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spective consignees; for it is not pretended by the mas; ST. LAW- ter that they were taken from him by the captors. RENCE, Here, then, is not only a subduction of very important WEBB, papers by the master, but an acquiescence in such conMASTER. duct, on the part of the consignees, and a continued
suppression of the same papers, to this day. The only prorf, then, which the Court had of the interest of the Claimants, except of Mr. Penniman's, the master's, and Mr. M Gregor's, is in the claim of Mr. Ogden, who states that he is not acquainted with their concerns, but believes they had an interest. in the cargo ; without, however, attempting to designate the packages belonging to either of them. The Court below, therefore, might fairly consider the Claimants as having not only failed in making out a legal title to the property, but as concealing papers which would have shown a title elsewhere.
But if there was a defect of proof below, it is thought the Člaimants are entitled to time for further proof; and that, if this be allowed, they will be able to show that the property in question was purchased with American funds which were in England previous to the war, and that the Claimants were the true and bona fide owners thereof. It is certainly not a matter of course, in this Court, to make an order for further proof. When the parties are fully apprized of the nature of the proof which their case requires, and have it in their power to produce it, an appellate Court should not readily listen to such an application : but when it appears that the parties who ask this indulgence have most pertinaciously withheld from the Court letters and other documentary testimony, which must be supposed, in this particular case, to have been in their possession, they come with a very ill grace to ask for any further time to make out their title. But if we examine the afidavits which have been made to obtain further time, we shall find them all silent as to the papers which they must have received by the St. Lawrence; for in not one of them is a letter of that kind or an invoice mentioned; nor do they deny that such letters or invoices were received by them. Under such circumstances, this Court thinks that it cannot, consistent with the circumspection with which such applications ought always to be received, allow the Appellants time for further proof. The master's adventure, it is said, has been given up,
Of Mr. Penniman's claim the Court think's more favorably. In the claim which he filed personally, he not sT. LAWonly swears that the property belongs to him, but states RENCE, very particularly how and when it was purchased. He WEBB, states, further, that the original invoice and other docu- MASTER. mentary evidence were at Baltimore; and in the aflidavit made by Mr. Campbell, during the present term, there is such a full and distinct history given of this whole transaction, founded upon original letters and bills of exchange, that it is impossible to harbor one moment's doubt that the five chests of merchandize claimed by Mr. Penniman, did, at the time of shipment, and long before, belong to him. To this affidavit is also annexed the original letter and invoice which he received by the St. Lawrence, which must dissipate every doubt on the question, if any had previously existed. Where so strong a case is made out, the Court is willing to impute to accident or mistake the non-production of these papers below. Perhaps Mr. Penniman thought he did sufficient in stating they were in his possession. Certain it is, he could have no motive for suppressing papers which would have established so conclusively his title to the merchandize which he claimed. The Court, therefore, allows him until next term, to make proof, by affidavit and the production of documents, of his right to the property claimed, at the time of its shipment at Liverpool: and the same indulgence is allowed to the captors.
In regard to the claim of M.Gregor to a part of the cargy, there is also some difference between his case and that of many others of the Claimants. He swears positively to his interest, but that no invoice was delivered to him by the shippers, Ogden, Richards and Seldon. Ogden, also, swears to the interest of Mr. M“Grez gor. Perhaps this testimony is sufficient to satisfy a Court, as it did satisfy the District Court, that the property really belonged to Mr. M Gregor. But if that be the case, other questions will arise of too much importance to be decided on the last day of the term, and when the Court is not full. Whether an American citi. zen has a right to withdraw his funds from the country of a belligerent, after a war; or if he have, whether he have a right to charter a vessel for that purpose; and, if he may go thus far, whether he may bring British
goods, on freight, to this country, without affecting ST. LAW- thereby the safety of his own goods; are questions RENCE, which the Court does not now decide, and will therefore WEBB, suspend, at present, giving any final opinion on the MASTER. claim of Mr. M Gregor to a part of the cargo; who,
in the mean time, is also at liberty to make further proof on the same points with Mr. Penniman ;-the captors having the same right.
