THE JULIA, LUCE, MASTER. reasons stated by the learned judges, admitted in evidence, viz: 1st. A license from admiral Sawyer, in the words following: "By Herbert Sawyer, esq. vice admiral of [SEAL.] the blue, and commander in chief of his majesty's ships and vessels employed and to be employed in the river Saint Lawrence, along the coast of Nova Scotia, the islands of Anticosti, Madelaine and Saint John, and Cape Breton and the bay of Fundy, and at and about the island of Bermuda, or Somers' Islands, &c. &c. &c. "Whereas Mr. Andrew Allen, his majesty's consul at Boston, has recommended to me Mr. Robert Ewell, a merchant of that place, and well inclined towards the British interest, who is desirous of sending provisions to Spain and Portugal, for the use of the allied armies in the Peninsula, and whereas I think it fit and necessary that encouragement and protection should be afforded him in so doing. "These are therefore to require and direct all captains and commanders of his majesty's ships and vessels of war which may fall in with any American, or other vessel bearing a neutral flag, laden with flour, bread, corn or peas, or any other species of dry provisions, bound from America to Spain or Portugal, and having this protection on board, to suffer her to proceed without unnecessary obstruction or detention in her voyage; provided she shall apppear to be steering a due course for those countries, and it being understood this is only to be in force for one voyage and within six months from the date hereof. "Given under my hand and seal, on board his majesty's ship Centurion, at Halifax, this fourth day of August, one thousand eight hundred and twelve. "H. SAWYER, Vice Admiral." By command of the vice admiral. WILLIAM AYRE. 2d. The following document signed by Andrew Allen. THE JULIA, LUCE, "To the commanders of his majesty's ships of war or of private armed ships belonging to subjects of his MASTER. majesty. "Whereas from the consideration of the great importance of continuing a regular supply of flour and other dried provisions to the allied armies in Spain and Portugal, it has been deemed expedient by his majesty's government that, notwithstanding the hostilities now existing between Great Britian and the United States, every degree of encouragement and protection should be given to American vessels laden with flour and other dry provisions, and bona fide bound to Spain or Portugal. And whereas, in futherance of these views of his majesty's government, Herbert Sawyer, esq. vice admiral and commander in chief on the Halifax station, has addressed to me a letter under the date of the 5th of Aug. 1812, (a copy whereof is hereunto annexed) wherein I am instructed to furnish a copy of his letter, certified under my consular seal, to every American vessel so laden and bound, destined to serve as a perfect safeguard and protection of such vessel in the prosecution of her voyage. Now, therefore, in obedience to these instructions, I have granted to the American brig Julia, Tristram Luce, master, of 159 tons burthen, now lying in the harbor of Boston, and bound to Baltimore for the purpose of taking in a cargo of flour and corn, and proceeding thence to a port in Spain or Portugal, not under French domination, the annexed documents, requesting all officers commanding his majesty's ships of war, or private armed ships belonging to subjects of his majesty, to give to the said vessel all due assistance and protection in the prosecution of her voyage to Spain or Portugal, and on her return thence to her port of original departure, laden with salt or with specie to the nett amount of her outward cargo, or in ballast only. [CONSULAR SEAL.] "Given under my hand and seal of "ANDREW ALLEN, jun. His majesty's consul." THE 3d. "A copy of admiral Sawyer's letters to A. Allen, JULIA, referred to in the preceeding document, and certified under the consular seal; as follows: LUCE, MASTER. (COPY.) "SIR, His Majesty's ship Centurion, At Halifax, the 5th of August, 1812. "I have fully considered that part of your letter of the eighteenth ultimo, which relates to the means of insuring a constant supply of flour and other dried provisions, to the allied armies in Spain and Portugal, and to the West India islands ; and, being aware of the importance of the subject, concur in the proposition you have made. I shall therefore give directions to the commanders of his majesty's squadron under my command, not to molest American vessels unarmed and so laden, "bona fide" bound to British, Portuguese or Spanish ports, whose papers shall be accompanied with a certified copy of this letter under the consular seal. "I have the honor to be, sir, "Your most obedient humble servant, "H. SAWYER, Vice Admiral. To Andrew Allen, esq. his majesty's consul, Boston. 