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another cargo, to St. Petersburg, under a British license authorizing her to import a return cargo into England. In October, 1812, with knowledge of the declaration of war, she sailed with a cargo from St. Petersburg for London. In May, 1813, having discharged her cargo, she sailed from England for the United States in ballast and with a British license. Having been captured, her restitution was claimed on the ground, among others, that she was not taken in delicto, having finished her "offensive voyage" at London. "It is not denied,” said Washington, J., delivering the opinion of the court, "that if she be taken during the same voyage in which the offense 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 States. Even admit that the outward and homeward voyages could be separated, so as to render them two distinct voyages, which is not conceded, still it can not be denied that the termini of the homeward voyage were St. Petersburg and the United States. The continuity of such a voyage can not be broken by voluntary deviation of the master for the purpose of carrying on an intermediate trade. That the going from St. Petersburg to London was not undertaken as a new voyage, is admitted by the claimants, who allege that it was undertaken as subsidiary to their voyage to the United States. It was, in short, a voyage from St. Petersburg to the United States by the way of London; and, consequently, the vessel, during any part of that voyage, if seized for conduct subjecting her to confiscation as prize of war, was seized in delicto."

The Joseph (1814), 8 Cranch, 451, 454.

The American ship Grotius sailed from Portsmouth, New Hamp shire, March 2, 1812, on a voyage to one or more southern ports, from thence to one or more ports in Europe, and back to her port of discharge in the United States, and to Portsmouth, if required. Not long afterwards she sailed with a cargo of American merchandise from New York for St. Petersburg. Arriving at Cronstadt June 17, 1812, she discharged her cargo and received on the credit of it a return cargo. But before she sailed the French armies entered Russia; and the shippers of the return cargo, who were also the consignees of the original cargo, becoming apprehensive lest by the seizure of the latter their security for the former might be lost, refused to permit the ship to depart unless the master would agree to proceed to London and to deliver the cargo there to their order. Meanwhile news of the war between the United States and Great

Britain reached St. Petersburg, and the American ships at Cronstadt, fifty or sixty in number, with the approbation of Mr. John Quincy Adams, then American minister to Russia, sailed for England with British licenses, as the only means of enabling them to get home. The Grotius was one of the number, and after wintering in Sweden she proceeded to London, where she arrived in May, 1813. She discharged her cargo, and in the following month departed for the United States in ballast. The court, Washington, J., delivering the opinion, said, that this case did not materially differ from that of the Joseph, except as to the question whether she was actually captured by the alleged captor, in regard to which further proof was ordered. The Grotius (1814), 8 Cranch, 456.

V., a citizen of the United States, having settled up as administrator an estate in England the heirs to which were in America, invested, after the repeal of the orders in council, but before news of the declaration of war by the United States, a large part of the proceeds in British merchandise, which, early in August, 1812, he shipped in the American brig Mary from Bristol to the United States. The brig, having suffered damage in a storm, was forced to put into Waterford, in Ireland, where she was detained by an embargo and the necessity of repairs till April, 1813, when she sailed again for the United States. Soon afterwards she was captured by an American privateer and libeled for forfeiture, together with the cargo; and it was contended that although the voyage was in its inception induced by the repeal of the orders in council, and would, if it had continued directly from Bristol to America, have fallen within the President's instructions of August 28, 1812, yet it was to be considered as having been broken by the delay at Waterford, so that the latter became the real point of departure. Marshall, C. J., delivering the opinion of the court, said:

"It is not denied that, in a commercial sense, this is one continued voyage, to take its date at the departure of the Mary from Bristol. But it is urged that where the rights of war intervene, a different construction must take place. The court does not accede to the correctness of this distinction. The Mary was forced into Waterford by irresistible necessity, and was detained there by the operation of causes she could not control. Had her departure been from a neutral port, and she had been thus forced, during the voyage, into a hostile port, would it be alleged that she had incurred the liabilities of a vessel sailing from a port of the enemy? It is believed that this allegation could not be sustained, and that it would not be made. But as between the captors and the captured in this case, the voyage was, in its commencement, as innocent as if made from a friendly port. The detention at Waterford, then, can no more affect the character of the voyage in the one case than in the other. But it is said that the

owners of the cargo ought to have applied to the American Government for a license to bring it into the United States. So far as respects the captors, there could be no necessity for a license, since the vessel was already protected from them by the orders of the President under which they sailed; and for any other purpose a license was unnecessary, provided the importation, if the voyage had been immediate and direct from Bristol, could be justified. If a cargo be innocently put on board in an enemy country, if at that time it be lawful to import it into the United States, the importation can not be rendered unlawful by a detention occasioned, in the course of the voyage, either by the perils of the sea, or the act of the enemy, unless this effect be produced by some positive act of the legislature."

The Mary (Feb. 20, 1815), 9 Cranch, 126, 148.

Whatever might be the right of the Swedish sovereign, acting under his own authority, we are of opinion that if a Swedish vessel be engaged in the actual service of Great Britain, or in carrying stores for the exclusive use of the British armies, she must, to all intents and purposes, be deemed a British transport. It is perfectly immaterial in what particular enterprise those armies might, at the time, be engaged; for the same important benefits are conferred upon an enemy, who thereby acquires a greater disposable force to bring into action against us.

