THE Rhode Island and Connecticut, request all officers commanding his majesty's ships of war, or private arm- AURORA, ed ships belonging to subjects of his majesty, to permit PIKE, the American ship Aurora, William Augustus Pike, MASTER. master, now lying in the harbor of Newburyport, and furnished with a protection from vice admiral Sawyer, for the purpose of carrying flour, corn, lumber and other necessary provisions to the West Indies, and proceeding to Norfolk in ballast for a cargo, to pass without molestation. [SEAL.] "Given under my hand and seal of office, “ANDREW ALLEN, jun." The Aurora was carried into Newport, Rhode Island, and there libelled. The Circuit Court of that district condemned vessel and cargo as prize to the captors; from which sentence the Claimants appealed to this Court. HUNTER, for Appellants. The libel, in this case, sets forth that the sailing was for the purpose of supplying the British West India colonies, and that the papers stating the voyage to St. Bartholomews, were fraudulent and collusive; and urges the condemnation of vessel and cargo, on the following grounds : 1. That the possession of and sailing with a British license is cause of capture and condemnation. 2. That the voyage of the Aurora was intended as an indircct voyage to a British port, through St. Barts. 3. That the real destination of the ship was to a British port. On the first point, it is contended, on the part of the Claimants, that the having on board a British license or THE pass in a lawful trade to a neutral country, could not, beAURORA, fore the act of congress of August 2, 1813, prohibiting PIKE, the use of British licenses, subject a vessel to capture. MASTER. This is clear from the act itself, the operation of which is not to commence from its passage, but, with regard to vessels then in port, was to take effect in five days after the promulgation of the act; with regard to vessels at a distance from the United States, not until the 1st of November; and in some cases not before the 1st of December following. Hence it is evident that the legislature did not consider this act as merely declaratory of the law of nations on the subject, but as then, for the first time, making the use of a British license by an American vessel, illegal. Laws of U. S. vol. 12, p. 226. But we are bound to meet the general proposition, which is that the use of such a license gives a hostile character to the property and the voyage. The doctrine, that any intercourse with the enemy exposes to condemnation, has been supposed to be very ancient; but we find no case of a decision upon the principle, till the year 1747, when a bill was brought into parliament in consequence of insurance made for enemies. Parl. debates vol. 26, p. 178. Sir William Murray's speech, on the subject of insuring enemy property, and 1 T. R. 84, Gist v. Mason. The rule appears to us to be unreasonable and impolitic. Where is the harm of taking advantage of a relax-ation of the rights of war by the enemy? How can that be a crime when granted by the policy of the enemy, which would have been no crime if obtained by forceby conquest? It is not less for our own interest to take advantage of such permission from the enemy, than it is for his interest to grant it. It is a public benefit. The general rule by which to determine the national character of a vessel, is the domicil of the owner. Here, the owners were American citizens. The case of a vessel sailing under the flag or assumed character of a country to which she does not belong, is admitted to be an exception to the general rule. But here was no sailing under such assumed character. All the papers of THE the Aurora were American, except the one in question, which cannot of itself be sufficient to give a hostile char- AURORA, acter to the holders of it, nor to the vessel and cargo. PIKE, 1 N. Y. T. R. 64, Jenks v. Hallet and al.-Chitty's law MASTER. of nations 58.-Case of the Clarissa cited in 5 Rob 4. The Vrow Elizabeth. The only prohibition, existing at the time of the sailing of the Aurora was to take a license to a British port. That was prohibited by the act of July 6th, 1812, § 7. By that act, we admit, all commercial intercourse with the enemy, was rendered unlawful; but we contend that it was not unlawful to use a British license in a neutral voyage. 1 Rob. 167, 200. The Hoop. Suppose Great Britain should think proper to permit a particular neutral trade-suppose she were even to protect it by convoy-are we bound to refuse to accept such permission-such protection? Valin laughs at the English for restoring, in the form of insurance, the captures made by their cruizers; but does not censure the French merchant for taking it. The voyage in this case was not made by the license, but merely made safer by it. The voyage was certainly lawful without it: and a license to pursue a voyage which was lawful without it, cannot make that voyaga unlawful. Pamphlet of cases decided in the District Courts of Pennsylvania and Massachusetts, p. 80, 81. Judge Davis' opinion on the use of British licenses. Judge Peters opinion.