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 the
privateer Paul Jones.
This cause was argued at last term by STOCKTON and PINKNEY for the
Claimants, and J. WOODWARD for the (ante, vol. 8, p. 388,) when leave
was given by this Court, for further proof, by affidavits, on the following
points.
1. As to the citizenship of N. J. Visscher.
2. As to the names of the other heirs of general Fisher, who are interested
in 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 had
in view in going thither; how long he resided there; when the cargo was
purchased; and when he returned to the United States.
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 president's
instruction 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 the
Paul Jones had been in port, after the 28th of August, 1812, and before the
capture.
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 the
customs 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 the
United States,) are the sole heirs at law and personal representatives of the
late general Garret Fisher. who died in London intestate. That he, in behalf
of himself and as agent for the other heirs, went to England, (having first
obtained leave from the war department, he being a military officer in the
service of the United States,) in consequence of an agreement between
him and the other heirs, dated June 19th, 1811, (which original agreement
is 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 was
prepared to remit the balance to the United States long before the war was
known in England; and was waiting for a favorable opportunity of
investing the same in property that could be advantageously sent to the
United States, the balance of exchange being then greatly against him, and
not being able to invest the whole in United States' stock. That as soon as
the revocation of the English orders in council took place, supposing that
it would be followed by the repeal of the non-importation law of the
United States, he gave orders for the purchase of British goods to nearly
the whole amount of the balance remaining in his hands, which purchase,
including the goods now in question, was made by Harman Visger, his
agent, before the war was known in England, who caused them to be sent
to Bristol to be shipped, where they arrived in July and August; whence
they were shipped early in August on board the American brig Mary. That
the goods were the sole property of the Claimant, for himself and the
other heirs of general Fisher. That he left England as soon as his business
was 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 the
residence and citizenship of the Claimant and the others interested in the
cargo.
The affidavit of Mr. Gelston states the fact that a copy of the president's
instruction of the 28th of August, 1812, was given to the commander of
the Paul Jones, before she sailed on the cruize in which she captured the
Mary.
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 should
rest 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 of
the Thomas Gibbons, decided at last term, upon the effect of the
president's instruction of the 28th of August, 1812.
WOODWARD. The Thomas Gibbons was an American vessel and sailed
so early as to be presumed to have sailed in consequence of the repeal of
the orders in council. But we contend that the Mary, sailing from Ireland,
under a British license, as late as April, 1813, (which license was obtained
for the vessel and cargo, by a British subject in his own name,) and laden
with British goods, must be taken to be a British vessel, and not as sailing
in consequence of the repeal of the British orders in council, within the
meaning of the instruction of the 28th of August. But the fact that the
vessel has not been claimed, is clear proof that she was British.
The voyage from Ireland in April, 1813, as far as respects those
instructions, is a voyage de novo, whatever it may be considered to be
upon more general principles of law.
The intent of these instructions was to protect American vessels and their
cargoes, sailing from England under the impression that the repeal of the
orders in council would have been followed by a repeal of our nonimportation law, and a cessation of hostilities; but not to protect vessels
sailing with a full knowledge that those consequences had not, and
probably would not follow the repeal of the orders in council. At the time
the Mary sailed all such expectations had ceased. The instructions are
derogatory to the rights of war, and the party wishing to protect himself
thereby must bring himself strictly within their meaning and intent. The
vessel and cargo were safe at Waterford, and the political relation between
the two countries was then well understood, there was no necessity of her
sailing from thence; she knew that the war was raging with increased
violence.
The new license although it refers to the old one bears a very different
character. The old one was innocent because it was not then the license of
a belligerent, and did not give a belligerent character to what it protected;
but the new had all the characters of a belligerent license, notwithstanding
its connexion with the old. When she sailed, she knew, or might have
known, and taken warning by the act of congress of the 2d of January,
1813, which extends the protect on of the instructions only to vessels
sailing before the 15th of September, 1812. The instructions merge in, or
are controled by the provisions of that act. A vessel could not be protected
by the instructions unless she sailed not only in consequence of the repeal
of 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 was
obliged to take new papers and a new clearance. But if a voyage be legal
in its commencement, and before it be finished, become illegal, and the
party has an opportunity to put an end to it, he is bound to do so. The
prosecution of the voyage, after a knowledge of its illegality, and after an
opportunity given to abandon it, must be considered as placing the party in
delicto.
If this property was purchased after knowledge of the war had reached
England, it is liable to condemnation. The invoices are dated the 13th of
August, and the war was known in Liverpool on the 18th of July. By the
order for further proof the Claimant is called upon to prove the time when
the 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, but
merely states in general terms that the purchase was made before the war
was known in England. This is not such proof as the order requires. The
proof of the fact if it exist, is in England, why has it not been obtained? It
is the most material fact in the case. The voluntary affidavit of the party
himself, who is so deeply interested in the cause cannot be evidence. At
the last term the Court wanted further evidence of that fact. They have not
obtained it, nor is it shown that it was out of the power of the Claimant to
produce it. It was in his power. But it was not in our power to produce
evidence of the contrary. It is not probable that the witnesses would have
consented to a voluntary examination on our part and we had no means to
compel 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 no
appeal. Part of the cargo is in the same condition: 160 bundles of steel,
worth about 1000 dollars, are unclaimed and of course no appeal was
taken 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 belong
to N. J. Visscher, and that he intended to disclaim certain parts of the
cargo.
This case is not within the reason of the decision in the case of the
Thomas Gibbons. The intention of the instructions was to exempt the
property from capture, not to give it an entire immunity. This could be
done only by the legislative power. The object of the instructions was to
suspend the prize act in this particular until the legislature could interfere.

