a lienon the ship will not support a claim, and he could not use the name of theowner without his consent, which he would certainly not give to impose aliability on himself. It was his interest to make it a total loss. A sentence ofcondemnation founded upon the want of claim accounted for in such a manner,cannot surely be conclusive evidence that the ship was not bona fide owned byan American citizen.

14 2. Was she sailing in consequence of the repeal of the orders in council?

15 This voyage unquestionably had its inception in consequence of that repeal. Wethink this case falls precisely within the principles decided in that of theThomas Gibbons. But it is said that the deviation to Waterford makes it a newvoyage. That this was a continuation of the voyage at the common law, isadmitted; but not in a Court of prize. Why should there, in this respect, be adifference between the law merchant and the law of nations? We contend thatthe law of nations, being more enlarged, is less rigid than the law merchant.

16 But as to prize law, the English Courts of prize always connect voyages of thiskind. Continuity is the favorite doctrine of a prize Court. The British Courts ofprize, on the subject of contraband of war, seem to have been enamored of thisdoctrine of continuity; they condemn vessels returning with the proceeds ofcontraband; thereby making the homeward voyage the outward voyage, and theproceeds of contraband the contraband itself.

17 But it is said that this vessel was bound on an illegal voyage, and thereforecannot plead distreas. She acted on the belief that the repeal of the orders incouncil would produce peace, as all others did, and if she was in error,communis error facit jus.

18 The president's instructions and the act of congress go on the ground that thiserror was excusable.

19 This vessel is within the benefit of the maxim actus Dei nemini facit injuriam.She would certainly have been protected by that maxim, if she had been all that

time driven about the Atlantic by storms and contrary winds; and her case isstill the same; she was still in itin ere. It is said that the instructions where asubstitute for a legislative act, and that the act of congress has superceded theinstructions. This we do not admit. They may both stand together—their objectsare different.

20 But we are referred to the policy of the instructions and it is said that this vesselwas not within the policy. The adventure was undertaken in the belief that thewar would cease; the going to Waterford and the dentention there werenecessary to the prosecution of the voyage.

21 But it is said there was locus penitentioe. That Visscher knew how long thevessel would be detained there, and therefore ought to have abandoned thevoyage. There is no evidence of that fact if it were material. But if he did knowit, he knew also that the voyage was innocent in its inception, and that itscontinuity could not be broken by this necessary deviation.

22 As to his obtaining a second British license, it was necessary; he could notleave Waterford without it. It was not a voluntary act. He acted under a vismajor. The second license was only a renewal of the first; if he had authority togo at all, he might lawfully use the means. After his return to the United States,he did not apply for an American license because he was daily expecting thearrival of the Mary; besides he knew that she was protected by the president'sinstructions.

23 The opposite argument is raised upon the supposition that she must not onlycommence her voyage under an impression that war had ceased, but mustcontinue under the same impression during the whole voyage. Must she return,if, in the midst of the Atlantic, she is undeceived?

24 The voyage was commenced under a belief that war had ceased, and wascontinued under the impression that she would be protected by the instructionsof the president. Although there was war between the United States and GreatBritain, yet there was peace between the United States and this adventure. Thiscase, in principle, is exactly that of the Thomas Gibbons.

25 But we are accused of not having produced sufficient further proof of theproprietary interest in the cargo and the time of purchase. They say the onlyevidence is the affidavit of N. J. Visscher—testis in propria causa. Suchtestimony is, and always must be admitted in prize causes. N. J. Visscher is aman of fair character. But his testimony was matter of supererogation. Every

document and paper showed before that the property was American.

26 But they say that as we undertook to furnish further proof we ought to havedone so—that we were in possession of the bills of parcels and ought to haveproduced them. The fact is not so, nor can it, in the nature of commercialtransactions be so. We had the invoices, but not the bills of a parcels, they werethe vouchers of Harman Visger, who made the purchases; they remained inEngland and it could not be expected that we should send there for them. N. J.Visscher has produced his test affidavit, which is all that could be expected.

