General Principles. 7. The general report of the neighbourhood | exercised with due diligence, and within a reaon the question of legitimacy is not to be disre-sonable time after the knowledge of hostilities. garded; but its weight depends on the circum- The St. Lawrence, 9 Cranch, 120; 3 Cond. Rep. stances of the case, on the remoteness of the time when the fact occurred, and the difficulty of producing any positive evidence respecting it. Ibid. 1. Property engaged in illicit trade with the enemy, must be condemned to the captors, not to the United States. The Sally, Porter, Master, 8 Cranch, 382; 3 Cond. Rep. 177. 2. A vessel owned by citizens of the United States, sailed from Naples in the year 1812, for the United States, with a cargo, and a British license to carry the same to England. On her passage, hearing of the war, she altered her course for England, was captured by the British, carried into Ireland, libelled and acquitted, sold her cargo, and after a detention of seven months in Ireland, purchased a return cargo in England, sailed for the United States, and was captured by an American privateer. The vessel and cargo were condemned as prize to the captors. The Alexander, 8 Cranch, 169; 3 Cond. Rep. 72. 3. If a citizen of the United States establishes his domicil in a foreign country, between which and the United States hostilities afterwards break out, any property shipped by him before knowledge of the war, and captured by an American cruiser after the declaration of war, will be condemned as prize. The Venus, 8 Cranch, 253; 3 Cond. Rep. 109. 4. Illegal traffic stamps a hostile character on the property, and attaches to it all the penal consequences of enemy ownership. The Sally, 8 Cranch, 382; 3 Cond. Rep. 179. 5. The property of a citizen does not become divested, ipso facto, by the mere act of illicit intercourse with the enemy; the property is only liable to be condemned as enemy's property, or as adhering to the enemy, if rightfully captured during the voyage. The Thomas Gibbons, 8 Cranch, 421; 3 Cond. Rep. 193. 6. A vessel sailing to an enemy port, after knowledge of the war, and captured, bringing thence a cargo consisting chiefly of enemy goods, is liable to confiscation as prize of war. The St. Lawrence, 8 Cranch, 434; 3 Cond. Rep. 202. 301. 9. If a cargo be innocently put on board in an enemy's country, if at that time the importation be lawful, it cannot be rendered unlawful by a detention, occasioned in the course of the voyage, either by the perils of the sea or the act of the enemy unless this effect be produced by some positive act of the legislature. The Mary, 9 Cranch, 126; 3 Cond. Rep. 306. 10. An American citizen is equally guilty of trading with the enemy, whether that trade is carried on between a hostile port and the United States, or between such port and any foreign nation. The Rugen, 1 Wheat. 62; 3 Cond. Rep. 485. 11. The offence of trading with the enemy is complete, the moment a vessel sails with intention to carry her cargo to a hostile port. Ibid. 12. A subject of a state at war cannot, under cover of neutral muniments, however regularly procured, or formal, violate with impunity his duty and allegiance to his own country. Ibid. 13. All trade with the enemy, unless with the permission of the sovereign, is interdicted; and subjects the property engaged in it to the penalty of confiscation. The Rapid, 1 Gallis. Č. C. R. 295. 14. All communication and intercourse with the enemy is prohibited, and it is in nowise important, whether the property engaged in the inimical communication be bought and sold, or merely transported and shipped. Ibid. 15. A citizen of the United States cannot lawfully withdraw his property, acquired before the war, from the enemy's country, after he has knowledge of the war, without permission of government. The St. Lawrence, i Gallis. C. C. R. 467. 16. If a vessel be sent from the United States, after knowledge of the war, to the enemy's country to withdraw such property, the vessel and cargo are subject to capture and condemnation, jure belli. Ibid. 295. 17. The property of citizens taken trading with the enemy, is considered as quasi enemy's property. Ibid. 18. A trade to a neutral port, during war, is not rendered illegal from the mere circumstance that the interests of the enemy are thereby aided, or h's policy enforced: it must, before it can be liable to condemnation on that ground, be carried on, on account of the enemy, under contract with him, destined for his use, or voluntarily incorporated into his service by licenses. The Liverpool Packet, 1 Gallis. C. C. R. 513. 7. Trading with the enemy is not excused by 19. The circumstance that a neutral is enthe necessity of obtaining funds to pay the ex-gaged in enemy navigation does not subject all penses of the ship; nor by the opinion of an his trade from the neutral country, on neutral American minister expressed to the master, that voyages, to the enemy character. Ibid. by undertaking the voyage he would violate no law of the United States. The Joseph, 8 Cranch, 451; 3 Cond. Rep. 212. 8. If, upon the breaking out of a war, a citizen has a right to withdraw his property from the enemy's country, it is necessary it should be 20. Every voyage from an enemy port, espe cially with a cargo on board, and without the license of the government, carries with it a presumption of illegal traffic and hostile interests, from which nothing but the most explicit proofs by the claimants can relieve the cause The Trading under Licenses from the Enemy. presumption of illegal traffic arises, notwithstanding any papers or any explanation of the persons found on board; the captors have a right to bring the property in, and subject the whole to the adjudication of a competent tribunal. In such case damages and costs are never to be adjudged as against the captors. Ibid. 21. If, after a knowledge of the war, an American vessel go to an enemy port, and take in a cargo there, the vessel and cargo are liable to confiscation for trading with the enemy. The Alexander, 1 Gallis. C. C. R. 532. 