In the case of the Thomas Gibbons, this Court, in delivering its opinion
has 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 vessel
must be limited to the 15th of September, in order to be protected by the
instructions. The act of congress had made that definite which the
instructions had left undefined. If the instructions and the act are not thus
to be connected and construed together, there is no time limited, and a
vessel may at any period of the war be protected by those instructions.
Does this vessel come within those instructions? Is she a vessel owned by
citizens of the United States? She has been condemned as enemy's
property. From that sentence there has been no appeal. It is conclusive.
But although that objection seems conclusive, yet there is a still stronger
ground of condemnation. She did not sail from Waterford until nine
months after war was declared. Here was ample time for countermanding
her voyage after knowing that the repeal of the orders in council would not
produce a cessation of hostilities. Can such a case be protected by the
instructions.
The further proof furnishes irresistable evidence of trading with the
enemy. The order for further proof calls for evidence of the national
character of Visscher, and those interested with him in the claim, and of
the time when the goods were purchased, as well as with regard to the
question whether the instructions were on board the privateer. It is clear
therefore that the Court were not then satisfied as to any of those points.
No further competent evidence has been produced as to the time of
purchase. The Court will not receive as proof the affidavit of the interested
party himself, when it is clear that better evidence must have been in his
power. Why did he not produce the affidavit of his agent who made the
purchases, or the bills of parcels, which he must have in his possession, by
which to settle with the other heirs. These bills of parcels also would have
shown 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 remit
the proceeds of the estate. Instead of which he goes to trading with it for
his own benefit, not that of the heirs. By undertaking to ship goods he took
the risk on himself, and if lost, he must account to the other heirs.
It is immaterial, however, whether the goods were purchased before or
after knowledge of the war. 8 T. R. 556, the case of St. Philip cited in
Potts & 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 Court
to 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. A
license from the government of the United States ought to have been
obtained 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 the
Rapid. It is said this vessel was in motion.
If a vessel has been in motion so far that there is no opportunity of
countermanding the voyage, this distinction might be relied upon. But
here there was time for countermanding. Upon this point see again the
case of the Fortuna. When was the Mary in motion? War was published in
London 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 the
voyage, 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 this
country to that of the enemy after knowledge of the war.

