United States v. Palmer, 16 U.S. (3 Wheat.) 610 (1818)

THE UNITED STATES v.

PALMER et al.

A robbery committed on the high seas, although such robbery if committed on land would not by the laws of the United States be punishable with death, is piracy, under the 8th section of the act of 1796, ch. 36 (ix), for the punishment of certain crimes against the United States ; and the circuit courts have jurisdiction thereof.

The crime of robbery, as mentioned in the act, is the crime of robbery as recognized and defined at common law.

The crime of robbery committed by a person who is not a citizen of the United States, on the high seas, on board of a ship belonging exclusively to subjects of a foreign state, is not piracy under the act, and is not punishable in the courts of the United States.

When a civil war rages in a foreign nation, one part of which separates itself from the old-estab¬ lished government, and erects itself iuto a distinct government, the courts of the Union must view such newly-constituted government as it is viewed

Note.— See note to U. S. v. Bevans, 3 Wheat. 336 ; also U. S. Rev. Stat. sects. 5370, 5373, and cases there cited.

Piracy is robbery, or a forcible depredation, on the high seas, without lawful authority, and done animo furandi, and in the spirit and intention of universal hostility. It is the same offense at sea with robbery on land ; and all the writers on the law of nations; and on the maritime law of Europe, agree in this definition of piracy. Atty.-Gen. v. Kwok-a-Sing, 8 Eng. Rep. 161; Rex v. Dawson, 13 How. St. Tr. 451, 454 ; 1 Kent’s Com. 185 ; U. S. v. Smith, 5 Wheat. 153, 163, note; 3 Inst. 113; 1 Hawk. P. C. 351 ; 1 Russ. Crimes, 94.

The vessels of a nation, whether public or pri¬ vate, traversing the ocean, which is the common highway of nations, are deemed to be floating parts of her territory ; and over a crime committed on board, aud not within the bounds of any other

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by the legislative and executive departments of the government of the United States.

If that government remains neutral, but recog¬ nizes the existence of a civil war, the courts of the Union cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy.

The same testimony which would be sufficient to prove that a vessel or person is in the service of an acknowledged state, is admissible to prove, that they are in the service of such newly-erected gov¬ ernment. Its seal cannot be allowed to prove itself, but may be proved by such testimony as the nature of the case admits ; and the fact that a vessel or person is in the service of such govern¬ ment may be established otherwise, should it be impracticable to prove the seal.

THIS case was certified from the Circurt Court for the Massachusetts District. 611] At the Circuit Court of the United States, for the first circuit, begun and holden at Boston, within and for the Massachusetts District, on Wednesday, the fifteenth day. of October, in the year of our Lord one thousand eight hundred and seventeen.

Before the Honorable Joseph Story, associate justice, and John Davis, district judge.

The jurors of the United States of America within and for the district aforesaid, upon their oaths, do present, that John Palmer and Thomas Wilson, both late of Boston, in the district aforesaid, mariners, and Barney Cal- loghan, late of Newburyport, in the aforesaid district, mariner, with force and arms, upon the high seas, out of the jurisdiction of any particular state, on the fourth day of July now last past, did piratically and feloniously set upon, board, break, and enter a certain ship called the Industria Raifaelli, then and there being a ship of certain persons (to the jurors aforesaid unknown), and then and there, piratically and feloniously, did make an assault in and upon certain persons, being mariners, subjects of the King of Spain, whose names to the jurors aforesaid are unknown, in the same ship, in the peace of God, and of the said United States of America, then and there being, and then there piratically and felonious¬ ly did put the aforesaid persons, mariners of the same ship, in the ship aforesaid then being,

in corporal fear and danger of their lives, then and there, in the ship aforesaid, upon the high seas aforesaid, and out of the jurisdiction of any particular state, as aforesaid, and piratic¬ ally and feloniously did, then and there, steal, take, and carry away *five hun-

dred boxes of sugar, of the value of twenty thousand dollars of lawful money of the said United States; sixty pipes of rum, of the value of six thousand dollars; two hundred demi¬ johns of honey, of the value of one thousand dollars; one thousand hides, of the value of three thousand dollars ; ten hogsheads of coffee, of the value of two thousand dollars; and four bags of silver and gold, of the value of sixty thousand dollars, of the like lawful money of the said United States of America, the goods and chattels of certain persons (to the jurors aforesaid unknown), then and there, upon the high seas aforesaid, and out of the jurisdiction of any particular state, being found in the 'aforesaid ship, in custody and possession of the said mariners in the said ship, from the said mariners of the same ship, and from their cus¬ tody and possession, then and there, upon the high seas aforesaid, out of the jurisdiction of any particular state, as aforesaid; against the peace and dignity of the said United States, and the form of the statute of the United States, in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do farther present, that the aforesaid district of Massa¬ chusetts is the district where the offenders aforesaid were first apprehended for the said offense.

To which indictment the prisoners pleaded not guilty, and upon the trial the following questions occurred, upon which the opinions of the said judges of the Circuit Court were opposed :

1st. Whether a robbery committed upon the high seas, although such robbery, if committed upon land, would not, by the laws of the United States, be punishable *with

death, is piracy under the eighth section of the act of Congress, passed the thirtieth of April, A. D., 1790; and whether the Circuit Court of

nation, the courts of the country to which the ves- vel belongs have a complete territorial jurisdiction. Wheaton’s International Law, 158, 174; U. S. v. Pirates, 5 Wheat. 184 ; IT. S. v. Imbert, 4 Wash. 0. C. 702 ; U. S. v. Holmes, 5 Wheat. 412 ; U. S. v. Wilt- bergcr, 5 Wheat. 76 ; Reg. v. Serva, 2 Car. & K. 53 ; 1 Den. C. C. 104 ; Reg. v. Bjornsen, Leigh & C. 545; Reid v. Ship Vere, Bee, 66; Rex v. Amarro, Russ & Ry. 284.

Mariners sailing a vessel or the passengers may commit piracy upon it ; as if they shall violently dispossess the master, and afterwards carry away the ship itself, or any of the goods, tackle, apparel or furniture feloniously. Rex v. Dawson, 13 How¬ ell’s St. Tr. 451, 464.

Piracy is usually committed under the flag of some known government; but the crew of any vessel committing it casts off thereby its national character ; and so, the guilty persons, though the acknowledged subjects of some known govern¬ ment, may be apprehended and punished by the authorities of any nation. U. S. v. Pirates, 5 Wheat. 184; Adams v. The People, 1 Comst. 173, 177; The Marianna Flora, 11 Wheat. 1, 40 ; U. S. v. Gilbert, 2 Sumner, 19, 24, note ; 4 Bl. Com. 71 ; U. S. v. Demar- chi, 5 Blatchf. 84; Wheat. Int. Law 185, 6th ed.; Dole v. N. E. Ins. Co., 2 Cliff. 394, 418 ; In re. Ternan, 9 Cox, C. C. 522 ; Attorney Gen’l v. Kwok-a-Sing, 8 Eng. R. 143, 161.

By the revised statutes of the United States, “ Every person who, on the high seas, commits the crime of piracy as defined by the law of nations,

472

and is afterwards brought into, or found in, the United States, shall suffer death.” R. S. ofU. S.. sec. 5,368.

Pirates may be lawfully captured on the ocean by the public or private ships of every nation, and by becoming a pirate a vessel loses its national character. The Marianna Flora, 11 Wheat. 1 ; IT. S. v. Pirates, 5 Wheat. 184; U. S. v. Jones, 3 Wash, C. C. 209.

To bring a person committing murder, or rob¬ bery, within the rule laid down in United States v. Palmer, supra , the vessel on board which he is, or to which he belongs, must be, at the time, in point of fact aS well as right, the property of subjects of a foreign state, who must have, in virtue of this property, the control of the vessel. She must, at the time, be sailing under the flag of a foreign state, whose authority is acknowledged. General piracy, or murder, or robbery committed by per¬ sons on board of a vessel not at the time belonging- to the subjects of any foreign power, butin posses¬ sion of a crew acting in defiance of law, and ac¬ knowledging obedience to no government what¬ ever, is within the act, and is punishable in the courts of the United States. U. S. v. Klintock, 5 Wheat, 144, 151.

A vessel loses her national character byassum- ing a piratical character ; and a piracy committed by a foreigner from on board such a vessel, upon any other vessel whatever, is punishable under sec. 8 of the act of April 30, 1790. U. S. v. Pirates, 5 Wheat, 184; U. S. v. Gilbert, 2 Suntn. 19.

Wheat. 3.

1818

The United States v. Palmer et al. 613

the United States hath authority to take cog- • nizance of, try, and punish such offense.

2d. Whether the crime of robbery, men¬ tioned in the said eighth section of the act of Congress aforesaid, is the crime of robbery, a.s recognized and defined at common law, or is dispunishable until it is defined and expressly punished by some act of Congress, other than the act of Congress above mentioned.

3d. Whether the crime of robbery, commit¬ ted by persons who are not citizens of the United States, on the high seas, on board of any ship or vessel, belonging exclusively to the subjects of any foreign state or sovereignty, or upon the person of any subject of any foreign state or sovereignty, not on board of any ship or vessel belonging to any citizen or citizens of the United States, be a robbery or piracy, within the true intent and meaning of the said eighth section of the act of Congress aforesaid, and of which the Circuit Court of the United States hath cognizance, to hear, try, determine, and punish the same.

4th. Whether the crime of robbery com¬ mitted on the high seas, by citizens of the United States, on board of any ship or vessel not belonging to the United States, or to any citizens of the United States, in whole or in part, but owned by, and exclusively belonging to, the subjects of a foreign state or sovereignty, or committed on the higli seas, on the person of any subject of any foreign state or sover¬ eignty, who is not, at the time, on board of any 614;] ship or vessel, belonging in whole or part to the United States, or to any citizen thereof, be a robbery or piracy within the said eighth section of the acts of Congress afore¬ said, and of which the Circuit Court of the United States hath cognizance to hear, try, and determine, and punish the same.

5th. Whether any revolted colony, district, or people, which have thrown off their alle¬ giance to their mother country, but have never been acknowledged by the United States as a sovereign or independent nation or power, have authority to issue commissions to make capt¬ ures on the high seas of the persons, property and vessels of the subjects of the mother coun¬ try, who retain their allegiance; and whether the captures made under such commissions are, as to the United States, to be deemed lawful; and whether the forcible seizure, with violence, and by putting in fear of the persons on board of the vessels, the property of the subjects of such mother country, who retain their alle¬ giance, on the high seas, in virtue of such com¬ missions, is not to be deemed a robbery or piracy within the said eighth section of the act of Con¬ gress aforesaid. *

6th. Whether an act, which would be deemed a robbery on the high seas, if done without a lawful commission, is protected from being considered as a robbery on the high seas, when the same act is done under a commission, or the color of a commission from any foreign colony, district, or people, which have revolted from their native allegiance, afid have de¬ clared themselves independent and sovereign, 015] and have assumed to exercise the pow¬ ers and authorities of an independent and sov¬ ereign government, but have never been ac¬ knowledged, or recognized, as an independent or sovereign government, or nation, by the Wheat. 3.

United States, or by any other foreign state, prince, or sovereignty.

7th. Whether the existence of a commission to make captures, where it is set up as a defense to an indictment for piracy, must be proved by the production of the original commission, or of a certified copy thereof from the proper de¬ partment of the foreign state or sovereignty by whom it is .granted; or if not, whether the impossibility of producing either the original or sucli certified copy must not be proved, before any inferior and secondary evidence of the ex¬ istence of such commission is to be allowed, on the trial of such indictment before any court of the United States.

8th. Whether a seal, purporting to be the seal of a foreign state or sovereignty, and an¬ nexed to any such commission, or a certified copy thereof, is to be admitted in a court of the United States as proving itself, without- any other proof of its genuineness, so as to establish the legal existence of such commission from such foreign state or sovereignty.

9th. Whether a seal, annexed to any such commission, purporting to be the public seal used by the persons exercising the powers of government in any foreign colony, distinct, or people, which have revolted from their native allegiance, and have declared themselves inde¬ pendent and sovereign, and actually exercise the powers of an independent government *or nation, but have never been ac-

knowledged as such independent government or nation by the United States, is admissible in a court of the United States as proof of the legal existence of such commission, with or without further proof of the genuineness of such seal.

