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As to his obtaining a second British license, it was MARY, necessary; he could not leave Waterford without it. It STAFFORD, was not a voluntary act. He acted under a vis major. MASTER. 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.

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?

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.

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. Visscher-testis 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.

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But they say that as we undertook to furnish further proof we ought to have done so that 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 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.

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MARY,

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. STAFFORD, and did claim, the whole of the cargo. The omission of MASTER. this item was by mistake.

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

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 ?

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The case of the Rapid was essentially different. There was opportunity for treasonable intercourse. She sailed from this country after the war was declared. 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 be made at the first knowledge of the war.

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 VOL. IX.

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Deergarden of Stockholm, was a case of trade with the MARY, enemy wholly originating during war. 4. The Elizabeth STAFFORD, of Ostend, was another clear case of trading during war. MAS ER. 5. The Juffrouw Louisa Margaretha. According to the

statement of this case in Bosanquet 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 hat case the goods 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.

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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 more-' -The 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 subjerts, 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.

MARY,

It does not appear how long after the breaking out of THE the war the goods were shipped, which would be a very important consideration in the innocence or guilt of the STAFFORD, transaction.

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.

As to costs. If the Mary was within the president's instructions, the captors are not entitled to costs and expenses.

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

PINKNEY, I think not.

February 25th. Absent....TODD, J.

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

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 brig Mary, a vessel having an American register, to convey it to the United States. The Mary was engaged at Woolwich 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 Water

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ford and undergoing repairs, she was also detained by MARY, a general embargo, imposed on all American vessels in STAFFORD, the ports of Great Britain. The Mary, being released MASTER. 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,

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.

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.

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 citi

zens 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 or❝ders in council."

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?

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