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THE American government. The remission of the forfeitures MARY, incurred by a violation of the non-intercourse laws, is to STAFFORD, be considered as legalizing voyages made under circumMASTER. stances like those of the present case. The act ought
to be liberally construed. It cannot be supposed that the United States meant to remit the penalties accruing to them for the violation of the non-intercourse laws, in order to benefit the privateersmen:The remission was intended exclusively for the benefit of the owners; against whose claim the legislature supposed the non-intercourse law to be the only bar.
Again, the act of 20 January, must have been known in Ireland long before the Mary sailed from Waterford for the United States. She may therefore be considered as having sailed from that port under the faith of this art, as she had commenced her voyage from Bristol between the periods specified therein.
The act of 13th July, 1813, relinquishing the claims of the United States, &c. does not faror the claim of the captors, inasmuch as it relinquishes only the property of British subjects, not captured in violation of the instructions of the 28th August, 1812 ; whereas the property in the present case, belonged to Americans.
The Mary sailed from Bristol, or, at all events, from London, which is to be considered as the terminus a quo of the voyage, in consequence of the repeal of the British orders in council; and is therefore to be considered as embraced in the president's instruction to privateers, of 28th August, 1812.
3. The Sidmouth license is no cause of condemnation, inasmuch as the original licence was obtained before the war was known in England, and the second was merely a renewal of the first; the British government conceiving themselves bound, in honor and good faith, to renew it.
There is no analogy between tie present case and that of the Julia, decided yesterday. In that case, the license was granted, flagrante bello, in order to neutral. ize belligerent property. But here, the granting of the license was only an act of justice, which the British government conceived themselves bound to perform.
The act of congress of July 6th, 1812, (Laws U. S. vol. 11, p. 302, Ø 6) allows passports to be given for. MARY, the safe transportation of any ship or other property STAFFORD, belonging to British subjects, and then in the United MASTER. States. This is just what the British government have done in the case of the Mary. The granting of the license was merely a reciprocity of good offices on their part.
But admitting this to be a case of sailing under the
this distinction between the ship and goods sailing un-
4. This capture was illegal; being altogether unwarranted by the commission of the privateer, and directly in the face of the president's instruction of 28th August, 1812. This instruction prohibits the capture of “ vesa 6 sels belonging to citizens of the United States coming 6 from British ports to the United States laden with “ British merchandize, in consequence of the alleged or repeal of the British orders in council.” These were the precise circumstances of the vessel in question. The capture was therefore illegal.
That the president had a right to issue the instruction under consideration, cannot admit of doubt. By virtue of his office, he is commander in chief of the army and navy of the United States; and, as such, has, in time of war, the whole public armed force of the nation under his control. The privateers of the United States constitute a part of that public armed force. The president was therefore authorized to issue this instruction. 2 Azuni, 355.
From the preceding considerations, we trust the Court will feel itself justified in reversing the sentence of the Circuit Court.
J. WOODWARD, contra.
If the character of the Mary was, prima facie, belligerent, she must be condemned. No latent equities VOL. VIII.
can save her. That such was her character, appears MARY, clearly from the examination in preparatorio ; and a STAFFORD, vessel must be acquitted or condemned generally, acMASTER. cording as her character appears upon that examina
tion. The license was for a British or American cargo. The presumption is, that it was British. It was certainly British fabric. No American orders had been given for the goods. The whole appeared as British property, and at the risk of British subjects. If a vessel sails under such circumstances, she sails at her peril. 6 Rob. 27, The Marianna. 5 Rob. 194, The Tobago. 6 Rob. 134.
Bat admitting, for argument's sake, that the property is, as the Clạimants contend, American property, still the transaction now under consideration was a withdrawing of funds from the enemy's territory after à full knowledge of the war, without the license of the American government; and therefore subjected the property 'so withdrawn, to capture and condemnation as prize of war.