22. If an American vessel, after knowledge of the war, proceed from a neutral to a hostile port on freight, it is a trading with the enemy, which subjects the vessel to forfeiture; and she is liable therefor on her return voyage to the United States. The Joseph, 1 Gallis. C. C. R. 545. 23. In cases of trading with the enemy, the property is deemed quasi enemy's property, and it is condemned to the captors, and not to the United States. Ibid. 24. No principle of national or municipal law is better settled, than that all contracts with an enemy, made during war, are utterly void. The Emulous, 1 Gallis. Č. C. R. 563. 25. A shipment made from the enemy's country, after a knowledge of the war, by an American citizen, subjects the property to condemnation as prize of war. The Mary, 1 Gallis. C. C. R. 620. 26. A shipment made, after a known war, by an American citizen, subjects the property to condemnation as prize of war. The Diana, 2 Gallis. C. C. R. 93. 27. If an American vessel take on board a cargo from an enemy's ship, under the pretence that it is ransomed, it is an illegal traffic, for which, by the law of war, she is liable to condemnation as prize of war; and may be seized on the return voyage. The Lord Wellington, 2 Gallis. C. C. R. 103. 28. A citizen of the United States may lawfully draw a bill on a subject of a foreign power, with whom we are at war; such an act not leading to any injurious intercourse, nor amounting to a trading with the enemy. United States v. Barker, Paine's C. C. R. 157. 29. Án American vessel, after the commencement of hostilities with Great Britain, sailed, having on board a messenger from the British minister in the United States, with despatches for his government, and a letter of protection from British capture; this is a sufficient cause of condemnation. The Tulip, 3 Wash. C. C. R. 181. 31. A voyage from an enemy port with a cargo on board, without the license of the government, is of itself a probable cause for capture. The Liverpool Packet, 1 Gallis. C. C. R. 513. 32. A trade to a neutral port is not illegal, although the public enemy derive benefit thereby, unless such trade be considered in connexion with, or subservient to hostile interests and policy. Ibid. 33. The United States may proceed against property found engaged in trade with the enemy, as prize of war. The Eliza, 2 Gallis. C. C. R. 4. 34. At common law, any individual might seize for the king; and upon this ground it has been held, that public or private armed ships may seize for violation of a statute. But, in such case, it is at the peril of the party making the seizure. The Rover, 2 Gallis. C. C. R. 241. 35. Action of assumpsit to recover the balance of an account current for merchandise purchased in England by order of the defendants. The defence was, that the contract was made during the war, and therefore void. By the court:The doctrine is not to be questioned at this day, that during a state of hostility, the citizens of the hostile states are incapable of contracting with each other. Scholefleld v. Eichelberger, 7 Peters, 586. 36. To say that this rule is without exception, would be assuming too great latitude. The question has never yet been examined, whether a contract for necessaries, or even for money to enable the individual to get home, could not be enforced; and analogies familiar to the law, as well as the influence of the general rule, in international law, that the severities of war are to be diminished by all safe and practical means, might be appealed to in support of such an exception. But at present, it may be safely affirmed, that there is no recognized exception, but permission of a state to its own citizens: which is also implied in any treaty stipulation to that effect, entered into with a belligerent. Ibid. 2. Trading under Licenses from the Enemy. 37. The sailing of a vessel under the license and passport of protection of the enemy, in furtherance of his views and interests, constitutes such an act of illegality as subjects the ship and cargo to confiscation as prize of war. The Julia, 8 Cranch, 181; 3 Cond. Rep. 75. 38. The acceptance and use of an enemy's license, on a voyage to a neutral port, prosecuted in furtherance of the enemy's avowed objects, is illegal, and subjects vessel and cargo to confiscation. The Aurora, 8 Cranch, 203; 3 Cond. Rep. 88. 30. All contracts with an enemy, are not necessarily void. Cases of extreme necessity, form exceptions to the rule. Contracts made under license of the government, whether they 39. It is not necessary, in order to subject the arise directly or collaterally, out of the licensed property to condemnation, that the person granttrade; or if the enemy, with whom the contracting the license should be duly authorized to is made, be in the hostile country, by license of grant it, provided the person receiving it takes that government, (cases of ransom bonds,) so it with the expectation it will protect his procontracts made by prisoners of war, for their perty from the enemy. Ibid. subsistence, are also exceptions. The William "Penn. 3 Wash. C. C. R. 484. 