THE

JULIA,
LUCE,

shown in the case.

It rests on the affidavit of one of the Claimants, and on the mere face of papers which carry no very decisive character, and are quite reconMASTER. cileable with concealed interests in other persons, as the records of prize Courts abundantly show. However, I only glance at this subject, as it in no degree enters into the ingredients of my judgment.

A very bold proposition was, at one time, advanced in the argument by the Claimants' counsel, that if this cargo had been actually destined to Portugal for the use of the allied armies of Great Britain and Portugal, or even for the use of the British army, it would not be an offence against the laws of war. In the sequel, if I rightly understand, this proposition, in this alarming extent, was not contended for; and certainly it is utterly untenable upon the principles of national law.

But it was insisted on, that the British armies in Portugal and Spain were to be considered as incorporated into the armies of those kingdoms, and as not holding the British character.

If I could so far forget the public facts of which, sitting in a prize Court, I am bound to take notice, there is sufficient in the papers before me to prove the contrary of this suggestion. In admiral Sawyer's license and Mr. Allen's certificate they are expressly called the allied armies; thereby plainly admitting a separate character and organization: and so, in point of fact, we all know it to be; if, indeed, the British character be not predominant throughout these countries. I reject the distinction, therefore, as utterly insupportable in point of fact.

It has been further argued that, if the conduct be illegal, it is but a personal misdemeanor in no degree affecting the vessel and cargo; and at all events, that the illegality was extinguished by the termination of the outward voyage. The principles of law afford no countenance to either part of the proposition. If the property be engaged in an illegal traffic with the enemy, or even in an attempt to trade, it is liable to confiscation as well on the return as on the outward voyage: and it may be assumed as a proposition, liable to few, if any, excep

THE

tions, that the property which is rendered auxiliary or subservient to enemy interests, becomes tainted with for- JULIA, feiture.

I cannot but remark that the license in this case, issued within our own territory by an agent of the British government, carries with it a peculiarly obnoxious character. This circumstance, which is founded on an assumption of consular authority that ought to have ceased with the war, affords the strongest evidence of improper intercourse. The public dangers to which it must unavoidably lead, by fostering interests, within the bosom of the country, against the measures of the government, and the breach of faith which it imports in a public functionary receiving the protection of the government, can never be lost sight of in a tribunal of justice. I forbear to dwell further on this delicate subject.

Upon the whole, I consider the property engaged in this transaction as stamped with the hostile character; and I entirely concur in the decision of the district judge, which pronounced it subject to condemnation."

LUCE, MASTER.

THIS was an appeal from the Circuit Court for the district of Rhode Island.

The following were the material facts of the case

futherance of

The accep tance and use of an enemy's license on a Voyage to a neutral port, Some months after the declaration of war, the ship prosecuted in Aurora, documented as American property, and owned the enemy's by Thomas M. Clarke and Ebenezer Wheelright, the avowed objects, is illegal, Claimants, who are American citizens, sailed from New- and subjects buryport to Norfolk, in ballast. At the latter place vessel and carshe took in a cargo consisting of bread, flour, corn, &c. go to confiscaand sailed from thence on or about the 12th November, It is not neces1812, ostensibly for St. Bartholomews, a neutral island sary, in order to subject the belonging to the Swedes, for which port she had obtain- property to

tion.

THE ed her clearance. The cargo was consigned to the suAURORA, prcargo of the ship. On the 26th November, 1812, PIKE, she was captured by the American privateer schooner, MASTER. governor Tompkins, on the high seas. At the time of capture, she was to the leeward of St. Bartholomews, cond nation, and had on board a British license, which she exbibited that the per to the captors, supposing them to be British. This lison granting the license cense consisted of three documents: should be duly authorized to grant it, pro1st. A pass for the West Indies, exclusively, from vided the per- Andrew Allen, his Britannic majesty's consul residing son receiving it takes it with at Boston; to which is annexed a copy of a letter, unthe exp cta der the consular seal, from admiral Sawyer to Mr. tion that it will Allen, as follows:

protect his

property from

the enemy. Sailing, with

"To the commanders of any of his majesty's ships

an intention to of war or of private armed ships belonging to his mafurther the jesty.

views of the

enemy, is suf

ficient to con- •

perly, al

capture.

