NEW YORK. DISTRICT COURT, U. S.

Charles Johnson, on behalf of himself, owners, officers and crew of the private armed vessel called the Tickler, against thirteen bales and thirteen cases of goods and merchandise, found on board the ship Mary and Susan, Josiah Wilson, master: William Falconer claimant of nine bales of merchandise, in behalf of James Beswicke and son.

[Alien enemies, commorant in their own country, cannot maintain any action, in the country of the belligerent, either in the common law courts, nor in those which proceed according to the law of nations and of war.]

VAN NESS, J. By the title of this cause, it appears that the libellants in this, were the same as in the preceding case, and that the goods libelled were also found and captured on board the Mary and Susan, which renders it unnecessary to repeat here, the allegation in the libel and claim.

The principal question which was presented for the consideration of the court, in this case, was, whether an alien enemy, under any and what circumstances, could be heard in the prize court.

OPINION.

IT is contended by the libellants, that James Beswicke and son are alien enemies, and that this appears,

1. By the pleadings.

2. By the papers found on board the captured vessel.

By the pleadings, because it is alleged in the libel, and not denied in the claim. I am of opinion that the allegation in the libel is sufficiently plain and explicit. That it is a material one, forming the very foundation of this proceeding, and that according to all known rules of pleading, the main fact which sustains the prosecution, must, if it can, be denied, or it will be taken as admitted. That this allegation is material and ought to be denied, the case of the Beurse Van Koningberg, is a direct and positive No. XXI.

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authority. 2 Rob. 142. It shows conclusively, that enemy's interest must always be denied in the claim.

But aside from this, I think the fact sufficiently proved by the papers found on board, and now before the court.

The letters of Beswicke and son, leave no doubt that they are British subjects residing in Saddleworth, England. And if they did; that from Blackstock to Hugh Auchincloss, would remove it. Being satisfied on that subject, it is unnecessary to determine how far their residence alone would invest them with a hostile character, as to this transaction. It is a question on which much may be said in other cases, and I have deemed it most expedient to avoid an examination of it, in one that does not require it.

In order to dispose of all the objections arising out of the form of the pleadings, I will, while on this part of the case, notice another raised by the counsel of the claimant, though in a late stage of the argument.

It is urged, that the libel should not only allege that the claimants are alien enemies, but, that they are alien enemies resident abroad.

It is very plain, that both the libel and claim, in this case, are inaccurately and loosely drawn.

But it appears to me, that whether it be alleged or not, if the claimants be admitted or proved to be alien enemies, they must be presumed and taken to be in the ordinary and usual situation of alien enemies, to wit, in their own country; at any rate, out of this.

They cannot be here, without a letter of safe conduct, or by permission of the government. Once acknowledged to be alien enemies they cannot be presumed to be here and to have, that letter or that permission. That presumption would be unnatural and violent. If they have either, they ought to show it, if they mean to make it the foundation on which to assert a right, or to claim a privilege. On general principles as enemies, they have no rights, no privileges, and if they mean to be exempted from the general rule, from the general operation and effect of a state of war, they must show themselves within some of the stipulated or customary exceptions. I believe it may be laid down as a general rule, that all presumptions must be against them. Sir Wm. Scott says, the onus probandi in all prize causes, is on the claimant. 4 Rob. 235.

And in Sylvester's case, 7 Mod. 150. it is decided by the court, that whatever the protection or license of an alien enemy may be, it must be set forth in the pleadings. Although these books are not esteemed very high authority, this case receives credit and respect, from a reference in Bacon.

But I think it can be shown by precedent, that the allegation is not material. Alien, says a learned judge, is a legal term, and amounts to many words. In Sylvester's case there was a plea, that the plaintiff was "an alien enemy, born under the ligeance of the French king." To this there was a demurrer, and the plea was held good. The allegation, therefore, that he was resident abroad, was not deemed necessary-Dau. against Davallon and others: Ans. 462. In another case, the plaintiffs are alleged to be "Frenchmen, aliens, and enemies to the king of Great Britain," and that was held enough. The word "Frenchmen," said the chief baron, "shows that they are the subjects of a nation at war with us. The averment that they are enemies of the king, is the same thing, as if the plea had said, that they adhere to his enemies."

