U.S. Supreme Court The Mary and Susan, 14 U.S. 1 Wheat. 46 46 (1816)
The Mary and Susan
14 U.S. (1 Wheat.) 46
APPEAL FROM THE CIRCUIT COURT
FOR THE DISTRICT OF NEW YORK
Goods, the property of merchants actually domiciled in the enemy's country at the breaking out of a war, are subject to capture and confiscation as prize.
The President's instructions of 28 August, 1812, must have been actually known to the commanders of vessels of war at or before the seizure in order to invalidate captures made contrary to the instructions.
An alien may be the commander of a privateer without invalidating a capture made by him.
This was a claim by Mr. Richardson for a portion of the cargo of the same ship mentioned in the preceding cause, which portion was condemned in the district and circuit courts. The claimant, a native of Great Britain, and a naturalized citizen of the United States, was a resident merchant of Liverpool at the breaking out of the late war, but returned to this country in the month of May, 1813, after knowledge of the capture and pending the proceedings in the district court. The capture was made on 3 September, 1812, within 18 miles of Sandy Hook in 13 fathoms of water, where vessels are frequently passing and anchoring, and the privateer had previously spoken at sea another privateer and a pilot boat schooner from Philadelphia.
There was also contradictory testimony as to whether the commander of the privateer had knowledge of the President's additional instructions of 26 August, 1812, before the capture, which, as it is noticed in the opinion of the Court, it is unnecessary to state. By those instructions the public and private armed vessels of the United States was not to interrupt any vessels belonging to citizens of the United States coming from British ports to the United States laden with British merchandise in consequence of the alleged repeal of the British Orders in Council, but were, on the contrary, to give aid and assistance to the same in order that such vessels and their cargos might be dealt with on their arrival as might be decided by the competent authorities.
JOHNSON, J., delivered the opinion of the Court.
It is not necessary to go into a consideration of the national character or future designs of the claimant in this case. It has been solemnly settled, and must henceforth be considered as the positive law of this Court, that shipments made by merchants, actually domiciled in the enemy's country at the breaking out of a war, partake of the nature of
enemy trade, and, as such, are subject to belligerent capture. Whatever doubts may have once been entertained on this bench with regard to the necessity or propriety of adopting the principle into the jurisprudence of this country, they are now either dissipated or discarded, and the character, views, and even the subsequent acts of such a shipper cannot vary the conclusion of law upon his claim.
Stress has been laid in the argument before this Court on the fact that Charles Johnson, the commander of the Tickler, is an alien enemy, but on this point we are unanimous that it makes no difference
in the case. Admitting that this circumstance should bear at all upon the decision of the Court, the utmost that could result from it would be the condemnation of his interest to the government as a droit of admiralty. The owners and crew of the Tickler are as much parties in this Court as the commander, and his national character can in nowise affect their rights. But this Court can see no reason why an alien enemy should not be commissioned as commander of a privateer. There is no positive law prohibiting it, and it has been the universal practice of nations to employ foreigners and even deserters to fight their battles. Such an individual knows his fate should he fall into the hands of the enemy, and the right to punish in such case is acquiesced in by all nations. But, unrestrained by positive law, we can see no reason why this government should be incapacitated to delegate the exercise of the rights of war to any individual who may command its confidence, whatever may be his national character.
The only grounds, then, on which the right of restitution can be contended for in this case arise out of the President's instructions of 28 August, 1812. On these, three points are made:
1st. That Johnson had in fact or ought from circumstances to be presumed to have had notice of those instructions.
2d. If he had not at the time of the capture, yet, having received them before the arrival of the prize in port, he was bound then to have discharged her.
3d. That notice of the instructions was in fact unnecessary, as the instructions of the President had,
as to the conduct of privateers, all the operation of laws.