66 Office of his Britannic Majesty's Consul. "I, Andrew Allen, jun. his Britannic majesty's consul for the states of Massachusetts, New Hampshire, Rhode Island and Connecticut, hereby certify that the annexed paper is a true copy of a letter addressed to me by Herbert Sawyer, esq. vice admiral and commander on the Halifax station. [CONSULAR SEAL.] "Given under my hand and seal of office, at Boston, in the state of Massachusetts, this eighteenth day of September, in the year of our Lord, one thousand eight hundred and twelve. " ANDREW ALLEN, jun.” THE JULIA, LUCE, If the opinions of the Courts below, in admitting copies of these documents to be received as evidence, were correct, then it is also admitted that these licenses and letters had been obtained for, and were found on board the Julia, MASTER. at the time of her capture. Upon this statement, and upon the evidence contained in the record, the Claimants submit two points to the decision of the Court. 1. That the mere acceptance or possession of the British license and documents, do not subject the property to condemnation. 2. That if the peculiar terms of the license in this case create a presumption unfavorable to the Claimants, either of an intention to supply the enemy, or of any other unlawful intercourse with the enemy, such presumption is intirely destroyed by the evidence in the case, which shews that no such supply or intercourse did ever, in fact, take place. As to the first point. The nature and effect of an enemy's license, so far as respected the acceptance, possession or use of such a document by an American citizen, were so fully and ably pointed out in the case of the Aurora, that the counsel for the Claimants, is content to rely upon, and to refer the Court to the arguments and authorities which were submitted and quoted in that case, upon this point. But as to the second point. If the Julia had been captured on her passage to Lisbon, with these British documents on board, there might have been some ground for a condemnation :-The suspicious or obnoxious parts of them, such as those which state that Elwell is well inclined towards the British interest," and that he contemplates furnishing supplies to the allied armies in the Peninsula, might have raised a presumption that such was his intention, and would have cast the onus probandi upon him, or upon those in whose hands the license might be found. But it is contended, that if, upon fürnishing the proof, it shall appear that no unlawful intercourse with the enemy ever did, in fact, take place, and, moreover, that no such intercourse was ever even intendVOL. VIII. THE JULIA, LUCE, ed to be held with the enemy, the presumption against the Claimants, arising from the terms of the British documents, will be entirely destroyed, and the ComplaiMASTER. nants left in a state wholly free from guilt, both legal and moral. That this is a correct position, the Court is referred to the case of the Matilda, decided in the North Carolina Circuit, by the chief justice of the United States, and reported in the American law journal, p. 478. In that case, the license was granted after the war, and for the express purpose of a trade and supply to the British W. I. islands: But there was no evidence that any act of trading had been committed. In that case the chief justice is said to have declared, that there was no evi"dence of a criminal intent, except that of the license; "that the obtaining the license was to deceive the ene"my, which the Claimants lawfully might do; and that "the case was cleared of all doubts by the evidence, which stated the real object of the voyage." In the case of the Abby, 5 Rob. p. 254, it is expressly stated to be law that there must be an act of trading to "the enemy country, as well as the intention; that there "must be a legal as well as moral illegality." It is in the same case stated, that no case has been produced, in which a mere intention to trade with the enemy, "contradicted by the fact, enures to condemnation." Upon both points (said sir William Scott,) "I am of "opinion, that the Claimant is entitled to restitution. On "the 1st, there was no illegal act; on the 2d, there was neither intention nor act.” There is no principle better known or established by the writers both upon law and ethics, than that there must be both a will and an act to constitute an offence. The act is necessary to demonstrate the depravity of the will a vicious will, without a vicious act is no offence. It is not denied, that the Julia and her outward cargo were the property of the Claimants: it is not denied, that the Julia, on her departure from Baltimore, was documented, in every respect, as required by law, as an American ship bound from Baltimore to Lisbon, with a cargo of flour, corn and bread. |