Here the claimants are alleged to be "subjects of the kingdom of Great Britain and Ireland, and enemies." Subjects of the king of Great Britain, is certainly equivalent to "Englishmen and aliens," and they are alleged to be enemies-from which it must follow, that they adhere to the enemy, and then whether they are aliens is perfectly immaterial. If they adhere to the enemy, they must be treated as such. The terms, "subjects of the kingdom of Great Britain and Ireland, and enemies," therefore embrace every allegation, which by these decisions is deemed necessary. In support of these allegations, it is competent, though not necessary, for the captors to prove the residence of the claimants, which has been abundantly shown to be in Saddleworth. In the common law courts, the defendant must set forth, in his plea, every thing requisite to negative the right of the plaintiff to sue. Here, the onus probandi is on the claimant. He must show himself entitled to all the privileges he claims.

It being admitted then, and if not admitted, proved, that Messrs. Beswicke and son are alien enemies, resident in the enemy's country, the question arises-Whether they can be heard in this court-whether the claim of William Falconer, in their behalf, can be sustained, or must be rejected?

This question abstractly considered is simple enough, and in my judgment, presents but few difficulties. But in consequence of the course which the counsel thought proper to take, and the variety of topics which were introduced and discussed, in the progress of the argument, it has become somewhat involved and complicated.

I had at first intended to take as extensive a view, and give as full a discussion of each distinct point which had been made, as my convenience would allow. But I was embarrassed, and arrested in the execution of this intention, by recollecting the claim interposed on the part of the government; by my ignorance of the precise ground that would be taken on the argument of that claim; and also by the consideration, that some of the questions incidentally discussed here, might be made principal grounds of defence, in the other cases which are to follow this, and be more directly presented for the consideration of the

court.

In order therefore to avoid a premature, and anticipated decision of questions, involving the rights of other claimants, and on which other counsel may wish to be heard, I have found it necessary to take a view of this case, somewhat concise and circumscribed.

Beside the authorities which have been cited to show, that an alien enemy not here under letters of safe conduct, or under the protection of the government, cannot sue in the common law -courts, there are some others to which I shall refer.

The first is the case of Sylvester, in 7 Mod. p. 150, already alluded to. It is so early as the 1st of queen Anne, and although it is not full in point, yet it will be perceived, that it bears pretty directly on this question, and in principle is conformable to the later cases which will be examined.

The next case to which I shall refer, is that of Wells vs. Williams, reported at length in 1st Lord Raymond, 282, and concisely in 1st Lutwyche, 15, and 1 Salkeld, 46. This case ought to have been stated before the last, as it is anterior in its date, being the 9th William 3d. It was an action of debt on bond. The defendant plead, that the plaintiff was an alien enemy, and came into England, "sine salvo conductu." The plaintiff replied, that at the time of making the bond, he was, and continued in the country, "per licentiam, et sub protectione domini regis." To

this replication the defendant demurred, and contended, that although the plaintiff was in England, by licence, and under protection, yet, without a letter of safe conduct, he could not maintain a suit. The chief justice, in deciding the case, said "an alien enemy who is here in protection, may sue his bond or contract, but an alien enemy, abiding.in.his own country, cannot sue here." This case, if it be good authority, seems to be decisive on the question under consideration, and so far from being overruled or questioned, it is manifestly supported by the subsequent decisions, that have been found or cited.

The case of Ricord against Bettenham, in 3d. Burough, 1734, was an action on a ransom bill. In this the authority of the last case, and the principles on which it rested, were fully recognized, and although the action was allowed, it was admitted ro, be an exception to the general rule, and sustained exclusively on the ground, that in the single instance of ransom bills, it was the practice of some other European nations.

There are two other cases on ransom bills reported in Douglass, 619, and 625, Cornu against Blackburne, and Anthon against Fisher. These refer to the last case of Ricord against Bettenham, and recognize these suits on ransom bills, as founded on a solitary exception to the general disability of an alien to sue, if resident abroad.

These cases were prior to the statutes of 22 Geo. 3d, which put an end to suits on ransom bills.

The next is that of Daubigny and others against Davallon and others, in the exchequer, Anstruther, 462.

This was a bill for the discovery of goods, received by the defendants, as agents for the plaintiffs, stating the discovery to be necessary for supporting actions at law, intended to be brought by the plaintiffs for the value of the goods. The defendants pleaded in substance, that the plaintiffs were alien enemies, resident in France, and relied on the very cases I have cited from Strange, Lord Raymond and Douglass.

It was decided that the plea was sufficient, and Macdonald, chief baron, in delivering the opinion of the court, after stating that alien friends may institute suits, and the particular circumstances under which even alien enemies may sue, says, "but this claim to the protection of our courts does not apply to those aliens who adhere to the king's enemies. They seem upon every principle to be incapacitated from suing, either at law or in