EMMETT. As to the Rapid, the condemnation was owing to the presence of

Harrison, who might have countermanded the voyage, but did not. Whether the
party be in the country at the time of the breaking out of the war, or goes there
afterward is immaterial; in each case he is equally bound to countermand the
voyage. The present case therefore is precisely that of the Rapid.

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

The sailing from Waterford was a new voyage. We are to consider the
transaction, not in a commercial point of view, but as it is affected by public
policy and national law. To every belligerented purpose it was a voyage de
novo. 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 this
vessel. He traded at his peril. 1 Rob. 181, The Hoop.
4

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

PINKNEY, in reply.

It is said that Mr. Visscher has been trading for his own benefit, upon the funds
he received. There is no foundation for such an assertion. The letters of Harman
Visger, and all the documents show that the goods were purchased and shipped
for the joint benefit of all the heirs. He did the best for the interest of all
concerned, according to his judgment, and agreeably to the agreement of the
parties, which contemplates and provides for the case of his being obliged to
remit goods, and binds him to cause them to be insured.

Two questions arise in this case,

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

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 this
assertion depends upon the evidence of the cook, who says be believed it
because Smith ordered the men about. But it appears that this cook was shipped
just as the vessel sailed.

12

It is said also that the ship, not having been claimed, was condemned, and no
appeal has been prayed, which shows conclusively that she was British

property.
13

The reason why she was not claimed appears in the evidence. She was
hypothecated for more than she was worth. If lost by capture the owner is not
personally liable, but if he should claim, and the vessel should be restored, he
would be liable for the amount of the bottomry bond. Visscher, who held the
bond, could not claim in his own name, for it has been decided that such a lien
on the ship will not support a claim, and he could not use the name of the
owner without his consent, which he would certainly not give to impose a
liability on himself. It was his interest to make it a total loss. A sentence of
condemnation 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 by
an 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. We

think this case falls precisely within the principles decided in that of the
Thomas Gibbons. But it is said that the deviation to Waterford makes it a new
voyage. That this was a continuation of the voyage at the common law, is
admitted; but not in a Court of prize. Why should there, in this respect, be a
difference between the law merchant and the law of nations? We contend that
the 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 this
kind. Continuity is the favorite doctrine of a prize Court. The British Courts of
prize, on the subject of contraband of war, seem to have been enamored of this
doctrine of continuity; they condemn vessels returning with the proceeds of
contraband; thereby making the homeward voyage the outward voyage, and the
proceeds of contraband the contraband itself.

17

But it is said that this vessel was bound on an illegal voyage, and therefore
cannot plead distreas. She acted on the belief that the repeal of the orders in
council 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 this
error 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 is
still the same; she was still in itin ere. It is said that the instructions where a
substitute for a legislative act, and that the act of congress has superceded the
instructions. This we do not admit. They may both stand togethertheir objects
are different.
20

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

21

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

22

As to his obtaining a second British license, it was necessary; he could not

leave Waterford without it. It was not a voluntary act. He acted under a vis
major. The second license was only a renewal of the first; if he had authority to
go 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 the
arrival of the Mary; besides he knew that she was protected by the president's
instructions.

23

The opposite argument is raised upon the supposition that she must not only
commence her voyage under an impression that war had ceased, but must
continue 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 was
continued under the impression that she would be protected by the instructions
of the president. Although there was war between the United States and Great
Britain, yet there was peace between the United States and this adventure. This
case, in principle, is exactly that of the Thomas Gibbons.