10th. Whether any colony, district, or peo¬ ple, who have revolted from their native alle¬ giance, and have assumed upon themselves the exercise of independent and sovereign power, can be deemed, in any court of the United States, an independent or sovereign nation, or government, until they have been acknowl¬ edged as such by the government of the United States; and whether such acknowledgment can be proved in a court of the United States, other¬ wise than by some act or statute or resolution, of the Congress of the United States, or by some public proclamation, or other public act of the executive authority of the United States, directly containing or announcing such ac¬ knowledgment, or by publicly receiving and acknowledging an ambassador, or other public minister, from such colony, district, or people ; and whether such acknowledgment can be proved by mere inference from the private acts or private instructions of the executive of the United States, when no public acknowledg¬ ment has ever been made; and whether tiie courts of the United States are bound judicially to take notice of the existing relations of the United States, as to foreign states and sover¬ eignties, their colonies, and dependencies.

1 1th. Whether, in case of a civil war between a mother country and its colony, the subjects of the different parties are to be deemed, in re¬ spect to neutral nations, as enemies [G 1 7 to each other, entitled to the rights of war; and that captures made of each other’s ships and other property on the high seas are to be considered, in respect to neutral nations, as

473

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1818

rightful, so that courts of law of neutral nations are not authorized to deem such acts as piracy.

And the said judges, being so opposed in opinion upon the questions aforesaid, the same were then and there, at the request of the Dis¬ trict-Attorney for the United States, stated, un¬ der the direction of the judges, and ordered by the court to be certified under the seal of the court to the Supreme Court, at their next ses¬ sion to be held thereafter, to be finally decided by said Supreme Court ; and the court being further of opinion that further proceedings could not be had in said cause without preju¬ dice to the merits of the same cause, did order, that the jury impaneled as aforesaid to try said cause be discharged from giving any ver¬ dict therein.

Mr. Blake, for the United States, argued: 1. That a robbery committed on the high seas is piracy, under the 8th section of the act of 1790, ch. 36, “ for the punishment of certain crimes against the United States,” although no law of the United States be subsisting for the punish¬ ment of the same offense if committed on land ; and that such piracy is cognizable in the Circuit Court. The words of the statute are, “ That if any person or persons shall commit, upon the high seas,”&c., “murder or robbery, or any other offense, which, if committed within the body of a county, would, by the laws of the 018] United States, be punishable with death;” &c., “every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death,” &c. The relative pronoun “which” does not relate back to the first specified offenses of “ murder or robbery,” but refers only to its immediate antecedent, “any other offense.” It is this last class of crimes only that must be punishable, by the laws of the United States, with death, if committed within the body of a county, in order to con¬ stitute them piracies, when committed on the high seas. It is a mistaken principle com¬ monly applied to penal statutes, that they are to be construed strictly. Sir William Jones has laid down the true rule, that criminal laws are to be construed liberally as to the offense, and strictly as to the offender.1 A strong illus¬ tration of the good sense of this rule is to be found in the construction which has been given in England to the Stabbing Act.3 A contrary construction of the statute now under consid¬ eration would render it wholly inoperative, until there shall be a law of the United States for the punishment of robbery committed in the body of a county; which will never happen, as the United States have no constitutional au¬ thority to punish a robbery committed within the body of a county. Forts, arsenals, dock¬ yards, &c. , ‘ ‘ under the sole and exclusive juris¬ diction of the United States,” cannot be said to be within the body of a county. It may be admitted that there is some degree of looseness 619 ] in the phraseology of this section, which was evidently copied from the British statute of the 39 Geo. III., ch. 37, relative to the same subject, without regarding the differ¬ ence between the constitutions of the two coun¬ tries. On the construction of the British stat-

1. — Life of Sir W. Jones, p. 268.

2. — Foster’s Crown Law, 297.

174

ute, it would be perfectly immaterial whether the pronoun ‘ ‘ which ” was carried back to the • words “murder and robbery,” or whether it was confined to its immediate antecedent; be¬ cause, in England, murder and robbery are punishable with death, when committed in the body of a county, under the same laws which constitute them piracies when committed on the high seas. But such a construction of our statute would render it wholly inoperative as to the great offenses of murder and robbery, which are not, and cannot be made punishable under the laws of the United States, when committed within the body of a county. Nor can it be objected, that by the construction now contended for, the words ‘ ‘ any other of¬ fense” would be equally inoperative; because there are various offenses which would still be reached by the statute, such as treason, &c., for the punishment of which Congress may provide, though committed within the body of a county. It follows, as a corollary, that the Circuit Court has cognizance of these offenses; for, by the judiciary act of 1789, ch. 20, s. 11, it has cognizance of ‘ ‘ all crimes and offenses cognizable under the authority of the United States.” 2. The crime of robbery mentioned in the 8th section of the act of 1790, is the crime of robbery as understood at common law. A piracy or felony on the high seas is sufficiently defined by terming it a robbery committed on the high seas. *The

import of the term “robbery” must be sought in the common law, in the same manner as the import of the terms murder, manslaughter, rescous, benefit of clergy, and many others that are used in the criminal code of the United States. 3. If the robbery in question amount to piracy, by the law of nations, the words “ any person or persons,” in the 8th section, will embrace the subjects of all nations, who may commit that offense on the high seas, whether on board a foreign vessel or a vessel belonging to citizens of the United States. A felony, which is made a piracy by municipal statutes, and was not such by the law of na¬ tions, cannot be tried by the courts of the United States, if committed by a foreigner on board a foreign vessel, on the high seas; be¬ cause the jurisdiction of the United States, be¬ yond their own territorial limits, only extends to the punishment of crimes which are piracy by the law of nations.. But it is the right and the duty of the United States, as a member of the community of nations, to punish offenses committed on the high seas against the law of nations.3 By this statute, Congress have exer¬ cised this power, which is also conferred on them by the constitution. The offense of piracy, which is imperfectly defined by the law of nations, is declared to be murder or robbery committed on the high seas, or in any river, &c., out of the jurisdiction of any particular state; and is made punishable with death. Congress cannot be presumed to have neg¬ lected so important a duty as that of defining and punishing the offense of general piracy.

found no definition and punishment of it; be¬ cause the law of nations merely creates the offense, and the common law and statute, 28

3.-4 Bl. Com. 71.

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The United States v. Palmer et al.

621

Henry VIII. , cli. 15, may perhaps not be con¬ sidered as in force in the United States. 4. The crime of robbery committed by a citizen of the United States on the high seas, on board a foreign vessel, or on the person of a for¬ eigner, must be considered as a piracy, under the 8tli section of the act; because the jurisdic¬ tion of a nation extends to its citizens, where¬ soever they may be, except within the territory of a foreign sovereign.1 The jurisdiction of a nation over its public ships is exclusive every¬ where; but it is not exclusive over merchant vessels belonging to its subjects. It is there concurrent with the personal jurisdiction of other nations over their citizens. Consequently the personal jurisdiction of the United States over their citizens extends to offenses commit¬ ted by them on board of foreign merchant ves¬ sels on the high seas. 5. The general principle applied by the writers on the law of nations to the case of a civil war considers the war (as be¬ tween the conflicting parties) as just on both sides, and that each is to treat the other as a public enemy, according to the established usages of war.'2

So, also, it is the duty of other nations to re¬ main neutral, and not to interfere with the exer¬ cise of complete belligerent rights by both par¬ ties within the territory which is the scene of their hostilities. But this does not imply a 022] right on their part to push their wars on to the ocean, and to annoy the rest of the world on this common highway of nations. The generality of the expressions used by Vat- tel on this subject may, indeed, seem to import such a right. But it should be remembered that, with all his merit, he is very deficient in precision, and on this question peculiarly un¬ satisfactory. The maritime rights of a bellig¬ erent power must be perfect, or they cannot exist at all. They must, therefore, include the right of visitation and search, and of detaining for adjudication, and of punishing a resistance to the exercise of these rights by the appropri¬ ate penalty of confiscation. 8o that neutral nations may come to be affected in their most valuable interests by a mere domestic quarrel, which never ought to have been extended be¬ yond the territory of the people where it orig¬ inated. This renders it indispensable to in¬ quire how far neutral nations are bound to submit to the exercise of these high preroga¬ tives of sovereignty in a civil war, under color of a commission from one of the belligerent parties, whose independence has not been ac¬ knowledged by any power.

The right of an insurgent people to be treated by the parent state, against which it revolts, with all the humanity and moderation which are required in any other war, and the duty of neutral nations to abstain from interfering in the contest, are not denied. But the right of the new people to thrust themselves into the family of nations, and to make the ocean the theatre of their predatory hostilities, without the consent of other nations, is denied. Such 023] a right can only be founded upon a

1.— 3 Itutherforth’s Inst. 180, Vattel, L. 2, ch. 6.

3. — Vattel, L. 3, ch. 18, s. 296.

3-.— Rose v. Himely, 4 Cranch, 292 ; Gelston v. Hoyt, ante , p. 321.

Wheat. 3.

perfect title to sovereignty, which cannot exist in a case where the very object of the war is to decide whether the claim of the former sov¬ ereign or of the revolted people shall prevail. This title cannot be taken notice of by courts of justice until it has been recognized by the gov¬ ernment of the country under whose authority they sit.3 6. If, then, a revolted colony or people, whose independence has not been rec¬ ognized by the government of the United States have no authority to issue a commission to make captures on the, high seas, which can be considered as valid in the courts of the United States, a capture under such a commission is in no respect distinguishable from a capture without any commission. A privateer cruising under two commissions from different sover¬ eigns is a pirate.4 In the case of the famous pirate Kydd,5 the indictment was for general piracy. He had two commissions, one against the French, the other against certain pirates, which he produced in his justification. But Lord Chief Baron W ai d said, ‘ ‘ If he had acted pursuant to his commission, he ought to have condemned ship and goods, if they were French ; but by his not condemning, he seems to show his aim, mind and intention, and that he did not act in that case by virtue of his com¬ mission, but quite contrary to it. Whilst *men pursue their commissions, they

must be justified; but when they do things not authorized, or never intended by them, it is as if they had no commission.” This principle, •that where the criminal intention is apparent, the quality of the act will not be changed by its having been committed under color of legal authority, is illustrated by all the analogies of. criminal law. 6 7. The established rules of evi¬ dence ought not to be dispensed with in the proof of an authority to capture, where that authority is set up as a defense to an indictmejat for piracy. All civilized nations have depart¬ ments and offices in wffiicli the commissions issued to their cruisers are registered ; the orig¬ inal is borne about with him by the cruiser as his authority to search, to detain, and to capt¬ ure ; a copy of it may always be readily ob¬ tained by application at the proper office. The impossibility of producing the original, or an examined copy of such a commission, is, there¬ fore, an inadmissible supposition. The rule of evidence which requires that it should be pro¬ duced is inflexible, and is founded upon the reasonable suspicion, excited by a resort to in¬ ferior testimony, that there must be some fatal defect in the original documents 8. There can be no doubt that the seal of a recognized foreign state or sovereignty is to be admitted as proving itself, without other proof of its genuineness. But the seal of a new people, or state, is not sufficiently notorious to prove it¬ self, and to give credit to it would be to recog¬ nize the sovereign from whom it emanates, which courts of justice are not *compe-

tent to do. 9. The ninth question certified from the court below has been already answer¬ ed. 10. The first branch of the tenth question has

4. -2 Sir L. Jenkins’s Life, 714; Ord. de la Mar. L.

3, t. 9, art. 3; Martens on Privateers, 44.

5. — 5 State Trials, 314.

6. — 2 East’s Crown Law, 600 ; Forster, 135, 154, 312.

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been before answered by this court in the cases already cited.1 The second branch of this question presupposes that no distinct acknowl¬ edgment, of the new state has been made by the United States, since it excludes from con¬ sideration any public act of recognition by the legislative and executive departments, and con¬ fines itself to the mere private acts and instruc¬ tions of the executive. On a subject of such importance as a change in the foreign relations of the country, nothing but the most explicit, public, and notorious acts of the government should be noticed by courts of justice. Noth¬ ing should be left to inference and conject¬ ure; because, such a course might lead to a usurpation by the courts of the high preroga¬ tive of making war and peace, and the whole nation would become responsible to other na¬ tions for the error of judgment in a department with which it had not entrusted the care of its foreign affairs. In the infinite variety and com¬ plication of these affairs, the language and con¬ duct of the executive may be misunderstood ; and therefore, nothing short of an act of the whole legislature, a treaty, a proclamation of the Pres¬ ident, or the public reception of an ambassador from the new state, ought to be considered as a recognition of its independence. 11. The 026] eleventh question is involved in the dis¬ cussion of the preceding.

No counsel appeared to argue the cause for the prisoners.

Marshall, Gh. J. , delivered the opinion of the court : In this case, a series of questions has been proposed by the Circuit Court of the United States, for the District of Massachusetts, on which the judges of that court were divided in opinion. The questions occurred on the trial of John Palmer, Thomas Wilson and Barney Galloghan, who were indicted for piracy com¬ mitted on the high seas.

