THE SALLY, PORTER, MASTER.

Property en

gaged in an illi

THIS was an appeal from the decree of the Cir

cit intercourse cuit Court for the district of Massachusetts,

with the ene

my, to be 'con

demned to the

captors, not to the U. States. A municipal

der the laws

more general

The facts of the case were as follow:

The brig Sally, John Porter, master, was captured forfeiture un- by the privateer Jefferson, John Kehew, cammander, of the United July 7, 1812, as prize, and sent into the port of Salem, States is ab- in the district of Massachusetts, for adjudication. The sorbed in the Sally, at the time of her capture, had on board a coasoperation of ter's manifest, and a permission from the collector of the the law of war. port of Passamaquoddy, dated July 7, 1812, to proceed of 26th June, to Boston. From the manifest, her cargo purported to 1812, operates be one box of hones, and one box of furs. She had on as a grant board, also, about four thousand bushels of salt.

The prize act

from the U.

States to the

captors, of all The Sally was licensed and enrolled for the coasting property rightfully captured trade, at New London, June 6, 1812, upon the oath of by commis- John Patterson, of the city of New York, who swore that sioned privahe was the agent of James Mavor, of New York, the

teers, as prize of war.

owner.

Patterson was on board at the time of capture. Upon the return of the monition in the District Court, Patterson claimed the brig for Mavor, and Edward Monroe claimed the salt for himself and Lemuel P. Grosvenor, of Boston.

The affidavit of claim of Monroe did not state where the salt was taken on board, nor for what reason it was not mentioned in the manifest.

Patterson, Porter, the master, and the crew, upon the preparatory examinations, swore that the salt was put on board the brig at Robinstown and Eastport, in the district of Maine.

Among the papers found on board the Sally, was a permission to land her cargo of 60 tons of cordage and 50 bolts of duck, from the deputy collector of the port of Passamaquoddy, dated June 20, 1812.

THE

SALLY,

There was also found on board, a letter to Messrs. Monroe and Grosvenor, Boston, dated Eastport, July 7, 1812, signed “L. P. G." covering a bill of lading of the PORTER, salt. In this letter it is said, "I am sorry to say that MASTER. no clearance of the salt can be obtained on board the brig; I have however despatched her, with a clearance of two small packages of John Brewer, consigned to us, and leave you to manage; it will, at least, be as well as the other goods sent and I am hourly expecting a scizure to pay for sundry prizes taken from St. Andrews." Again" A protection can be had, for any vessel bound here with provisions, from the English admiral, &c." St. Andrews is a small town in New Brunswick, a province belonging to Great Britain.

In the manifest of the Sally, the two small packages above mentioned are consigned to Monroe and Grosve nor, Boston.

The captors produced witnesses in the District Court, who proved that the Sally discharged at St. Andrews, her cargo of cordage, after the 1st July, 1812, and took in there the salt.

The vessel and cargo were condemned, in the District Court, to the captors, and an appeal entered by the Claimants. In the Circuit Court the decree was affirmed, and Monroe and Grosvenor appealed to this Court.

A claim was interposed by the United States as for a forfeiture under the non-intercouse act.

On the above statement (and upon the argument in the case of the Rapid, ante p. 155,) the case was submitted.

Tuesday, March 15th. Absent....MARSHALL, Ch. J.

STORY, J. delivered the opinion of the Court.

This case cannot be distinguished from that of the Rapid. It was there decided that property engaged in an illicit intercourse with the enemy, is liable to con

THE

fiscation as prize of war, and the only remaining quesSALLY, tion now before us, is, to whom it shall be condemned PORTER, to the captors, or to the United States.

MASTER.

By the general law of prize, property engaged in an illegal intercourse with the enemy, is deemed enemy property. It is of no consequence whether it belong to an ally or to a citizen; the illegal traffic stamps it with the hostile character, and attaches to it all the penal consequences of enemy ownership. In conformity with this rule, it has been solemnly adjudged, by the same course of decisions which has established the illegality of the intercourse, that the property engaged therein must be condemned as prize to the captors, and not to the crown. This principle has been fully recognized by sir William Scott, in the Nelly, 1 Rob. 219; and, indeed, seems never to have admitted a serious doubt.

