Armitz Drown v. the United States

• Citation: 8 Cranch 110,3 L.Ed. 504,12 U.S. 110
• Parties: ARMITZ DROWN v. THE UNITED STATES
• Decision Date: 01 February 1814
• Court: U.S. Supreme Court

12 U.S. 110

8 Cranch 110

3 L.Ed. 504

ARMITZ DROWN v. THE UNITED STATES.

Feb. 1, 1814

THIS was an appeal from the sentence of the Circuit Court of

Massachusetts, which condemned 550 tons of pine timber, claimed by Armitz Brown, the Appellant.

D. DAVIS, for the Appellant.

This is an appeal from the Circuit Court of Massachusetts, in which Court, the property consisting of about 550 tons of pine timber, twelve thousand staves, and eighteen tons of lathwood, were condemned. The libel states, that this cargo was loaded on board the Emulous, at Savannah, April 9th, 1812; that the cargo belonged to British subjects; that the ship departed for Plymouth, in England April 18th, in the same year, and put into New Bedford for repairs; and that the cargo was there unladen, and remained there until seized by Delano, as well on his own behalf, as on behalf of the United States. As to some of the allegations in the libel, there is no evidence whatever to support them; the ship never departed for Plymouth, never put into New Bedford for repairs. The facts are these:

The property in question was the cargo of the American ship Emulous, and was seized as enemy's property, about the 5th of April, A. D. 1813, nearly a year after the same had been discharged from the ship. From the transcript in the case, it appears that the Emulous was owned by John Delano and others, citizens of the United States; that, in February, 1812, the owners, by their agent, chartered the ship to Elijah Brown, as agent for Christopher Ide, Brothers and Co. and James Brown, British merchants; that, by the charter party, the ship was to proceed from Charleston, S. C. where she then lay, to Savannah, and there take on board a'cargo of lumber, at a certain freight stipulated in the charter party, and proceed with the same to Plymouth, in England, to unload there, or at any other of his Britannic majesty's dock-yards in England. The ship proceeded to Savannah, took on board the cargo mentioned in the libel, and was there stopped by the embargo of the 4th of April, 1812. On the 25th of the same month of April, it was agreed between the master of the ship and the agent of the shippers, that the ship should proceed to New Bedford, where she was owned, with the cargo, and remain there, without prejudice to the charter party; which agreement is endorsed upon the back of the charter party. The ship accordingly proceeded to New Bedford, and remained there until the latter part of May following, when the cargo was finally unladed and discharged from the ship. The staves and lathwood were landed and put on a wharf. The timber was put into a salt water creek, which is not navigable, but where the tide ebbs and flows, and where the timber remained for safe keeping until the time of the seizure. The timber was secured in this creek by booms extended across the entrance thereof, and fastened by stakes driven into the flats. On the 7th of November, 1812, the property was sold to the claimant by E. Brown, the agent, in pursuance of the authority which he had for that purpose as agent of the shippers, and in pursuance of the advice of Delano, who afterwards seized it in the manner and for the purposes stated in the libel. This sale, the Appellant contends was made bona fide for a valuable consideration, which has since been paid, and after notice thereof given to Delano, in whose possession the property then was. The seizure was not made until five months after the property had been sold to the present claimant, and nearly twelve months after it was discharged from the ship. The claimant, it is admitted, is a citizen of the United States. E. Brown, the agent, by whom the property was sold, is a citizen of the United States, and James Brown, one of the owners of the cargo, is also a citizen of the United States, but resides in London and carries on trade and commerce in that city.

Upon these facts, the principal point which will be contended for by the counsel for the claimants is, that this property was lawfully acquired, before the declaration of war by the United States against Great Britain; and that, it being found here at the time of the breaking out of the war, under the faith of the government, it is not, by the modern law of nations, nor by any law of the United States, liable to confiscation.