25

But we are accused of not having produced sufficient further proof of the
proprietary interest in the cargo and the time of purchase. They say the only
evidence is the affidavit of N. J. Visschertestis in propria causa. Such
testimony is, and always must be admitted in prize causes. N. J. Visscher is a
man 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 have
done sothat we were in possession of the bills of parcels and ought to have
produced them. The fact is not so, nor can it, in the nature of commercial
transactions be so. We had the invoices, but not the bills of a parcels, they were
the vouchers of Harman Visger, who made the purchases; they remained in
England 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 a

comparison of the ships papers with the claim it will be found that he meant to
claim, and did claim, the whole of the cargo. The omission of this item was by
mistake.

28

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

29

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

30

The case of the Rapid was essentially different. There was opportunity for
treasonable 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 is
not a shadow of authority for condemnation in a case like this, where a mere
remittance of funds acquired before the war was intended to he made at the first
knowledge of the war.

31

All the cases cited against us, are to be found in the case of the Hoop, except
one 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 goods
sent to Spain before the war. But the commercial adventure was planned and
concocted during the war. 3. The Deergarden of Stockholm, was a case of trade
with the memy wholly originating during war. 4. The Elizabeth of Ostend, was
another 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 the
adventure was projected in the heat of the war. One part of the cargo was
considered as infected by the other. 6. The St. Louis or El Allessandro. In that
case the groods were shipped in the midst of the war, and were bound to the
port of an enemy. 7. In the case of the Compte de Wohronzoff, the goods were
shipped long after the existence and knowledge of the war, and in the regular
prosecution of trade. 8. So in the Expedite von Rotterdam, the exportation of
goods was from the enemies country in the midst of the war. 9. In the case of
the 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, and
was after the knowledge of the war. In that case there might be treasonable
intercourse, but here there could be none. 11. The Fortuna, was the case of a
voyage to the enemy's country, which might have been countermanded after
knowledge 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 case
much relied on by the opposite counsel, it appears in 8, T. R. 560 that the
sugars in question were received by the British merchant's agent from the
enemy, after the war broke out, and were received in the course of a general
trade, which is the feature that distinguishes this case of the Mary from all that
have been cited.
32

The Claimants in those cases were general merchants in the regular prosecution
of 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 Nicholl
in Potts and Bell, 8, T. R. 556, has added one moreThe 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 the
enemy, 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 how
long after the breaking out of the war the goods were shipped, which would be
a 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, and
certainly 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

not entitled to costs and expenses.

35

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

36

PINKNEY, I think not.

February 25th. Absent. TODD, J.

37

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

38

Nanning J. Visscher, an American citizen, administrator of general Garret

Fisher, deceased, went to Great Britain in the year 1811, for the purpose of
collecting the estate of the said general Garret Fisher in that country, and
remitting 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 in
British merchandize, and engaged the bring Mary, a vessel having an American
register, to convey it to the United States. The Mary was engaged at
Whoolwich and came round to Bristol, where her cargo was procured. She
began 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 United
States, having on board a British license dated on the 8th of July, 1812. While
prosecuting her voyage she encountered such severe weather, and received such
damage, as to be under the necessity, in order to avoid the danger of foundering
at sea, to put into the port of Waterford, in Ireland, for the purpose of being
repaired. While lying in Waterford and undergoing repairs, she was also
detained by a general embargo, imposed on all American vessels in the ports of
Great Britain. The Mary, being released by the high Court of admiralty, and her
repairs 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 the
following month. On the 22d day of April she was captured by the American
privateer Paul Jones, captain Taylor, and brought into Newport, Rhode Island,
where the vessel and cargo were libelled as enemy property. No claim being
put in for the vessel, she was condemned; but the cargo, which was claimed by
Nanning J. Visscher, for himself and the other heirs of general Fisher, was
restored. From this sentence the captors appealed. In the Circuit Court the
sentence of the District Court was reversed and the cargo was condemned.
From this sentence of condemnation an appeal was taken to this Court, and the
case 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 first
time relied on, but it was not admitted on the part of the captors, that these
instructions were known to captain Taylor. For the ascertainment of this
important fact, it was necessary to admit further proof.

