1817.

The George.

the descent is cast, the right of the party becomes
as complete as it can afterwards be made. The
French subject who acquired lands by descent the
day before its expiration, has precisely the same
rights under it as he who acquired them the day af-
ter its formation. He is seised of the same estate,
and has precisely the same power during life to dis.
pose of it. This limitation of the compact between
the two nations, would act upon, and change all its
But the
stipulations, if it could affect this case.
court is of opinion, that the treaty had its full effect
the instant a right was acquired under it; that it had
nothing further to perform; and that its expiration
or continuance afterwards was unimportant.

Judgment affirmed.

(PRIZE.)

The GEORGE.

A question of collusive capture. The capture pronounced to be collu sive, and the property condemned to the United States.

THIS is the same cause which is reported in the first volume of these Reports, p. 408, and which was ordered to farther proof upon the points there stated.

The cause was argued by Mr. Webster and Mr. G. Sullivan, for the captors, and by the AttorneyGeneral, for the United States.

1817.

The George.
March 6th.

Mr. Justice JOHNSON delivered the opinion of the March 15th.

court.

"This is one of those cases which too often occur in courts exercising admiralty jurisdiction, in which the court is left to decide between the most positive testimony on the one hand, and the most obstinate circumstances on the other.

The privateer Fly had captured the schooner George, and carried her into the province of Maine. But various circumstances having excited a suspicion that the capture was collusive, a claim was filed in behalf of the United States, and she was adjudged to the government, in opposition to the right set up by the captor.

In all the courts through which this case has passed, the most ample opportunities have been given for the production of testimony. But, unfortunately, this indulgence has only served to thicken the difficulties of the case.

We have now before us the most positive depositions of the supercargo and the shippers of the George, (men whose veractity stands unimpeached,) denying, in every point, the collusion, and contradicting, in almost every material point, the evidence upon which the adjudications took place in the courts below. On the other hand, the characters of Thomas and Rodick, who swear to positive confessions on the subject of the fraud, are amply sup

1817.

ported by the most respectable testimony, whilst the The George. veracity of Wasgate and Stanwood, who testify to the same point, stands wholly unimpeached.

It is painful to a court ever to express an opinion that results in an imputation of wilful perjury, and, as much as it is possible in this case, we will put out of view the clashing testimony of individuals, and consider the case upon those facts concerning the truth of which the evidence leaves no doubt.

It is a notorious fact, and is expressly and repeatedly sworn to in this case, that during the restrictive system and the late war, English manufactures, in immense quantities, were accumulated in the small ports on the west coast of Nova Scotia, and it is a melancholy truth, which this court has had but too much cause to know, that many unprincipled individuals were actively engaged in introducing those goods into the United States, under innumerable artifices, and to an immense amount. The protection of the British government was openly given to this intercourse, and there were found but too many in. our country who countenanced and encouraged it. Hence this illicit intercourse was actively carried on, and naturally casts a suspicion on such shipments made in that quarter. On the other hand, although an effort has been made to show, that a trade in the same articles was carried on between those provinces and the Havanna, but one instance can be shown of such a shipment. All the witnesses agree, that the exports from St. Johns to the Havanna consisted of fish and lumber. Indeed, from the course of trade at that time, it is notorious that the Havanna

as well as other Spanish ports to the southward, were
crowded with British manufactures, for the same un-
principled trade carried on at Amelia Island. The
shipment, then, in the first instance, is a suspicious
one, and leads to the opinion that the dry goods were
intended for the United States, whilst the fish and
lumber were to be used only as the cover under
which they were to be introduced. But this reason-
ing may be consistent with the idea of a destination
to any port of the United States, as well as the
ports in that vicinity with which this privateer ap-
pears
to have been connected. Let us, then, ex-
amine if the George was equipped for a voyage of
any duration. And here the evidence is irresistible
to show that she was not. She had no dunnage, or
platform, for the purpose of preserving the goods
from damage by water, and nothing was stowed or
packed in such a manner as to indicate preparation
for a protracted voyage. Her sails and rigging were
old, worn, and deficient in quantity, and her main-
sail too large both for mast and boom. Her wood,
and water, and provisions very scanty; and her
crew, before the mast, not more than one half of what
were necessary for a long and a winter's voyage.
Add to this, that her captain is proved to have been
a very young man, scarcely twenty-one years of age,
altogether unknown to the shippers, and engaged
only four days before the vessel's sailing. It cannot
be believed that so valuable a cargo could have been
destined for so long a voyage with such defective
equipments; no court, upon such evidence, would

1817.

The George.

1817.

have hesitated to avoid a policy on either vessel or The George, cargo.

We, therefore, think, that her real destination must have been to some port in the vicinity of that at which her voyage commenced. How, then, was the cargo to be introduced?

Here I regret that it is necessary to notice a part of the testimony of Gregory Vanhorne, which certainly casts a shade upon all the rest of his testimony. The George, it appears, had actually sailed under convoy of the Beaver as far as Etang Harbour. There the vessel lay in a secure port, under the protection of the Martin sloop of war, and at a place occasionally assigned as a place of rendezvous to vessels that were to sail under convoy. Yet Vanhorne swears that he heard the commander of the Martin expressly order the captain of the George to depart for the place where she was captured, an open road, without protection, only fifteen miles from Etang Harbour, and there to wait the indefinite arrival of some unascertained convoying vessel. This cannot be true. For, independently of the fact, which appears to be satisfactorily established, that Long Island Harbour, in the island of Grand Magnan, when this vessel was captured, had never been used as a place of rendezvous for a convoy, it is very clear that such an order would not have been obeyed by a vessel that feared exposure to capture; for it is proved to have been a place often visited by American privateers.

We, therefore, consider the vessel's departure from Etang Harbour to the place where she was