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« with an enemy is unlawful; for the general doctrine тҢЕ :
In this country there has been no decision to establish the rule; and if we take the British rule, we must take it with the power of dispensation : but the president has no such power : the sovereignty has been said to reside in the people: but the remedy by application to congress would be too slow and uncertain. We must conclude, therefore, that in this country no such rule exists.
It has, nevertheless, been contended, by the counsel for the captors, that the rule not only exists, but that it is universal. Is a man, then, bound to abandon all his property which may happen to be in the enemy's country at the breaking out of a war? Such would be the consequence of taking. the rule without any exception. Some cases of intercourse with the enemy, it is true, are so palpably illegal as to admit of no doubt on the subject; such as all traiterous intercourse, and perhaps a direct trade; so, also, if the intercourse be in consequence of a new enterprize undertaken since the commencement of hostilities : but many cases must necessarily occur, on the breaking out of a war, which ought certainly to form exceptions : Such is the doctrine in England, where the excepted cases are provided for by the royal license permitting intercourse with the enemy, under certain circumstances and with certain restrictions. In a country, then, where licenses cannot be obtained, all cases where they would be granted if a power of granting them existed, must be cases of judicial exception to the general rule. Many occasions may and frequently do occur, during war, on which such intercourse with the enemy would be highly expedient in a political view-occasions where the pub. lic good requires an exception; and those, too, cases neither of necessity nor humanity, which must always be excepted.
It is not necessary to inquire whether the mere acceptance of a license is ground of condemnation ; it is the sailing under a license which constitutes the offence: but VOL. VIII
in our case there was no sailing under the license. The AURORA, license authorized a voyage to a British, Portuguese or
PIKE, Spanisli port: the voyage in the present case was to a MASTER. port belonging to the Swedes : the letter of Allen, the
consul, which has been said to authorize a voyage to a Swedish port also, is entitled to no regard. Adiniral Sawyer's letter was the only protection: all the arts of Alien, except çertifying that letter, were unauthorized and unofficial; they were no protection to the Au ora. Allen's letter shows, on the face of it, that the voyage to St. Barts was not covered by the license; it merely expresses an opinion that that voyage would answer the purposes contemplated by the British government as well as a voyage to a British port.
It has been said that the real destination of the Aurora was to a British port; and in support of the position, the circumstance of her being considerably to the leeward of St. Barts, when captured, has been urged in proof; but the argument deserves little consideration; it is a verycommon thing to fall to the leeward : besides, it appears that the Aurora had been beating to the windward three days before she was captured, although when she first made the land, there were numerous British ports under her lee.
It has also been argued on the part of the captors, that a trans-shipment from St. Barts to an enemy port was intended : but there is no evidence even of this : nor was there any motive for such trans-shipment: the cargo would meet with as ready a sale at St. Barts as at a British island: the superior advantage of taking in a return cargo at the former place has been already noticed.
But it is said that it was equally criminal to carry this cargo to St.
to St. Barts as to a port of the enemy, because the Swedes would probably dişpose of it to the British. This argument, also, we conceive to be wholly without foundation: no decision to that effect has ever been pronounced : the case of the island of St. Eustátius, in the last war goes to prove the reverse of this doctrine.
Nothing, therefore, as we conceive, having been proved, on the part of the captors, sufficient to subject the
property in question to condemnation, we trust that the
THE Court, on the consideration of the whole case, will de- AURORA, creé restitution to the Claimants.
MASTER. Monday, March 7th. Absent....
LIVINGSTON, J. delivered the opinion of the Court:
The ship Aurora and cargo, owned by the Claimants, who are American citizens, and documented as American property, were captured, on the 26th of November 1812, by the private armed ship Governor Tompkins,
an ostensible destination for St. Bartholomews. From the documents on board and the preparatory examinations, it appears that the ship sailed from Newburyport to Norfolk, in ballast, took in her present cargo, consisting of bread, flour, corn, &c. at the latter place, and sailed from thence on the voyage on which she was captured, on or about the 12th of November, 1812. The cargo was consigned to the supercargo of the ship; and the destination thereof upon the ships papers, supported by the preparatory examinations, was St, Bartholomews, for which island the ship obtained her clearance. At the time of capture, she was to the leeward of that island ; and certain passports or protections from the agents of the British government were found on board, which are familiarly known by the title of British licenses; which documents are as follows.*
Two questions have been made at bar. 1. Whether the acceptance and use of an enemy's license or passport of protection, on a voyage performed in furtherance of the enemy's avowed objects, be illegal, so as to affect the property with confiscation. 2. If so, whether there is any thing in the present case, to exempt it from the general principle.
