THE

In relation to the vessel, Mr. M'Gregor deposed, that the only document relative to the sale of the ship, he be- ST. LAWlieved to be a letter to the former owners from their RENCE, agent, requesting them to make a bill of sale transfer

WEBB,

ring said ship to Andrew Ogden and James Heard, or MASTER. either of them, which he gave to Andrew Ogden.

It appeared further, from the examination of Mr. M'Gregor, that he was born in Scotland, was naturalized in the United States in 1795, had lived, the last seven years, in Liverpool, and was returning in the St. Lawrence, with his family, to the United States.

The goods claimed by Ogden as his sole property were shipped by the house of Ogden, Richards and Selden. The two gentlemen last named resided at Liverpool.

The District Court condemned the St. Lawrence and all the cargo, except the parts claimed by M'Gregor and the master. Both parties appealed from this decree to the Circuit Court, where the ship and whole cargo were condemned. From this decree the Claimants appealed to the Supreme Court, where the cause was argued by IRVING and WEBSTER for the Claimants, and PITMAN for the captors.

IRVING, for all the Claimants except M'Gregor and Penniman.

It is contended, on the part of the Claimants generally,

1. That the ship St. Lawrence, being an American vessel, owned and navigated wholly by citizens of the United States, and being on her return to the United States, with a cargo owned wholly by American citizens, could not legally be subject to capture by American

cruizers.

2. That the character of an American citizen, whether native or naturalized, is not rendered hostile by his residence in a hostile country, if, within a reasonable time after the declaration of war, he withdraws with his funds from the hostile country and returns to his own: and that he has a right so to withdraw.

THE

3. That a citizen of the United States, not resident in ST. LAW- the enemy country, has also a right, after the declaraRENCE, tion of war, to withdraw his funds, within a reasonable WEBB, time, from that country.

MASTER.

4. That if the Courts below were not satisfied that the property claimed was, bona fide, property of American citizens, fairly purchased and shipped, the said Courts ought to have let the Claimants into further proof fully to establish that fact; and, as they refused se to do, that the Claimants are entitled, in this Court, to the same privilege.

The argument will be confined to this last point.

It will probably be urged, on the part of the captors, that the secreting of papers by the master is good ground for refusing us further proof. We contend, that as the master was only the agent of the Claimants to navigate the ship, his act is not sufficient to justify the Court in such refusal. On this point the Court is referred to the following authorities. 1 Rob. 100, 119, The Concordia.id. 109, 129, The Hoop, De Vries, master.-id. 86, 102, The Bernon.—2 Rob. 296, 362, The Polly.-Chitty's Law of Nations, App. 303.—2 Rob. 87, 104, The Rising Sun. The last case goes also to show that a claim may he made by an agent: and that too, without clealy distinguishing the rights of each particular Claimant. also, Doug. 614, Le Caux v. Eden.

See

WEBSTER, for McGregor and Penniman-several Claimants.

1. McGregor claims half the ship and part of the cargo.

We contend that a distinction is to be taken between an American citizen, domiciled in England at the breaking out of the war, withdrawing his funds, and an Ame. rican citizen who goes to England after the declaration of war, for the same purpose. That the former, whether a native or naturalized citizen, has a right (and perhaps it is his duty) to return to the United States with his effects. If he has no such right, why should the law of nations have provided a reasonable time for removing in case of war? This rule of the law of na

THE

RENCE,

WEBB, MASTER.

tions has been founded upon the necessity of the case, and upon the hardship which would attend the want of ST. LAWsuch a rule. A citizen of one country may lawfully go to any other country, in time of peace, and take up his residence there; and it would be very hard if he must suffer by the sudden and unexpected breaking out of a war-an event over which he had no control. A neutral would be permitted to withdraw his funds in such a case; and if we should allow the privilege to neutrals, why should we deny it to our own citizens? 1 Rob. 1, The Vigilantia. 1 Bos. and Pul. 355, Bell v. Gilson.

The case of Escott, cited in the Hoop, 1 Rob. 165, 196, may perhaps be thought to make against our claim. But the cases are not alike. In that case, Escott sent for his property: here, M.Gregor came with his.