This question ought not to be decided upon the rigorous principles and the ancient practice of the law of nations; but according to the mitigated law of war, sanctioned by modern usage in civilized nations: For when the government of the United States was organized and finally established, it was not only its true policy, but its duty, 'to receive the law of nations in its modern state of purity and refinement.' Per Judge Wilson in the case of Ware v. Hylton, 3 Dall. 281. It is contended by the counsel for the claimant in this case, that the principle and the usage adopted and sanctioned by the modern law of nations, is this, 'that enemy's property found in this country at the breaking out of a war, is not liable to confiscation.' A different practice, said to have prevailed in Great Britain with regard to property in this situation, found afloat in their ports and harbors, will be hereafter considered.

The rule of the law of nations applicable to this case, is found in Vattel, p. 477. His words are, 'The sovereign declaring war, can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration. They came into his country under the public faith. By permitting them to enter and reside in his territories, he tacitly promised them full liberty and security for their return. He is therefore bound to allow them a reasonable time for withdrawing with their effects; and if they stay beyond the time prescribed, he has a right to treat them as enemies, though as enemies unarmed. But if they are detained by an insurmountable impediment, as by sickness, he must necessarily and for the same reason grant them a sufficient extension of the term.' In order to shew the humane and liberal spirit with which the above rule is adopted by sovereigns in modern times, the same author adds, 'At present, so far from being wanting in this duty, sovereigns carry their attention to humanity still further; so that foreigners who are subjects of the state against which war is declared, are frequently allowed full time for the settlement of their affairs.'

Are not these just and equitable rules of the modern law of nations of authority in the Judicial Courts of the United States? Upon what principle or policy, are they to be rejected, and those of an age dark, and even barbarous in comparison with the present, adopted in their stead? Does it comport with the interest and character of this government, to reject principles and usages, calculated to ameliorate and mitigate the state of war and to promote the interest of commerce, which it appears have been chearfully adopted by all the monarchies of Europe? The contract which was entered into by the agents of the parties in this case, was made upon the presumption that, in case of war, the property would be safe. This presumption arose from the uniform practice, in similar cases, in all countries upon which the law of nations is binding.

It has been suggested that this rule in Vattel is applicable only to such persons as may happen to be in the country at the time of the declaration of war. Such, indeed, is the letter of the rule: But when there is the same reason, there is the same law; and no good reason can be assigned why the property of an absent owner should not be protected, as well as that of those who may happen to be resident in the country declaring war. In addition to this, it may be observed, that the owners of this property were, in law, present during the whole negotiation relative to this cargo, by their agent, E. Brown, by whom it was purchased, and who had the whole care and charge of it, at the time that war was declared.

If the correctness or authority of Vattel should be questioned, he will be found to be supported by other writers of high character.

In Chitty's Law of Nations, p. 67, it is thus written: 'In strict justice, the right of seizure can take effect only on those possessions of the belligerent, which have come to the hands of his adversary after the declaration of war.' And again, in p. 80, 'Such appears to be, at present, the law and practice of civilized nations, with respect to hostile property found within their domimons at the breaking out of war.' These opinions are not only fairly collocted from modern writers upon the law of nations, but are entitled to particular respect as coming from a man of high character for his professional talents, and legal science; and who has done and written more to improve and reduce to system the common law of England, than any other writer upon that subject for the last thirty years.

The principles and practice of the modern law of nations here advocated, will also be found conformable to the common law. In Magna Charta, that venerable foundation of English law and liberty, it is provided, that merchant strangers in the realm of England at the beginning of a war, shall be protected from harm in body and goods, until it shall be made known to the high authorities of the nation, how British merchants should be treated in the enemy's country, and they were to be dealt with according to such treatment. Magna Charta, chap. 30. These provisions are commented upon, and emphatically eulogised by Montesquieu, 2d vol. p. 12.

Of similar character were the provisions of an ancient English statute, passed 27 Edwd. 3, Stat. 2, chap. 17, in which it is enacted, 'that in case of war, merchants shall not be sent suddenly out of the kingdom, but may go out of the kingdom freely, with their goods, within forty days, and shall not be in any thing hindered or disturbed in their passage, or to make profit of their...