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THE At the bearing, a preliminary objection was taken JULIA, to the introduction of the copies of the British docuLUCE,
ments, upon the ground that the originals, as the best MASTER, evidence, ought to be produced. The rule undoubtedly
applies when the originals are in existence, and in the possession or control of the party. The extraordinary disappearance of these important papers, under the circumstances of this case, I can have little doubt was occasioned by a fraudulent substraction. There is no reason to impute this substraction to the prize master. The documents were to him a very important protection; they constituted the avowed reason of the capture, as the mate and some of the seamen testify. It is true that the master has declared that he knew not the pretence of capture; but it can hardly be believed that he could be ignorant of a fact which so materially affected his interest. I feel myself bound to make very unfavorable inferences against him ; and if, in odium spoliatoris, I impute the substraction to some person on board connected with the voyage, and in the confidence of the master, it is measuring out no injustice to one who appears to deem mis-statements and concealments no violent breach of good faith. I shall, therefore, admit the copies, verified as they are, as good evidence in these proceedings, and I will add, that if a single material fact in favor of the Claimants had depended upon the supplementary affidavit of the master, I should have felt myself compelled to repudiate it in order to vindicate the regularity of prize proceedings, and suppress the efforts of fraud to derive benefit from after thoughts and contrivances. These remarks are not made without regret; but public duty requires that manifest aberrations from moral propriety should not receive shelter in this Court.
Having disposed of this preliminary objection, I now proceed to consider the two questions which have been so ably discussed in this case.
1st. Whether the use of an enemy's license or protection, on a voyage to a neutral country in alliance with the enemy, be illegal so as to affect the property with confiscation.
2d. If not, whether the terms of the present license disinguish this case unfavorably from the general principle.
The British documents which were on board, and THE which, for conciseness, I have termed a license, are as
JULIA, follows :
MASTER. OP It is thought unnecessary to insert these documents here, as they are to be found at length in the argument of the Claimants counsel in the former part of this report.]
it In approaching the more general question which has been raised in this case, I am free to acknowledge that I fell no inconsiderable diffidence, both from the importance of the question, and the different opinions which eminent jurists have entertained respecting it : Nor am I insensible, also, that it has entered somewhat into political discussions, and awakened the applause and zeal of some, and the denunciations of others, considered merely as a subject of national policy, and not of legal investigation. It has now become my duty to examine it; and, whatever may be my opinion, I feel a consolation that it is in the power of a higher tribunal to revise my errors, and award ample justice to the parties.
At the threshold of this enquiry, I lay it down as a fundamental proposition, that strictly speaking, in war all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sauctioned by the authority of the government, or in the exercise of the rights of humanity. I am aware that the proposition is usually laid down in more restricted terms by elementary writers, and is confined to commercial intercourse. Bynkershoek says, “ Ex natura belli, commercia inter hostes cessare, non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipso indictiones bellorum satis declarant." Bynk. Q. J. P. book 1, c. 3. And yet it seems not difficult to perceive that his reasoning extends to every species of intercourse. Valin, in his commentary on the French ordinance, speaking of the reason of requiring the name and domicil in a policy, says, « Est encore de connaitre, en temps de guerre, si malgré Vinterdiction de commerce, qu'emporte toujours toute declaration de guerre, les sujets du Roi ne font point commerce avec les ennemis de l Etat, ou avec des amis 01 alliés, par l'interposition desquels on ferait passer aux enVOL. VIII.
THE nemis des munitions de guerne et de bouche, ou d' autres JULIA, effets prohibés ; car tout cela, étant defendu comme préjuLUCE, diciable a l' etat, serait sujet a confiscation, et a étre deMASTER. claré de bonne prise.” Lib. 1, tit. 6, art. 3, p. 31. In
another place, adverting to a case of neutral, allied, and French property on board an enemy ship, &c. he declares it subject to confiscation, because « C'est favorisér le commerce de l'ennemi et faciliter le transport de ses denrées et marchandises, ce qui ne peut convenir aux traites d' alliance ou de neutralité, encore moins aux sujets du Roi auxquels toute communication avec l'ennemi est etroitement défendu: sur peine méme de la vie." Lib. 3, tit. 9, art. 7, p. 253. And Valin, Traité des Prises, chap. 5, sec. 5, p. 62.
