The enquirer. [volume] (Richmond, Va.) 1804-1815, 1808-06-10

Expartc I In the Federal
.Adans GiIchrist, &c others. circuit court.
Us. MAY %, 1903,
The Collector of the Port before Judges
of Charleston. } Johnson e Bee.
A motion was made by Mr.. Ward for rule
on the Collector oshew cause why manda-
mus should not be issued against him, TO COM
pei the granting clearances for the ship Re-
source, Moreton; ship Two Pollies, Wilder F.;
ship Navigator, Bowden ship Rising States,
Anderson and ship Louisa Cecilia, Fowler,
founded on the following affidavit: -.
z" Adam Gilchrist, and j. s. Barker of
Charleston, Merchants, being severally
sworn according to law, deposeth, That the
American Registered ship Resource, arriv-
cd from a foreign. voyage i'm the port of
Charleston about six months since, owned
one half by the deponent, J. S. Barker, re-
siding. in Charleston, and the other half by
american citizens residing in Baltimore !;
L hat the deponent representing the owners
aforesaid, apprehensive that the bottom of
the ship might, by her being detained here
during the embargo, be totally destroyed by
worms, did Tor that reason determine On SEN
ding her to Baltimore and regularly adver-
tlsed for. freight to said port of Baltimore );
That having obtained the promise and actu-
ally engaged the freight of about six hun
dred bales OF cotton, it beCameSrequisitc to
ship either ballast or heavy freight, so as to
enable the said ship to be navigatcd with
safety; That ballast not being obtainable,
these Opponents, about three week since, a.
greed to carry to Baltimore about two hun
dred barrels OF rice. freight free, and that
the same was shipped by permit from the
custom house, and under the inspection of
a revenue officer about two weeks since,
that on application for a clearance of the said
ship and her cargo to Simeon Theus, Col
ector OF the port of Charleston, duly COM
mlssloned and authorised TO exercise and per-
form the duties oil, said public Office OF Col
lector OF port aforesaid, he hath refused to
grant clearance for said vessel and cargo
alledging that although he has nc suspicion,
that the clearance demanded is TO cover an
ostcnsihle voyage to Baltimore, or 20 infringe
or evade the existing laws, ,,eiative 60 the
embargo, and although he admits chat the
sad snip was laden previously to his re-
ceipt OF the act of Congress, respecting the
embargo under date. of the 25th of April ult.
yet that he is bound torefuse such clearance,
under the directions of the executive of the
u. States, which he -conceives he IS bound
to obey; That these deponcnts have Just
right under the law to obtain from said ST.
neon Iheus, Collector aforesaid, the clear
ance SO Withheld and refused To be granted
ADAM GiLCHRIST.
- -, 49, J. SANFORD BARKER
SzoO,m 10 gre me his }
gath Of 11ay 1903.
JoHN WARD @. u. )
Ohon the return ot'the rule The defendant
she70ed the foLlo7oing cause:
UNITED STATES, }
so Carolina District
Federal Circuit Court. ) H.
ESpartc Kuie &c shew cause
why mIsndamus should
Of not issue requiring him
sl%eon Thegs, ESQ to grant clearancss of
of Charleston
simeon iheus, Collector ofthe Port atorc-
SAID on whom copy of the above rule has
oec' served for cause, SHowETH: ..
nat, in, and by, certain act of con-
gress of the said y States, passed the 95th
day OF April, 1908, 1t is, in the 11th section
thereof, amongst other things, enacted :: that
the Collectors of the customs be, and they
are hereby respectively authorized, to de-
tam any vessel oStenSi6{y bound with a car
go to some other port of the United States
whenever in their ottnion, the intention is
TO violate or evade any provisions of the
acts laying an embargo until the decision of
the PRESIDENT of the United States, be had
" thereupcn.' Also, that in, and by. a GER
tam circular letter from the treasury depart
ment OF the United States, dated the 9th of
May, 1908, and addressed TO the said Sine
on 1heus. as collector aforesaid, he is in
structed as follows: Here. /6llozpS The ciycu-
lar instructions IF nh GOiiaftn, inserted in
the Enquirer ofths 10Th May That the
SAID Simeon Theus, Collector aforesaid, doth
not uetaln the vessels aforesaid, underline act
aforesaid, because in his opinion there is no in
tention in the parties aforesaid to violate or e.
wade any OF the provisions OF tine acts LAYING an
embargo, but that he detains them under the
distractions which he has received in the let
ter aforesaid C pubic oiiicerhs thinks he
is bound TO obey: That being unwilling, on the
one hand, to injure individuals :. and. on the
other, equally so, to commit breach ofhis
duty, he submits the question TO the court
upon the cause above shown
~ q. &C.,. SIMEON THEUS, Collccfor.7
The case was then submitted without ar
gument. .
JUDcE JoBNsoE deHvercd NE f,it94yjYp
ofiinion ojcfhe Court.
=" he affidavit, upon which this motion
IS founded states, that the ship Resource, IS
baliasted with 140 barrels OF rice under
load OF cotton, and is destined for the Port
OF Baltimore. The Collector. in ais return
to the rule, acknowledges, thar he believes
the port Of Baltimore to be her real deslina
ton, and that, The had no other rule cf con-
duct, but the 18th section of the act si,rlyle
mentary to the embargo act, h. would no,
detain her; but urges in ezcuss, for refus-
1ng her clearance . 1etfpr f,o,,, e.. 1.s..-