On the second and third of these points there exists but one opinion in this Court. Although some doubt may be entertained relative to the form or nature of the notice necessary, yet we all agree that some notice is necessary, and that notice must precede the capture. Instruction, ex vi termini, is individual. Instruction to A., independent of legal privity or identification, is not instruction to B. Not so with laws: their power floats on the atmosphere we breathe. Necessity or convention or power, has given them a legal ubiquity coextensive with the legislative power of the government that enacts them. Notice here is altogether unnecessary unless made so by the law itself. It is the sic volo, sic jobeo of sovereign power, of which every individual subject to its jurisdiction is presumed to have notice, though time and distance stamp absurdity on the supposition. Unquestionably the same operation might by law have been given to instructions emanating from the President, but this has not been done; on the contrary, the clause itself which vests the power in the executive holds out the idea of the necessity of notice. That this notice must necessarily precede or accompany capture we are induced to infer from this consideration. By capture, the individual acquires an inchoate statutory right, an interest which can only be defeated by the supreme legislative power of the Union.
Condemnation does nothing more than ascertain that each individual case in within the prize act, and thus throws the individual upon his right acquired by
belligerent capture. Should the prize act in the interim be repealed or its operation be suspended by the provisions of a treaty, there no longer exists a law to empower the courts to adjudge the prize to the individual captor. We can see nothing in the objects of the law authorizing the President to issue his instructions nor in the instructions themselves which can support the idea that that which was lawfully prize of war at the time of capture should cease to be so upon subsequent notice of the instructions. Both the act itself and the instructions, in their plain and obvious sense, may well be construed so as to arrest the arm of hostility before it has given the blow. But not only is there nothing either in the act or instructions to which an ulterior operation can be given, but the policy of the country, as well as the fair claims of the prowess, perseverance, and expenses of the individual forbid our giving an effect either to the act of the instructions which will deprive the captor of the just fruits of his bravery and enterprise. The fact of notice, then, alone remains to be considered, and this must either be inferred from circumstances or received upon the evidence of confession. On this point computation of time becomes material.
The capture was made, as we collect from the officers and crew, on 3 September, but as the nautical calculation of time commences at noon, this may mean on the morning of 4 September. The additional instructions bear date 28 of August, and were probably forwarded by the mail of the 29th. It cannot, therefore, be supposed that they were published in Philadelphia before 31
August, nor in New York before the 2d; at any rate, not before 1 September. This certainly leaves time enough for the information to have been communicated from New York, but renders it impossible that it could have been received either from the Eagle or the pilot boat, as they were both spoken off Charleston, and the latter was seven days out, whereas the Tickler left St. Mary's, in Georgia, on the 24th. Whether such information was not in fact communicated off New York is a point on which the evidence would leave us little room for a contrariety of opinion were it not for the loss of the logbook and journal. For this circumstance, taken in conjunction with the evidence of confession, some of the Court are inclined to entertain an unfavorable idea of the captor's cause.
But the majority are of opinion that they cannot attach so much importance to it. The evidence of Paine Ferris, and Warren, all officers of the privateer, and at the time of testifying divested of all interest in the capture, positively negatives the only fact from which notice could be implied, to-wit, the speaking of any vessel beside the Eagle and the pilot boat previous to the capture of the Mary and Susan. And this, we think, is supported by probability, when it is considered how very few vessels at that time could venture to leave our ports; that there is no probability the Tickler could have ventured to lie off and on the port of New York any length of time, and that, from her leaving the port of St. Mary's to her arrival at New York, there elapsed no more than the ordinary time of performing that voyage. In addition to which considerations
we cannot but think that a copy of the journal of this voyage was, as it ought to have been, deposited in the custom house, and this circumstance, whilst it was calculated to make the captor less careful in preserving the original, enabled the claimant to avail himself of every advantage which could have been derived from the original.
On the evidence of confession, we are not inclined to enter into the consideration of the depositions, intended on the one hand to support, and on the other to impugn, the credibility of Waldron and Garnsey. Nothing can be more painful than the necessity of entering upon such investigations; nothing more unsatisfactory than to found a legal decision as to the credibility of a witness upon oral testimony, unsupported by the evidentia rei. In this case we are induced to conclude that these witnesses misunderstood Johnson; that the knowledge of which the latter spoke was that acquired subsequent to the capture; that it could not have related to any other knowledge we think incontestable from the single consideration that the evidence in the case proves it to have been inconsistent with the fact. It was not possible under the circumstances of the cases that such knowledge could have been communicated for want of the means of communication, and that it was not is positively sworn to by three witnesses whose testimony stands wholly unimpeached.
Sentence of the circuit court affirmed with costs.