The Thomas Gibbons, Rockwell Master

Decision Date16 March 1814
Citation8 Cranch 421,3 L.Ed. 610,12 U.S. 421
PartiesTHE THOMAS GIBBONS, ROCKWELL, MASTER
CourtU.S. Supreme Court

1. By being placed, by the enemy's pass or license, infra proesidium hostis; and by the employment and course of traffic. 1 Rob. 10, 11, The Vigilantia.

2. By direct trading with the enemy, flagrante bello.

II. Actually so, with regard to a great proportion of the cargo, according to the principles of municipal law, as recognized and acted upon by prize Courts, in administering the maritime law of nations; according to which,

1. Goods shipped without previous orders or authority, although expressed to be on account and risk of the consignee, continue the property and at the risk of the enemy shipper, until accepted by the citizen consignee.

2. General orders (transmitted in time of peace) to ship goods, are, ipso facto, superseded, if war intervene and render the act unlawful as well as dangerous.

3. Particular orders (given during the operation of the orders in council and the non-intercourse act) to ship 'when the trade opened,' or 'at proper seasons,' or 'as soon as it was legal to ship to the United States,' could not authorize a shipment, merely upon the conditional revocation of the orders in council, whilst the American non-intercourse act continued in force: a fortiori if war should supervene.

4. The proprietary interest in goods shipped with an understanding that they are to become the property of the citizen consignee, upon arriving at the port of destination, continues in the enemy shipper until arrival and delivery, without regard to the terms in which the consignment is ostensibly made. 2 Rob. 111, The Packet de Bilboa.

That, therefore, goods captured in itinere, under either of the foregoing predicaments, were to be treated as the property and at the risk of the shipper, and as partaking of his national character.

The principal question, he said, which would now be agitated was, whether the instruction of the president of the United States to American privateers, of 28th August, 1812, extended to the case now under consideration. He contended that it did not: or if it did, that it could not legally avoid the capture, nor in any manner affect the rights of the captors, quoad the prize in question, but could only be enforced (as originally intended) by the exercise of executive discretion and authority over the commission of the privateer. That, according to the decision in the case of the Sally, that the prize act operates as a grant from the United States to the captors, the president could not deprive them of their rights under that act. That the power of the president to instruct must be limited by the rights so granted to the captors. That the authority with which he was invested by congress, was only given him to regulate the conduct of our privateersmen, and to prevent abuses—not to limit their rights already vested. That he had no general authority to limit the rights of war, as was clear from the passage of particular acts of congress investing him with the respective powers of removing British subjects, of giving licenses to depart, &c. which would have been wholly unnecessary had he possessed a general power over these matters. That the position contended for, was further supported by the terms employed in the third section of the prize act, in which the owners, &c. of privateers are required to give bond to the United States that they will observe 'the instructions which shall be given them according to law, for the regulation of their conduct:' also by the letter of the secretary of state (Mr. Monroe) to Mr. Russell, of August 31st, 1812, written under the eye of the president, in which the secretary says, that it was not in the power of the president to control the privateers, except by an indiscriminate revocation of their commissions. But,

2. That, admitting the power of the president to issue the instruction under consideration, the present case was not embraced thereby. That the property in question, having been shipped after a full knowledge of the war, could not be considered as shipped in consequence of the alleged repeal of the orders in council. That the only time in which the shipments contemplated by the instruction, could be made, was that which intervened between the repeal of the orders in council and the knowledge of the declaration of war; after which it was unreasonable to calculate on the safety of property shipped for the United States. That the ship, also, was not within the description of vessels intended by the instruction to be exempted from capture, because she was engaged in an illicit intercouse with the enemy, under an enemy passport issued after the knowledge of the war in England, and was therefore quasi enemy property. That, at all events, the property intended to be protected, by the instruction from capture, was American property, and not British, and therefore that, as to the latter, the capture was certainly rightful.

HARPER, contra.

It has been said, on the part of the captors, that the president had no authority to issue the instruction of 28th August, either on general principles, or under the prize act. We contend that his authority to issue it, may be established on either of these grounds.

1. On general principles. The president, as commander in chief of the army and navy of the United States, has, in time of war, the whole public armed force of the nation under his control. The privateers of the United States constitute a part of the public armed force: this appears from their commissions, without which they would be pirates. On general principles, therefore, the president was authorized to issue the instruction in question.

2. By the 8th section of the prize act, the president is authorized to establish and order suitable instructions for the better governing and directing the conduct of the privateers of the United States. Now this 'governing and directing' their conduct, we conceive, may be applied as well to the designation of the objects of hostility as to the mode of...

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1 cases
  • Caledonian Dickey
    • United States
    • United States Supreme Court
    • 16 Febrero 1819
    ......219; The Two Friends, Id. 283; The Thomas Gibbons, 8 Cranch 421, to show, that the vessel could not be seized as ......

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