THE JULIA, 1 LUCE, interests: It enables the whole mercantile enterprize of the country to engage upon equal terms with the traffic; and it separates no individual from the general national character. It relaxes the vigor of war, not only in that MASTER. particular trade, but collaterally opens a path to other commerce. There is all the difference between the ca-i ses that there is between an active personal co-operation in the measures of the enemy, and the merely accidental aid afforded by the pursuit of a fair and legitimate com merce. In the purchase or gratuity of a license for trade, there is an implied agreement that the party shall not employ it to the injury of the grantor; that he shall conduct himself in a perfectly neutral manner, and avoid every hostile conduct. I say there is an implied agreement to this effect, in the very terms and nature of the engagement. I am warranted in declaring this, from the uniform construction put by Great Britain on the conduct of her own subjects acting under licenses. Can an American citizen be permitted in this manner to carve out for himself a neutrality on the ocean, when his country is at war? Can he justify himself in refusing to aid his countrymen who have fallen into the hands of the enemy on the ocean, or decline their rescue ? Can he withdraw his personal services, when the necessities of the nation require them? Can an engagement be legal, which imposes upon him the temptation or necessity of deeming his personal interest at variance with the legitimate objects of his government? I confess that I am slow to believe that the principles of national law, which formerly considered the lives and properties of all enemies as liable to the arbitrary disposal of their adversary, are so far relaxed that a part of the people may claim to be at peace, while the residue are involved in the desolations of war. Before I shall believe the doctrine, it must be taught me by the highest tribunal of the nation; in whose superior wisdom and sagacity I shall most cheerfully repose. It has been said that no case of condemnation can be found an account of the use of an enemy license. Admitting the fact, I am not disposed to yield to the inference that it is therefore lawful. It is one of the many novel questions which may be presumed to arise out of THE the extraordinary state of the world. The silence of JULIA, adjudged cases proves nothing either way: It may well LUCE, admit of opposite interpretations. The case of the Vrow MASTER. Elizabeth, 5 Rob. 2, has been cited by the captors in : support of the more general doctrine. It was a case where the ship had the flag and pass and documents of an enemy's ship; and the Court held that the owner was bound by the assumed character. There is no similiarity in the case before the Court. The ship and cargo were documented as American and not as British property. As little will the Clarissa, (5 Rob. 4,) cited on the other side, apply. It was, at most, but a license given by the Dutch government, allowing a neutral to trade within its own colony in all other respects the ship and property were avowedly neutral; and, unless so far as the English doctrines, as to the colonial trade could apply, there was nothing illegal or improper in waving any municipal regulations of colonial monopoly in favor of a neutral. There was nothing which compromitted the allegiance or touched the interest of the neutral country. If, however, this license had conferred on the neutral the special privileges of a Dutch merchant, or had facilitated the Dutch policy in warding off the pressure of the war, it would probably have received a very different determination. See the Vreede Scholtys, 5 Rob. 5, mote (a.) The Rendsborg, Rob. 98, 121. We all know that there are many acts which inflict upon neutrals the penalty of confiscation, from the subserviency which they are supposed to indicate to enemy interests; the carrying of enemy dispatches; the transportation of military persons; and the adopting of the coasting trade of the enemy. The ground of these decisions is the voluntary interposition of the party to further the views and interests of one belligerent at the expense of the other and I cannot doubt that the Clarissa would have shared the general fate, but from some circumstance of peculiar exemption. : By the prize code of Lewis XIV. (which I quote the more readily because it is, in general, a compilation of prize law as recognized among civilized nations,) it is a sufficient ground of condemnation that a vessel bears commissions from two different states. Vulin (Traite des prises, p. 53,) says, “A l'égard du vaissean ou se trouverent des commissions de deux differens princes ou THE JULIA, etats, il est également juste qu'il soit declaré de bonne prise, soit parce qu'il se peut arborer le pavillon de l'un, en consequence de sa commission, sans faire injure à l'autre, ceci, LUCE, au reste, regarde les Français comme les étrangers." In MASTER, what consists the substantive difference between navigating under the commissions of our own and also of another sovereign, and navigating under the protection of the passport of such sovereign which confers or compels a neutral character? Valin, in another place (sur l'ordinance, lib. 3, tit. 9, art. 4, p. 241,) declares, “si sur un navire Français il y a une commission d'un prince étranger avec cette de France, il sera de bonne prise, quoiqu'il n'ait arboré que le pavillon Français.” It is true that he just before observes, "que ce circonstance de deux congés ou passe-ports, ou de deux connaissements, dont l'un est de France, et l'antre d'un pays ennemi, ne suffit pas seule. faire declarer le navire ennemi de bonne prise, et que cela doit dependre des circonstances capables de faire découvrir sa véritable destination.” But Valin is referring to the case of an enemy ship having a