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was unnecessary to put a prize crew on board to navi THE gate the vessel to the United States, for she was already ALEXANbound thither. If it was the intention of the captor DER, to abandon her, why put any person on board ? The PACKET, very circumstance of putting a prize master on board, M STEX. clearly evidences an intention not to abandon.
It is perfectly immaterial whether the capture was absolute or conditional only, to secure the British property found on board : To secure that, it was necessary to capture the whole : The capture cannot be considered as partial.
It is said, on the part of the Claimants, that there is no general rule of the law of nations that every trading with the enemy is unlawful. We are of a different opinion. Bynkershoek lays down the rule. Bynk. Q. J. P. book 1, c. 3. Vattel gives it by implication. He says that, in time of war, not only the two belligerent nations, in their politic capacity, are enemies, but that all the subjects of the one are enemics to all the subjects of the other inclusively, Vattel, lib. 3, c. 5, 970. Sir William Scott, in the case of the Hoop, 1 Rob. 167, has laid down the rule the universal rule. The exception which he allows to this general principle is, that, under certain circumstances, funds may be withdrawn with license from the war-making power. So in the United States licenses for the same purpose may be granted by the same power. But this, as has been already observed, is not a case of withdrawing funds; the funds entitled to the benefit of the exception are such only as were in the country before the war.
It is said by the counsel for the Claimants, that the intention to sail to England was not carried into effect, and therefore no illegal act was committed, even supposing that the act, if committed, would have been illegal. But we contend that the offence was consummated by the overt-act of sailing for the enemy's country several days. Suci is the law in the case of blockade. Such, also, it is stated to be by sir William Scott, in the case of a vessel sailing to a port which was captured, during the voyage, by the nation to which the vessel belonged. By all the analogies of law an intention in part executed completes the offence. 1 Rob. 132, 156. The Columbia. VOL. VIII.
TIE But it has been denied that the act, if carried into exALEXAN- ecution, would have been illegal, in the present case ; it DER,
has been urged that the safety of the property required PICKET, it. But the law of nations does not permit a man to MASTER. secure bis property by taking it to the enemy's country.
The case of Hallet v. Jenks, was cited as supporting the claim of the Appellants. But there, compulsion to sell and to take the produce of the enemy's country in payment, was part of the case stated. Here, the purchase of a return cargo, was voluntary; which materially alters the case. Welles ought to have left his funds in the enemy's country.
As to the additional instructions of the president, they clearly do not embrace this case, either by their letter or spirit. An expectation had been raised that, upon the repeal of the orders in council, our non-intercourse would cease. The instructions were intended to meet this case-to redeem the pledge, and save the national faith. These instructions are explained by the act of congress of January 2, 1813, authorizing the remission of the forfeitures incurred under the non-intercourse. That act directs the secretary of the treasury to remit the forfeitores in the case of such American property only, as, sailed before the 15th September, 1812; a time by which the merchants in England were presumed to have been undeceived.
The proviso to the act of 13th July, 1813, does not alter the nature of the instructions; it leaves them to be expounded by the Courts.
Dexter, in reply.
This is a more favorable case than if the property had been in the enemy's country before the war. The object in going to England, was merely to save the property fron British captnre, to which it was exposed, and for this purpose to pass through the enemy's country in disguise--conduct perfectly justifiable in a case like this.
As to the capture, nó evidence has been produced to prove the fact. If there had been any agreement that this should be considered as a capture, we will admit
that it would have been one. But no such agreement is shown—it does not appear that any thing of the kind ALEXANwas intended.
PICKET, But supposing it to have been a capture by agree- MASTER, ment-even then the extent of the capture must be limited by the terms of that agreement, 1 Rob. 204, 243. The Jonge Jacobus Baumann.
There is no evidence of Welles being in England animo manendi.
Monday, March 7th. Absent.... TODD, J.
MARSHALL, Ch. J. delivered the opinion of the Court as follows:
The principles settled in the case of the Rapid decides this cause so far as respects the character of the Alexander and her cargo. În open sea, unpressed by any peculiar danger, with a full knowledge of the war, she changes her course and seeks an enemy's port. If such an act could be justified, it were vain to prolibit trade with the enemy. The subsequent traflic in the enemy country, by which her return cargo was obtained, connects itself with this voluntary sailing for an enemy port; nor does the circumstance that she was carried by force into Ireland, when her actual destination was England, break the chain. The conduct of the Alexander is much less to be defended than that of the Rapid.
