The enquirer. [volume] (Richmond, Va.) 1804-1815, 1812-11-14
DOMESTIC.
CIRCUIT COURT OF THE u. S
November 6, 1879.
PENNSYLVANIA DISTRICT,

October Ii-rn, 1912
The TULIP, Funk, VIM. Shaw, of New
York. Claimant and Appellant
The vessel and her cargo had been con
dcmned, as lawful prize, tn the priva,eer
ATLAS, Maffet. upon the ground that che
vessel was employed, after the declaration
of war, in the service OF the enemy. to car
ry MIR. Fosrer's public dispatches. in CHARGE
ofa messenger, from Ncw-York II Eng
land. The Claimant, WIN. Shaw. IA natu
ralized citizen ot New-York, appealed FROM
the sentence 4 condemnation, and the APP
peal was heard, on the 9th and 18th Of
October, upon an argument, by Messrs.
Hopkinson and Binney far the Appellant, &
by Mr.. Dallas for the Appellee.
Upon the delivery of Mr.. Fosters dis
patches, unopened TO the district Judge, he
directed them tn be submitted TO the Secre
tary of State, in order to ascertain whe-
ther. in the opinion Of the Executive, thei'
contents were proper to be exhibited on the
public rec rd. The Secretary of State re
turned office c'pies of the dispatches to Mr..
Dallas (as the law officer of the district )
stating that it was not the wish of govern
ment, that publicity should be given TO
them, unless it vas for the promotion of
public, on private justice. Judge Peters,
when the demand was made, in the Dis
trict Court by the Claimants Counsel, for
placing the dispatches, among the public
exhibits in the Court, decla ed. that he did
not think the disclosure necessary for the
promotion of public, or private justice
that, at that time, it Nigh. be attended
with some public inconvenience, by hasten
ing the communication IF the dispatches to
the enemy; and that it WAS enough, upon
principle, as we'll upon the precedeBts
to ;.e found in the admiralty law Of England,
a ad OF Fracce, and of other nations, tn sub
stitute in his own certificate. general de-
scIption of the matter c. ntained in them.
On the appeal, in the Circuit Court, some
question occurred but Mr.. Dali
las, delivering conformably to his instructi-
ons) the dispatches to Jodge Washington, to
be disposed of as the Judge should direct,
observed that, undoubtedly the great reason
for withholding the publication OF the dis
patches, in extenso, might be thought to
aave ceased b. the lapse sftime, and the
arrival Of Mr. Foster in England. So far
as Information was to be conveyed to the
enemy, the object Of the dispatches was ct
tected by personal communications !; and
IS to Mr.. Fosters conf ectures, relative 20
the conduct OF our government, the public
documents sufficiently proved their fallacy.
M. Dallas, however, maintained the Cor
rectness OF the decision of the District
Judge, under the circumstances EXISTING,
when II was pronounced, and referred to
the authorities upon the STA ect
Judge Washington, on the succeeding
morning, directed the dispatches to be made
exhibits III the cause, saying. that he had
not formed, and did not mean 10 intimate,
any opinien upon the general question, whe
Their such documents might not be withheld
from the record, upon principles of public
policy /; but that lie was of opinion, that
the reason for Withholding them in this
case, had ceased, and that the publication
could not be attended with any Injurious con-
sequences to the government
( The cause was then argued OF the three
grount taken by the Counsel for the Claim
ant: 1. That trading with the enemy was
not, in itself, unlawful I'd. That Carry
ing the dispatches Of the enemy was not
trading, within he meaning of the princi-
pies and authorities cited for the Libelidnr.
Aud Sd. That if any offence was commit
ted by carrying the dispatches in the pre-
sent case, 1t was the offence of citizen. a.
gainst the municipal law of his own country,
n't All offence in violation of the law Gf ma
tons; and consequently, that the offender
could only be prosecuted and punished, &c
CO ding to the common law, or the stttute
law, neither OF which would justify a cap
ture aid condemnation of the vessel and
cargo, as prize of war, in a Court Of Ad-
mrdlty.
The Judge, having continued the cause
for advlsement, delivered his opinion in
substance. as follows -
WAsHINGToN, justice. have peru
sed, with attention, tho papers and the au
thOrities, winch have been exhibited AID
cied, in this cause; and j proceed, with
periec satisfaction, TO pronounce an affr-
nance OF the decree of the District Judge.
Trading with an enemy, was an offence
tgainst the maritime law, long before the
American revolution ; and, as far back as
the records of the English Admiralty ca
De traced, it appears, incontrovertibly,
{ I'm g series of direct and uniform detisi
os, that he vessel and cargo Of subject,
ken in the ac; of trading with an enemy
were liable to condemnation, in the prize
:ou1t. as prize OF war, to the Captors.
The principle, which prohibits trace and
commerce with the enemy, exist, there
fore, independent of those opinions & judy
nents. which have been pronounced by Sn
William Scott, subsequent to the revoluti-
on: And TO atprincipIe, should resort.