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THE the export of mahogany to St. Petersburg, and the imJOSEPH, portation of a return cargo to England. The brig ar
rived at St. Petersburg, and there received news of the GEANT, war between the United States and Great Britain. MASTER. About the 20th of October, 1812, she sailed from St.
Petersburg for London, with a cargo of hemp and iron he would vion freight, consigned to merchants in London; and, the u. States. having wintered in Sweden, in the spring of 1813 she If an Ameri- sailed, under convoy instructions from the British ship can vesselbe Ranger, for London, where she arrived and delivered captured on a circuitous
voy- cargo. About the 29th of May she sailed for the age to the Ŭ. United States, in ballast, under a British license; and former part of was captured, on the 16th of July, at no great distance she has been Salem for adjudication, as prize. which voyage from Boston light-house. She was sent into the port of guilty of con: duct subject ing her to con- In the District Court of Massachusetts the claim of fiscation, though at the the owners, Messrs. Dall and Vose, was rejected, and time of cup- the property condemned to the United States. From
this decree the captors and Claimants appealed. committing no illegal act,
she must be con
In the Circuit Court the property was condemned to denned Where the the captors. From this decree the Claimants and the termini of a United States appealed. voyage arc already fixed, the continuity It was contended, on the part of the Claimants, of such voyage cannot be broken by a volun- 1. That it was lawful, in June, 1812, (before the war) tary deviation to take the license to go from England to the north of for the purpose Europe, and to bring back a cargo to England. of carrying on an intermediate trade
2. That the taking a freight from the north of EuA capture as rope to England was from necessity, to obtain funds prize of war to pay the debts of the ship, the master not having been be made with able to sell the cargo at St. Petersburg for any price. in the territorial limits of the U. States,
3. That the opinion of the minister of the United at any place States at St. Petersburg, who told the captain of the below low-wa. ter mark.
Joseph that there was no law against his returning to England under the protection of his license, and who also sent dispatches by the Joseph to the government of the United States, though he knew of the intention to return to England and thence to the United States, was, in effort, a license, especially as to the claim of the United States,
4. That there was no trade with the enemy, but with neutrals only; the freight having been taken on neutral JOSEPH, account, in a neutral territory, and delivered to a neutral house in Great Britain.
MASTER. 5. That if any offence was committed, it was completed upon the delivery of the freight in Great Britain; and that therefore the vessel was not liable to capture or seizure, on that account, in a subsequent voyage from Great Britain to the United States.
6. That if she was liable to seizure for having adopted the character of an enemy vessel by any act contrary to the allegiance of the owners, yet she was not to be condemned as prize to the captors, as she was voluntarily returning to the United States and her port of discharge, and had actually arrived within the district of Massachusetts. That the capture, therefore, was not the occasion of her being brought in ; so that if she was liable at all, even as enemies' property, the condemnation must be to the United States as a droit of admiralty. But,
ht. That the vessel was not liable to be condemned to the United States, because the declaration of war was, in effect, an invitation, if not a command, to the citizens of the United States, abroad at the time, to return home, and the law allowed a reasonable time and way to effect that return.
PITMAN, for the captors, contended,
rtain aving VP
1. That the facts appearing in the case provod a trading with the enemy, which subjected the vessel to confiscation as prize.
2. That the vessel was not captured within the territorial jurisdiction of the United States : that this appeared from the preparatory examinations of the mas. ter and the mate, the first of whom stated « that he was captured in sight of Half-way-rock, off Salem harbor," which was a marine league from the shore ; and the latter, " that the vessel was captured about two leagues east from Boston light-house."
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and d men
3. That, though the fact be admitted as contended JOSEPH, for by the Claimants, yet the captors were authorized
by their commission to capture within the territorial GEANT, jurisdiction of the United States on the hight seas, MASTER. which were stated in their instructions as extending to
Wednesday, March 16th. Absent....MARSHALL, C. J.
