13 U.S. 126 (1815), The Mary

Citation:13 U.S. 126, 3 L.Ed. 678
Case Date:February 25, 1815
Court:United States Supreme Court

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13 U.S. 126 (1815)

3 L.Ed. 678


United States Supreme Court.

February 25, 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

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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.

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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 theThomas 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 non-importation 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,

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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

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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...

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