A character gained by residence, is lost by non-residence. When M.Gregor ceased to reside in England, his character, if hostile before, no longer continued hostile. That it was not his intention to continue his residence in England, is clearly evidenced by his actual return to the United States with his family.

With regard to his half of the ship, we contend that if he had a right to return, he had a right to use the means necessary for that purpose-he bad a right to purchase a ship for the conveyance of himself and his family. So if it was lawful for him to withdraw his funds, he might lawfully invest those funds in merchandize, if he could not otherwise withdraw them. 4 Rob. 161, 195, The Madonna delle Gracie. 3 Rob. 17, 12, The Indian Chief. 5 Rob. 248, The President. 5 Rob. 84, 90, The Ocean. 5 Rob. 60, The Diana.

1

2. As to Penniman's claim, we shall, at present, merely ask the Court to allow us further proof.

PITMAN, contra, contended,

1. That there was no legal evidence that the cargo belonged to the Claimants, as claimed.

2. That from the origin and character of the voyage. and suppression of papers, concealed enemy interests were to be presumed; that, therefore, all right to far

THE

ther proof was forfeited, and that condemnation of the ST. LAW- whole, as enemy's property, must ensue.

RENCE,

WEBB, 3. That the ship, at the time of capture, belonged to MASTER. Dickey and Thompson, and was liable to condemnation on the ground of having gone to Liverpool in April, 1813, with a cargo of iron and deals, as well as from the circumstances of the voyage upon which she was captured.

4. That the ship and cargo, whether belonging to citizens or enemies, being taken in trade with the enemy, were clothed with a hostile character, and therefore liable to condemnation.

Some other points were also touched upon in the course of the argument, viz.

The want of proper Claimants, of definite claims, and the requisite affidavits to support them.

The connexion of Ogden with a house of trade in the enemy country: the presumption that the partnership was, in fact, interested in what he claimed as his sole property; and that he must be considered as a British merchant, in regard to those transactions originating with his house in Liverpool.

The national character of M.Gregor, which presents itself in the case of the Venus.

The presumption that Van Wart resides in England, the claim being by Ogden for Irving and Smith, of New York, his consignees; and

The effect of the license.

Tuesday, March 15th.

The case was submitted without further argument: and on

Wednesday, March 16th. Absent....MARSHALL, Ch. J.

LIVINGSTON, J. after stating the facts of the case, delivered the opinion of the Court as follows:

THE

From the manner in which the Appellants have argued this cause, it does not appear that they are very ST. LAWsanguine in their expectations of our reversing the de- RENCE, cree of the Circuit Court, on the evidence on which that WEBB, Court and the District Court proceeded; but that their MASTER. chief hope is derived from the further proof which they have it in their power to produce, provided an oppor tunity be afforded them for that purpose. Except as to the property claimed by Mr. Penniman and Mr. M.Gregor, this Court does not perceive how the Circuit Court could have done otherwise, upon the proof before it, than confiscate the cargo of the St. Lawrence, as prize of war. Without meaning to decide, at present, on the right of an American citizen having funds in England, to withdraw them after a declaration of war, or of the Iatitnde which he may be allowed in the exercise of such a right, if it exists, we think the evidence would have justified the Court in considering this property as belonging to enemies of the United States.

:

The St. Lawrence had gone to England after the war was known, and had sailed from a British port, nearly one year after war had been declared: she was loaded in the country of the enemy, and by persons carrying on trade there: she was furnished with a British license, which extended both to British and American property and the bills of lading, not being in a very common form, were well calculated to excite suspicion. But these circumstances, strong as they are, might, if every thing had been fair, bave been so explained as to have convinced the Court that the property was truly American. Was this done, or even attempted? If we look at the conduct of the master and the Claimants, we find them both acting in a way which left the Court no other safe conclusion but that the cargo of the St. Lawrence was enemy property. The captain, instead of delivering it to the captors, or bringing into Court the letters to the consignees, which, no doubt, covered invoices and bills of lading, lets us know, in a way not to be misunderstood, that he had delivered or sent them to the parties to whom they were addressed. Taking his examination with the usual course of business, which is to accompany every shipment with a letter, no doubt can remain that such letters were not only on board, but that they have been regularly received by the reVOL. VII.

56