The first four questions relate to the con¬ struction of the 8th section of the “ act for the punishment of certain crimes against the United States.”

The remaining seven questions respect the rights of a colony or other portion of an estab¬ lished empire, which has proclaimed itself an independent nation, and is asserting and main¬ taining its claim to independence by arms.

The 8th section of the act on which these prisoners were indicted is in these words:

‘ ‘ And be it enacted, that if any person or per¬ sons shall commit, upon the high seas, or in any river, haven, basin or bay, out of the juris¬ diction of any particular state, murder or rob¬ bery, or any other offense, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death ; or if any captain or mariner of any ship or other vessel, shall pi'ratically and feloniously run away with such ship or vessel, or any goods 027*] or ^merchandise, to the value of fifty dollars, or yield up such ship or vessel volun¬ tarily to any pirate; or if any seamen shall lay violent hands upon his commander, thereby to hinder and prevent his fighting in defense of his ship, or goods committed to his trust, or shall make a revolt in the ship; every such of-

1.— Rose v. Himely, 4 Cranch, 292; Gelston v. Hoyt, ante , p. 324.

476

fender shall be deemed, taken, and adjudged to be, a pirate and felon, and being thereof con¬ victed, shall suffer death ; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is appre¬ hended, or into which he may first be brought. ”

Robbery committed on land, not being pun¬ ishable by the laws of the United States, with death, it is doubted whether it is made piracy by this act, when committed on the high seas. The argument is understood to be, that Congress did not intend to make that a capital offense on the high seas which is not a capital offense on land. That only such murder, and such rob¬ bery, and such other offense as, if committed within the body of a county, would, by the laws of the United States, be punishable with death, is made piracy. That the word “ other” is without use or meaning, if this construction be rejected. That it so connects murder and robbery with the following member of the sen¬ tence, as to limit the words murder and robbery to that description of those offenses which might be made punishable with death, if com¬ mitted on land. That in consequence of this word, the relative “ which” has for its anteced¬ ent the whole preceding part of the sentence, and not the words ‘ ‘ other offenses. ” That sec¬ tion *eonsists of three distinct classes

of piracy : The first, of offenses which, if com¬ mitted within the body of a county, would be punishable with death. The second and third, of particular offenses which are enumerated.

This argument is entitled to great respect on every account; and to the more, because, in expounding a law which inflicts capital punish¬ ment, no over-rigid construction ought to be admitted. But the court cannot assent to its correctness.

The legislature having specified murder and robbery particularly, are understood to indicate clearly the intention that those offences shall amount to piracy; there could be no other mo¬ tive for specifying them. The subsequent words do not appear to be employed for the pupose of limiting piractical murder and rob¬ bery to that description of those offenses which is punishable with death, if committed on land, but for the purpose of adding other offenses, should there be any, which were not particu¬ larly recited, and winch were rendered capital by the laws of the United States, if committed within the body of a county. Had the inten¬ tion of Congress been to render the crime of piracy dependent on tbe punishment affixed to the same offense, if committed on land, this in¬ tention must have been expressed in very differ¬ ent terms from those which have been selected. Instead of enumerating murder and robbery as crimes which should constitute piracy, and then proceeding to use a general term, compre¬ hending other offenses, the language of the leg¬ islature would have been, that “ any offense” committed on the high seas, which, if *connnitted in the body of a county, [*620 would be punishable with death, should amount to piracy.

The particular crimes enumerated were un doubtedly first in the mind of Congress. No other motive for the enumeration can be assigned Yet, on the construction contended for, rob¬ bery on the high seas would escape unpunished.

Wheat. 3.

1818

The United States v. Palmer et al.

629

It is not pretended that the words of the legis¬ lature ought to he strained beyond their natural meaning, for the purpose of embracing a crime which would otherwise escape with impunity; but when the words of a statute, in their most obvious sense, comprehend an offense, which offense is apparently placed by the legislature in the highest class of crimes, it furnishes an additional motive for rejecting a construction, narrowing the plain meaning of the words, that such construction would leave the crime entire¬ ly unpunished. ,

The correctness of this exposition of the 8th section is confirmed by those which follow.

The 9th punishes those citizens of the United States who commit the offenses describ¬ ed in the 8th, under color of a commission or authority derived from a foreign state. Here robbery is again particularly specified.

The 10th section extends the punishment of death to accessories before the fact. They are described to be those who aid, assist, advise, <&c., &c., any person to “ commit any murder, robbery, or other piracy aforesaid.” If the word “ aforesaid” be connected with “murder” and “robbery,” as well as with “ other piracy,” 030"] yet it seems difficult to resist the '^con¬ viction that the legislature considered murder and robbery as acts of piracy.

The 11th section punishes accessories after the fact. They are those who, “after any murder, felony, robbery, or other piracy what¬ soever, aforesaid,” shall have been committed, shall furnish aid to those by whom the crime has been perpetrated. Can it be doubted that the legislature considered murder, felony, and robbery, committed on the high seas, as piracies?

If it be answered, that although this opinion was entertained, yet, if the legislature was mis¬ taken, those whose duty it is to construe the law must not yield to that mistake ; we say, that when the legislature manifests this clear understanding of its own intention, which in¬ tention consists with its words, courts are bound by it.

Of the meaning of the term robbery, as used in the statute, we think no doubt can be enter¬ tained. It must be understood in the sense in which it is i-ecognized and defined at common law.

The question, whether this act extends far¬ ther than to American citizens, or to persons on board American vessels, or to offenses commit¬ ted against citizens of the United States, is not without its difficulties. The constitution hav¬ ing conferred on Congress the power of defin¬ ing and punishing piracy, there can be no doubt of the right of the legislature to enact laws punishing pirates, although they may be foreign¬ ers, and may have committed no particular offense against the United States. The only 63 1] question is, has the legislature enacted such a law? Do the words of the act authorize the courts of the Union to inflict its penalties on persons who are not citizens of the United States, nor sailing under their flag, nor offend¬ ing particularly against them?

The words of the section are in terms of un¬ limited extent. The words “ any person or persons” are broad enough to comprehend every human being. But general words must not only be limited to cases within the jurisdic-

Wheat, 3.

tion of the state, but also to those objects to which the legislature intended to apply them. Did the legislature intend to apply these words to the subjects of a foreign power, who in a for¬ eign ship may commit murder or robbery on the high seas?

The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature. The title of this act is, ‘ ‘ an act for the punishment of certain crimes against the United States.” It would seem that offenses against the United States, not offenses against the human race, were the crimes which the legislature intended by this law to punish.

The act proceeds upon this idea, and uses general terms in this limited sense. In describ¬ ing those who may commit misprision of trea¬ son or felony, the words used are “any per¬ son or persons yet these words are necessari¬ ly confined to any person or persons owing permanent or temporary allegiance to the United States.

The 8th section also commences with the words “any person or persons.” But these words must be ^limited in some degree,

and the intent of the legislature will determine the extent of this limitation. For this intent we must examine the law. The succeeding mem¬ ber of the sentence commences with the words, “ if any captain or mariner of any ship or other vessel, shall piratically run away with such ship or vessel, or any goods or merchandise, to the value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate.”

The words “ any captain, or mariner of any ship or other vessel, ” comprehend all captains and mariners, as entirely as the words “any person or persons ” comprehend the whole hu¬ man race. Yet it would be difficult to believe that the legislature intended to punish the cap¬ tain or mariner of a foreign ship, who should run away with such ship, and dispose of her in a foreign port, or who should steal any goods from such ship to the value of fifty dollars, or who should deliver her up to a pirate when he might have defended her, or even according to previous arrangement. The third member of the sentence also begins with the general words ‘ ‘ any seaman. ” But it cannot be supposed that the legislature intended to punish a sea¬ man on board a ship sailing under a foreign flag, under the jurisdiction of a foreign govern¬ ment, who should lay violent hands upon his commander, or make a revolt in the ship. These are offenses against the nation under whose flag the vessel sails, and within whose particular jurisdiction all on board the vessel are. Every nation provides for such offense the punishment its own policy may dictate, and no general words of a statute ought to *be construed to embrace them when

committed by foreigners against a foreign gov¬ ernment.

That the general words of the two latter members of this sentence are to be restricted to offenses committed on board the vessels of the United States, furnishes strong reason for be¬ lieving that the legislature intended to impose the same restriction on the general words used in the first member of that sentence.

This construction derives aid from the 10th section of the act. That section declares, that

477

633

Supreme Court of the United States.

1818

“ any person” wlio shall “ knowingly and will¬ ingly aid and assist, procure, command, coun¬ sel, or advise any person or persons to do or commit any murder or robbery, ”&c., shall be an accessory before the fact, and, on conviction, shall suffer death.

It will scarcely be denied that the words “any person,” when applied to aiding or ad¬ vising a fact, are as extensive as the same words when applied to the commission of that fact. Can it be believed that the legislature in¬ tended to punish with death the subject of a foreign prince, who, within the dominions of that prince, should advise a person, about to sail in the ship of his sovereign, to commit mur¬ der or robbery? If the advice is not a crime within the law, neither is the fact advised a crime within the law.

The opinion formed by the court on this sub¬ ject might be still further illustrated by animad¬ versions on other sections of the act. But it would be tedious, and is thought unneces¬ sary.

The court is of opinion that the crime of rob¬ bery, committed by a person on the high seas, 634 ] on board of any ship or vessel belong¬ ing exclusively to subjects of a foreign state, on persons within a vessel belonging exclusive¬ ly to subjects of a foreign state, is not a piracy within the true intent and meaning of the act for the punishment of certain crimes against the United States.

This opinion will probably decide the case to which it is intended to apply.

Those questions which respect the rights of a part of a foreign empire, which asserts, and is contending for its independence, and the con¬ duct which must be observed by the courts of the Union towards the subjects of such section of an empire who may be brought before the tribunals of this country, are equally delicate and difficult.

As it is understood that the construction which has been given to the act of Congress, will render a particular answer to them un¬ necessary, the court will only observe that such questions are generally rather political than legal in their character. They belong more properly to those who can declare what the law shall be ; who can place the nation in such a posi¬ tion with respect to foreign powers as to their own judgment shall appear wise ; to whom are entrusted all its foreign relations ; than to that tribunal whose power as well as duty is con¬ fined to the application of the rule which the legislature may prescribe for it. In such con¬ tests a nation may engage itself with the one party or the other — may observe absolute neu¬ trality — may recognize the new state absolute¬ ly — or may make a limited recognition of it. The proceeding in courts must depend so en¬ tirely on the course of the government 635] that it is difficult to give a precise answer to questions which do not refer to a particular nation. It may be said, generally, that if the government remains neutral, and re¬ cognizes the existence of a civil war, its courts cannot consider as criminal those acts of hostil¬ ity which war authorizes, and which the new government may direct against its enemy. To decide otherwise, would be to determine that the war prosecuted by one of the parties was unlawful, and would be to arrange the nation 478

to which the court belongs against that party. This would transcend the limits prescribed to the judicial department.

It follows as a consequence, from this view of the subject, that persons or vessels employed in the service of a self-declared government, thus acknowledged to be maintaining its separ¬ ate existence by war, must be permitted to prove the fact of their being actually employed in such service,by the same testimony which would be sufficient to prove that such vessel or per¬ son was employed in the service of an acknowl¬ edged state. The seal of such unacknowledged government cannot be permitted to prove it¬ self ; but it may be proved by such testimony as the nature of the case admits; and the fact that such vessel or person is so employed may be proved without proving the seal.

Johnson, J. The first of these questions arises on the construction of the first division of the 8th section of the act for the punishment of certain crimes.

*Tliat act comprises two classes of

cases, the second of which may again be subdi¬ vided into two divisions. In the second class of cases, each crime is specifically described in the ordinary mode of defining crimes, and so far the constitutional power of defining and punishing piracies and felonies on the high seas is strictly complied with. But, with re¬ gard to the first class of cases, the legislature refers for a definition to other sources — to infor¬ mation not to be found in that section itself. The words are these: “ If any person shall commit, upon the high seas, &c. , murder or robbery, or any other offense, which, if committed in the body of a county, would, by the laws of the United States, be punishable with death, &c., such person shall, upon conviction thereof, suffer death.” Thus referring to the common law definition of murder and robbery alone, or to the common law definition of murder and robbery with the superadded statutory requisite of being made punishable with death, if com¬ mitted on land, in order to define the offense which, under that section, is made capitally punishable.

The crime of robbery is the offense charged in this indictment, and the question is, whether it must not be shown that it must have been made punishable with death, if committed on land, in order to subject the offender to that punishment, if committed on the high seas. And singular as it may appear, it really is the fact in this case, that these men’s lives may de¬ pend upon a comma more or less, or upon the question whether a relative, which may take in three antecedents just as well as one, shall be confined to one *alone. Upon such a

question I hereby solemnly declare, that I never will consent to take the life of any man in obe¬ dience to any court; and if ever forced to choose between obeying this court, on such a point, or resigning my commission, I would not hesitate adopting the latter alternative.