40. Sailing with the intention to further the views of the enemy, is sufficient to condemn Illinois Land Titles. the property, although that intention be frus- strictly fulfilled. The George, 1 Mason's C. C. trated by capture. Ibid. R. 24. 41. An American ship sailing from England, in August, 1812, in consequence of the repeal of the British orders in council, and compelled by dangers of the seas, to put into Ireland, where she was necessarily detained until April, 1813, when she sailed again for the United States, under the protection of a British license, being captured on the voyage by an American privateer, was protected by the president's letter of instructions of August 28th, 1812. The continuity of the voyage was not broken. The Mary, 9 Cranch, 126; 3 Cond. Rep. 306. 42. Navigating under an enemy's license is cause of condemnation, and is closely connected with the offence of trading with the enemy; in both cases, the knowledge of the agent will affect the principal, although he may, in reality, be ignorant of the fact. The Hiram, 1 Wheat. 440; 3 Cond. Rep. 615. 43. By the general law of war, every American ship sailing under the pass or license of the enemy, or trading with the enemy, is deemed o be an enemy's ship, and forfeited as prize. f captured on the high seas by a commissioned vessel, the property may be condemned to the captors as enemy's property: if captured by an uncommissioned ship, the capture is still valid, and the property must be condemned to the United States. The Caledonian, 4 Wheat. 100; 4 Cond. Rep. 401. 44. In cases where trade has been carried on with the enemy, under license, and a capture has been made without a disclosure of the license, and where there seemed a colour for the capture, on restoration the captors are allowed their expenses. The Joseph, 1 Gallis. C. C. R. 645. 45. A vessel and cargo which is liable to capture as enemy's property, or for sailing under the pass or license of the enemy, or for trading with the enemy, may be seized after her arrival in a port of the United States, and condemned as prize of war. The delictum is not purged by the termination of the voyage. The Caledonian, 4 Wheat. 100; 4 Cond. Rep. 401. 46. The sailing under the enemy's license, constitutes, of itself, an act of illegality, which subjects the property to confiscation, without regard to the object of the voyage, or port of destination. The Adriadne, 2 Wheat. 143; 4 Cond. Rep. 70. 47. The use of a license, or pass from the enemy, being unlawful, one citizen has no right to sell to another such license or pass, to be used on board an American vessel; and no recovery can be had in a suit instituted in such illegal contract. Patton v. Nicholson, 3 Wheat. 204; 4 Cond. Rep. 235. 48. Licenses are now construed with great liberality as to time and objects. It is a general rule, that where no fraud has been meditated or committed, and the parties have been prevented from carrying the license into literal execution, by a power which they could not control, they shall be entitled to the benefit of its protection, although the terms have not been literally and 49. The second section of the act of August 2d, 1813, ch. 585, which provides that any ship of the United States, sailing under or found on the high seas, using a British license, shall be liable to condemnation as prize, is merely in affirmance of the general law of prizes. It is confined to captures made by commissioned ships during the continuance of the illegal voyage. It is the actual use of the license at the time of the seizure, and not the former use in a previous voyage, which authorizes the search and capture. The authority to seize also, is given only to commissioned ships, and it is not extended_to_the_mere civil officers of the government. The Saunders, 2 Gallis. C. C. R. 210. 50. Carrying despatches to the enemy is cause of condemnation. The Tulip, 3 Wash. C. C. R. 637. ILLINOIS LAND TITLES. 1. Ejectment for a tract of land in Cook county, Illinois, being a fractional section, embracing the military post called Fort Dearborn, at the time of the institution of the suit, in the possession of the defendant, as the commanding officer of the United States. The post was established in 1804, and was occupied by the troops of the United States until August 16th, 1812, when the troops were massacred, and the fort taken by the enemy. It was reoccupied by the United States in 1816, and continued to be so held until May 1823, during which time some factory houses, for the use of the Indian department, were erected on it. It was evacuated by order of the war department, in 1823, and was by order of the department again occupied by troops in 1828, as one of the military posts of the United States; was again evacuated in 1831, the government having authorized a person to take and keep possession of it. It was again occupied by troops of the United States in 1832, and continued so to be at the commencement of this suit, being generally known at Chicago, to be occupied as a military post of the United States. The buildings about the garrison were not sold in 1831, when it was evacuated; although a great part of the moveable property in and about it was sold. In 1817, Beaubean bought of an army contractor, for one thousand dollars, a house built on the land. There was attached to the house an enclosure, occupied as a garden or field, of which Beaubean continued in possession until 1836. In 1823, the factory houses on the land were sold by order of the secretary of war, and were bought by Beaubean, for five hundred dollars. Of these he took possession, and continued to occupy them, and to cultivate the land, without interruption by the United States, until the commencement of this suit. The United States, in May, 1834, built a lighthouse on the land, and have kept twenty acres enclosed and cultivated. The land was surveyed by the government of the United States in 1821; and in 1824, at the instance of the Implied Powers under the Constitution of the United States. 