The first point having just been decided in the affirmátive, in the Julia, it only remains to enquire whether there be any thing in this case to exempt it from the general principle.
. In the opinion of a majority of the Court, it is not easy to discriminate between these cases : both of the ves.
See the statement at the heginning of the report of this case.
THE sels had licenses or passports of the same character, and AURORA, substantially for the same purpose, except only that the
PIKE, object of the Julia was to supply the allied armies in MASTER. Portugal, and the original intention of the Aurora was
to go the British West Indies. It is by no means clear that this destination was ever changed; but admitting that, froin an apprehension of seizure in case of her returning to the United States after touching at a British port, she, in fact, sailed on a voyage to St. Bartholomews, this can make no substantial difference in her fa
Her object in going there was equally criminal, and subserved the views of the enemy nearly if not quite as well as if her cargo had been landed in a British island; of the real design of the voyage there can remain no doubt; for it abundantly appears, from the license itself, that the professed object of admiral Sawyer at least, in granting it, was to obtain a supply of provisions for the enemy; and the Court will not easily lend its car to a suggestion, that notwithstanding the Aurora was found with a British protection on board, of so obnoxious a character, vet her owners intended to deceive the enemy, either by going to a port not mentioned in it, or by disposing of her cargo in a way that would not have promoted his views. Without meaning to say that such conduct may under no circumstances whatev. er be explained, the Court thinks that there is no proof, in this case, to shew that it was not the intention of the Claimants to carry into effect the original understanding between them and Mr. Allen. For although the destination to St. Bartholomews be conceded, it is evident that Mr. Allen, who acted as British consul, supposed the views of admiral Sawyer might be answered as well in that, as in any other way; nor is it clear, as was said at har, that the documents which were received from Mr. Alen, which varied more in form than in substance from the admiral's passport, would not have protected her against British capture, on a voyage to that island. The protection of admiral Sawyer extended to unarmed American vessels laden with dry provisions, and bona fide bound to British, Portuguese or Spanish ports. The only modification, or extention, introduced by Mr. Allen, was a permission to go to a Swedish island, equaily neutral with Spain and Portugal, in the vicinity of the British possessions. Whether all or any of these papers would have saved the Aurora from confiscation in a British Court of admiralty, this Court is not bound
to assert; it is sufficient if that were the reasonable ex THE pectation of the parties, as it certainly was, and it is AURORA, more than probable that such expectation would have PIKE, been realized, considering the very important advantage MASTER. which the enemy was to derive from them. In case of capture, there can be no doubt that the Claimants would have interposed these very papers, which are now supposed to have emanated from unauthorized agents, and probably with success, as a shield against forfeiture, Why«then, should they be permitted to allege here, that they would have been ineffectual for that purpose ?
It is also insisted, that, in this case, no illicit intercourse had actually taken place; that the whole offence, if any, consisted in intention ; and that if a capture had not intervencd, there was still a locus penitentiæ, and no one can say that even a project of going to St. Bartholomews might not have been abandoned. In this reasoning the Court does not concur ; but is of opinion that the moment the Aurora started on the voyage for St. Bartholomews, with the license in question and a cargo of provisions, she rendered herself liable to capture by the public and private armed ships of the United States, who were not bound to lay by and see how she would conduct herself during the voyage, the consequence of which would be that no right of capture would exist until all chance of making it were at an end. .
THIS was an appeal from the decree of the Circuit
The case of a Court for the district of Virginia.
vessel and car
go, belonging The facts of the case, as stated by Johnson, J. in de- to a citizen of
one belligerent livering the opinion of the Court, were as follow: nation, captur
ed on the high
seas by a cruiThe Libellants were the master and crew of the Amer- zer of the other ican brig 66 Three Friends.” On the 19th November,
given to a necie 1811, whilst on their voyage from Salem to the Brazils, tral, and by