But to my mind it is obvious that both the intent of the legislature and the construction of the words are in favor of the prisoners. This, however, is more than I need contend for, since a doubt relative to that construction or intent ought to be as affectual in their favor as the most thorough conviction.

Wheat. 3..

1818

The United States v. Palmer et al.

637

When the intent of the legislature is looked into, it is as obvious as the light, and requires as little reasoning to prove its existence, that the object proposed was, with regard to crimes which may be committed either on the sea or land, to produce an uniformity in the punish¬ ment, so that where death was inflicted in the one case, it should be inflicted in another. And Congress certainly legislated under the idea that the punishment of death had been previously enacted for the crime of robbery on land, as it had in fact been for murder, and some other crimes. And, in my opinion, this intent ought to govern the grammatical con¬ struction, and make the relative to refer to all three of the antecedents, murder, robbery, and other crimes, instead of being confined to the last alone. That it may be so applied con¬ sistently with grammatical correctness, no one can deny; and if so, infavorem ritce, we are, in my opinion, legally bound to give it that con¬ struction. Again, there is no reason to think that the word other is altogether a super- 638] numerary member of the sentence. To give the construction contended for in be¬ half of the United States, that word must be rendered useless and inoperative; the sentence has the same meaning with or without it. But if we retain it, and substitute its definition, or examine its effect upon the meaning of the terms associated with it, we then have the fol¬ lowing results; other is commonly defined to mean not the same, or (what is certainly syn¬ onymous), not before mentioned. With this expression, the sentence would read thus: ‘ ‘ murder, or robbery, or any offense not before mentioned,” for which the punishment of death is by law inflicted. And as the use of the com¬ ma is exceedingly arbitrary and indefinite, by expunging all the commas from the sentence the meaning becomes still more obvious. Or, if instead of substituting the words not before mentioned, we introduce the single term unenu¬ merated, in the sense of which the term other is unquestionably used by the legislature, the conclusion becomes irresistible in favor of the prisoners. There is another view of this sub¬ ject that leads to the same conclusion, by sup¬ plying an obvious elision, the same meaning is given to this section. The word other is re¬ sponded to by than, and the repetition of the excluded words is understood. Thus, in the case before us, by supplying the elision, we ‘ 1 make murder, robbery, or any crime other than murder or robbery,” made punishable, &c.,the signification of which words, had they been used, would have left no doubt.

There are several inconsistencies growing out of a construction unfavorable to the prisoners, 639] which merit the most serious consider¬ ation. The first is, the most sanguinary char¬ acter that it gives to this law in its operation; for it is literally true, that under it a whole ship’s crew may be consigned to the gallows, for robbing a vessel of a single chicken, even although a robbery committed on land for thousands, may not have been made punishable beyond whipping or confinement. If natural reason is not to be consulted on this point, at least the mild and benignant spirit of the laws of the United States merit attention. With re¬ gard to the mail, this inconsistency actually may occur under existing laws, should the

Wheat. 3.

mail ever again be carried by water, as it has- been formerly. This cannot be consistent with the intention of the legislature.

But, it is contended, if Congress had not in¬ tended to make murder and robbery punishable with death, independently of the circumstance of those offenses being so made punishable when committed on land, they would have omitted those specified crimes altogether from this section, and have enacted generally, that all crimes made punishable with death on land should be punished with death if committed on the seas, without enumerating murder and rob¬ bery. This is fair reasoning; and in anycast but one of life and death, it might have some weight. But in no case very great weight; be¬ cause, in that respect, a legislature is subject to no laws in the selection of the course to be pur¬ sued. In this case, the obvious fact is, that they commenced enumerating, and fearing some omission of crime then supposed subject by law to death, these *general descrip-

' tive words are resorted to. But every other crime that this division of the section comprises was punishable with death, both those which precede robbery in the enumeration and those which come after. Robbery, except in case of the mail, stands alone; and, no doubt, was in¬ troduced under the idea that that also had the same punishment attached to it. If it had not, in fact, then it was not the case on which the legislature intended to act; and according tO' my views of the grammatical or philological con¬ struction of the sentence, it is one on which they have not acted. This construction derives con¬ siderable force, also, from the consideration that this act is framed on the model of the Brit¬ ish statute, which avowedly had this uni¬ formity for its object.

The second question proposed in this case is one on which, I presume, there can be no' doubt. For the definition of robbery, under this act, we must look for the definition of the term in the common law, or we will find it no¬ where; and, according to my construction, superadd to that definition the circumstance- of its being made punishable with death, under the laws of the United States, if committed on land, and you have described the offense made punishable under this section.

There are eleven questions certified from the Circuit Court of Massachusetts; but of those eleven, these two only appear tome to arise out of the case. The transcript contains nothing but the indictment and empaneling of the jury. No motion; no evidence; no demurrer ore tenus, or case stated, appears upon the tran¬ script, on which the remaining questions could arise. On the indictment the two first

questions might well have been raised by the court themselves, as of counsel for the prison¬ ers; but as far as appears to this court, all the other questions might as well have been raised in any other case. I here enter my protest against having these questions adjourned to this court. We are constituted to decide causes, and not to discuss themes, or digest systems. It is true, the words of the act, respecting divi¬ sion of opinion in the Circuit Court, are gen¬ eral; but independently of the consideration that it was not to be expected that the court could be divided, unless upon questions arising out of some cause depending, the words in the

470

641

Supreme Court of the United States.

1818

first proviso, “ that the cause may be proceeded in,” plainly shows that the questions contem¬ plated in the act are questions arising in a cause depending; and if so, it ought to be shown that they do arise in the cause, and are not merely hypothetical. In the case of Martin v. Hunter, 1 this court expressly acted upon this principle, when it went into a consideration of the ques¬ tion, whether any estate existed in the plaintiff in error, before it would consider the question of the constitution of the treaty, as applica¬ ble to that estate.

If, however, it becomes necessary to consider the other questions in this case, I will lay down a few general principles, which, I believe, will answer all. 1. Congress can inflict punishment on offenses committed on board the vessels of the United States, or by citizens of the United States, anywhere; but Congress cannot make that piracy which is not piracy by 042] tlie law of nations, in order to give jurisdictions to its own courts over such of¬ fenses.

and its subjects, the subjects of the revolted country are no more liable to be punished as pirates than the subjects who adhere to their allegiance ; and whatever immunity the law of nations gives to the ship, it extends to all who serve on board of her, excepting only the re¬ sponsibility of individuals to the laws of their respective countries.

sary to exempt an individual serving on board a ship engaged in the war, because any ship of a belligerent may capture an enemy; and whether acting under a commission or not, is an immaterial question as to third persons ; he must answer that to his own government. It is only necessary to prove two facts : 1st. The existence of open war. 2d. That the vessel is really documented, owned and commanded as a belligerent vessel, and not affectedly so for piratical purposes.

is not to be expected that any better evidence can be produced than the seal of the revolted country, with such reasonable evidence as the case may admit of, to prove it to be known as such; and a seal once proved, or. admitted to a court, ought afterwards to be acknowledged by the court officially, at least, as against the party who has once acknowledged it.

Certificate. — This cause came on to be heard on the transcript of the record of the Circuit Court of the United States, for the 643] District of Massachusetts, and on the.

questions on which the judges of that court were divided; and was argued by counsel on the part of the United States. On considera¬ tion whereof, this court is of opinion, that a robbery committed on the high seas, although such robbery, if committed on land, would not, by the laws of the United States, be punishable with death, is piracy under the eighth section of the act entitled “ an act for the punishment of certain crimes against the United States;” and that the Circuit Court of the United States have jurisdiction thereof. And that the crime of robbery, as mentioned in the said act of Congress, is the crime of robbery as recognized and defined at common law.

This court is further of opinion, that the crime of robbery committed by a person on the high seas, on board of any ship or vessel belonging exclusively to subjects of a foreign state, on persons within a vessel belonging also exclusively to subjects of a foreign state, is not piracy within the true intent and meaning of the act entitled ‘ 1 an act for the punishment of certain crimes against the United States,” and is not punishable in the courts of the United States.

This court is further of opinion, that when a civil war rages in a foreign nation, one part of which separates itself from the old- established government, and erects itself into a distinct government, the courts of the Union must view such newly-constituted government as it is viewed by the legislative and executive departments of the government of the United States. If the government of the Union remains neutral, but recognizes the existence of a civil war, the courts *of the Union cannot

consider as criminal those acts of hostility which war authorizes, and which the new gov¬ ernment may direct against- its enemy. In gen¬ eral, the same testimony which would be suf¬ ficient to prove that a vessel or person is in the service of an acknowleged state, must be ad¬ mitted to prove that a vessel or person is in the service of such newly-erected government. Its seal cannot be allowed to prove itself, but may be proved by such testimony as the nature of the case admits. And the fact tjiat a vessel or person is in the service of such government may be established otherwise, should it be im¬ practicable to prove the seal.

All which is ordered to be certified to the Circuit Court of the United States for the Dis¬ trict of Massachusetts.

Cited— 4 Wheat. 63, 304, 502 ; 5 Wheat. 149, 195 ; 5 Pet. 41,59; 5 How. 374 ; 7 How. .57; 2 Black 696; 6 Wall. 12; 11 Wall. 307; 13 Wall. 649 ; 23 Wall 380 ; 3 Sprague, 133; Hempe. 418. (M); Bald. 26-39, 93; 3 Paine, 687 ; 3 Abb. U. S. 38, 39 ; 2 Cliff. 418 ; McAU. 201; 2 Sumn. 88, 485; 5 Blatchf. 87; 1 Wood. & M. 448 ; 2 Wood. & M. 537.

1.— 7 Cranch, 603 ; ante, Yol. I., p. 304.

480

Wheat. 3.

APPENDIX.

[NOTE I.]

DOCUMENTS ON THE SUBJECT OF BLOCKADES.

Extract of a Letter from Mr. King , Minister Plenipotentiary of the United States at Lon¬ don, to Mr. nickering. Secretary of State, dated London, July 15th, 1799.

' ‘ Seven or eight of our vessels, laden with valuable cargoes, have been lately captured, and are still detained for adjudication ; these vessels were met in their voyages to and from the Dutch ports declared to be blockaded. Several notes have passed between Lord Grenville and me upon this subject, with the view, on my part, of establishing a more limited and rea¬ sonable interpretation of the law of blockade than is attempted to be enforced by the En¬ glish government. Nearly one hundred Dan¬ ish, Russian, and other neutral ships have, within a few months, been in like manner in¬ tercepted, going to and returning from the United Provinces. Many of them, as well as some of ours, arriving in the Texel in the course of the last winter, the severity of which obliged the English fleet to return to their ports, leaving a few frigates only to make short cruises off the Texel as the season would allow.

My object has been to prove, that in this sit¬ uation of the investing fleet, there can be no effective blockade, w^iicli, in my opinion, can¬ not be said to exist without a competent force stationed, and present, at or near the entrance of the blockaded port.”

4] Extract of a Letter from Mr. King to Lord

Grenville, dated Downing street, London,

May 23 d, 1799.

‘ ‘ It seems scarcely necessary to observe, that the presence of a competent force is essential to (jpnstitute a blockade; and although it is usual for the belligerent to give notice to neutral nations when he institutes a blockade, it is not customary to give any notice of its discontinu¬ ance; and. that, consequently, the presence of the blockading force is the natural criterion by which the neutral is enabled to ascertain the ex¬ istence of the blockade; in like manner as the actual investment of a besieged placets the only evidence by which we decide whether the siege is continued or raised. A siege may be ■ commenced, raised, recommenced, and raised again, but its existence at any precise time must always depend upon the fact of the pres¬ ence of an investing army. This interpreta¬ tion of the law of blockade is of peculiar im¬ portance to nations situated at a great distance from each other, and between whom a consid¬ erable length of time is necessary to send and receive information.”

Wheat. 3. U. S., Book 4.

Extract of a Letter from Mr. Marshall, Secre¬ tary of State, to Mr. King, dated September

20th, 1800.

“2d. The right to confiscate vessels bound to a blockaded port has been unreasonably ex¬ tended to cases not coming within the rule, as heretofore adopted.