-1 Vez. 317. Duponceau's Bynk. 166. On the second point, viz. That the voyage of the Aurora was intended as an indirect voyage to a British port through St. Barts, it is contended by the Claimants, that there is no evidence to justify the fact assumed. Was this a bona fide voyage to St. Barts? On the decision of this point the whole case turns. In discussing this question all the circumstances of the case should be taken into consideration. Vid. Portalis' opinion in the case of the Pigou, contained in a note to the case of the VOL. VIII. 27 THE Charming Betsey, 2 Cranch, 98. Vid. also Ch. J. MARAURORA, SHALL'S opinion in the case of the Matilda decided in PIKE, North Carolina. Hall's law journal, 487. MASTER. With respect to those circumstances attending the transaction, which, on first view, are perhaps calculated to excite a suspicion that this was not a bona fide voyage to St. Barts, it may be observed, that it was the object of the Aurora to deceive the enemy, and thereby obtain an exemption from capture, during the voyage, by inducing him to suppose that the cargo was ultimately intended for the British. Such an imposition, in a case like the present, we conceive was justifiable. What motive could the Aurora have had for sailing to a British island rather than to St. Barts? At a British island, she could only take in a cargo of rum; and the importation of such a cargo was prohibited by our own laws. At St. Barts, she could take in a general West India cargo. Motives of interest, therefore, would have induced her to go to the latter place rather than the former. But suppose the intention was to go to a British port; was that intention executed? It was not. But according to the decision in the case of the Abby, 5 Rob. 254, there must be an act of trading as well as an intention, in order to subject the vessel to condemnation. On the third point, which, it is presumed, constitutes the stress of the case, we contend that the real destination of the Aurora was not to a British port, and that the condemnation on the ground of a British supply being intended and proceeded in, is erroneous and against proof. : That the supply of the British West Indies was the object of admiral Sawyer in granting the license, we do not deny but what his intention was, is perfectly immaterial such was not our intention in accepting it. Our object was to escape capture; and with that view we obtained a license from the enemy, by inducing him to believe that we intended to furnish supplies to his islands. 1 + THE PIKE, What is said by Allen, the consul, is mere surplusage: his authority extended no farther than to certify AURORA, admiral Sawyer's letter: having done this, he was functus officio. But suppose the license granted by Allen to MASTER. have been valid, it was only for a voyage to St. Barts, and would not have protected the Aurora in any other voyage: That was the voyage insured. J. WOODWARD, contra. With regard to the act of August 2, 1813, which has been said, by the counsel for the Claimants, to prove that the use of British licenses, previous to the passage of that act, was not unlawful, we are still of opinion that the act is merely in affirmation of the law of nations. It is also cumulative-it adds penalties to what was before unlawful; but does not make any thing unlawful which was not so before. The latter clause in the 3d sec. of the act, providing "that nothing contained in the said act shall be so construed as to arrest or stay any prosecutions," &c. was intended to guard against the construction which the Claimants have now attempted to give it. The several periods of time allowed to vessels in different situations, to obtain notice of the act, were allowed them in order that they might be enabled to avoid the new penalties. Trading with the enemy was an indictable offence at common law. 2 Rolle's Abr. 173, but it was necessary for congress to fix the penalty for trading on land: this they have accordingly done in the act of July 6, 1812. By the course of the admiralty, the thing itself was liable to forfeiture for trading with the enemy. The British papers on board the Aurora shew a case of supply; and therefore the question of pass or license is immaterial. The pass was expressly for the purpose of supplying the enemy. But suppose the papers do not prove a case of supply, the use of the license on the high seas is, of itself, sufficient to give the property a hostile character. The license in this case is essentially different from a general license by an order in council. There no special favorno particular benefit, is granted. |