6. The right of pre-emption was a bounty extended to settlers and occupants of the public domain. This bounty, it cannot be supposed, was designed to be extended to the sacrifice of public establishments, or of great public interests. Ibid. 7. Nothing passes a perfect title to public lands, with the exception of a few cases, but a patent. The exceptions are where congress grants lands, in words of present grant. The general rule applies as well to pre-emptions, as to other purchases of public lands. Ibid. 8. The act of the legislature of Illinois, giving a right to the holder of a register's certificate of the entry of public lands to recover possession of such lands in an action of ejectment, does not apply to cases where a paramount title to the lands is in the hands of the defendant, or of those he represents. The exception in the law of Illinois, applies to cases in which the United States have not parted with the title to the land, by granting a patent for it. lbid. Indian agent at Chicago, the secretary at war it; although no other reservation were made of requested the commissioner of the general land-it. Ibid. office to reserve this land for the accommodation and protection of the property of the Indian agency, who, in 1821, informed the secretary at war that he had directed this section of land to be reserved from sale for military purposes. In May, 1831, Beaubean claimed this land, at the land-office in Palestine, for pre-emption. This claim was rejected, and, by the commissioner of the land-office, he was, in February 1832, informed that the land was reserved for military purposes. This information was also given to others who applied on his behalf. In 1834, he applied for this land to the office in Danville, and his application was rejected. In 1835, Beaubean applied for the land to the land-office at Chicago, when his claim to pre-emption was allowed, and he paid the purchase money, and procured the register's certificate. Beaubean sold and conveyed his interest to the plaintiff in the ejectment. Held, that Beaubean acquired no title to the land by his entry; and that the right of the United States to the land was not divested or affected by the entry at the landoffice at Chicago; or by any of the previous acts of Beaubean. Wilcox v. M'Connell, 13 Peters. 2. The decision of the register and receiver of a land-office, in the absence of fraud, would be conclusive as to the facts that the applicant for the land was then in possession, and of his cultivating the land during the preceding year; because these questions are directly submitted to those officers. Yet if they undertake to grant pre-emptions to land on which the law declares they shall not be granted, then they are acting upon a subject-matter clearly not within their jurisdiction; as much so as if a court, whose jurisdiction was declared not to extend beyond a given sum, should attempt cognizance of a case beyond that sum. Ibid. 3. Appropriation of land by the government is nothing more or less than setting it apart for some particular use. In the case before the court there has been an appropriation of the land, not only in fact, but in law; for a military post, for Indian agency, and for the erection of a light-house. Ibid. 9. A state has a perfect right to legislate as she may please in regard to the remedies to be prosecuted in her courts, and to regulate the disposition of the property of her citizens, by descent, devise, or alienation. But congress are invested, by the constitution, with the power of disposing of the public land, and making needful rules and regulations respecting it. Ibid. 10. Where a patent has not been issued for a part of the public lands, a state has no power to declare any title, less than a patent, valid against a claim of the United States to the land, or against a title held under a patent granted by the United States. Ibid. 11. Whenever the question in any court, state or federal, is, whether the title to property which had belonged to the United States has passed, that question must be resolved by the laws of the United States. But whenever the property has passed, according to those laws, then the property, like all other in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States. Ibid. TUTION OF THE UNITED STATES. 4. By the act of congress of 1830, all lands are exempted from pre-emption which are reserved from sale by order of the President of the United States. The President speaks and IMPLIED POWERS UNDER THE CONSTIacts through the heads of the several departments, in relation to subjects which appertain to their respective duties. Both military posts, and Indian affairs, including agencies, belong to the war department. A reservation of lands made at the request of the secretary of war, for purposes in his department, must be considered as made by the President of the United States, within the terms of the act of congress. lbic. 5. Whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands; and no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon 1. It has been truly said, that under a constitution comprising specific powers, the power to secure by statute to the United States a priority of payment of debts due to the United States, must be granted, or it cannot be exercised. United States v. Fisher et al., Assignees of Blight, 2 Cranch, 358; 1 Cond. Rep. 429. 