On principle it might well be questioned, whether this rule can be applied to a place not completely invested by land as well as by sea. If we examine the reasoning on which is found¬ ed the right to intercept and confiscate supplies designed for a blockaded town, it will be diffi¬ cult to resist the conviction that its extension to towns invested by sea only is an unjustifia¬ ble encroachment on the rights of neutrals. But it is not of this departure from principle — a departure which has received some sanction, from practice — that we mean to complain. It is, that *ports, not effectually blockaded [*5 by a force capable of completely investing them, have yet been declared in" a state of blockade, and vessels attempting to enter there¬ in have been seized, and on that account con¬ fiscated.

This is a vexation proceeding directly from the government, and which may be carried, if not resisted, to a very injurious extent. Our merchants have greatly complained of it, with respect to Cadiz and the ports of Holland.

If the effectiveness of the blockade is dis¬ pensed with, then every port of all the belliger¬ ent powers may, at all times, be declared in that state, and the commerce of neutrals be thereby subjected to universal capture. But if I his principle be strictly adhered to, the capac¬ ity to blockade will be limited by the naval force of the billigerent, and, of consequence, the mischief to neutral commerce cannot be very extensive. It is, therefore, of the last im¬ portance to neutrals, that this principle be maintained unimpaired.

I observe that you have pressed this reason¬ ing on the British minister, who replies, that an occasional absence of a fleet from a blockaded port ought not to change the state of the place.

Whatever force this observation may be en¬ titled to, where that occasional absence has been produced by accident, as a storm, which for a moment blows off the fleet, and forces it from its station, which station it immediately resumes, I am pursuaded, that where a part of the fleet is applied, though only for a time, to other objects, or comes into port, the very prin¬ ciple, requiring an effective blockade, which is, that the mischief can then only be co-extensive with the naval force of the belligerent, requires, that during such temporary absence, the com¬ merce of neutrals to the place should be free.” 31 481

6

Appendix.

6] Extract of a letter from Mr. Madison to

Mr. Charles Pinkney, Minister Plenipoten¬ tiary of the United States, at Madrid, dated,

Department of State, Washington, October

rnh, mi.

“ The pretext for the seizure of our vessels seems at present to he, that Gibraltar has been proclaimed in a state of blockade, and that the vessels are bound to that port. Should the pro¬ ceeding be avowed by the Spanish government, and defended on that ground, you will be able to reply :

1st. That the proclamation was made as far back as the 15th of February, 1800, and has hot since been renewed; that it was imme¬ diately protested against by the American and other neutral ministers at Madrid, as not war¬ ranted by the real state of Gibraltar, and that no violations of neutral commerce having fol¬ lowed the proclamation, it was reasonably con¬ cluded to have been rather a menace against the enemies of Spain than a measure to be carried into execution against her friends.

2d. That the state of Gibraltar is not, and never can be, admitted by the United States to be that of a real blockade. In this doctrine they are supported by the law of nations, as laid down in the most approved commentators, by every treaty which has undertaken to detine a blockade, particularly1 those of latest date among the maritime nations of Europe, and by the sanction of Spain herself, as a party to the armed neutrality in the year 1781. The spirit of articles XV. and XVI. , of the treaty between the United States and Spain may also be ap¬ pealed to as favoring a liberal construction of the rights of the parties in such cases. In fact, this idea of an investment, a siege or a block¬ ade, as collected from the authorities referred to, necessarily results from the force of those terms; and though it has been sometimes gross¬ ly violated or evaded by powerful nations in pursuit of favorite objects, . it has invariably kept its place in code of public law, and can¬ not be shown to have been expressly renounced in a single stipulation between particular nations.

7*] *3d. That the situation of the naval force

at Algesiras, in relation to Gibraltar has not the shadow of likeness to a blockade, as truly and legally defined. This force can neither be said to invest, besiege, or blockade the garri¬ son, nor to guard the entrance into the port. On the contrary, the gun-boats infesting our commerce have their stations in another har¬ bor, separated from that of Gibraltar by a con¬ siderable bay; and are so far from beleaguer¬ ing their enemy at that place, and rendering the entrance into it dangerous to others, that they are, and ever since the proclamation of the blockade have been, for the most part, kept at a distance by a superior naval force, which makes it dangerous to themselves to approach the spot.

4th. That the principle on which the block¬ ade of Gibraltar is asserted, is the more inad¬ missible, as it may be extended to'every other place, in passing to which vessels must sail within the view and reach of the armed boats belonging to Algesiras. If, because a neutral

1.— See late treaties bet ween Russia and Swcdeu, and between Russia and Great Britain.

482

vessel bound to Gibraltar can be annoyed and put in danger by waylaying cruisers, which neither occupy the entrance into the harbor nor dare approach it, and by reason of that danger is liable to capture, every part of the Mediterranean coasts and islands, to which neutral vessels must pass through the same danger, may with equal reason be proclaimed in a state of blockade, and the neutral vessels bound thereto made equally liable to capture. Or if the armed vessels from Algesiras alone should be insufficient to create this danger in passing into the Mediterranean, other Spanish vessels, co-operating from other stations, might produce the effect, and the ports thereby not only blockade any particular port of any par¬ ticular nation, but blockade at once a whole sea surrounded by many nations. Like block¬ ades might be proclaimed by any particular na¬ tion, enabled by its naval superiority to distri¬ bute its ships at the mouth of the same, or any similar sea, or across channels or arms of the sea, so as to make it dangerous for the com¬ merce of other nations to pass to its destination. These monstrous consequences condemn the principle from which they flow, and ought to unite against it every nation, Spain among the rest, which has an interest in the rights of the sea. Of this, Spain herself appears to have been sensible in the year 1780, when she yield¬ ed to Russia ample satisfaction *for seiz- [*8 ures of her vessels made under the pretext of a general blockade of the Mediterranean, and followed it with her accession to the definition of a blockade contained in the armed neu¬ trality.

5th, That the United States have the strong¬ er ground for remonstrating against the annoy¬ ance of their vessels, on their way to Gibral¬ tar, inasmuch as, with very few exceptions, their object is not to trade <here for the accom¬ modation of the garrison, but merely to seek advice or convoy, for their own accommoda¬ tion, in the ulterior objects of their voyage. In disturbing their course to Gibraltar, therefore, no real detriment results to the enemy of Spain, whilst a heavy one is committed on her friends. To this consideration it may be added, that the real object of the blockade is, to subject the enemy to privations, which may co-operate with external force in compelling them to sur¬ render ; an object which cannot be alleged in a case, where it is well known that Great Britain can, and does at all times, by her commancL of the sea, secure to the garrison of Gibraltar every supply which it wants.

6th. It is observable that the blockade of Gibraltar is rested by the proclamation on two considerations : one, that it is necessary to pre¬ vent illicit traffic, by means of neutral vessels, between Spanish subjects and the garrison there; the other, that it is a just reprisal on Great Britain for the proceedings of her naval armaments against Cadiz and St. Lucar. The first can surely have no weight with neutrals, but on a supposition, never to be allowed, that the resort to Gibraltar, under actual circum¬ stances, is an indulgence from Spain, not a right of their own; the other consideration, without examining the analogy between the cases referred to and that of Gibraltar, is equal¬ ly without weight with the United States, against whom no right can accrue to Spain

Wheat. 8.

Appendix.

8

from its complaints against Great Britain ; un¬ less it could be shown that the United States were in an unlawful collusion with the latter; a charge which they well know that Spain is too just and too candid to insinuate. It cannot even be said that the United States have ac¬ quiesced in the depredations committed by Great Britain, under whatever pretexts, on their lawful commerce. Had this indeed been 9] the case, the acquiescence ought to be regarded as a sacrifice made by prudence to a love of peace, of which all nations furnish' occasional examples, and as involving a ques¬ tion between the United States and Great Britain, of which no other nation could take advantage against the former. But it may be truly affirmed, that no such acquiescence has taken place. The United States have sought redress for injuries from Great Britain, as well as from other nations. They have sought it by the means which appeared to themselves, the only rightful judges, to be the best suited to their object; and it is equally certain, that redress has in some measure been obtained, and that the pursuit of complete redress is by no means abandoned.

7th. Were it admitted that the circumstances of Gibraltar, in February, 1800, the date of the Spanish proclamation, amounted to a real blockade, and that the proclamation was there¬ fore obligatory on neutrals; and were it also admitted that the present circumstances of that place amount to a real blockade (neither of which can be admitted), still the conduct of the Algesiras cruisers is altogether illegal and unwarrantable. It is illegal and unwarrant¬ able, because the force of the proclamation must have expired whenever the blockade was actually raised, as must have been unquestion¬ ably the case since the date of the proclama¬ tion, particularly and notoriously when the port of Algesiras itself was lately entered and attacked by a British fleet, and because, on a renewal of the blockade, either a new pro¬ clamation ought to have issued, or the vessels making for Gibraltar ought to have been pre¬ monished of their danger, and permitted to change their course as they might think prop¬ er. Among the abuses committed under the pretext of war, none seem to have been car¬ ried to a greater extravagance, or to threaten greater mischief to neutral commerce, than the attempts to substitute fictitious blockades by proclamation, for real blockades formed ac¬ cording to the law of nations ; and, consequent¬ ly, none against which it is more necessary for neutral nations to remonstrate effectually, be¬ fore the innovations acquire maturity and au¬ thority from repetitions on one side, and silent acquiescence on the other.”

10] Mr. Smith, Secretary of the Navy, to Commodore Preble.

Navy Department, Feb. 4, 1804.

Sir:

Your letter of the 12th of November, in¬ closing your circular notification of the block¬ ade of the port of Tripoli, I have received.

Sensible, as you must be, that it is the inter¬ est, as well as the disposition of the United States, to maintain the rights of neutral

Wheat. 3.

nations, you will, I trust, cautiously avoid whatever may appear to you to be in¬ compatible with those rights. It is, however, deemed necessary, and I am charged by the President to state to you, what, in his opinion, characterizes a blockade. I have therefore to inform you, that the trade of a neutral in ar¬ ticles not contraband cannot be rightfully ob¬ structed to any port, not actually blockaded by a force so disposed before it as to create an evident danger of entering it. Whenever, therefore, you shall have thus formed a block¬ ade of the port of Tripoli, you will have a right to prevent any vessel from entering it, and to capture, for adjudication, any vessel that shall attempt to enter the same, with a knowledge of the existence of the blockade. You will, however, not take as prize any vessel attempting to enter the port of Tripoli, with¬ out such knowledge; but, in every case of an attempt to enter, without a previous knowledge of the existence of the blockade, you will give the commanding officer of such vessel notice of such blockade, and forewarn him from entering. And if, after such a notification, such vessel should again attempt to enter the same port, you will be justifiable in sending her into port for adjudication. You will, sir, hence perceive that you are to consider your circular communication to the neutral powers, not as an evidence that every person attempt¬ ing to enter has previous knowledge of the blockade, but merely as a friendly notification to them of the blockade, in order that they might make the necessary arrangements for the discontinuance of all commerce with such blockaded port. Iam, &c., &c.,

(Signed) R. Smith.

Commodore Preble.

[copy.]

*Mr. Merry to Mr. Madison. [*11

Washington, April 12, 1804.

Sir: Mr. Thornton not having failed to transmit to His Majesty’s government an ac¬ count of the representation which you were pleased to address to him, under date of the 27tli of October, last year, respecting the block¬ ade of the islands of Martinique and Guada- loupe, it is with great satisfaction, sir, that I have just received His Majesty’s commands sig¬ nified to me by his principal Secretary of State for foreign affairs, under date of the 6th of January last, to communicate to you the in¬ structions which have, in consequence of your representation, been sent to Commodore Hood, and to the judges of the vice-admiralty courts in the West Indies.

I have, accordingly, the honor to transmit to you, sir, inclosed, the copy of a letter from Sir Evean Nepean, secretary to the board of Ad¬ miralty, to Mr. Hammond, His Majesty’s Under¬ secretary of State for foreign affairs, specifying the nature of the instructions which have been given.

His Majesty’s government doubt not that the promptitude which has been manifested in re¬ dressing the grievance complained of by the (government of the United States, will be con¬ sidered by the latter as an additional evidence

483

11

Appendix.

of His Majesty’s constant and sincere desire to remove any ground of misunderstanding that could have a tendency to interrupt the harmony which so happily subsists between his govern¬ ment and that of the United States.

I have the honor to be,

With high respect and consideration,

Your most obedient humble servant., (Signed) Anth. Merry.

12] [copy.]

Admiralty Office, 5th January, 1804.

Sir: Having communicated to the Lords of the Admiralty Lord Ilawkesbury’s letter of the 23d ultimo, inclosing the copy of a despatch which His Lordship had received from Mr. Thornton, His Majesty’s charge d'affaires in America, on the subject of the blockade of the islands of Martinique and Guadaloupe, to¬ gether with the report of the advocate-general.