27 But there is an objection to the omission to claim 160 bundles of steel. By acomparison of the ships papers with the claim it will be found that he meant toclaim, and did claim, the whole of the cargo. The omission of this item was bymistake.

28 The rule that every trading with an enemy subjects to confiscation, will not, Itrust, be sanctioned by this Court.

29 All the essential parts of this transaction took place in peace, or in imaginedpeace. The rule of trading with an enemy is not absolutely inexorable. See thecase of the Madonna del Gracie, and the principles stated by sir W. Scott in theHoop. The danger of treasonable intercourse is the ground of the rule. But herewas no such danger. Another ground of condemnation of goods is said to betheir adherence to the enemy. But here, instead of adhering to the enemy, thegoods were withdrawn by the earliest opportunity. It was certainly for theinterest of the United States, that the goods should be withdrawn from thepower of the enemy. But it is said that it was contrary to his allegiance. Is itcontrary to his allegiance to do that, the forbearance of which would be for theadvantage of the enemy? Why should we give a new face of terror to theprinciples of war?

30 The case of the Rapid was essentially different. There was opportunity fortreasonable intercourse. She sailed from this country after the war was declared.Let not the rule be made an iron rule. It has been carried far enough. There isnot a shadow of authority for condemnation in a case like this, where a mereremittance of funds acquired before the war was intended to he made at the firstknowledge of the war.

31 All the cases cited against us, are to be found in the case of the Hoop, exceptone referred to in Potts and Bell. Not one of them includes the present case. 1.The Ringende Jacob, was a clear case of mercantile trading in open war. 2. The

Lady Jane. This case is relied upon because the cargo was the produce of goodssent to Spain before the war. But the commercial adventure was planned andconcocted during the war. 3. The Deergarden of Stockholm, was a case of tradewith the memy wholly originating during war. 4. The Elizabeth of Ostend, wasanother clear case of trading during war. 5. The Juffrouw Louisa Margaretha.According to the statement of this case in Bosanquent and Puller (Escott's case)part of the goods were purchased long after the war had broken out, and theadventure was projected in the heat of the war. One part of the cargo wasconsidered as infected by the other. 6. The St. Louis or El Allessandro. In thatcase the groods were shipped in the midst of the war, and were bound to theport of an enemy. 7. In the case of the Compte de Wohronzoff, the goods wereshipped long after the existence and knowledge of the war, and in the regularprosecution of trade. 8. So in the Expedite von Rotterdam, the exportation ofgoods was from the enemies country in the midst of the war. 9. In the case ofthe Bella Guidita, the voyage was direct to an enemy country with provisions.10. In the Eenigheid, the voyage was to, not from, the enemy's country, andwas after the knowledge of the war. In that case there might be treasonableintercourse, but here there could be none. 11. The Fortuna, was the case of avoyage to the enemy's country, which might have been countermanded afterknowledge of the war. 12. In the case of the Freeden, the voyage was also to,an enemy's port after notice of the war. 13. In the William, which is a casemuch relied on by the opposite counsel, it appears in 8, T. R. 560 that thesugars in question were received by the British merchant's agent from theenemy, after the war broke out, and were received in the course of a generaltrade, which is the feature that distinguishes this case of the Mary from all thathave been cited.

32 The Claimants in those cases were general merchants in the regular prosecutionof their trade; but ours is a single case of accidental remittance of funds,constituting no part of a general trade. To this long list of cases sir John Nichollin Potts and Bell, 8, T. R. 556, has added one more—The St. Philip, in 1747,where the lords refused evidence that the goods were bought before the war,being of opinion that the effects of British subjects, taken trading with theenemy, are good prize. This is certainly a hard case. It is very briefly stated;none of the particular circumstances being mentioned. It does not appear howlong after the breaking out of the war the goods were shipped, which would bea very important consideration in the innocence or gult of the transaction.

