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United States v. Jacob Barker.

referred to, are to be my guides on this occasion, it would be impossible to make any kind of communication, or have any intercourse or dealing with an enemy, however innocent in its nature, or however free from danger to the state, an exception to the very broad rule which they have been pleased to prescribe. But without denying that a war brings all the subjects of the parties to it into a state of hostility with each other, or that they are bound to assist their respective governa ments, and to defeat by all lawful means in their power, the projects of the public enemy; it will not, I trust, be deemed disrespectful to those who may maintain a contrary opinion, if I cannot think it at all necessary, in order to ensure a per, formance of those duties, to include within this interdiction a transaction like the one now before the Court, or to advance a single step further in this matter, than adjudged cases oblige me to do. Not entertaining the same apprehensions on this subject, under which some appear to have delivered their sentiments, and having no solicitude to add unnecessarily to the evils of war, I may probably regard as perfectly, innocent, what others will consider as a flagrant violation of duty. I do not, therefore, subscribe to the doctrine; and never shall, until the legislature or the Supreme Court of the United States shall make it my duty to do so—that no kind of intercourse whatever, between enemies, is permitted.

The practice of the civilized world might safely be relied on as repugnant to the proposition, which, to the extent now contended for, was never heard of until the late war. In the present state of commerce, it is scarcely possible for a war to break out between two nations trading with each other, without the subjects of the one being more or less indebted to those of the other. Nay, it may often be necessary for the subjects of the one to remit monies to those of the other, as the best and safest way of disposing of funds which they may have abroad, and which may arise from their commerce with neutral nations.

United States v. Jacob Barker.

These are negotiations with which it is beneath the dignity of government to interfere. The pressure of war on the individuals of both countries is thereby, in some degree, taken off, and their governments, instead of being injured by such an innocent interchange of good offices, are enabled to prosecute the war with more vigour, without being exposed to the clamour and ill will of a large body of citizens who always suffer so much by the loss of trade. In the first case, that is, of a war's finding the subjects of the parties mutually indebted to each other, what has been done, not in one or two solitary cases, but by every merchant of this or any other country? Has it ever before occurred to any one of this numerous class of citizens, however scrupulous in other respects of violating any law of the land, that any criminality or responsibility attached by drawing a bill on his enemy for a debt due to him at the time of the war's breaking out, or contracted pending hostilities ? It is difficult to perceive how such an act can add to the resources or increase the comforts of an enemy. If the bill be in favour of a neutral or a citizen of the United States, the money will probably be withdrawn from the enemy's country altogether; and, if in favour of a subject of the enemy, it will but take the money out of the hands of one British subject and place it with another; and if neither be done, the money will always remain at the disposal of the party remitting, and cannot, without a violation of good faith, be added to the resources of government.

But be this as it may, the universal usage on this subject, and the entire absence of any adjudged cases, are at least primâ facie evidence of its legality. The practice of our own merchants during the late war, it is well known, was in conformity with it; for scarcely a vessel sailed from the United States during that period for any port of Europe, that was not almost loaded with bills of exchange on British houses; and although many of these were inspected by the

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United States v. Jacob Barker.

marshal of the district, yet, we do not hear that he ever thought of stopping them in transitu, or of complaining to the executive, or to a Grand Jury of those who had drawn them; nor did the legislature, although every member of Congress must have known of a practice which no one took any pains to conceal, ever interfere to prevent it, or lay it under any restraint whatever.

To me, the fear of opening a door for intelligence to the enemy, if any intercourse of this kind be tolerated, appears perfectly chimerical. A bill may be drawn with, or without a letter of advice. In the latter case, it will hardly be pretended that the bill itself will be made the vehicle of improper intelligence. If a letter accompany the bill, it is just as liable to come to the knowledge of government or to fall into the hands of its agents as any other letter; and the same caution would be used in writing it. -Persons disposed to give information to an enemy and willing to incur the hazard of it, will seldom be at a loss for opportunities. So innocent was this conduct thought during the late war, that hills on London were not only publicly sold in our cities, but cartels were probably sometimes permitted to go principally for the purpose of giving our merchants an opportunity of writing to their English correspondents, and of drawing on them for monies in their hands, or of making remittances for the payment of debts due by them, or of sending them bills on other parts of Europe to be collected for their use. If the inhition of intercourse in time of war be as universal as is now pretended, the voluntary payment of a debt to an enemy must be a crime. Nor can a father who may have a son with the enemy, write him the most innocent letter on family affairs without subjecting himself to a public prosecution; for it will be idle to brand such conduct as criminal, unless the parties be liable to punishment in this way.

The Court has indeed been referred to the black book of

United States v. Jacob Barker.

the admiralty, which is alleged to be as ancient as the reign of Edward the Third, to show that acts of this kind are in truth indictable offences, inasmuch as one of its articles directs the grand inquests to inquire of all those who intercommune with, sell to, or buy of any enemy without special license of the king, or of his admiral.” I will not deny the existence of this article, nor that it may be near five hundred years old; but as no presentment or indictment can be produced against any person during the lapse of so many centuries for drawing a bill of exchange on an enemy, or for remitting him money in payment of a debt, or for the bare remittance of money, in any other way, for the benefit of the party remitting, notwithstanding the numerous and long wars in which England has been engaged, during that period; it may very safely be concluded that such an intercourse, if it can be called by that name, common as it must have been in many of them, was never considered as the intercommunion or intercourse to be inquired of under this article; or if it was, that it has been disregarded for so many ages, and has become so obsolete that nothing but an act of the legislature can ever revive it on this side of the Atlantic.

The drawing of a bill of exchange has been called trading with an enemy. This Court does not consider it in that light within the meaning of any one of the cases cited. It is easy to see that a trade properly so called, if permitted, may very well be the occasion of considerable injury to the state. Ited may be the means of supplying its enemy with articles of the first necessity, and might lead to personal intercourse and com- a munications highly important, without a possibility of de-dd tection. No such danger can be apprehended from a letter to covering a bill of exchange, so long as the writer of it con- kisę tinues at the distance of three thousand miles and more from the person to whom it is addressed.

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United States v. Jacob Barker.

If it be unlawful to sell a bill of exchange drawn on an enemy, it is strange that in the treaty of London, commonly called Mr. Jay's treaty, the contracting parties should have thought it necessary to engage, not to sequester in the event of a war, the debts due by individuals of one nation to individuals of the other. These were neither to be destroyed nor impaired on account of national difference and discontents. If no man can take a bill of exchange in time of war, without the risk of losing his money for the illegality of the transaction, it would amount to a sequestration during hostilities, of all the funds of an American citizen in the country of the belligerent; and that without any act, on the part of the enemy's government to produce such a state of things. It is a matter of notoriety, that in conformity with the practice here stated, British subjects interested in the public debts of the United States, regularly received the interest on their stock, during the last war, which it is presumed was regularly remitted to them ; which could only have been done by means of bills of exchange, without its ever being imagined that such remittance was il, legal.

The opinion of the Court then is, that the plaintiff, by drawing the bill in question, violated neither the laws of nations, nor ay municipal regulation of his own country ;—that he did an act perfectly innocent, if not meritorious, and which has too long received the sanction of public opinion and general usage, to render it necessary or proper to be checked by the interposition of a Court of Justice, which could not be done, without sacrificing the interests of our innocent and unsuspecting merchants, to gratify the cupidity of those who may since have been advised that the transaction was unlawful, and may be desirous of taking advantage of it. It would require the Fery grape consideration of a much higher tribunal than this, to decide that such conduct is illegal, and that the persons the

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