Thereupon, I have their lordship’s commands to acquaint you, for His Lordship’s information, that they have sent orders to Commodore Hood not to consider any blockade of those islands as existing, unless in respect of particular ports which may be actually invested, and then not to capture vessels bound to such ports, unless they shall previously have been warned not to enter them, and that they have also sent the necessary directions on the subject to the judges

of the vice-admiralty courts in the West In¬ dies and America. I am, &c.,

(Signed) Eyean Nepean.

George Hammond, Esq.

Mr. Merry to Mr. Madison.

Washington, April 12, 1804.

Sir: I have the honor to acquaint you that I have just received a letter from Rear-Admiral Sir John Duckworth, commander-in-chief of His Majesty’s squadron at Jamaica, dated the second of last month, in which he desires me to communicate to the government of the Unit¬ ed States, that he has found it expedient for His Majesty’s service to convert the siege, which he lately attempted, of Curragoa, into a blockade of that island.

I cannot doubt, sir, that this blockade will be conducted conformably to the instructions which, as I have had the honor to *ac- [*13 quaint you in another letter of this date, have been recently sent on this subject to the com- mander-in-cliief of His Majesty’s forces, and to the judges of the vice-admiralty courts in the West Indies, should the smallness of the island of Curracoa still render necessary any distinc¬ tion of the investment being confined to par¬ ticular ports.

I have the honor to be, &c. ,

(Signed) Ant. Merry.

[NOTE II.]

ON THE PATENT LAWS.

The patent acts of the United States are, in a great degree, founded on the principles and usages which have grown out of the English statute on the same subject. It may be useful, therefore, to collect together the cases which have been adjudged in England, with a view to illustrate the corresponding provisions of our own laws; and then bring in review the adjudi¬ cations in the courts of the United States.

By the statute of 21 Jac. 1, ch. 3, commonly called the statute of monopolies, it is enacted, (sec. 1) “ that all monopolies, and all commis¬ sions, grants, licenses, charters, and letters pat¬ ent, heretofore made or granted, or hereafter to be made or granted, to any person or persons, bodies politic or corporate whatsoever, of or for the sole buying, selling, making, working, or using of anything within this realm, or the dominion of Wales, or of any other monopo¬ lies, or of power, liberty, or faculty to dispense with any others, or to give license or toleration to do, use, or exercise anything against the tenor, or purport of any law or statute, or to1 give or make any warrant for any such dispen- 484

sation, license, or toleration, to be had or made, or to agree or compound with any others for any penalty or forfeiture, limited by any stat¬ ute, or of any grant or promise of the benefit, profit, *or commodity of any forfeiture, [*14 penalty, or sum of money that is or shall be due by any statute, before judgment thereupon had ; and all proclamations, inhibitions, restraints, warrants of assistance, and all other matters and things whatsoever, any way tending to the instituting, erecting, strengthening, "fur¬ thering, or countenancing the same, or any of them, are altogether contrary to the laws of the realm, and so are and shall be utterly void and of none effect, and in nowise to be put in use or execution.” The 6th section, however, pro¬ vides, ‘ ‘ that any declaration before mention¬ ed, shall not extend to any letters patent, and grants of privilege, for the term of fourteen years, or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufac¬ tures, which others, at the time of making such

Wheat. 3.

Appendix.

14

letters patent and grants, shall not use, so as also they be not contrary to the law, nor mis¬ chievous to the state, by raising prices of com¬ modities at home, or hurt of trade, or general¬ ly inconvenient; the said fourteen years to be accounted from the date of the first letters pat¬ ent, or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be if this act had never been made, and none other.”

It is under this last section, that patents for new and useful inventions are now granted in England; and by a proviso, or condition, always inserted in every patent, the patentee is bound particularly to describe and ascertain the nature of his invention, and in what man¬ ner 'the same is to be constructed or made, by an instrument in writing, under his hand and seal, and to cause the same to be enrolled in the Court of Chancery within a specified time. (Harmar v. Piayne, 11 East, 101 ; Boulton v. Bull, 2 II. 131., 463; Hornblower v. Boulton, 8 T. R., 95, 2 Bl. Com., 407, note by Christian, 7.) This instrument is usually termed the spe¬ cification of the invention; and all such instru¬ ments are preserved in an office for public in¬ spection.

Upon the construction of the British patent act, taken in connection with the condition in¬ serted in the letters patent, a great variety of decisions have been made. 1. As the statute contains no restriction confining the grants to 15] British subjects, it is every day’s practice to grant patents to foreigners, and no such pat¬ ent has ever been brought into judicial doubt.

new; but it may be granted to the first inventor, if the invention be new in England, though the thing was practiced bey ond sea before ; for the statute speaks of new manufactures within this realm; so that if it be new here, it is with¬ in the statute, and whether learned by travel or study, is the same thing. ( Edgeberry v. Ste¬ vens, 2 Salk., 447; Hawk. P. C., b. 1, ch. 79; and see Hoy, 182, 188.) 3. The language of the statute is new manufacture; but the terms are used in an enlarged sense, as equivalent to new device, or contrivance, and apply not only to things made but to the practice of making. Under things made we may class, in the first place, new compositions of things, such as manufactures in the ordinary sense of the word; second, all mechanical inventions, whether made to produce old or new effects ; for a new piece of mechanism is certainly a thing made. Under the practice of making, we may class all new artificial manners of op¬ erating with the hand, or with instruments in common use, new processes in any art, produc¬ ing effects useful to the public. When the ef¬ fect produced is some new substance, or composi¬ tion, it would seem that the privilege of the sole working, or making, ought to be for such new substance, or composition, without regard to the mechanism or process, by which it has been produced, which, though perhaps also new, will be only useful as producing the new substance. When the effect produced is no new substance, or composition of things, the patent can only be for the mechanism, if new mechanism is used ; or for the process, if it be a new method of operating, with or without old mechanism, by wdiich the effect is pro-

Wheat. 8.

duced. (Per Eyre, Ch. J., in Boulton v. Bull. 2 II. Bl., 463, 492; and Lawrence, J. , in Hornblower v. Boulton, 8 T. R., 95. 106.) A patent, therefore, under certain circumstances, may be good for a method, as well as for an en¬ gine or machine. (Ibid, and 8 T. R., 95, 106; Rexv. Cutler 1 Starkie’s N. P. II., 354.)

properly so called; that is, for an elementary truth. But the word principle is often used in a more lax sense, to signify constituent parts, peculiar structure, or process; and in specifica¬ tions it is generally used in this latter sense; and *in this view, it may well be the [*1(> subject of a patent. (Ibid.) 5. It was form¬ erly considered that a patent could not be for an improvement (3 Inst., 184), but that opinion has been long since exploded; and it is now held, that a patent may well be for a new improvement. (Harmar v. Piayne, 14Ves., 130; Ex-parte Fox, 1 Yes. & Beame, 67; Boul¬ ton v. Bull, 2 II. Bl., 463, 488; 8 T. R., 95 Bull. 1ST. P., 77.) 6. A patent must be of such manufacture or process as no other did, at the time of making the letters patent, use; for. though it were newly invented, yet, if any other did use it at the time of making the let¬ ters patent, or grant of the privilege, it is de¬ clared void by the act. (3 Inst., 184.) And in a very recent case of a patent for a new mode of making verdigris, one of the objections was, that the invention was in public sale by the patentee, before the grant of the patent; and Gibbs, Ch. J. , on that occasion said, ‘ ‘ with re¬ spect to this objection, the question is some¬ what new. Some things are obvious as soon as they are made public; of others, the scientific- world may possess itself by analysis; some in¬ ventions almost baffle discovery. But to entitle a man to a patent, the invention must be new to the world. The public sale of that which is afterwards made the subject of a patent, though sold by the inventor only, makes the patent void. It is in evidence, that a great quantity was sold in the course of four months, before the patent was obtained.” -And if the jury were satisfied of that fact, His Lordship added, “that he thought the patent void.” (II ood v. Zimmer, 1 Holt’s N. P. Rep., 58.) 7. The in¬ vention must not only be new, but useful ; for if it be contrary to law, or mischievous, or hurtful to trade, or generally inconvenient, it is, by the terms of the statute, void. (3 Inst. , 184.) 8. A patent can legally be granted only to the first and true inventor; for such are the descriptive terms of the statute. (3 Inst., 184.) But if the original inventor has confined the in¬ vention to his closet, and the public be not ac¬ quainted with it, a second inventor, who makes it public, is entitled to a patent. (Boulton v. Bull, 2 H. Bl., 463; and Dolland’s patent, cited 2 IT. Bl., 470, 487.) 9. The patent must not be more extensive than the invention; there¬ fore, if the invention consist in an addition, or improvement only, and the patent is for the whole machine, or manufacture, it is void. (Buller’s N. P., 76; Boulton v. Bull, 2 II. Bl., *463, and cases there cited; The King [*17 v. Else, 11 East, 109, note; Harmar v. Piayne, 11 East, 101, S. C., 14 Yes., 180.) Therefore, where a patent was for the exclusive liberty of making lace composed of silk and cotton thread mixed, not of any particular mode of

4S5

17

Appendix.

making it ; and it was proved tiiat silk and cot¬ ton thread were before mixed on the same frame for lace, in some mode or other, though not like the plaintiff’s, the patent was held void, as be¬ ing more extensive than the invention. (The King v. Else , 11 East, 109, note.) A person may obtain a patent for a machine, consisting of an entirely new combination .of parts, al¬ though all the parts may have been separately used in former machines ; and the patent may correctly set out the whole as the invention of the patentee. But if a combination of a cer¬ tain number of those parts have previously ex¬ isted, up to a certain point, in former machines, the patentee merely adding other combinations, the patent should comprehend such improve¬ ments only. (Bevill v. Moore , 2 Marshall’s R., 211.) 10. If a person has invented an improve¬ ment upon an existing patented machine, he is entitled to a patent for his improvement; but he cannot use the original machine, until the patent for it has expired. (Ex-parte Fox, 1 Yes. & Beame’s R., 67,) 11. Although the specification is not annexed to a patent in Eng¬ land, and the patent contains a concise descrip¬ tion only of the invention, yet, as there is a proviso in the patent, requiring the enrollment of a specification in chancery, within a speci¬ fied time, and in default making the patent void, the patent is always construed in connec¬ tion with the specification, and the latter is deemed a part of the patent, at least for the purpose of ascertaining the nature and extent of the invention claimed by the patentee. {Boulton v. Bull, 2 H. Bl., 463; Hornblower v. Boulton, 8 T. R., 95.) 12. Care should be taken that the specification comports with the patent; for otherwise it will not sustain the grant. For where a patent was obtained for an improved mode of lighting cities, it was held by LeBlanc, J. , that it was not supported by a specification, describing an improved lamp. The patent ought to have been for an improved street lamp. {Lord Cochrane v. Smethurst, 1 Starkie’s 1ST. P. R., 205.) No technical words, however, are necessary to 18] explain the subject of a patent; but the court will construe the terms of the patent and of the specification in a liberal manner, and give them such a meaning as best comports with the apparent intention of the patentee. (Hornblower v. Boulton, 8 T. R., 95; Boultons. Bull, 2 H. Bl., 463.) Therefore, when the patent was “for a method of lessening the con¬ sumption of steam and fuel in fire-engines,” one objection was, that the patent was for a philosophical principle only, neither organized, nor capable of being organized, whereas it ought to have been for a formed machine ; a second objection was, that if it was a patent for a formed machine, it was for the whole machine, when the invention was only an im¬ provement, or addition to an existing machine : But the Court of King’s Bench, on examining the specification, were of opinion, that both of the objections were unfounded, although the terms of the specification were so doubtful and obscure as to have produced a division of opin¬ ion in the Court of Common Pleas. ( Horn¬ blower v. Boulton, 8 T. R., 95; Boulton v.Bull, 5 H. Bl., 463.) Both of these cases were very elaborately discussed, and contain more learn¬ ing on the subject of patents than can be found 486

in any other adjudications, and are, therefore, deserving of the most accurate attention, of every lawyer. In both of them all the judges agreed, that a mere mistake in terms, or in the correct sense of words, would not vitiate a patent, if the court could give a reasonable construction to the whole specification.