“Whereas from a consideration of the great importance demn the pro- of continuing a regular supply of flour and other dry though that in- provisions and lumber to the British islands in the West tention be Indies, it has been deemed expedient by his majesty's frustrated by government, that, notwithstanding the hostilities now existing between Great Britain and the United States of America, every protection and encouragement should be given to American vessels laden with flour and other dry provisions and lumber, and bound to the British is lands in the West Indies. And whereas in futherance of these views of his majesty's government, Herbert Sawyer, esq. vice admiral and commander in chief of his majesty's squadron on the Halifax station, has directed to me a letter under date of the 5th August, 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 to the West Indies, which is designed as a perfect safeguard and protection to such vessel in the prosecution of such voyage. Now, therefore, in pur suance of these instructions, I have granted to the American ship Aurora, William Augustus Pike, master, burthen 257 47-95ths. tons, now lying in the harbor of Newburyport, and bound to Norfolk for a cargo of flour, corn and other dry provisions for St. Bartholo mnews, the annexed document, to avail only in a direct

THE

voyage to the West Indies and back to the United States; requesting all the officers commanding his ma- AURORA, jesty's ships of war, or of private armed vessels belong- PIKE, ing to subjects of his majesty, not only to suffer the MASTER. said Aurora to pass without molestation, but also to extend to her all due assistance and protection in the prosecution of her voyage to the West Indies and in her return to the United States laden with merchandize not exceeding the nett amount of her outward cargo, or in ballast only.

[SEAL.]

“Given under my hand and seal of office
this first day of October, 1812.

"ANDREW ALLEN, jun.
His majesty's consul."

To the above pass was annexed the following copy of a letter from admiral Sawyer certified under the consular seal, and alluded to in the above document.

“SIR,

"His majesty's ship Centurion,

At Halifax, the 5th of August, 1812.

"I have fully considered that part of your letter of the 18th ultimo, which relates to the means of ensuring a constant supply of flour and other dry provisions to 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 so laden, and unarmed, 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.

Andrew Allen, esq.

British Consul Boston.

THE AURORA,

PIKE,

.6

Office of his Britannic Majesty's Consul.

I, Andrew Allen, junior, his Britannic majesty's conMASTER. Sul for the states of Massachusetts, New Hampshire, Rhode Island and Connecticut, do hereby certify, that the annexed paper is a true copy of a letter addressed to me by H. Sawyer, esq. vice admiral and commander in chief of his majesty's squadron on the Halifax station.

[SEAL.]

"Given under my hand and seal of office, at Boston, in the state of Massachusetts, this first day of October, in the year of our Lord, one thousand eight hundred and twelve.

ANDREW ALLEN, jun."

2d. The following certificate of the Consul:

66

Office of his Britannic majesty's Consul.

I. Andrew Allen, junior, his Britannic majesty's consul for the states of Massachusetts, New Hampshire, Rhode Island and Connecticut, do hereby certify, that the ship Aurora, Wm. Augustus Pike, being bound to St. Bartholomews (on account of the existing law of the United States, which prevents her return to the United States from a British port) contemplates fulfilling the object comprised in the accompanying license from H:. Sawyer, esq. vice admiral and commander in chief on the Halifax station, through. a neutral port in alliance with Great Britain.

[SEAL.]

"Given under my hand and seal of office, at Boston, in the state of Massachusetts, this second day of October, in the year of our Lord, one thousand eight hundred and twelve.

ANDREW ALLEN, jun."

3d. The following general pass for the West Indies.

66

Office of his Britannic Majesty's Consul.

"I, Andrew Allen, jun. his Britannic majesty's consul for the states of Massachusetts, New Hampshire,