2. Priority of payment of debts is claimed by the United States under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or office thereof. Ibid. Implied Powers under the Constitution of the United States. 3. In construing this clause it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Ibid. 4. Where various systems might be adopted for the purpose of priority, it might be said with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means; and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution. Ibid. 5. The government is to pay the debts of the Union, and must be authorized to use the means which appear most eligible to effect that object; it has consequently a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe. Ibid. 8. Congress may pass all laws which are necessary for giving the most complete effect to the exercise of the admiralty and maritime jurisdic tion granted in the constitution to the United States: but the general jurisdiction, subject to this grant, adheres to the territory as a portion of sovereignty not yet given away, and the resi duary powers of legislation still remain in the state. United States v. Bevans, 3 Wheat. 336; 4 Cond. Rep. 275. 9. Congress has power to incorporate a bank. MCulloch v. Maryland, 4 Wheat. 316; 4 Cond. Rep. 466. 10. The government of the Union is a government of the people; it emanates from them; its powers are granted by them, and are to be exercised directly on them, and for their benefit. The government, though limited in its powers, is su preme within its sphere of action; and its laws, when made in pursuance of the constitution, 6. The claim of priority on the part of the form the supreme law of the land. The governUnited States will, it has been said, interfere ment which has a right to do an act, and has imwith the right of the state sovereignties respect-posed on it the duty of performing that act, must, ing the dignity of debts, and will defeat the measures they have a right to adopt, to secure themselves against delinquencies on the part of their own revenue officers. But this is an objection to the constitution itself. The mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the United States, on all subjects to which the legislative power of congress extends. Ibid. 7. To an action of trespass against the sergeantat-arms of the house of representatives of the United States, for an assault and battery and false imprisonment, it is a legal justification and bar, to plead, that a congress was held and sitting, during the period of the trespasses complained of, and that the house of representatives had resolved that the plaintiff had been guilty of a breach of the privileges of the house, and of a high contempt of the dignity and authority of the same; and had ordered that the speaker should issue his warrant to the sergeant-at-arms, commanding him to take the plaintiff into custody, wherever to be found, and to have him before the said house, to answer to the said charge; and that the speaker did accordingly issue such a warrant, reciting the said resolution and order, and commanding the sergeant-at-arms to take the plaintiff into custody, &c., and delivered the said warrant to the defendant: by virtue of which warrant the defendant arrested the plaintiff, and conveyed him to the bar of the house, where he was heard in his defence, touching the matter of the said charge; and the examination being adjourned from day to day, and the house having ordered the plaintiff to be detained in custody, he was accordingly detained by the defendant, until he was finally adjudged to be guilty, and convicted of the charge aforesaid, and ordered to be forthwith brought to the bar, and reprinanded by the speaker, and then discharged from custody; and after being thus reprimanded, was actually discharged from the arrest and custody aforesaid. Anderson v. Dunn, 6 Wheat. 204; 5 Cond. Rep. 66. according to the dictates of reason, be allowed to select the means. Ibid. 11. There is nothing in the constitution of the United States similar to the articles of confeder ation, which excludes incidental or implied powers. If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into ef fect. Ibid. 12. If certain means, to carry into effect any of the powers expressly given by the constitution to the government of the Union, be appropriate measures, not prohibited by the constitution, the degree of their necessity is a question of legislative discretion, not of judicial cognizance. Ibid. 13. The power of establishing a corporation is not a distinct sovereign power or end of government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the constitution to the government of the Union, it may be exercised by that government. Ibid. 14. The objection to a law on the ground of its impairing the obligation of a contract, can never depend on the extent of the change which the law may make in it; any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are, however minute or apparently immaterial in their effect upon the contract of the parties, impairs its obligation. Ibid. 15. The framers of the constitution must be understood to have employed words in their natural sense, and to have intended what they have said; and in construing the extent of the powers which it creates, there is no other rule than to consider the language of the instrument which confers them, in connection with the purposes for which they were conferred. Gibbons v. Ogden, 9 Wheat. 1; 5 Cond. Rep. 562. |