40

It being uncertain how this fact would appear, the Court also directed further
proof 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 were
on board the Paul Jones at the time of the capture. These additional instructions
direct 'the public and private armed vessels of the United States not to intercept
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.'

42

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

43

1. That the Mary belonged, at the time of capture, to a citizen of the United
States.

44

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

45

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

46

She carried an American register, which represented her as the property of

James 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 to
command her until her capture, and who always supposed her to be the property
of Mr. Kennedy. Her first license, which was granted before intelligence of the
declaration of war had reached England, was granted to her as an American
vessel; and in the renewed license she was still considered as an American
vessel.

48

In opposition of this testimony is the deposition of one of the mariners, who

supposes 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 as
much as Mr. Kennedy or the captain.
49

So much of this deposition as refers to the information of the captain, is not

very probable; and if true, must either discredit the captain's testimony, or be
considered as a communication made for some particular purpose while the
vessel was in a British port. That part of it which states Smith to have ordered
the 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 the
vessel, or at Bristol, or at Waterford.

50

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

51

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

52

This sentence is now relied on by the captors as establishing the fact. The
argument has been pressed with great earnestness, and is certainly entitled to
serious consideration.

53

The conclusive effect which the captors would give to this sentence is founded
in part on reasoning which is technical, and in part on the operation which the
fact itself ought to have on the human mind in producing a conviction that the
claim 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 on
which it is pronounced, but to prove conclusively the facts which it asserts.
This principle has been maintained in the Courts of England, partionlarly as
applying to cases of insurance, and has been adopted by this Court in the case
of Croudson and others v. Leonard. Its application to the case at bar will be
considered.

55

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

56

The whole subject formed but one cause, and the whole came on together
before 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 the
fact was charged and was not repelled by the owner, he having failed to appear
and 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 claimed
according to the course of the Court, to the liabilities incurred by being
imported in a hostile bottom. In the same cause, a fact, not controverted by one
party, who does not appear, and therefore as to him taken for confessed, ought
not, on that implied admission, to be brought to hear upon another who does
appear, does controvert, and does disprove it. The owners of the cargo had no
control over the owner of the vessel. Visscher could not force Kennedy to file a
claim; nor could Visscher file a claim for him.
57

The evidence that the vessel was American property could not be looked into
so far as respected the rights of Kennedy, because he was in contumacy; but
Visscher was not in contumacy. He was not culpable for, and therefore ought
not to suffer for, the contumacy of Kennedy. That contumacy, in reason and in
justice, ought not to have prevented the District Court from looking into the
testimony concerning proprietary interest in the vessel, so far as the rights of
other Claimants depended on that interest. Nor is the Court informed of a legal
principle which should have restrained the district judge from looking into this
testimony. If we reason from analogy we find no principle adopted by the
Courts of law or equity, which in its application to Courts of admiralty, would
seem 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 against
one Defendant for want of an answer, does not prevent any other Defendant
from contesting, so far as respects himself, the very fact which is admitted by
the absent party.

59

No reason is perceived why a different rule should prevail in a Court of

admiralty, nor is the Court informed of any case in which a different rule has
been established.

60

If the District Court was not precluded by the nonclaim of the owner of the
vessel from examining the fact of ownership, so far as that fact could affect the
cargo, it will not be contended that an Appellate Court may not likewise
examine it.

61

This case is to be distinguished from those which have been decided on policies
of insurance, not only by the circumstance that the cause respecting the vessel
and 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.

62

The decisions of a Court of exclusive jurisdiction are necessarily conclusive on

all other Courts, because the subject matter is not examinable in them. With
respect to itself no reason is perceived for yielding to them a further
conclusiveness than is allowed to the judgments and decrees of Courts of
common law and equity. They bind the subject matter as between parties and
privies.