passsort of trade from the sovereign of France. I infer from the language of Valin, that a French ship sailing under the passport, conge, or license of its enemy, without the authority of its own sovereign, would have been lawful prize. This leads me to another consideration; and that is, that the existence and employment of such a license affords a strong presumption of concealed enemy interest, or, at least, of ultimate destination for enemy use. It is inconceivable that any government should allow its protection to an enemy trade, merely out of favor to a neutral nation, or to an ally, or to its enemy. Its own particular and special interests will govern its policy; and the quid pro quo must materially enter into every such relaxation of belligerent rights. It is, therefore, a fair inference, either that its subjects partake of the trade under cover, or that the property, or some portion of the profits, finds its way into the channel of the public interests. It has been argued that the use of false or simulated papers is allowable in war as a stratagem to deceive the enemy and elude his vigilance. However this may be, it certainly cannot authorize the use of real papers of દી hostile character, to carry into effect the avowed pur THE JULIA, pose of the enemy, We may be allowed to deceive our enemy; but we can never be allowed to set up, as such a deception, a concert in his own measures for the very MASTER. purposes he has prescribed. LUCE, 1 An allusion has been made to the passports or safeconducts granted, in former times, to the fishing vessels of enemies; and it has been argued that such passports or safe-conducts have never been supposed to induce the penalty of confiscation. This will at once be conceded, as to the belligerent nation who granted these indulgences; but as to the other nation, where such passports were not guaranteed by treaty or mutual pacts, I have no authority to lead me to an accurate decision. The French ordinance of 1543 authorized the admiral to make fishing truces with the enemy; and, where no such truces were made, to deliver to the subjects of the enemy, safe-conducts for fishing upon the same stipulations as they should be delivered to French subjects by the enemy. This, therefore, was an authority to be exercised only in cases of reciprocity; and it seems to have been abolished from the manifest inconveniences which attended the practice. Valin, sur ord. lib. 1, p. 689, 690. I do not think that any argument in favor of the validity of the present license, (unrecognized as it is by our government.) can be drawn from these ancient examples as to fisheries. It has been argued that the voyage was lawful to a neutral port, and the mere use of a license cannot cover a lawful voyage with the taint of illegality. This, how. ever, is assuming the very point in controversy. It is not universally true that a destination to a neutral port gives a bona fide character to the voyage. If the property be ultimately destined for an enemy port or an enemy use, it is clear that the interposition of a neutral port will not save it from condemnation. 4 Rob. 65, 79. The Jonge Pieter. Suppose, in the present case, the vessel and cargo had been destined to Lisbon for the express use of the British fleet there, could there be a doubt that it would have been a direct trade with an enemy Whether the voyage, therefore, be legal or not, depends not merely upon the destination, but the ultimate application of the property, or the ascertained intentions of the party. A contract to carry provisions to St. Bar ? THE LUCE, tholomews for the ultimate supply of the British West India islands, would be just as much an infringement of JULIA, the law of war, as a contract for a direct transportation. On the whole, I adopt, as a salutary maxim of war, the MASTER. doctrine of Bynkershoek. Vetatur quoquo modo hostium utilitati consulere." It is unlawful in any manner to lend assistance to the enemy, by attaching ourselves to his policy, sailing under his protection, facilitating his supplies, and separating ourselves from the common character of our country. I am aware that the opinion which I have formed as to the general nature of licenses, is encountered by the decisions of learned judges for whom I entertain every possible respect. This circumstance alone, independent of the novelty and importance of the question, would awaken in my own mind an unusual hesitation as to the correctness of my own opinion: but, after much reflection upon the subject, I have not been able to find sufficient grounds to yield it; and my duty requires that, whatsoever may be its imperfections, my own judgment should be pronounced to the parties. I am glad, however, to be relieved from the painful necessity of deciding the more general question, by the peculiar terms of the present license, which I consider as afford ng irrefragable proof of an illicit intercourse with the enemy, and a direct contract to transport the cargo for the use of the British armies in Spain and Portugal. The very preamble to the license of admiral Sawyer shows this in a most explicit manner, and discloses facts which it is no harshness to declare, are not very honorable to the principles or the character of the parties. It has been attempted to distinguish the present Claimants from Mr. Elwell, to whom the original license was granted. It could hardly have been expected that such an attempt would be successful. The assignees cannot place their derivative title on a better footing than the original party. They must be considered as entering into the views and contracting to effectuate the intentions of the latter; and, at all events, the illegality of the employment of the license attaches indissolubly to their conduct. If it were material, however, it might deserve consideration how far an actual assignment is VOL. VIII. 26 |