33 This Court it is presumed will not push the law of war to its utmost extent, andcertainly not farther than it has been extended by the English Courts.

34 As to costs. If the Mary was within the president's instructions, the captors are

February 25th. Absent. TODD, J.

not entitled to costs and expenses.

35 STORY, J. Whe further proof has been ordered, are not costs and expenses tobe allowed of course?

36 PINKNEY, I think not.

37 MARSHALL, Ch. J. delivered the opinion of the Court as follows:

38 Nanning J. Visscher, an American citizen, administrator of general GarretFisher, deceased, went to Great Britain in the year 1811, for the purpose ofcollecting the estate of the said general Garret Fisher in that country, andremitting it to the United States for those who were entitled to it by law.Immediately after the repeal of the orders in council, the said Nanning J.Visscher invested a considerable portion of the funds of the said estate inBritish merchandize, and engaged the bring Mary, a vessel having an Americanregister, to convey it to the United States. The Mary was engaged atWhoolwich and came round to Bristol, where her cargo was procured. Shebegan to take it on board on the 3d of August, 1812; and on the 15th of August,having completed her lading, she sailed from the port of Bristol for the UnitedStates, having on board a British license dated on the 8th of July, 1812. Whileprosecuting her voyage she encountered such severe weather, and received suchdamage, as to be under the necessity, in order to avoid the danger of founderingat sea, to put into the port of Waterford, in Ireland, for the purpose of beingrepaired. While lying in Waterford and undergoing repairs, she was alsodetained by a general embargo, imposed on all American vessels in the ports ofGreat Britain. The Mary, being released by the high Court of admiralty, and herrepairs being completed, her license was renewed on the 27th of March, 1813,and she sailed from Waterford, for Newport, in Rhode Island, on the 7th of thefollowing month. On the 22d day of April she was captured by the Americanprivateer Paul Jones, captain Taylor, and brought into Newport, Rhode Island,where the vessel and cargo were libelled as enemy property. No claim beingput in for the vessel, she was condemned; but the cargo, which was claimed byNanning J. Visscher, for himself and the other heirs of general Fisher, wasrestored. From this sentence the captors appealed. In the Circuit Court thesentence of the District Court was reversed and the cargo was condemned.From this sentence of condemnation an appeal was taken to this Court, and thecase was argued at the last term.

39 The president's instructions of the 28th of August, 1812, were then for the first

39 The president's instructions of the 28th of August, 1812, were then for the firsttime relied on, but it was not admitted on the part of the captors, that theseinstructions were known to captain Taylor. For the ascertainment of thisimportant fact, it was necessary to admit further proof.

40 It being uncertain how this fact would appear, the Court also directed furtherproof on other points which were involved in some degree of doubt.

41 It is now proved incontestibly that the instructions of the 28th of August wereon board the Paul Jones at the time of the capture. These additional instructionsdirect 'the public and private armed vessels of the United States not to interceptany vessels belonging to citizens of the United States, coming from Britishports to the United States, laden with British merchandize, in consequence ofthe alleged repeal of the British orders in council.'

42 The effect and operation of these instructions were settled in the case of theThomas Gibbons. The only enquiry to be made in this case is, do they apply tothe Mary? To sustain their application it must appear,

43 1. That the Mary belonged, at the time of capture, to a citizen of the UnitedStates.

44 2. That she was coming from a British port to the United States, laden withBritish merchandize, in consequence of the alleged repeal of the British ordersin council.

45 1. Was the Mary the property of an American citizen?

46 She carried an American register, which represented her as the property ofJames B. Kennedy, a citizen of the United States.

47 She sailed from Charleston, in South Carolina, as an American vessel,commanded by captain Stafford, a native American citizen, who continued tocommand her until her capture, and who always supposed her to be the propertyof Mr. Kennedy. Her first license, which was granted before intelligence of thedeclaration of war had reached England, was granted to her as an Americanvessel; and in the renewed license she was still considered as an Americanvessel.

