1814.

Johnson

V.

28 bales of Merchandize,

&c.

"The sovereign declaring war, can neither detain NEW-YORK, those subjects of the enemy who are within his dominions at the time of the declaration, nor their effectsthey came into his country on the public faith. By permitting them to enter into his territories, and continue there, he tacitly promised them liberty and security for their return; he is therefore to allow them a reasonable time for withdrawing with their effects ; and, if they stay beyond the term prescribed, he has a right to treat them as enemies-though as enemies disarmed."

This embraces all the law on the subject; for, although recognized, it is no where more distinctly

stated.

Martens, more rigid in the application of the rule,

says

"Where there are neither treaties nor laws touching these points, nations continue still to seize on all the property belonging to their enemies' subjects which is carried into their territories after the declaration of war." This goes directly to the point before us-and I shall add an extract from Chitty to the same effect. He says, that

"In strict justice, the right of seizure can take effect only on those possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities."

In another place he observes," the prohibition of Vattel reaches to the exemption only of goods in our hands, at the time of the declaration, and does not cover property coming into our territory after that declaration."

That the exemption of Vattel embraces only goods in the country at the rupture, is perfectly plain; and VOL. III.

56

1814.

Johnson

NEW-YORK, I think it open to an inquiry, whether a still more rigid rule may not be fairly extracted from the terms in which it is expressed, which is, whether not only the property but the owner, the claimant, must not have been within the country before the war, to entitle either to governmental protection.

V.

28 bales of Merchandize, &c.

Personal property follows the rights of the person. On general principles, therefore, unless the person claiming is entitled to protection, his property cannot be. The persons, according to Vattel, entitled to protection, are those who were in the country at the declaration of war. They must be permitted to return with their effects. And it seems to me, that the exemption of hostile property from seizure, is founded entirely on this personal right, and that this right is derived from the circumstance of having come into the country before the war, and therefore on the public faith. In common with all other general rules, this must ever be subservient to the express stipulations of a treaty. As it does not seem necessary, I shall not now examine whether such exist between the United States and Great Britain.

These remarks are only the partial result of a general investigation, and not a direct examination of the principle they embrace. They are therefore particularly open

to correction.

This particular branch of the subject has been examined with some care, for the purpose of ascertaining whether there were any, and if so, what circumstances that could take enemy property, not in the country, out of the operation of the general rule, clearly established by the authorities which have been referred to; and I am constrained to say, that not a single dictum has been found, except that in Azuni, to which I shall have oc

1814.

casion to refer, claiming the safeguard of public faith for NEW-YORK, property not actually within our territorial limits at the commencement of the war. The inference appears to me irresistible, that no extension tended.

of the principle is in

It would seem to follow, then, under the rule which appears to me to be established by that public law which must control the decisions of this court, that if this must be considered enemy property, it is subject to capture and condemnation as prize.

Whether the result of my examinations be correct or otherwise, to attempt to show, after what has been said, that the property in question is not protected because laden, and proceeding in ignorance of the war, would be superfluous and irregular. But indulging, as I do, a proper diffidence in my opinion of the law, on a subject so novel and important, I must be permitted to fortify it by attempting to develop what I conceive to be the practice of other nations who profess to be governed by it.

In the doctrines held and enforced by Great Britain, we may perhaps find a satisfactory exposition of the law, in cases like this we are discussing. And if in a war with her, we adopt the construction of her own government, and the practice of her own courts, we can afford no just ground of complaint.

In examining these we shall find, not only that the English prize courts are in the constant habit of condemning property brought in ignorant of the war when captured, but property in port at the commencement of hostilities, and even property captured before the war, but in contemplation of that event. The only difficulty and discussion that ever occurred on the subject in that country was to whose benefit the condemnation should

Johnson

V.

28 bales of Merchandize, &c.

NEW-YORK, inure: whether to the lord high admiral, or since the

1814

Johnson V.

28 bales of Merchandize, &c.

abolition of that office, to the king in his office of Admiralty, or to him jure coronæ.

During the usurpation of Cromwell, the office of lord high admiral was in various ways depressed, and its perquisites reduced. The protector found them valuable, and it became his policy and his interest, not only to engross and direct their application to unusual purposes, but to abolish the office itself.

From time immemorial, captures made from the enemy under particular circumstances, had been considered as perquisites of the admiral, and under the name of Droights of Admiralty, appropriated to support the dignity and splendour of his station. The sinister policy, and distracted views of the government at this period, introduced much confusion as to the distribution of the revenue arising from these sources; and at the restoration, the distinction between droights of admiralty, and direct forfeitures to the crown, was ill understood, and but little regarded in practice. With the regular settlement of the government, the lord high admiral began to claim, what had once been considered the rights and emoluments, of his office, which produced much animated discussion between him and the king. The controversy was at length referred to the greatest lawyers and the ablest civilians in the kingdom. From their combined wisdom resulted an order of the Privy Council, which, with great apparent precision, designated the rights, and settled the conflicting pretensions of these worthy brothers.

This order in council bears date the 6th of March, 1665. As far as relates to this subject, it remains unaltered, and at this day governs the decisions and practice in the British prize courts.

1814.

Independent of all other matter, a reference to the NEW-YORK, terms of this order alone will abundantly show, that property coming in ignorant of the war, is subject in England to seizure and confiscation.

The part of the order connected with this question is in these words:

"All ships and goods belonging to enemies, coming into any port, creek or road, of his majesty's kingdom of England or of Ireland, by stress of weather, or other accident, or by mistake of port, or by ignorance not knowing of the war, do belong to the lord high admi

ral."

Enemy's ships and goods, then, coming into a port, creek, or road, not knowing of the war, are condemned to the admiral. But the coming in must be voluntary, unconnected, at least, with any circumstances resulting from the war, to constitute a droight of admiralty. But what if it be not so? The answer of Sir William Scott is plain":

"When vessels come in not under any motive arising out of the occasions of war, but from distress of weather or want of provisions, or from ignorance of war, and are seized in port, they belong to the lord high admiral. But where the hand of violence has been exercised upon them, where it arises from acts connected with war, &c. they belong to the crown."

Thus far, then, we have an exposition of this order, and therefore of the British practice, which is still regulated by it, showing, conclusively, that ignorance of the war does not avert a forfeiture, and that under this part of the order these goods would not be droights of admiralty, because the hand of violence has been upon them;

Johnson

V.

28 bales of Merchandize, &c.