From this last expression it seems clear that. Valin. did not understand the interdiction as limited to mere commercial intercourse. In the elaborate judgment of sir W. Scott, in the Hoop, 1, Rob. 165, 196, the illegality of commercial intercourse is fully established as a doctrine of national law: but it dues not appear that the case before him required a more extended examination of the subject. The black book of the admiralty contains an article which deems every intercourse with the public enemy an indictable offence. This article, which is supposed to be as old as the reign of Edw. III, directs the grand inqnest “ Soit enquis de tous ceux qui entrecommunent, vendent ou achetent avec aucuns des enemis de notre Seigneur le Roi sans license spécial du Roi ou de son admiral." But, independent of all authority, it would seem a necessary result of a state of war to suspend all negotiations and intercourse between the subjects of the belligerent nations. By the war every subject is placed in hostility to the adverse party. He is bound by every effort of his own to assist his own government, and to counteract the measures of its enemy. Every aid, therefore, by personal communication, or by other intercourse, which shall take off the pressure of the war, or foster the resources, or increase the comforts of the public enemy, is strictly inhibited. No contract is considered as valid between enemies, at least so far as to give them a remedy in the Courts of either government; and they have, in the language of the civil law, no ability to sustain a persona standi in jur dicio. The ground upon which a trading with the ene
sny is probibited, is not the criminal intentions of the parties engaged in it, or the direct and immediate inju- JULIA, ry to the state. The principle is extracted from a more LUCE, enlarged policy, which looks to the general interests MASTER. of the nations, which may be sacrified under the temptation of unlimited intercourse, or sold by the cupidity of corrupted avarice. In the language of sir William Scott, I would ask, “ Who can be insensible to the consequences that might follow, if every person, in time of war, had a right to carry on a commercial intercourse with the enemy, and, under color of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme ; and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if necessary) under the eye and control of the government charged with the care of the public
Nor is there any difference between a direct intercourse between the enemy countries, and an intercourse through the medium of a neutral port. The latter is as strictly probibited as the former. 4 Rob. 65, 79. The Jonge Pieter.
It is argued that the cases of trading with the enemy are not applicable, because there is no evidence of actual commerce; and an irresistible presumption arises from the nature of the voyage to a neutral port, that 'no such trade is intended. If I am right in the position, that all intercourse, which humanity or necessity does not require, is prohibited, it will not be very material to decide whether there be a technical commerce or not. But is it clear, beyond all doubt, that no inference can arise of an actual commerce? The license is issued by the agents of the British government, and, I must presume, under its authority. It is sold (as it is stated) in the market; and if it be a valuable acquisition, the price must be proportionate. If such licenses be an article of sale, I beg to know in what respect they can be distinguished from the sale of merchandize? If purchased directly of the British government, would it not be a traffic with an enemy? If purchased indirectly, can it change the nature of the transaction? It has been said
THE that if purchased of a neutral, the trade in licenses is no JULIA, more illegal than the purchase of goods of the enemy faLUCE, bric bona fide, conveyed to neutrals. Perhaps this may, MASTER. under circumstances, be correct: but I do not under
stand that the purchase of goods of enemy manufacture, and avowedly belonging to an enemy, is legalized by the mere fact of the sale being made in a neutral port. The goods must have become incorporated into the general stock of neutral trade, before a belligerent can lawfully become a purchaser. If such licenses be a legitimate article of sale, will they not enable the British government to raise a revenue from our citizens, and thereby add to their resources of war ? Admit, however, that they are not so sold, but are a measure of policy adopted by Great Britain to further her own interests, and ensure a constant supply of the necessaries of life, either in or through neutral countries ; can it be asserted that an American citizen is wholly blameless, who enters into stipulations and engagements to effect their purposes ? Is not the enemy thereby relieved from the pressure of the war, and enabled to wage it more successfuily against the other branches of the same commerce not protected by this indulgence ?
It is said that the case of a personal license is not distinguishable from a general order of council authorizing and protecting all trade to a neutral country. In my judgment they are very distinguishable. The first pre-supposes a personal communication with the enemy, and an avowed intention of furthering his objects, to the exclusion of the general trade by other merchants to the same country; it has a direct tendency to prevent such general trade; and relieves the enemy from the necessity of resorting to a general order of protection; it contaminates the commercial enterprizes of the favored individual with purposes not reconcilable with the general policy of his country; exposes him to extraordinary temptations to succour the enemy by intelligence; and separates liim from the general character of his country, by clothing him with all the effective interests of a neutral. Now these are some of the leading principles upon which a trade with the enemy has been adjudged illegal by the law of nations. On the other hand, a general order opens the whole trade of the neutral country to every merchant. It pre-supposes no incorporation in enemy