Mr. Justice Heath said, “ when a mode of doing a thing is referred to something perma¬ nent, it is properly termed an engine; when to something fugitive, a method.” “If method and machinery had been used by the patentee as convertible terms, and the same consequen¬ ces would result from both, it might be too strong to say that the inventor should lose the benefit of his patent by the misapplication of this term.” “ Method is a principle reduced to practice ; it is, in the present instance, the gen¬ eral application of a principle to an old ma¬ chine.” “A patent for an improvement of a machine, and a patent for an improved ma¬ chine, are, in substance, the same. The same specification would serve for both patents ; the new organization of parts is the same in both.” Mr. Justice Rooke said, “a new invented method *convevs to my understanding [*19 the idea of a new mode of construction. I think those words are tantamount to fire-engines of a newly-invented construction; at least, I think they will bear this meaning, if they do not necessarily exclude every other. The speci¬ fication shows that this was the meaning of the words, as used by the patentee, for he has speci¬ fied a new and particular mode of constructing fire-engines. It seems, therefore, but reason¬ able, that if he sets forth his improvement in¬ telligibly, his specification should be supported, though he professes only to set forth the prin¬ ciple.” Mr. Justice Buller said, “ the method and mode of doing a thing are the same ; and I think it impossible to support a patent for a method only, without having carried it into effect, and produced some new substance. When the thing is done, or produced, then it becomes the manufacture which is the proper subject of a patent.” The remarks of Lord Chief Justice Eyre have been already stated. He, however, considered the patent not to be for a fire-engine, but in effect for a manner of working a fire-engine, so as to lessen the con¬ sumption of steam; and, he added, “ the speci¬ fication calls a method of lessening the con¬ sumption of steam in fire-engines a principle, which it is not; the act (of parliament) calls it an engine, which, perhaps, also, it is not; but both the specification and statute are referable to the same thing, and when they are taken with their correlative, are perfectly intelligible. A narrower ground was taken in the argu¬ ment, which was to expound the word engine, in the body of this act (meaning the special act of parliament for this patent), in opposition to the title of it, to mean a method ; and I am ready to say I would resort to that ground, if neces¬ sary, in order to support the patent, ui res magis vctleat quam pereat. ” In the king’s bench, Mr. Justice Lawrence observed, “engine and method mean the same thing, and may be the subject of a patent. Method, properly speak¬ ing, is only placing several things, and perform¬ ing several operations, in the most convenient order; but it may signify contrivance, or de¬ vice; so may an engine; and, therefore, I think

Wheat. 3.

Appendix.

19

it may answer the word method. So principle may mean an elementary truth ; but it may also mean constituent parts.” 13. The patent being 20] granted upon Condition that the inven¬ tion is new (at least in England), and useful, and also that the patentee shall deliver and en¬ rol in chancery a specification of his invention, it is necessary for the patentee to establish, by proof, when his invention is called in question in a suit, that he has complied with these con¬ ditions. If, therefore, the novelty or effect of the invention he disputed, the patentee must show in what his invention consists, and that he produced the effect proposed by the patent in the manner specified. Slight evidence of this, on his part, is sufficient ; and it is then in¬ cumbent on the defendant to falsifiy the speci¬ fication. ( Turnery . Winter, 1 T. R., 602.) 14. In respect to specifications (objections to which form the most common, and, indeed, usually the most fatal defense to suits for infringements of patents), several rules have been laid down. In the first place, a man, to entitle himself to the benefit of a patent of monopoly, must dis¬ close his secret, and specify his invention in such a way that others of the same trade, who are artists, may be taught to do the thing for which the patent is granted, by following the directions of the specification, without any new invention, or addition of their own. ( Rex v. Arkwright, Bull. N. P., 77.) In the second place, he must so describe it that the public may, after the expiration of the term, have the use of the invention in as cheap and beneficial a way as the patentee himself uses it ; and, therefore, if the specification describe many parts of an instrument, or machine, and the patentee uses only a few of them, or does not state how they are to he put together or used, the, patent is void. (Rex v. Arkwright, Bull. N. P., 77; Harmary. Playne, 11 East, 101.) So, if the patentee could only make the article with two or three of the ingredients specified, and he has inserted others which will not an¬ swer the purpose, that will avoid the patent. So, if he makes the article with cheaper mate¬ rials than those which he has enumerated, al¬ though the latter will answer the purpose, the patent is void. (Turner v. Winter, 1 T.R. , 602.) In the third place, if the specification be, in any part of it, materially false, or defective, or obscure and ambiguous, or give directions which tend to mislead the public, the patent is void. (Rex v. Arkwright, Bull. N. P., 77; Turner ‘21] v. Winter, 1 T. *R., 602.) Therefore, where, in a patent for trusses for ruptures, the patentee omitted what was very material for tempering the steel, which was rubbing it with tallow, Lord Mansfield held the patent, for want of it, void. (Liardet v. Johmon, Bull. N. P., 76; S. C., cited 1 T. R., 602, 608, Per Buller, J.) So, where a patent was for a new mode of making verdigris, and the specification omitted an ingredient ( aqua fortis), which, though not necessary to the composition for which the patent was claimed, was a more ex¬ peditious and beneficial mode of producing the same effects, and was, as such, used by the patentee, Lord Oh. J. Gibbs held the patent void. (WoocIy. Zimmer. 1 Holt’s N. P.R., 58.) So, if the specification direct an ingredient to be used which will not answer the purpose, or is never used by the patentee, the patent is void.

Wheat. 3.

(Turner v. Winter, 1 T. R., 602.) So, if the patentee says, in his specification, he can pro¬ duce three things by one process, and he fails in any one, the patent is void. (Turner v. Winter, 1 T. R., 602.) So, if the specification direct the same thing to be produced several ways, or by several different ingredients, and any of them fail, the patent is void. (Turner v. Win¬ ter, 1 T. R., 602.) In the fourth place, if the invention he of an improvement only, it is in¬ dispensable that the patent should not be more broad than the invention, and the specification should be drawn up in terms which do not in¬ clude anything but the improvement. (Boul¬ ton v. Bull, 2 H. Bl., 463; Bull. N. P., 76; Bo- vill v. Moore, 2 Marsh. R., 211.) And in the specification for such improvement it is essen¬ tial to point out precisely what is new and what is old; and it is not sufficient to give a general description of the construction of the instru¬ ment, without such distinction, although a plate be annexed containing detached and separate representations of the parts in which the im¬ provement consists. Therefore, where a patent was “ for certain improvements in the making of umbrellas and parasols,” and the specifica¬ tion contained a minute description of the con¬ struction of them, partly including the usual mode of stitching the silk, and also certain im¬ provements in the insertion of the stretches, &c., and throughout the whole specification no distinction was made between what was new and what was old, Lord Ellenborough *said, [*22 “the patentee ought, in his specification, to in¬ form the person who consults it what is new and what is old. He should say, my improve¬ ment consists in this : describing it by words if he can, or, if not, by reference to figures. But here the improvement is neither described in words nor figures, and it would not be in the wit of man, unless he were previously acquaint¬ ed with the construction of the instrument, to say what was new and what was old. A per¬ son ought to he warned by the specification against the use of a particular invention.” (M'Farlane v. Price, 1 Starkie’s N. P. R., 199.) And it may he added, also, that the public have a right to purchase the improvement by itself, and not to be encumbered with other things, where the improvement is of an old machine. But where the patentee obtained a patent for a new machine, and afterwards another patent for improvements in the said machine, in which the grant of the former was recited, it was held, that a specification, containing a full description of the whole machine so improved, hut not dis¬ tinguishing the new improved parts, or refer¬ ring to the former specification, otherwise than as the second recited the first, was sufficient. Lord Ellenborough, on that occasion, said, “it may not be necessary, indeed, in stating a speci¬ fication of a patent for an improvement, to state precisely all the former known parts of the ma¬ chine, and then to apply to those the improve¬ ment; hut on many occasions it may he suffi¬ cient to refer generally to them. As in the in¬ stance of a common watch, it may be sufficient for the patentee to say, 1 take a common watch, and add or alter such and such parts,’ describ¬ ing them.” (Harmary. Playne, 11 East, 101; S. C., 14 Ves., 130.) The case, also, of Bovill v. Moore, already cited (2 Marsh. R., 211), af¬ fords very important instruction on this point.

487

22

Appendix.

In the fifth place, if a patentee in liis specifica¬ tion sum up the principle in which his invention consists, if this principle he not new, the patent cannot be supported, although it appear that the application of the principle, as described in the specification, be new ; for the patentee, by such summing up. confines himself to the benefit only of the principle so stated. (Rex v. Cutler, 1 Starkie’s N. P. R. , 354.) 15.

If a patent is void, the patentee cannot en- 23*] force performance of a ^covenant for the observance of the exclusive right, en¬ tered into by the covenantor, in contemplation of the patent being good. (. Hayne v. Maltby, 3 T. R., 438.) 16. The right of a patentee is as¬ signable at law ; and upon such an assignment the assignee has the exclusive right to maintain an action for any infringement of the patent, (See Boulton v. Bull, 2 II. Bl., 463.) 17. Where the patentee has assigned his patent, in an ac¬ tion by the assignee against the patentee, for an infringement of the patent, the latter will not be permitted to aver against his deed that the invention is not new. (Oldham v. Lang mead, cited 3 T. R., 439.) 18. Where the patent is void, from any of the causes before stated, the party sued for an infringement may, under the general issue, avail himself of any such matter in his defense. 19. Or the patent itself may be repealed by a scire facias by the king, upon the ground of fraud, or false suggestion. The mode of proceeding on scire facias may be seen in 2 Saunders’s Rep., 72; Williams’s note, 4, s. .4.

These are the principal doctrines established in the English courts, upon the subject of pat¬ ents for new inventions. In respect to the ad¬ judications under the patent laws of the United States, it is matter of regret that so few of them have been published ; but the following are the leading provisions of the act, and the principles which have been recognized as applicable to it. It may be convenient to follow the order of the patent act itself, and to arrange the decisions under the corresponding heads, to which they properly belong.

The first patent act of the United States was passed in the year 1790 (Act of the 10th of April, 1790, ch. 34), and was repealed by another act, passed in the year 1793 (Act of the 21st of February, 1793, ch. 11), and this last act, as amended by the act of 1800 (Act of the 17th of April, 1800, ch. 25), constitutes the present general patent law of the United States.

citizen who has invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvements therein, not known or used before the applica¬ tion, may, on application and petition to the Secretary of State, obtain a patent for the ex¬ clusive right and liberty of making, construct- 24*] ing, using, and ^vending to others to be used, the said invention or discovery, upon com¬ plying with the regulations of the act; and the patent is required to recite the allegations and suggestions of the petition, and give a short de¬ scription of the invention or discovery. The letters patent, previous to their being issued, are to be examined by the Attorney-General, and are by him to be certified to be conform¬ able to law, and are then to be recorded in the office of the Secretary of' State. The act of 1800, ch. 25, s. 1 and '2, extends this provision 488

to aliens who have resided two years in the United States; and also to the legal representa¬ tives and devisees of a person entitled to a pat¬ ent, who dies before it is obtained. The orig¬ inal inventor of a machine, who has reduced his invention first into practice, is entitled to a priority of the patent-right; and a subsequent inventor, although an original inventor, cannot sustain his claim, although he has obtained the first patent ; for qui prior est in tempore, potior est in jure. (Woodcock v. Parker, 1 Gallis. R., 438; Odiorne v. Winkley. 2 Gallis. R., 51.) And, therefore, every subsequent patentee, although an original inventor, may be defeated of his patent-right, upon proof of such prior invention put into actual use. Bedford v. Hunt, 1 Ma¬ son’s R. ; for then the invention cannot be con¬ sidered as new. If an inventor make a gift of his invention to the public, and suffer it to go- into general use, he cannot afterwards resume the invention, and claim an exclusive right un¬ der a patent. ( Whiltemore v. Cutter, 1 Gallis. R., 478.) By useful invention, in the patent act, is meant an invention which may be applied, to a beneficial use in society, in contradistinction to an invention injurious to the morals, health, or good order of society, or frivolous and insig¬ nificant. (Bedford v. Hunt, 1 Mason’s R; Lov¬ ell v. Lewis, 1 Mason’s R.) It is not necessary to establish that it is in all cases superior to the modes now in use for the same purpose. (Ibid.)

have invented an improvement, shall not be at liberty to use the original discovery, nor shall the original inventor be at liberty to use theim provement. And the simply changing the form or the proportions of any machine, or composi¬ tion of matter, in any degree, shall not be *deemed a discovery. (See Odiorne v. [*25 Winkley, 2 Gallis. R. , 51.) If the inventor of an improvement obtain a patent for the whole machine, the patent, being more extensive than the invention, is void. ( Woodcock v. Parker, 1 Gallis. R, , 439 ; Whittemore v. Cutter, 1 Gallis. R., 478; Odiorne v. Winkley. 2 Gallis. R„ 51.)

he can obtain a patent, is required to swear that he is the true inventor or discoverer of the art, machine, or improvement, for which he solicits a patent, and to deliver a wrritten description of his invention, and of the manner of using, or process of compounding it. in such full, clear, and exact terms, as to distinguish the same from all other things before known, and to en¬ able any person skilled in the art or science of which it is a branch, or with which it is most nearly connected, to make, compound, and use the same. And in the case of any machine, he shall fully explain the principle, and the several modes in which he has contemplated the appli¬ cation of that principle, or character, by which it may be distinguished from other inventions; and he is to accompany the whole with draw¬ ings and written references, where the nature of the case admits of drawings; or with speci¬ mens of the ingredients, and of the composition of matter, sufficient in quantity for the purpose of experiment, where the invention is a com¬ position of matter; which description, signed by himself, and attested by two witnesses, is to be filed in the office of state; and the inventor is moreover to deliver a model of his machine, if the Secretary shall deem it necessary. The

Wheat. 3.