48 In opposition of this testimony is the deposition of one of the mariners, whosupposes one Smith, a British subject, to be a part owner of the Mary, because

the captain so informed him, and because Smith ordered the people about asmuch as Mr. Kennedy or the captain.

49 So much of this deposition as refers to the information of the captain, is notvery probable; and if true, must either discredit the captain's testimony, or beconsidered as a communication made for some particular purpose while thevessel was in a British port. That part of it which states Smith to have orderedthe people about as much as Mr. Kennedy, is not very intelligible, since Mr.Kennedy, the owner of the Mary, does not appear to have been on board thevessel, or at Bristol, or at Waterford.

50 Had a claim been put in for the Mary, this testimony, opposed to the prooffurnished by the register and the deposition of the captain, would have beenlight indeed.

51 But no claim was filed for the Mary, and she was consequently, according tothe course of the Court of admiralty, condemned as enemy property.

52 This sentence is now relied on by the captors as establishing the fact. Theargument has been pressed with great earnestness, and is certainly entitled toserious consideration.

53 The conclusive effect which the captors would give to this sentence is foundedin part on reasoning which is technical, and in part on the operation which thefact itself ought to have on the human mind in producing a conviction that theclaim was not filed because it could not be sustained.

54 A sentence of a Court of admiralty is said not only to bind the subject matter onwhich it is pronounced, but to prove conclusively the facts which it asserts.This principle has been maintained in the Courts of England, partionlarly asapplying to cases of insurance, and has been adopted by this Court in the caseof Croudson and others v. Leonard. Its application to the case at bar will beconsidered.

55 The Mary was not condemned by the sentence of a foreign Court of admiraltyin a case prior to and distinct from that in which the cargo was libelled. She wascomprehended in the same libel with the cargo.

56 The whole subject formed but one cause, and the whole came on togetherbefore the same judge. By the rules of the Court the condemnation of the vessel

was inevitable; not because in fact she was British property, but because thefact was charged and was not repelled by the owner, he having failed to appearand to put in his claim. The judge could not close his eyes on this circumstance;nor could he, in common justice, subject the cargo, which was claimedaccording to the course of the Court, to the liabilities incurred by beingimported in a hostile bottom. In the same cause, a fact, not controverted by oneparty, who does not appear, and therefore as to him taken for confessed, oughtnot, on that implied admission, to be brought to hear upon another who doesappear, does controvert, and does disprove it. The owners of the cargo had nocontrol over the owner of the vessel. Visscher could not force Kennedy to file aclaim; nor could Visscher file a claim for him.

57 The evidence that the vessel was American property could not be looked intoso far as respected the rights of Kennedy, because he was in contumacy; butVisscher was not in contumacy. He was not culpable for, and therefore oughtnot to suffer for, the contumacy of Kennedy. That contumacy, in reason and injustice, ought not to have prevented the District Court from looking into thetestimony concerning proprietary interest in the vessel, so far as the rights ofother Claimants depended on that interest. Nor is the Court informed of a legalprinciple which should have restrained the district judge from looking into thistestimony. If we reason from analogy we find no principle adopted by theCourts of law or equity, which in its application to Courts of admiralty, wouldseem to subject one Claimant to injury from the contumacy of another.

58 A judgment against one Defendant for the want of a plea, or a decree againstone Defendant for want of an answer, does not prevent any other Defendantfrom contesting, so far as respects himself, the very fact which is admitted bythe absent party.

59 No reason is perceived why a different rule should prevail in a Court ofadmiralty, nor is the Court informed of any case in which a different rule hasbeen established.

60 If the District Court was not precluded by the nonclaim of the owner of thevessel from examining the fact of ownership, so far as that fact could affect thecargo, it will not be contended that an Appellate Court may not likewiseexamine it.

61 This case is to be distinguished from those which have been decided on policiesof insurance, not only by the circumstance that the cause respecting the vesseland the cargo came on at the same time before the same Court, but by other

differences in reason and in law, which appear to be essential.