But it is alleged by the Claimants, that in this case there was no actual capture. This allegation cannot, in the opinion of the Court, be sustained. That the America took possession of the Alexander with the intention of making prize of that part of her cargo which might be deemed British, is not controverted. How was this intention to be executed, how was this part of the cargo to be libelled, if it was not captured ? And if such part of the cargo as might eventually be British, was captured, and the whole remained together in the vessel, how can the capture be considered as partial ?
But it has been truly observed, that it is not non-capture, but abandonment, for which the Complainants in fact contend.
But while the whole cargo remains together, claimed ALEXAN- by the captor, if it be enemy property, how can any
DCR, part of it be said to be abandoned ? If it was entirely PICKET, abandoned, for what purpose was one of the crew of the MASTER. America put on board the Alexander ?
The inability of the prize master to secure the captured vessel against a rescue, should one be attempted, his inability to bring in the vessel without the aid of the hands belonging to her, is, in reason, no proof of abandonment. If the circumstances of the captured vessel be such as to do away all apprehension of rescue, and inspire confidence that the crew will bring her into port, no reason is perceived why the property of the captor, may not be retained as well by a prize master alone, as by a considerable detachment from his crew.
The cases cited to this point by the counsel for the captors are entirely satisfactory.
With as little reason do the Claimants seek to shelter themselves under the instructions of the 28th of August, 1812. Those instructions apply, in exp-ess terms, to such American vessels as have sailed from Great Britain for the United States, “in consequence of the alleged repeal of the British orders in council.” A vessel which sailed while those orders were not alleged to be repealed, cannot bring herself within these instructions.
But it is alleged that these instructions are still issued, and must mean something. Rather than ascribe their continuance to inattention, the counsel for the Claimants wonld give them a construction in direct hostility with their letter and spirit. Were this reasoning even admitted to be correct, which it is not, it would becoine the duty of the Court to be astute in finding some object to which they might possibly apply. It is possible though certainly it is barely possible, that some vessels which sailed from England while the orders of council were supposed to be repealed, may not yet have reached the United States. It would be more reasonable to reserve these instructions for such possible case, than to apply them to cases which can neither be brought within their words nor their meaning.
The sentence is affirmed with costs.
THE JULIA, LUCE, MASTER.
THIS was an appeal from the Circuit Court for The sailing on the district of Massachusetts.
a voyage under the license
and passport D. DAVIS, for the Claimants.
of protection of the enemy,
in futherance The brig Julia and cargo, consisting of about three of his views or hundred hogsheads of salt, were captured by the United interests, con States' frigate Chesapeake, Samuel Evans, commander, act of illegality about the last of December, 1812, and libelled and con
as subjects the
ship and cargo demned in the district Court of Massachusetts. Upon to confiscation appeal to the Circuit Court, the sentence of condemna- as prize of tion was affirmed, and the Claimants now appeal to this Court.
The allegation, in the libel, is, that the property belongs to British subjects.
The facts proved and relied upon by the Claimants, and which are fully substantiated by the documents contained in the record, are as follows: That the Julia and cargo were owned wholly by the Claimants, who are native American citizens ; that she was documented as an American ship, for a voyage from Baltimore to Lisbon, with a cargo of corn, flour, and bread; that she sailed with this cargo from Baltimore to Lisbon, where she arrived in safety; that the outward cargo was there sold to Portuguese merchants, in that port, and a return cargo of salt purchased with a part of the proceeds of the outward cargo; and that, as the Julia was returning to Boston, her port of discharge, with her homeward cargo, she was captured by the Chesapeake ; that all the transactions of the voyage were really and truly for account of the Claimants, and that, in point of fact, no connexion, intercourse, trade, supply, or other matter or thing relative thereto, was ever had, made, intended, or contemplated with the enemy, in the whole course of this voyage.
It is admitted by the Claimants, that copies of the following documents signed and granted by admiral Sawyer and Andrew Allen, late the British consul at Boston, were filed in the Courts below, and, for the