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HI AM, In answer to the argument, that the license in this BARKER. case related to the vessel only, while the claim is for the MATER. cargo
alone, it may be observed, that the owners of the
the case of the Aurora to be, that she sailed under the
But if the Court should not consider the sailing uns der the license sufficient cause of condemnation, we contend that this was also a case of indirect trade with the enemy; inasmuch as the proceeds of the cargo were directed by the owner to be remitted from Lisbon to Liverpool in bills of exchange.
SWANN, in reply.
Buying a bill of exchange on England is not trading with the enemy. A man may, in an enemy country, purchase a ship from a neutral. 4 Rob. 232, 283, the Countess of Lauderdale. Sailing under an enemy's pass, without trading with the enemy, is no cause of condemnation.
There was not, in this case, such a subserviency to the views of the enemy, as ought to subject the property in question to the sentence prayed for by the captors. It is certainly lawful for the enemy to relax the rights of war : he may lawfully declare that he will suffer certain vessels to pass : and we conceive that if thoso vessels sail under the faith of such a declaration, it is no cause of condemnatian. The enemy might have declared that he would not capture any vessel navigated wholly by Boston seamen ; but surely our government would not condemn a vessel for sailing under the faith of such a declaration.
ommand nd as the i instrat allowed
TH3 Wednesday, March 16th. Absent....MARSHALL, Ch. J. HIRAM, BARKER. WASHINGTON, J. delivered the opinion of the Court. MASTER.
This vessel was the property of Samuel G. Griffith, an American citizen. On or about the 24th of September, 1812, she sailed, with a cargo of flour and bread, from Baliimore to Lisbon; and on her voyage thither, was cap tured, on the 15th of October following, by the privateer brig Thorn, and brought into the district of Massachusetts, where she and her cargo were libelled as being enemies' property.
The brig was claimed by the master, in behalf of Griffith, and the cargo by the supercargo, as belonging to the said Griffith, and other shippers, being American merchants of Baltimore. Among the papers found on board of this vessel at the time of the capture, was a letter from admiral Sawyer', dated the 5th of August, 1812, addressed to Andrew Allen, junr, as British consul for. the states of Massachusetts, New Hampshire, Rhode Island and Connecticut, which states, that, being aware of the importance of ensuring a constant supply of flour and other dry provisions to Spain and Portugal, and to the West Indies, he should give directions to the coinmanders of his majesty's squadron under his command, not to molest American vessels unarmed and so laden, bona fide bound to Portuguese and Spanish ports, whose papers should be accompanied with a certified copy of that letter under the consular seal of the said Allen; also a letter from the saill Allen, dated 15th September, 1812, addressed to all the officers of his majesty's ships of war, or privateers belonging to subj.cts of his majesty, reciting that it is of vital importance to continue a full and regular supply of flour and other dry provisions to the ports of Spain and Portugal, or their colonies, and that, in consequence thereof, it has been thought expedient by his majesty's government that every degree of protection and encouragement should be given to Amer. ican vessels so lader, and bound to the ports of Spain and Portugal or their colonies, and that, in furtherance of these views of his majesty's government, admiral Sawyer had directed to him a letter dated the 5th of August, 1812, (a copy of which is annexed.) with instructions to furnish American vessels so laden and des.
tined, with a copy of his letter certified under his, the THE
Under an order calling upon the different Claimants to give further proof relative to the British license found on board the brig, when and where it was obtained, of whom, and by whom, and on what terms, and, generally, relative to all facts and circumstances concerning the procurement of the same, William Hartshorn made an affidavit stating that he purchased for Mr. Griffith, the owner of the vessel, in September, 1812, from John R. Waddy, of Virginia, but then in Baltimore, a citizen of the United States, a license to protect a vessel Jadent
with provisions and bound to Lisbon, from capture by find a British cruizers, for which he was to pay one dollar per
barrel for what the vessel would carry, payable $500 in
The vessel and cargo were acquitted in the District
the 7 with
In the case of the Julia, decided at this Court, it was laid down in general terms, " that the sailing on a voyage under the license and passport of protection of the VOL. VIII.
THE enemy, in furtherance of his views or interests, constis HIRAM, tutes such an act of illegality as subjects the ship and BARI ER, cargo to confiscation as prize of war;" and, as explanMASTER, atory of the general reasons for that opinion, a reference
was made to the opinion of the learned judge who decided that case in the Circuit Court.
It is contended by the counsel for the Claithants, that the facts in this case differ so materially from those which appear in the case of the Julia, that the principles of law which ruled that case are inapplicable to this, and, consequently, ought not to govern the decision of the Court upon it.
There certainly are some differences in the two cases ; and these were considered sufficiently strong by the district judge who acquitted this vessel and cargo, to condemn the Julia and her cargo.
The important circumstance which appears to have influenced the decision of the district judge in that case, was, that the license contemplated the means of ensuring a constant supply of dry provisions to the allied armies in Spain and Portugal, and, consequently, an unlawful connexion with the enemy to supply his armies, and a subser. viency to the interests of that enemy. In this case, no such views are expressed in the license of admiral Sawyer; yet the Court must be wilfully blind not to see that this was, in reality, the object of admiral Sawyer and of Mr. Allen, and that it must have been so understood by those who sailed under this license.
In both cases, the allied armies were to be supplieds not by sales made directly to their agents, (for this is not required by either, but by carrying supplies to the Peninsula, which would indirectly come to their use. The license, as well as the letter of Allen accompanying it, points out the great importance of such supplies being sent to Spain and Portugal; and the latter adds, that, in furtherance of these vier's of his majesty's government, he had been direct-d by admiral Sawyer to furnish a copy of his letter to vessels so laden and destined. Can it be said that an American citizen, sailing under the protection of papers professing such to be the views of the British government, does not act in such a manner as to sub
serve the views and interests of the enemy? Upon the THE
It was stated, on the behalf of the Claimants of the cargo, that they ought not to be affected by the illegal act of the owner of the vessel in sailing under the protection of this license. It is a sufficient answer to this argument to observe, that, in this case, the Court must presume that the license was known to the owners of the cargo, if it was not the joint property of all. It is inconceivable that the owner of the vessel should expend about $1600 for the protection of a cargo in which it appears he was not largely concerned, without communicating such an advantage to his shippers, and even requiring some reimbursement, either by demanding higher freight, or compensation in some other way. But what is conclusive on this point, is, that an order for further proof in relation to this license was made, and yet no affidavit or proof is offered by any of the owners, deny: ing a knowledge of these documents being on board,
The decree must be reversed, and the vessel and cargo condemned to the captors as prize of war,
THE JOSEPH, SARGEANT, MASTER.
THIS was the case of a vessel, the Joseph, owned Case of hostile by American citizens, captured by the privateer Fame trade. Not exon the 16th of July, 1813. The Joseph sailed from Bos-cused by the ton with a cargo on freight, on or about the 6th of taining funds April, 1812, on a voyage to Liverpool and the north of to pay the exEurope, and thence directly or indirectly to the United ship; nor by States. She arrived in Liverpool, and there discharged the opinion of her cargo; and, on the 30th of June following, with minister, exanother cargo, of mahogany, taken in at Hull, sailed pressed to the for St. Petersburg under the protection of a British li- by undertak cense, granted on the 8th of June, 181%, authorizing ing the voyage