62The decisions of a Court of exclusive jurisdiction are necessarily conclusive onall other Courts, because the subject matter is not examinable in them. Withrespect to itself no reason is perceived for yielding to them a furtherconclusiveness than is allowed to the judgments and decrees of Courts ofcommon law and equity. They bind the subject matter as between parties andprivies.

63 The whole world, it is said, are parties in an admiralty cause; and, therefore, thewhole world is bound by the decision. The reason on which this dictum standswill determine its extent. Every person may make himself a party, and appealfrom the sentence; but notice of the controversy is necessary in order to becomea party, and it is a principle of natural justice, of universal obligation, thatbefore the rights of an individual be bound by a judicial sentence, he shall havenotice, either actual or implied, of the proceedings against him. Where theseproceedings are against the person, notice is served personally, or bypublication; where they are in rem, notice is served upon the thing itself. This isnecessarily notice to all those who have any interest in the thing, and isreasonable because it is necessary, and because it is the part of commonprudence for all those who have any interest in it, to guard that interest bypersons who are in a situation to protect it. Every person, therefore, who couldassert any title to the Mary, has constructive notice of her seizure, and mayfairly be considered as a party to the libel. But those who have no interest in thevessel which could be asserted in the Court of admiralty, have no notice of herseizure, and can, on no principle of justice or reason, be considered as parties inthe cause so far as respects the vessel. When such person is brought before aCourt in which the fact is examinable, no sufficient reason is perceived forprecluding him from re-examining it. The judgment of a Court of common law,or the decree of a Court of equity, would, under such circumstances, be re-examinable in a Court of common law, or a Court of equity; and no reason isdiscerned why the sentence of a Court of admiralty, under the samecircumstances, should not be re-examinable in a Court of admiralty.

64 This reasoning is not at variance with the decision that the sentence of a foreignCourt of admiralty, condemning a vessel or cargo as enemy property, isconclusive in an action against the underwriters on a policy in which theproperty is warranted to be neutral.

65 It is not at variance with that decision, because the question of prize is one ofwhich Courts of law have no direct cognizance, and because the owners of thevessel and cargo were parties to the libel against them.

66 In the case of Croudson and al. v. Leonard, two judges expressed theiropinions. Those who were silent, but who concurred in the opinion of theCourt, undoubtedly acquiesced in the reasons assigned by those judges. On theconclusiveness of a foreign sentence, judge Johnson said, 'The doctrine appearsto me to rest on three very obvious considerations: the propriety of leaving thecognizance of prize questions exclusively to Courts of prize jurisdiction; thevery great inconvenience, amounting nearly to an impossibility, of fullyinvestigating such cases in a Court of common law; and the impropriety ofrevising the decisions of the maritime Courts of other nations, whosejurisdiction is co-ordinate throughout the world.'

67 These reasons undoubtedly support the opinion founded on them; but it will bereadily perceived that they would not apply to the case before the Court.

68 After stating the conclusiveness of the sentence of Courts of exclusivejurisdiction, judge Washington said, 'This rule, when applied to the sentences ofCourts of admiralty, whether foreign or domestic, produces the doctrine which Iam now considering, upon the ground that all the world are parties in anadmiralty cause. The proceedings are in rem; but any person having an interestin the property may interpose a claim, or may prosecute an appeal from thesentence.

69 The insured is emphatically a party, and in every instance has an opportunity tocontrovert the alleged grounds of condemnation, by proving, if he can, theneutrality of the property. The master is his immediate agent, and he is alsobound to act for the benefit of all concerned; so that in this respect he alsorepresents the insurer.'

70 The very foundation of this opinion that the insured is bound by the sentence ofcondemnation is, that he was in law a party to the suit, and had a fullopportunity to assert his rights. This decision cannot be applicable to one inwhich the person to be affected by the sentence of condemnation was not, andcould not be a party to it.