The property in question was certainly British long after the knowledge of the war in England; and the purchase of it by an American citizen in the territory of the enemy was an illicit trade, which is, of itself, cause of condemnation. That the property was British for a considerable time after the war was known in England, appears from the dates of the invoices. They are all dated 13th August, 181%; from which circumstance (there being no bills of parcels) it is to be inferred that the purchase of the goods we made on that day; whereas the war was known in England, at all events, on the 26th of July preceding, and is stated to have been known in Liverpool on the 18th.
We contend, however, that this property was British, not only until the 13th of August, the time of the par. chase, but that it is, at this day, strictly British property under color of an American name.
It does not appear from the record, that the Mary sailed from London to Bristol with a view to the prosecution of the voyage to the United States. But if she' did, there was an opportunity for counterthanding the
voyage after it was known that war had been declared;
THE and such countermand ought to have been given. If it MARY, might have been, and was not, the doctrine of putting STAFFORD, in motion does not apply to the present case. The Clai- MÅSTER. mants were clearly in delicto, and no presumption can be made in their favor.
This voyage was in violation of the non-intercourse laws of the United States; and on that ground, also, the property is liable to condemnation.
With regard to trading with the enemy, we contend that not only the purchase of hostile goods in the enemy country, but also the payment, in that country, of freight, license and brokerage money, and of the exportation duties, amount to a trading with the enemy; and that every trading with the enemy is illegal. 1 Rob. 165, 196, The Hoop.. The Juffrow Margaretha, cited in the same case, p. 181, note, Apr. Ed. Rob. 191, 232, The Dree Gebroeders. Several cases have been thought to favor an opposite doctrine; but the case now under consideration does not, we conceive, come within the principle of any one of them.
The first is the case of the Packet de Bilboa, 2 Rob. 111, 133. But here, the vessel sailed before the war. The Mary, on the contrary, sailed with full knowledge of the war.
The next case is that of the Abby, 5 Rab. 251. The same distinction exists here, as in the last mentioned
The case of Bell v. Gilson, 1 Bos. and Pul. 345, has been over-ruled in the case of Potts v. Bell and al. 8 T, R. 548.
As to the license, it does not appear that any was granted on the 8th of July. The recital of such an one in the subsequent license, is no evidence, The license in question, therefore, although it purports to be a ree newal of a former one, is a license de novo, obtained with a full knowledge of the war; and is therefore cause of condemnation.
THE PINKNEY, in reply.
This is neither a case of trade with the enemy, nor MASTER. of domicil. Visscher had not acquired a British cha.
racter by either of these means.
It is not a case of trading within the opinion of this Court in the case of the Rapid. Visscher, the present Claimant, was not domiciled in England. He returned to the United States almost immediately upon hearing of the war. He arrived long before the cargo. The transaction commenced and the goods in question were purchased before the war was or could have been known in England. No criminality can possibly be attached to the transaction; and therefore it cannot be a ground of forfeiture. This is the language of the English decisions on this subject,
It is admitted, that if this enterprize had not been undertaken before knowledge of the war, and if some material part of it had not been actually carried into effect—if it had been entirely a new undertaking, and not with the view of withdrawing funds, it would have been a case within the rule of the law of nations, which prohibits trade with an enemy. But where the goods have been purchased before the war, as here, the case neither comes within that rule, nor within the decisions of the English Court of admiralty, Sir W. Scott admits that such goods may be withdrawn, 5 Rob. 141, The Juffrow Catharina.
But if the Court should be of opinion that this case comes within the general rule prohibiting trade with the enemy, still it will be recollected that that rule admits of relaxation under peculiar circumstances; and we conceive that the circumstances of the present case, if of any, will justify such relaxation. The putting into Waterford cannot, with any reason, be urged against
That was an act of necessity, and was no discon. tinuance of the voyage. No new trading with the enemy took place there.
As to the Sydmouth license: It has already been shown that the original license was obtained on the 8th of July, a considerable time before information of the