The San Pedro (15 U.S. 132)

ERROR to the superior court of the Mississippi territory. This was a libel of information filed in that court, against the schooner San Pedro and cargo, alleging, 1st. That the San Pedro departed, on the 1st February, 1813, from Mobile for the island of Jamaica, a colony of Great Britain, in violation of the embargo act of the 22d December, 1807, and the several acts supplementary thereto; of the non-intercourse act of the 1st of March, 1809; and of the laws of the United States. 2d. That sundry goods, wares, and morchandise were imported in the San Pedro, into the district of Mobile on the first day of May, 1813, from the said island of Jamaica, in violation of the non-intercourse act. 3d. That sundry goods, wares, and merchandise 'were intended to be imported in the San Pedro, from the said island of Jamaica, into the United States, and into the district of Mobile, contrary to the provisions of the non-intercourse act,' &c. The San Pedro was originally a vessel of the United States, called the Atlas, and the property of Mr. Philip A. Lay, of New-Orleans; but had given up her register, and (as alleged) was transferred to Mr. Valverde, a Spanish subject, resident at Pensacola. On the 1st of February, 1813, she sailed from Mobile, with a cargo of cotton and tobacco, for Jamaica, which was disposed of there; and on the 10th of April, 1813, she sailed from Jamaica, with a cargo, on her return voyage for the coast of Florida. On the 23d of April she was captured and brought into Mobile by an American gun-boat, and on the 29th of the same month was liberated by the commander of the flotilla, and seized by the collector of the port, in whose name the libel was filed. It was contended by the libellants that the transfer of the vessel was collusive and fraudulent, and that she, together with the cargo, belonged to citizens of the United States. A claim was interposed on behalf of Mr. Valverde, and the vessel and cargo were decreed to be restored in the court below, from which decree the cause was brought by writ of error to this court. Feb. 13th. The Attorney General, for the United States, argued in support of the first count in the libel, that the non-intercourse act was to be considered as in force after the declaration of war, being cumulated upon the law of war as administered in the prize court, by which all trade and intercourse with the enemy is prohibited, under the penalty of confiscation. It therefore became immaterial whether the property was Spanish, or belonged to citizens of the United States. If Spanish, it was confiscable as the property of neutrals, trading with a British colony from the United States, contrary to the non-intercourse. If the property of citizens of the United States, it was liable to seizure and condemnation, being taken in trade with the public enemy. The general allegation in this acts of Congress of the laws of the United States, was sufficient to cover the latter offence. Mobile was, at the time of this transaction, a port in possession of the United States, having been annexed to their territories by the act of Congress of the 14th of May, 1812, and the 12th of February, 1813. Mr. Harper, contra. 1. The embargo laws had ceased to exist at the time of this transaction, and therefore the first count in the libel, alleging a breach of those laws, cannot be supported. 2. The non-intercourse laws had merged in the act declaring war. By the law of war, all commercial intercourse with the enemy is prohibited, and the court has considered the laws, restricting trade, as superseded by the law of war. [Mr. Chief Justice MARSHALL. The court has never considered the non-intercourse law as merged in the law of war as to neutrals.] Mr. Harper. 3. But supposing the non-intercourse laws to be in force, they can only apply in two cases. First-To British goods put on board with an intention to import the same into the United States. Secondly-To British goods actually imported. The third count of the libel is fatally defective in alleging, not that they were put on board with intention to import, &c. but that they were intended to be imported; and under the second count there is no proof of the growth, produce, or manufacture of the goods. If a presumption arises of their British origin, from the circumstance of their being laden in a British colony, it is a case of farther proof, and the court will not condemn without first allowing the claimants an opportunity to repel that presumption. 4. The act of Congress of the 12th February, 1813, did not, proprio vigore, make the port and district of Mobile the territory of the United States. The legal right ought to have been asserted by actual possession, in order to consummate the title.a But possession was not taken until after the sailing of the vessel from Mobile, although before her return to the coast of Florida from Jamaica; and there is no proof that

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See, on this subject, an instructive case in 5 Rob. 97. (The Fama,) in which Sir William Scott determined that the national character of Louisiana, agreed to be surrendered by the treaty of St. Ildefonso, in 1795, by Spain to France, but not actually transferred, continued as it was under the ceding country. this change of dominion was known to the parties when the goods were shipped at Jamaica. 5. The question, whether the ship and cargo are confiscable as a droit of admiralty for the offence of trading with the enemy, depends upon the question of fact, whether they are the property of a citizen or a neutral; and it being an admiralty cause, the claimants are entitled to the privilege of farther proof, if there be doubt upon the fact. 6. There is a fatal irregularity in form in bringing up the cause by writ of error, which is a common law process, not applicable to admiralty or chancery causes, which are to be brought up by appeal under the judiciary act of the 24th February, 1789, and the act of the 3d March, 1803.

The Attorney General, in reply. The laws of non-intercourse were no farther merged in the law of war, than as concerned captors. If the property be that of a citizen, it is confiscable as a droit of admiralty under the law of war.b If it be neutral, then the non-intercourse act still applies to it, and it must be confiscated under the seizure by the revenue officers. If the port of Mobile had become, de facto, a possession of the United States, before the offence of importation was committed, it is immaterial whether the party had a previous knowledge of this transfer of territory or not; and the fact of the goods coming from a British port, is conclusive evidence of their origin, and ought to exclude farther proof on this point. Mr. Justice WASHINGTON delivered the opinion of the court.