71 If the sentence condemning the Mary did not technically preclude the owners ofthe cargo from asserting in the Court of admiralty her American character, theweight of the evidence on that point is to be fairly estimated.

72 In support of her American character, the documentary evidence is completeand unequivocal; and corroborative testimony is calculated to strengthen abelief in the verity of the register. In support of her hostile character the

omission of the owner to file his claim is chiefly relied on. The importance ofthis circumstance is not to be controverted. Its weight, however, is muchdiminished by the consideration that the case affords no reasonable ground forbelieving that the owner could have been restrained from making his claim bythe apprehension of failing to support it. There is no testimony, and there is noreason to suspect that any testimony was attainable which could havesuccessfully opposed the register. This consideration gives plausibility to theargument that the worthlessness of the vessel, the bottomry bond with whichshe was charged, the expectation that the condemnation would relieve himfrom that debt, might be the motives for not resisting that condemnation. It ispossible, too, that in point of fact, he might not have actnal notice of theproceedings. This is not to be presumed, and is not to benefit the owner; but it ispossible; and may be taken into the account in estimating the effect of thisnegligence on persons who are not culpable for it.

73 It has been said that the owners of the cargo, and that Nanning J. Visscher, whoheld the bottomry bond, ought to have filed a claim. But the interest under thebottomry bond could not have been asserted; nor had the owners of the cargoany right to the vessel. Had they known that they were to be, in any manner,affected by the character of the vessel, they might, and most probably wouldhave exerted themselves to have brought forward Kennedy as a Claimant, or tohave accounted for his silence; but in the District Court the president'sinstructions were unknown, and their effect unthought of. The owners of thecargo, therefore, neither troubled themselves about the vessel, nor attempted toaccount for the claim to her not being filed. When afterwards in this Court thebearing of those instructions was discovered, and further proof was directed;that direction did not extend to proof which might account for the failure ofKennedy to assert his title to the vessel. This may excuse the Claimants for notproducing testimony to that point.

74 Upon the best consideration we have able to bestow upon the subject, the Courtis of opinion that the Mary, in this claim, must be deemed to have been theproperty of an American citizen.

75 2. Did she sail from a British port in consequence of the alleged repeal of theBritish orders in council?

76 That the voyage in its inception was produced by the opinion that the repeal ofthe British orders in council would terminate the differences between the twonations, is too clear for controversy. Had the Mary proceeded directly fromBristol to her port of destination in the United States, the counsel for thecaptors would not contend that it was not a voyage described by the instructions

of the 28th of August. But the delay in the port of Waterford, it is said, hasbroken the continuity of the voyage, and in deciding on its character, thedeparture from Waterford, not the departure from Bristol, must be considered asits commencement, It is not denied that, in a commercial sense, this is onecontinued voyage, to take its date at the departure of the Mary from Bristol. Butit is urged that where the rights of war intervene, a different construction musttake place.

77 The Court does not accede to the correctness of this distinction.

78 The Mary was forced into Waterford by irresistible necessity, and was detainedthere by the operation of causes she could not control. Had her departure beenfrom a neutral port, and she had been thus forced, during the voyage, into ahostile port, would it be alleged that she had incurred the liabilities of a vesselsailing from a port of the enemy? It is believed that this allegation could not besustained, and that it would not be made. But as between the captors and thecaptured in this case, the voyage was, in its commencement, as innocent as ifmade from a friendly port. The detention at Waterford, then, can no more affectthe character of the voyage in the one case than in the other.

79 But it is said that the owners of the cargo ought to have applied to the Americangovernment for a license to bring it into the United States.

80 So far as respects the captors, there could be no necessity for a license, sincethe vessel was already protected from them by the orders of the president underwhich they sailed; and for any other purpose a license was unnecessary,provided the importation, if the voyage had been immediate and direct fromBristol, could be justified.