It may be well doubted whether Mr. Ogden and Mr. M.Gregor have any title to the St. Lawrence: but whether she belong to them or to Messrs. Dickey and Thompson, her fate seems necessarily involved in the decision of the Rapid, which was made this term. She went to England since the war, and is taken bringing a cargo from that country. If the whole of the cargo had belonged to Mr. M Gregor, or any other American returning with his property to the United States, the Court means not to say whether it would or would not have been cause of forfeiture: but when we find but a small portion of the cargo in that predicament, there can be no escape for her. The St. Lawrence was certainly guilty of trading with the enemy; and, being taken on her way from one of his ports to the United States, she is liable, on that ground, to be confiscated as prize of war, to whomever she might belong at the time.
Upon the whole, the sentence of the Circuit Court is affirmed in all its parts, with costs; except so far as it condemned those por ions of the cargo which were claimed by Mr. Penniman and Mr. M Gregor, respecting which this Court will advise until the next term,
THE HIRAM, BARKER, MASTER.
Sailing on & THIS was a case of capture, as prize, by the prithe scenge and vate armed brig Thorn, duly commissioned by the passport o president of the United States, and commanded by Asa protection of Hooper, Esq.
tutes such an
The Hiram, owned by Samuel G. Griffith, an American citizen, sailed from Baltimore on or about the 24th' HIRAM, of September, 1812, with a cargo of flour and bread, on BARKER, a voyage to Lisbon. She was captured on the 15th of MASTER. October following, and sent into Marblehead, in the district of Massachusetts, for adjudication. She was the enemy, in libelled in the district Court for the said district, by the his views or in. cap tors. T'he vessel was claimed by Barker, the mas- terests, constiter, in behalf of Samuel G. Griffith ; and the cargo by
act of illegality th supercargo, in behalf of said Griffith and various as subjects the other shippers, American merchants at Baltimore. ship and cargo
tion as prize of Among the papers found on board the Hiram, at the war. tim of her capture, were certain papers commonly call- Sailing witbo: ed a British license or protection, being a certifi«d copy sions to the of a letter from admiral Sawyer to Andrew Allen, esq. trar
, who is the late British consul at Boston, and an additional letter ally of our enof safe conduct from Mr. Allen. It appeared from the enig in his war
with evidence that this license was purchased from a citizen of the United States, and that a part of it was not filled a furtherance up at the time of the purchase; and that such lịcenses of the views of
our enemy were a common article of sale in Baltimore and other places.
power, is such
There was also found on board, the owner's letter of instructions, in which the supercargo was directed to remit the proceeds of the cargo in bills of exchange or government bills to the shipper's correspondents in Liverpool; and moreover to sell the vessel at Lisbon, if an advantageous sale could be made, and remit the proceeds to England.
It appeared from the evidence in the cause, that such remittances in bills of exchange were common among merchants.
The captors claimed condemnation of the vessel and cargo,
1. Because of the British protection or license.
2. Because the remittances were directed to be made in England in bills of exchange.
The district and Circuit Courts both decided that
neither the vessel nor cargo were liable to condemna HIRẠM, tion; but allowed the captors their expenses. From BARKER. the decree of the Circuit Court both parties appealed.
SWANN, for Claimants.
The opinions delivered in the cases of the Aurora and the Julia-may, perhaps, upon first view, be considered as deciding the present case: but upon a closer examination, it will be found that the facts in this case differ materially from those which appeared in the two former.
In the first place, in the case of the Aurora, there was an intent to supply the enemy-there was an intent to trade with the enemy: there was a direct violation of the act of congress of 6th July, 1812: but here, there was no such violation. The license, in this case, was merely to trade with the neutral ports of Spain and Portugal. The present case differs from that of the Julia, inasmuch as the claim bere is for the cargo only, and the license is for the vessel ; whereas there, the license extended as well to the cargo as the vessel.
But these papers do not, in fact, import a license: they only intimate an intended forbearance on the part of Great Britain, to molest a lawful trade to Spain and Portugal. Here was no sailing under the protection of Great Britain.
Again, this license, as it is called, was purchased as an article of commerce, from a private individual ; not from admiral Sawyer nor from Mr. Allen: it is only a copy of admiral Sawyer's letter certified by Allen. The obtaining such a copy of the letter was not unlawful.
Besides, there is no evidence that admiral Sawyer ever gave the directions, mentioned in his letter, to the commanders of the squadron under his command, not to molest American vessels laden and bound as therein described. Indeed, his power to give such instructions does not appear: and if further proof be allowed, we can prove that licenses of this description were, in fact, disregarded in other cases.