THE The use of a hostile protection in the prosecution of a AURORA, neutral trade, gives a hostile character to the voyage. PIKE, Sailing under a hostile convoy is good ground of conMASTER. demnation; sir William Scott denominates it illicit protection." Sailing under two commissions is also cause of condemnation. Valin, p. 241, b. 3, art. 9. All these cases are analogous to the present. The Aurora was sailing under the physical force of the enemy. Admiral Sawyer's letter requires the British naval force to assist her in the prosecution of her voyage. She must, therefore be considered as having placed herself under the protection of the enemy, and as having, consequently abandoned her nationa: character. Trading with an enemy was cause of forfeiture at common law; and whatever was cause of forfeiture at common law, is good cause of condemnation in the admiralty. 2 Rob. 82, 69. The Walsingham Packet. The case of Jenks v. Hallet and al. cited by the Claimants, is not applicable to the present case: we were not then at war with France. Sir William Scott, in the case of the Vigilantia, 1 Rob. 11, 13, has laid it down as a known and established rule, that if a vessel is navigating under the pass of a foreign country, she is considered as bearing the national character of that nation under whose pass she sails. Now what was the license in question but such a pass? The license is not a document under the law of nations. The granting of it is the exercise of a municipal right—a prerogative to the crown. The king, however, has no right to grant licenses to any but his own subjects, without a particular act of parliament autor- ̈ izing him so to do: There is no case in which he has granted a license to strangers without such an act of parliament. If a license be granted without such authority, the person who takes it can take it only as a subject. Chitty's law of nations, 256.-id. 316.-2 Roll. Abr. 173, tit. Prerogative.-1 Rob, 199, 200. The Hoop.2 Tucker's Bl. Com. 258.-Chitty's law of nations, 278. -Reeves, 358. Any commercial intercourse, direct or indirect, with the enemy, is illegal, and cause of condemnation: its il- THE で When the Aurora was taken, she was out of the course to St. Barts, and very far to the leeward of that island. These circumstances afford a strong suspicion that her destination was to some other port. The return cargo was British produce, and, prima facie, British property: if it was not, it is on the Claimants to shew it. It appears that the captain was kept ignorant of the real destination of the Aurora, and that the supercargo, during his examination in preparatoria, was guilty of prevarication. These circumstances alone are good cause of condemnation. Chitty's law of nations, 314. As to what has been said with regard to the intention not being carried into effect, we contend that it was carried into effect to every legal purpose. An overt-act was sufficient to constitute the offence; and sailing with the license was such an overt act. PINKNEY, on the same side. The rule, that trade with the enemy is illegal, results necessarily from the declaration of war, and is included in it: There was no necessity for any subsequent law to enforce the rule. It has been said that no judicial decision on this subject is to be found of an earlier date than 1747. It is true sir William Scott, in his enumeration of cases where this question was agitated has gone no farther back than that date: but sir John Nicholls, in his argument in the case of Potts v. Bell, has cited cases from sir Edward Simpson's MS. reports in the admiralty, where this principle was decided to be correct as early as 1704, and 1707; and it is to be presumed that those THE AURORA, MASTER. decisions were founded upon former cases. See also 1, Vez. 317, Henkle v. the Royal Ex. In. Co. in 1749. The general rule is above all impeachment. This case may be considered, as it regards, 1st. The license alone. 2d. The license as connected with the transaction t elf. In First, then, we contend that no American citizen, in a ime of war, has a right voluntarily to place himself u der the protection of the enemy. War exists between the nations in their political capacity, and between the individuals of each nation respectively. The power of making peace follows the power of making war. dividuals cannot lawfully make peace even for themselves. But the acceptance of a license from the enemy is making a peace with him so far as it goes-it is a partial truce-a partial cessation of hostilities. Transactions of this kind are productive of great evil. The American citizen who accepts a license from the enemy, does that which is highly injurious to the interests of his country: The indulgence of the enemy imposes on him an obligation to act as a neutral, contrary to his duty as a citizen-it is an individual bribe it has a tendency to poison the whole virtue and patriotism of the country-to undermine the government to alienate the affections of the citizens, and to place the nation in the power of the enemy. The circumstance, that acts of congress have been passed prohibiting trade with the enemy, the use of his licenses, &c. has been urged by the Claimants, as evidence that such communication with the enemy was not unlawful prior to the passage of those acts. But we contend that it was unlawful under a well established rule of the law of nations; and that if these acts have not repealed that rule, they cannot aid the Claimants in the present case. Sir Wm. Scott's observations in the case of the Hoffning, are in point. 