Appendix.

25

patentee must describe, in his specification, with reasonable certainty, in what his invention consists ; otherwise it will be void for ambiguity. If it be for an improvement in an existing ma¬ chine, he must, in his specification, distinguish the new from the old, and confine his patent to such parts only as are new; for if both are mixed up together, and a patent is taken for the whole, it is void. ( Lowell v. Lewis, 1 Ma¬ son’s R. ) The taking of the oath is directory to the party; but if, by mistake, the oath is not taken before the issuing of the patent, the pat¬ ent is not thereby rendered void. ( Whittemore v. Cutter , 1 Gallis. R., 429.) 4. By the fourth section, patentees may assign their rights, and, upon the assignment being recorded in the office 26] of state, the assignee shall stand in the place of the original inventor, both as to right and responsibility, and so the assignees of as¬ signees in any degree. Where the patentee has assigned an undivided moiety of his patent- right, the action for an infringement of the right should be in the joint names of the pat¬ entee and the assignee. ( Whittemore v. Cutter, 1 G-allis. R. , 429.) But an assignee of the patent- right, by an assignment excepting cert ain places, is not an assignee entitled to sue within the act. (Tyler v. Tuel, 6 Cranch,324.) 5. The third sec¬ tion of the act of 1800 (which is a substitute for the fifth section of the act of 1793) declares, that any person who, without the written con¬ sent of the patentee, &c., shall “make, devise, use, or sell ” (the words of the fifth section of the act of 1793 were, “make, devise, and use, or sell ”) the thing patented, shall forfeit three times the actual damages sustained by the pat¬ entee, &c., to be recovered by an action on the case, in the Circuit Court of the United States, having jurisdiction thereof. Upon this section it has been held that the making of a patented machine, fit for use, and with a design to use it for profit, in violation of the patent-right, is, of itself, a breach of this section, for which an action lies; but where the making only, with¬ out a user, is proved, nominal damages only are to be given for the plaintiff. ( Whittemore v. Cutter, 1 Gallis. R., 429, 478.) If a user is proved, the measure of damages is the value of the use during the time of the user. (Ibid.) But the act give's the plaintiff a right to his actual damages only, and not to a vindictive recom¬ pense, as in other cases of tort. (Ibid.) And neither the price of, nor the expense of making, a patented machine, is a proper measure of damages in such case. (Ibid.) The sale of the materials of a patented machine by a sheriff, upon an execution against the owners, is not a sale which subjects the sheriff to an action un¬ der the third section of the act of 1800. (Sawin v. G-uild, 1 Gallis. R., 485.) In an action on this section, the jury are to find the single dam¬ ages, and the court are to treble them. ( Whitte¬ more v. Cutter, 1 Gallis. R., 479.) 6. The sixth section authorizes the defendant to plead the general issue, and give this act, and any special matter, in evidence, of which notice in writing 27] may have been given to the plaintiff tliirty days before trial, tending to prove, (1) that the specification does not contain the whole truth relative to the discovery, or that it contains more than is necessary to produce the described effect, which concealment, or addition, shall fully appear to have been made for the pur- Wheat. 3. *

pose of deceiving the public ; (2) or that the pat¬ ented thing was not originally discovered by the patentee, but had been in use, or had been described in some public 'work, anterior to the supposed discovery of the patentee ; (3) or that lie had surreptitiously obtained a patent for the discovery of another person; in either of which cases judgment shall be rendered for the de¬ fendant, with costs, and the patent shall be de¬ clared void. Besides the points decided in the principal case in the text (Evans v. Eaton), the following are deserving of notice. It is clear that this section does hot include all the mat¬ ters of defense which the defendant may be legally entitled to make; as for instance, it does not include the case of the non-existence of the fact of infringement in any shape; the case of an assignment from the plaintiff, or a written license, or purchase from the plaintiff ; or that the patentee is an alien not entitled to a patent; which are clearly bars to the action, upon the very terms of the act, as well as the general principles of law. ( Whittemore v. Cutter , 1 Gallis. R. , 429, 435.) So, if the specification do not describe the invention in clear and exact terms, so as to distinguish it from other inven¬ tions, but be so ambiguous and obscure that it cannot be with reasonable certainty ascertained for what the patent is taken, or what it includes, the patent is void for ambiguity ; and the fact may be shown in his defense by the defendant. (Lowell v. Lewis, 1 Mason’s R.) But if the in¬ vention is definitely described in the patent and specification, so as to distinguish it from other inventions before known, the patent is good, although it does not describe the invention in such full, clear, and exact terms, that a person skilled in the art, or science, of which it is a branch, could construct or make the thing; un¬ less such defective description or concealment was with intent to deceive the public. ( Whitte- morev. Cutter, 1 Gallis. R., 429; Loicellv. Lewis, 1 Mason’s R.) In order to defeat a patent, it is not necessary to prove that the invention has previously been in general use, *and gen- [*28 erally known to the public. It is sufficient, if j it has been previously known to, and put in use by, other persons, however limited in ex- I tent the use or the knowledge of the invention may have been. (Bedford v. Hunt, 1 Mason’s R.) 7. The seventh section applies only to the cases of patents, under state authority, before the constitution of the United States. 8. The eighth section applied only to applications then pending for patents, under the patent act of

of interfering applications for a patent for the same invention, the same may be referred to ar¬ bitrators, chosen by the applicants and the Sec¬ retary of State, whose award shall be final, “as far as respects the granting of the patent ; ” and if either of the applicants refuse to choose an arbitrator, the patent shall issue to the opposite party. It has been held, that such an award is not conclusive in any other respect than as to the mere issuing of the patent ; and that it de¬ cides nothing as to the right of invention, or other claims of either party, but that either party may contest, in a suit at law, the validity of the patent. (Stearns v. Barrett, 1 Mason’s R.) 10. The tenth section pro¬ vides that, upon oath or affirmation being made before the district judge of the district

489

28

Append ix.

where the patentee, his executors, &c. , reside, that any patent was obtained “surreptitiously, or upon false suggestion ” (the words of the

false suggestion”), the district judge may, if the matter appear sufficient, at any time within three years after the issuing of the patent, grant a rule that the patentee show cau$e why pro¬ cess should not issue against him, to repeal the patent; and if sufficient cause be not shown, the rule shall be made absolute, and the judge shall order process to be issued against such pat¬ entee, &c., with costs of suit. And if bo suffi¬ cient cause shall be shown to the contrary, or if it shall appear that the patentee was not the true inventor or discoverer, judgment shall be rendered by the court for the repeal of the pat¬ ent ; and if the plaintiff fails in his complaint, the defendant shall recover costs. It has been held, that the proceedings under the rule to show cause are summary ; and that when it is made absolute, it is not, that the patent be re¬ pealed, but only that process issue to try the 490

validity of the patent, on *the suggestions [*29 stated in the complaint. That this process is in the nature of a scire facias at the common law, to repeal patents, and the issues of fact, if any, are to be tried, not by the court, but by a jury; that the judgment upon this process is in the nature of a judgment on a scire facias at common law, upon which a writ of error lies, as in other cases, to the Circuit Court, where there is matter of error apparent on the rec¬ ord, by bill of exceptions, or otherwise. That the patent itself is slight, but prima facie evi¬ dence, in favor of the patentee, that it is his invention; that if it appear that he is but a joint inventor, and he takes out the patent as his sole invention, it is an obtaining of the pat¬ ent upon false suggestion within the act. {Stearns v. Barrett, 1 Mason’s R.) 11. The re¬ maining sections of the act (11 and 12) contain no matter of any general importance; the eleventh being directory only as to the fees of office, and the twelfth being a repealing clause of the act of 1790.

Wheat. 3

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NOTE.

The Extra Annotation here following is arranged in the order of the cases in tht original reporter’s volume which precede it. At the upper outside corner of the page is given the volume and pages of the eases to which the Annotation refers. After the official reporter’s volume and page in the heading of each case is given book and page of the pres¬ ent edition, the abbreviation L being used for Lawyers’ Edition, or Law. Ed. for brevity, as it is throughout in the duplicate citations of cases from the Supreme Court.

ABBREVIATIONS.

F. C. appended to a citation from the regular reports of the U. S. Circuit and Dis¬ trict Courts refers to the series of reprints called the Federal Cases and gives, as its pub¬ lishers do and recommend, the number of the case in that series.

Fed. Cas. is used when the case is contained in the series of Federal Cases but is not report ed in the regular series of U. S. Circuit and District Court Reports, and the citation of such cases is to the volume and page of Fed. Cas., not to the number of the case.

Fed. or Fed. Rep. refers to the well known series Federal Reporter, containing re¬ ports of the Circuit and District Court decisions since 1880.

Li. R. A. will be readily recognized as the abbreviation for the Lawyers’ Reports Annotated, and particular attention should be given to these citations, as in a large pro¬ portion of cases the citing case will be found accompanied by a note on its principal point absolutely exhaustive of the authorities thereon.

Am. Dec., Am. Rep. and Am. St. Rep. will be readily recognized as the abbreviations for the well known trinity of selected case reports, The American Decisions, American Reports and American State Reports.

Pennsylvania State Reports (Fa. St.) The New Jersey Law Reports (N. J. L.) and Equity Reports (N. J. Eq.) are distinguished by the number of the series, not by the name of the reporter, while the North and South Carolina Reports, Law and Equity, are cited by the name of the reporter where the reports are so titled and it has been the univer¬ sal custom.

Duplicate citations are given to the National Reporter System where cases are therein contained, and to the Reporter System alone of cases not, at the date of the preparation of the annotation, officially reported. The usual abbreviations are used, as follows:

Atl. Atlantic Reporter,

Pac. Pacific Reporter,

N. E. Northeastern Reporter, N. W. Northwestern Reporter,

So. Southern Reporter,

S. E. Southeastern Reporter, S. W. Southwestern Reporter, S. Ct. Supreme Court Reporter.

We think that in all other respects the abbreviations used are clear and familiar to all who are accustomed to the use of legal reports and text books.

TJ. S. Notes 3 Wheat. 4 L. Ed. 490— 5G p.

S Wheat. 1-14, 4 L. 319, JACKSON v. CLARKE.

Aliens. — English devisee under English will of 1776, of lands in New York, held entitled to take and hold same under treaty of 1794 and New York statute, p. 14.

Cited in Kershaw v. Kelsey, 100 Mass. 576, 97 Am. Dec. 138, hold¬ ing citizen of rebel State letting plantation during war may main¬ tain action here for rent; Hardy v. De Leon, 5 Tex. 240, showing difference between an alien and an alien enemy.

3 Wheat 14r-52, 4 L. 322, THE FRIEND SCH AFT.

Forfeiture. — Bill of lading consigning goods to neutral but unac¬ companied by invoice, is not sufficient to entitle claimant to restitu¬ tion, but is foundation for introduction of further proof, p. 48.

Cited in Webb v. Robinson, 14 Ga. 227, holding vendor’s equitable title does not defeat creditor without notice.

Practice. — Informal proceedings in District Court corrected in the Circuit Court, p. 47.

Cited to this point, United States v. Three Hundred and Ninety- six Barrels, 28 Fed. Cas. 121.

Citizenship. — Native character as citizen does not revert by mere return to native country, p. 51.

Cited in Burnham v. Rangeley, 1 Wood. & M. 11, F. C. 2,176, hold¬ ing same as to temporary return to family; United States v. Chong Sam, 47 Fed. 886, holding one entering this country with return certificate does not acquire a domicile; Cadwalader v. Howell, 18 N. J. L. 144, holding residence not lost by occasional absences if it be animo revertendi.

Admiralty. — Suspicion or proof of spoliation of papers by an enemy master ought not to preclude a neutral shipper from further proof of his property, p. 49.

3 Wheat. 53-57, 4 L. 332, McIYER v. KYGER.

Specific performance ordered of contract for exchange of lands.

No citations.

3 Wheat. 58, 4 L. 333, THE DIANA.

Condemnation — Damages. — Interest allowed upon appraised value of cargo condemned, from date of decree in District Court, p. 58.

759