Story, J., The Commercen, 1 Wheat. 382; Chief Justice Marshall dissenting.

3. PROHIBITION OF TRADE BETWEEN ENEMIES.

§ 1181.

Jabez Harrison, a citizen of the United States, having purchased some goods in England, deposited them on an English island, called Indian Island, near the line between Nova Scotia and the United States. Subsequently, war having broken out, Harrison hired in Boston the American fishing vessel Rapid to bring the goods away. She sailed from Boston July 3, 1812, and, after leaving Harrison at Eastport, Maine, proceeded to Indian Island and got the goods. On July 8, while returning, she was captured on the high seas by the privateer Jefferson, and brought into Salem; and the goods were condemned as prize on the ground that "trading with the enemy" had made them confiscable as enemy's property. An appeal was taken to the Supreme Court of the United States, by which the sentence was affirmed.

The Rapid (1814), 8 Cranch, 155.

See, also, Rush, At. Gen., 1814, 1 Op. 175.

See, on the general question, Meyer (Pierre), De l'Interdiction du commerce entre les belligérants, Paris, 1902.

H. Doc. 551-vol 7—26

The brig Alexander sailed from Naples June 22, 1812, with a British license to carry her cargo to England. She touched at Gibraltar and, having left there a part of her cargo, sailed for the United States; but, subsequently hearing of the war between the United States and Great Britain, changed her course for England. On the way she was captured by the British and sent into Cork, Ireland, where, after acquittal, she disposed of her cargo. From Cork she proceeded in ballast to Liverpool, where she obtained a cargo, with which she sailed. May 9, 1813, for Boston. June 2 she was seized by an American privateer. This brig and cargo, which were both American, were brought into Massachusetts and condemned. This sentence was affirmed on appeal.

The Alexander (1814), 8 Cranch, 169.

An American vessel, upward of two weeks after the declaration of war by the United States against Great Britain, surreptitiously took a cargo of salt at St. Andrews, N. B. The court, citing the case of the Rapid, condemned both vessel and cargo.

The Sally (1814), 8 Cranch, 382.

Property engaged in an illicit intercourse with the enemy is to be condemned to the captors and not to the United States, the municipal forfeiture under the laws of the United States being absorbed in the more general operation of the law of war.

The Sally, 8 Cranch, 382.

By instructions of August 28, 1812, the President directed American privateers not to interrupt "any vessels belonging to citizens of the United States coming from British ports to the United States laden with British merchandise, in consequence of the alleged repeal of the British orders in council." It was argued that a certain vessel did not come within this exemption, "because she was engaged in an illicit intercourse with the enemy, under an enemy passport, and therefore was quasi enemy property." It appeared, however, that she was duly documented as an American vessel, and was coming to the United States from a British port. Held, that the vessel came within the exemption; that the mere act of illicit intercourse did not in itself divest the property of an American citizen, but only rendered the property "liable to be condemned as enemy property, or as adhering to the enemy, if rightfully captured during the voyage.”

The Thomas Gibbons (1814), 8 Cranch, 421.

The notice of Aug. 28, 1812, was as follows: "The public and private armed vessels of the United States are not to interrupt any vessels belonging to citizens of the United States coming from British ports to the United States laden with British merchandise, in consequence

of the alleged repeal of the British Orders in Council; but are, on the contrary, to give aid and assistance to the same, in order that such vessels and their cargoes may be dealt with on their arrival as may be decided by the competent authorities." (National Intelligencer of Aug. 29, 1812.)

A shipment made, even after knowledge of the war, might be considered as having been made in consequence of the repeal of the British orders in council, if made within such a period thereafter as would admit of a reasonable presumption that the goods were shipped with the idea that the repeal of the orders in council would induce a suspension of hostilities on the part of the United States. It was also held that the words "British merchandise" were intended to protect all such merchandise, including any owned by a British shipper.

The Thomas Gibbons (1814), 8 Cranch, 421.

In April, 1813, ten months after the declaration of war by the United States against Great Britain, an American vessel arrived at Liverpool from Sweden with a cargo of merchandise. In May she sailed for the United States, with a cargo belonging chiefly to British merchants, under a license issued by the privy council. Held, citing the case of the Rapid, that she was condemnable for trading with the

enemy.

The St. Lawrence (1814), 8 Cranch, 434.

A vessel of the United States, which went to England after the war was known, and brought thence a cargo belonging chiefly to British subjects, condemned.

The St. Lawrence (1814), 8 Cranch, 434.

In April, 1812, the American vessel Joseph sailed from Boston, with a cargo of merchandise, to Liverpool and the north of Europe, and then directly or indirectly to the United States. She discharged her cargo at Liverpool, and in June, 1812, sailed, with another cargo, from Hull to St. Petersburg, under a British license, authorizing the importation of a return cargo into England. In October, 1812, after receiving news of the war between the United States and Great Britain, she cleared with a cargo from St. Petersburg for London, and, after wintering in Sweden, proceeded in the spring of 1813, under convoy instructions from the British ship Ranger, to her destination. Having arrived in London and discharged her cargo, she sailed in May for the United States, in ballast and under a British license. On the voyage she was captured and libelled as prize. The claimant maintained that the taking of freight from the north of

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