2, Rob. 137, 165. But we have a special answer to the argument of the THE Claimants. The act of July 6, goes upon the presumption that the intercourse with the enemy which AURORA, it prohibits, was before unlawful-it does not profess to create a new offence. Considering, then, this point as settled, the argument, that the act of 6th July prohibits the use of licenses to trade with British ports only, falls to the ground.. The case of ransom has been said to militate with the argument we have employed in support of the illegality of sailing under the protection of the enemy. But the cases are widely different. In a case of ransom, the captured vessel is compelled to make an agreement with the enemy-she is under the necessity of accepting their protection-here the transaction was perfectly voluntary. The rule of 1756, declaring illegal the coasting trade permitted by the enemy in time of war, which was prohibited by him in time of peace, is founded upon the same general principle. If, then, the permission only of the enemy gives a hostile character to vessels sailing under that permission, a fortiori, they acquire a hostile character by sailing under the protection of the enemy. But suppose the Claimants in this case did not mean to aid the British, but merely to benefit themselves at the expense of their country and their fellow citizensstill the object of the license and the obvious consequence of the voyage, was the supply of the British West Indies. This the Claimants must have known. They knew, also, that the pressure of the West Indies was one of the means which the United States were using to coerce the enemy: yet they become the agents of the British to prevent this pressure. If a neutral carry despatches for one of the belligerent powers, it affords just cause of condemnation to the other: How much stronger is the case of a citizen of one of the belligerent nations furnishing the other with supplies. It has been said that here was only an intent to com→ mit an illegal act, (supposing the act contemplated to PIKE, MASTER. THE be illegal,) that there was no corpus delicti. But we AURORA, contend that the very act of sailing with a view to exePIKE, cute the intention, constitutes the offence. Such is the MASTER. law in case of blockade: if a vessel sails for a blockaded port, knowing it to be blockaded, she thereby acquires a hostile character. We might here contend that the real destination of the Aurora was not to St. Barts, but to a British port; for it appears that, when captured, she was 160 miles to the leeward of that island: but it is unnecessary to say any thing on this point, as the principle is the same, and the vessel equally liable to condemnation, whether her destination were to a British port or to St. Barts: in the latter case, the cargo, it was well known, would be obtained by the enemy from the Swedes; so that it was, in effect, the same thing as if it had been carried direct to the enemy. DEXTER, in reply. It is the universality of the rule in question we mean to controvert-we deny that there is such a general rule.` It is not to be found in Puffendorf, Grotius, Vattel or any of the other jurists excepting Bynkershoek, whose rules of war are written in blood: and even he has qualified the rule-he says himself that the rule prohibiting all commercial intercourse is done away by the laws of commerce. Valin only shows that a particular intercourse is forbidden by the law of France; and, in noticing British insurance, he does not condemn the French for procuring it. The case of Potts v. Bell proves that the doctrine in question has but recently been introduced: it is, however, in that case admitted with the exception of those cases where the royal license has been obtained: but this exception must be taken as part of the rule itself: The general principle without the exception would be ruinous to the nation: The inconveniences which would arise from it are incalculable. In 1747, lord Mansfield and sir Dudley Ryder were of a different opinion as to the policy of the rule, and as to the principle of law. In Henkle v. the Royal Ex. As. Co. lord Hardwicke said It might be going too far to say that all trading |