63

The whole world, it is said, are parties in an admiralty cause; and, therefore, the
whole world is bound by the decision. The reason on which this dictum stands
will determine its extent. Every person may make himself a party, and appeal
from the sentence; but notice of the controversy is necessary in order to become
a party, and it is a principle of natural justice, of universal obligation, that
before the rights of an individual be bound by a judicial sentence, he shall have
notice, either actual or implied, of the proceedings against him. Where these
proceedings are against the person, notice is served personally, or by
publication; where they are in rem, notice is served upon the thing itself. This is
necessarily notice to all those who have any interest in the thing, and is
reasonable because it is necessary, and because it is the part of common
prudence for all those who have any interest in it, to guard that interest by
persons who are in a situation to protect it. Every person, therefore, who could
assert any title to the Mary, has constructive notice of her seizure, and may
fairly be considered as a party to the libel. But those who have no interest in the
vessel which could be asserted in the Court of admiralty, have no notice of her
seizure, and can, on no principle of justice or reason, be considered as parties in
the cause so far as respects the vessel. When such person is brought before a
Court in which the fact is examinable, no sufficient reason is perceived for
precluding 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 reexaminable in a Court of common law, or a Court of equity; and no reason is
discerned why the sentence of a Court of admiralty, under the same
circumstances, 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 foreign
Court of admiralty, condemning a vessel or cargo as enemy property, is
conclusive in an action against the underwriters on a policy in which the
property is warranted to be neutral.

65

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

66

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

67

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

68

After stating the conclusiveness of the sentence of Courts of exclusive

jurisdiction, judge Washington said, 'This rule, when applied to the sentences of
Courts of admiralty, whether foreign or domestic, produces the doctrine which I
am now considering, upon the ground that all the world are parties in an
admiralty cause. The proceedings are in rem; but any person having an interest
in the property may interpose a claim, or may prosecute an appeal from the
sentence.

69

The insured is emphatically a party, and in every instance has an opportunity to

controvert the alleged grounds of condemnation, by proving, if he can, the
neutrality of the property. The master is his immediate agent, and he is also
bound to act for the benefit of all concerned; so that in this respect he also
represents the insurer.'

70

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

71

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

72

In support of her American character, the documentary evidence is complete

and unequivocal; and corroborative testimony is calculated to strengthen a
belief 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 of
this circumstance is not to be controverted. Its weight, however, is much
diminished by the consideration that the case affords no reasonable ground for
believing that the owner could have been restrained from making his claim by
the apprehension of failing to support it. There is no testimony, and there is no
reason to suspect that any testimony was attainable which could have
successfully opposed the register. This consideration gives plausibility to the
argument that the worthlessness of the vessel, the bottomry bond with which
she was charged, the expectation that the condemnation would relieve him
from that debt, might be the motives for not resisting that condemnation. It is
possible, too, that in point of fact, he might not have actnal notice of the
proceedings. This is not to be presumed, and is not to benefit the owner; but it is
possible; and may be taken into the account in estimating the effect of this
negligence on persons who are not culpable for it.
73

It has been said that the owners of the cargo, and that Nanning J. Visscher, who
held the bottomry bond, ought to have filed a claim. But the interest under the
bottomry bond could not have been asserted; nor had the owners of the cargo
any 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 would
have exerted themselves to have brought forward Kennedy as a Claimant, or to
have accounted for his silence; but in the District Court the president's
instructions were unknown, and their effect unthought of. The owners of the
cargo, therefore, neither troubled themselves about the vessel, nor attempted to
account for the claim to her not being filed. When afterwards in this Court the
bearing of those instructions was discovered, and further proof was directed;
that direction did not extend to proof which might account for the failure of
Kennedy to assert his title to the vessel. This may excuse the Claimants for not
producing testimony to that point.