But a claim is interposed by the United States, claiming a priority of right to the property in question, upon the ground of an antecedent forfeiture to the United States, by a violation of the non-intercourse act, (of March 1, 1809, vol. 9, p. 246, § 5) the goods having been put on board at a British port, with an intent to import the same into the United States.

We are all of opinion that this claim ought not to prevail. The municipal forfeiture under the non-intercourse act, was absorbed in the more general operation of the law of war. The property of an enemy seems hardly to be within the purview of mere municipal regulations; but is confiscable under the jus gentium.

But even if the doctrine were otherwise, which we do not admit, we are all satisfied that the prize act of 26th June, 1812, ch. 107, operates as a grant from the United States of all property rightfully captured by commissioned privateers, as prize of war. The language of the 4th, 6th and 14th sections is decisive.

The decree of the Circuit Court, condemning the vessel and cargo to the captors, is affirmed.

THE EUPHRATES.

Further proof,

THIS was an appeal from the sentence of the United inconsistent

States' Circuit Court for the district of Rhode Island. with that al

ready in the

case, refused

The merchandize, in this case, was libelled in the on the part of District Court of Rhode Island, as belonging to subjects the Claimant of Great Britain. The capture was stated in the libel to have been made on or about the 23d day of August, 1812, No libel was filed against the vessel.

In June term, 1813, a claim was interposed on behalf of the United States, on the ground that these goods were imported in violation of the non-intercourse laws.

In May, 1813, Matthias Bruen interposed a claim to certain merchandize on board of the Euphrates, alleging that he is the sole legal owner thereof.

The papers connected with this shipment were as follow:

1. An invoice, dated Mansfield, 30th June, 1812, purporting the goods therein described to be shipped at Liverpool, under insurance, consigned to Mr. Henry Watkinson, New York, or, in case of his absence, to Mr. John French Ellis of that place, for sale, on account of the manufacturers, Siddons and Johnston, who were British subjects.

2. A bill of lading by which it appeared that the goods were shipped at Liverpool, on the 7th of July, 1812, on board of the Euphrates, to be delivered to Henry Watkinson, he paying freight, &c.

8

3. A letter from Siddons and Johnston, dated Mansfield, 30th June, 1812, in which they say, "We have, this day, consigned to you for sale on our account, "sixteen trunks," &c. (which are the goods claimed.) "We hope we shall shortly hear of sales being made by you, to advantage: we hope they will at least net "us what they are invoiced at, covering all expenses." VOL. VIII.

49

THE

"We shall leave this shipment to your discretion to "make the best and most advantageous returns you PI ATES. " can."

EU

99

There being no proof whatever, on the part of the Claimant, and he not appearing to have any interest whatever, by any of the papers on board, the goods were condemned both in the District and Circuit Courts, and the Claimants adjudged to pay costs to the Libellants.

From this decree there was an appeal, on the part of Mr. Bruen, to this Court.

HARPER, for the captors,

Stated that this was merely a question of further proof offered on the part of the Claimants. The captors, he said, relied upon the documentary evidence produced in the cause. This evidence he stated to the Court, and contended that it was too plain and consistent to justify the Court in allowing the Claimant further proof.

STOCKTON, contra,

Stated that the object of the further proof now offered, was to show that Watkinson was agent for a manufacturing house in England; that the Claimant ordered certain goods through this agent; that, on the passage of the non-intercourse act, he directed the goods not to be shipped, &c.

DAGGETT, same side,

Observed that it had been generally supposed that the rules of the English Courts respecting further proof, would not apply to the Courts of the United States, but that parties would have the benefit of new evidence in this Court, in prize cases as well as in other cases in admiralty; and that the parties in the present case had acted on that opinion.

The case was then submitted.