81 If a cargo be innocently put on board in an enemy country, if at that time it belawful to import it into the United States, the importation cannot be renderedunlawful by a detention occasioned, in the course of the voyage, either by theperils of the sea, or the act of the enemy, unless this effect be produced bysome positive act of the legislature.

82 There is no such act.

83 It has been contended that the act for the remission of fines, penalties andforfeitures in certain cases, passed on the 2d of January, 1813 controls theinstructions given by the president on the 28th of August, 1812, and limits theoperation of those instructions to the specific cases described by congress; and

as that act protects only those importations which were made previous to itspassage, it has been argued that the president's instructions can go no further.

84 Independent of the war, all British merchandize was excluded from the ports ofthe United States by a system of policy supposed to have been founded on theBritish orders in council.

85 The secretary of the treasury had power to remit forfeitures incurred underthese laws. When the orders in council were repealed, large shipments weremade of British merchandize by American merchants in the full confidence thatthe American restrictive system would fall with the orders which produced it.This opinion and the proceedings in consequence of it, were thought excusableboth by the executive and legislative departments of government. The presidentinstructed the cruizers of the United States not to molest vessels of thisdescription, 'but on the contrary, to give aid and assistance to the same; in orderthat such vessels and their cargoes may be dealt with on their arrival, as may bedecided by the competent authorities.'

86 These instructions act solely on the rights of war, and regulate the conduct ofthe public and private armed vessels of the United States.

87 The legislature passed an act on the 2d of January 1813, taking away thediscretion of the secretary of the treasury, and directing him absolutely to remitall penalties and forfeitures incurred by violating the non-intercourse laws, inall cases of importation made before the passage of the act, in Americanvessels, provided the goods were the property of citizens of the United States,and the vessels departed from any port of the United Kingdom of Great Britainand Ireland between the 23d day of June and the 15th of September thenpreceding.

88 This act does not contemplate the conduct of captors, or the rights of war. Itssole object is to remit certain penalties already incurred by a violation ofmunicipal law. The legislature does not appear to have had in view theinstructions given by the president to the armed vessels of the United States,much less to have intended to control those instructions.

89 But, in effecting these different objects, the executive and the legislature wereimpelled by the same motive—the peculiar hardship of exposing the citizens ofthe United States in such a case to the penalties either of war, or of municipallaw. The one intended to protect from capture, the other from forfeiture,property which had been shipped in the reasonable confidence that peace and

commercial intercourse between the two countries were the fruits of the repealof the British orders in council. The president recognized the principle, but leftthe time within which it should operate, to be decided by the armed vessels andby the Courts, according to the circumstances of each case. The legislatureprescribed certain limits within which it should operate. This Court, inconstruing the less explicit instructions of the president, with respect to thedeparture of a vessel from a British port, has respected the more explicitlanguage of the legislature on the same subject. But the instructions of thepresident relate only to the departure of the vessel. They do not extend to thetime of its arrival. In this respect there is nothing to be explained. Consequentlythe act of congress can furnish no aid in their construction. That the instructionswere intended to protect from capture all vessels which had sailed in thatconfidence which was inspired by the repeal of the British orders in council,however the voyage might be protracted, is apparent from their language, andfrom the fact that they continued to be delivered to the armed vessels of theUnited States after the passage of the act of the 2d of January, 1813.

90 It is the unanimous opinion of the Court that the Mary was, at the time of hercapture, protected by the instructions under which the captor sailed.

91 This opinion renders all inquiry into the character of the cargo unnecessary.

92 The counsel for the captors have claimed their costs and expenses, on theground that there was probable cause of capture.

93 This claim is sustained by the Court. Further proof has been required, and thelateness of the period at which the Mary was found on the ocean, justified asuspicion that her case was not one to which the instructions of the presidentextended.

94 The sentence of the Circuit Court condemning the cargo of the Mary isreversed, and the cause is remanded to that Court with directions to dismiss thelibel so far as respects the cargo, and to restore the same to the Claimants, andto allow the captors their reasonable costs and expenses.