74

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

75

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

76

That the voyage in its inception was produced by the opinion that the repeal of
the British orders in council would terminate the differences between the two
nations, is too clear for controversy. Had the Mary proceeded directly from
Bristol to her port of destination in the United States, the counsel for the
captors 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, has
broken the continuity of the voyage, and in deciding on its character, the
departure from Waterford, not the departure from Bristol, must be considered as
its commencement, It is not denied that, in a commercial sense, this is one
continued voyage, to take its date at the departure of the Mary from Bristol. But
it is urged that where the rights of war intervene, a different construction must
take 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 detained
there by the operation of causes she could not control. Had her departure been
from a neutral port, and she had been thus forced, during the voyage, into a
hostile port, would it be alleged that she had incurred the liabilities of a vessel
sailing from a port of the enemy? It is believed that this allegation could not be
sustained, and that it would not be made. But as between the captors and the
captured in this case, the voyage was, in its commencement, as innocent as if
made from a friendly port. The detention at Waterford, then, can no more affect
the 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 American
government 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, since
the vessel was already protected from them by the orders of the president under
which they sailed; and for any other purpose a license was unnecessary,
provided the importation, if the voyage had been immediate and direct from
Bristol, could be justified.

81

If a cargo be innocently put on board in an enemy country, if at that time it be

lawful to import it into the United States, the importation cannot be rendered
unlawful by a detention occasioned, in the course of the voyage, either by the
perils of the sea, or the act of the enemy, unless this effect be produced by
some 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 and
forfeitures in certain cases, passed on the 2d of January, 1813 controls the
instructions given by the president on the 28th of August, 1812, and limits the
operation of those instructions to the specific cases described by congress; and

as that act protects only those importations which were made previous to its
passage, 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 of
the United States by a system of policy supposed to have been founded on the
British orders in council.

85

The secretary of the treasury had power to remit forfeitures incurred under
these laws. When the orders in council were repealed, large shipments were
made of British merchandize by American merchants in the full confidence that
the American restrictive system would fall with the orders which produced it.
This opinion and the proceedings in consequence of it, were thought excusable
both by the executive and legislative departments of government. The president
instructed the cruizers of the United States not to molest vessels of this
description, 'but on the contrary, to give aid and assistance to the same; in order
that such vessels and their cargoes may be dealt with on their arrival, as may be
decided by the competent authorities.'

86

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

87

The legislature passed an act on the 2d of January 1813, taking away the
discretion of the secretary of the treasury, and directing him absolutely to remit
all penalties and forfeitures incurred by violating the non-intercourse laws, in
all cases of importation made before the passage of the act, in American
vessels, 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 Britain
and Ireland between the 23d day of June and the 15th of September then
preceding.

88

This act does not contemplate the conduct of captors, or the rights of war. Its
sole object is to remit certain penalties already incurred by a violation of
municipal law. The legislature does not appear to have had in view the
instructions 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 were
impelled by the same motivethe peculiar hardship of exposing the citizens of
the United States in such a case to the penalties either of war, or of municipal
law. 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 repeal
of the British orders in council. The president recognized the principle, but left
the time within which it should operate, to be decided by the armed vessels and
by the Courts, according to the circumstances of each case. The legislature
prescribed certain limits within which it should operate. This Court, in
construing the less explicit instructions of the president, with respect to the
departure of a vessel from a British port, has respected the more explicit
language of the legislature on the same subject. But the instructions of the
president relate only to the departure of the vessel. They do not extend to the
time of its arrival. In this respect there is nothing to be explained. Consequently
the act of congress can furnish no aid in their construction. That the instructions
were intended to protect from capture all vessels which had sailed in that
confidence which was inspired by the repeal of the British orders in council,
however the voyage might be protracted, is apparent from their language, and
from the fact that they continued to be delivered to the armed vessels of the
United 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 her
capture, 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 the
ground that there was probable cause of capture.

93

This claim is sustained by the Court. Further proof has been required, and the
lateness of the period at which the Mary was found on the ocean, justified a
suspicion that her case was not one to which the instructions of the president
extended.

94

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