WASHINGTON, J. after stating the facts of the case, delivered the following opinion of the Court:
After the decision of this Court in the cases of the Rapid and of the ship Alexander, it is not to be contended that the sailing with a cargo, on freight, from St. Petersburg to London, after a full knowledge of the war, did not amount to such a trading with the enemy as to have subjected both the vessel and cargo to condemnation as prize of war, had she been captured whilst proceeding on that voyage. The alleged necessity of undertaking that voyage to enable the master out of the freight to discharge his expenses at St. Petersburg, countenanced, as the master declares, by the opinion of our minister at St. Petersburg, that by undertaking such a voyage he would violate no law of the United States, although these considerations, if founded in truth, present a case of peculiar hardship, yet they afford no legal excuse which it is competent to this Court to admit as the basis of its decision. See the Hoop, 1 Rab. Potts and Bell, 8 T. Rep.
The counsel for the Claimants seemed to be aware of the insufficiency of this ground, and applied their strength to show that the vessel was not taken in delicto, having finished the offensive voyage in which she was engaged, at London, and being captured on her return home and in ballast. It is not denied that if she be taken during the same voyage in which the offence was committed, though after it was committed, she is considered as being still in delicto, and subject to confiscation; but it is contended that her voyage ended at London; and that she was, on her return, embarked on a new voyage. This position is directly contrary to the facts in the case. The voyage was an entire one from the United States to England, thence to the north of
Europe, and thence directly or indirectly to the United
Another objection relied upon by the Claimants, is, that this vessel was captured within the territorial limits of the United States. The fact upon which this objection is raised is not clearly established one way or the other. But admit it to be as contended for by the Claimants, the law is nevertheless against them. The commission granted to privateers authorizes them to seize and take any British vessels found within the jurisdictional limits of the United States, or elsewhere on the high seas, and to bring them in for adjudication; and also to detain, seize and take all vessels and effects, to whomsoever belonging, which shall be liable thereto according to the law of nations and the rights of the United States, as prize of war. The first instructions given by the president to the private armed vessels of the United States, define the high seas, referred to in the commission, to extend to low-water mark, with the exception of the space of one league, or three miles, from the shore of countries at peace with Great Britain or the United States. The general expressions of the commission, explained by these instructions, and containing no exception but in relation to friendly powers, prove incontestibly that all captures as prize of war may lawfully be made within the territorial limits of the United States, at any place below low-water mark.
The Court is also of opinion that there is no weight
THE in another objection made by the Claimants, that this JOSEPH, vessel was on her way and near to an American port
at the time she was captured. The right of the captor GEANT, to the property which he may seize as prize of war is MASTER.
derived under his commission, which is general and unqualified as to place and circumstances, and not from any peculiar merit which he may claim in any particular case.
It is not for him to know whether a vessel which has offended against the law of nations, and is apparently destined to a port of the United States, will certainly enter the port: and certainly he is bound by no law to forego the opportunity which chance or his own vigilance may have presented to him to acquire property which, under his commission, he is authorized to appropriate to himself.
THE GROTIUS, SHEAFE, MASTER.
Question as to APPEAL from the sentence of the Circuit Court the validity of
for the district of Massachusetts. capture; one man only have ing been put The Grotius, an American ship owned by Thomas on board ; the ship's papers Sheafe and Charles Coflin, the CĪaimants, sailed from and the naviga. Portsmouth, New Hampshire, March 20, 1812, on a sel being left voyage, according to the shipping paper, from Portsto the master. mouth to one or more southern ports, and from thence Further proof to one or more ports in Europe, and back to her port ordered.
of discharge in the United States, and to Portsmouth, if required. She arrived at New York, and sailed from thence with a cargo for St. Petersburg, and arrived at Cronstadt on the 17th of June, 1812. The cargo was owned by American merchants, and was consigned to a house at St. Petersburg. The consignees furnished a return cargo on the credit, of the outward cargo. After the return cargo was put on board, the French armies having entered Russia and threatening to approach St. Petersburg, the consignees were apprehensive that their security for the return cargo might be lost. They arrested the ship and cargo, and would not permit her to