Sailing on a voyage under the license and passport or protection
of the enemy in furtherance of his views or interests constitutes
such an act of illegality as subjects the ship and cargo to
condemnation as prize of war.
Sailing with a cargo of provisions to the port of a neutral
which is the ally of our enemy in his war with another power is
such a furtherance of the views of our enemy.
This was a case of capture, as prize, by the private armed brig
Thorn, duly commissioned by the President of the United
States and commanded by Asa Hooper, Esq.
Page 12 U. S. 445
The
Hiram, owned by Samuel G. Griffith, an American
citizen, sailed from Baltimore on or about 24 September, 1912, with
a cargo of flour and bread on a voyage to Lisbon. She was captured
on 15 October following, and sent into Marblehead, in the District
of Massachusetts, for adjudication. She was libeled in the district
court for the said district by the captors. The vessel was claimed
by Barker, the master, in behalf of Samuel G. Griffith, and the
cargo by the supercargo in behalf of said Griffith and various
other shippers, American merchants at Baltimore.
Among the papers found on board the
Hiram at the time
of her capture were certain papers commonly called a British
license or protection, being a certified copy of a letter from
Admiral Sawyer to Andrew Allen Esq. late British consul at Boston,
and an additional letter of safe conduct from Mr. Allen. It
appeared from the evidence that this license was purchased from a
citizen of the United States and that a part of it was not filled
up at the time of the purchase, and that such licenses were common
article of sale in Baltimore and other places.
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
Page 12 U. S. 446
neither the vessel nor cargo were liable to condemnation, but
allowed the captors their expenses. From the decree of the circuit
court both parties appealed.
Page 12 U. S. 448
WASHINGTON, J. delivered the opinion of the Court.
This vessel was the property of Samuel G. Griffith, an American
citizen. On or about 24 September, 1812, she sailed, with a cargo
of flour and bread from Baltimore to Lisbon, and on her voyage
thither was captured, on 15 October following by the privateer brig
Thorn and brought into the District of Massachusetts,
where she and her cargo were libeled 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 5 August, 1812, addressed to
Andrew Allen, Jr., 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 commanders 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 said Allen dated 15 September,
1812, addressed to all the officers of his Majesty's ships of war
or privateers belonging to subjects 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 American vessels so
laden 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 5
August, 1812, a copy of which is annexed, with instructions to
furnish American vessels so laden and destined
Page 12 U. S. 449
with a copy of his letter certified under his, the said Allen's,
consular seal, which documents are intended to serve as a perfect
safeguard and protection to such vessel in the prosecution of her
voyage, and that in compliance with such instructions, he has
granted to the American brig
Hiram, whereof John B. Barker
is master, now lying in the port of Baltimore, and laden with flour
and bread, bound
bona fide to Lisbon, a copy of the said
Admiral Sawyer's letter certified under his consular seal,
requesting all officers of his Majesty's ships of war or of private
armed vessels belonging to subjects of his Majesty not to offer any
molestation to the said vessel, but, on the contrary, to grant her
all proper assistance and protection on her passage to Lisbon and
on her return from thence to her port of departure laden with salt
or in ballast only.
Under an order calling upon the different claimants to give
further proof relative to the British license found on board the
brig, when and when 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 laden with provisions and bound to Lisbon from
capture by British cruisers, for which he was to pay one dollar per
barrel for what the vessel would carry, payable $500 in cash and
the balance on the safe arrival of the vessel at Lisbon; that the
said license was in blank, for inserting the names of any vessel
and master; and that the blanks in the said license were filled up
in his presence. This witness as well as others states that these
licenses form an article of traffic in market, as much so as
flour.
The vessel and cargo were acquitted in the district court, and a
pro forma decree of affirmance made in the circuit court,
from which decree an appeal to this Court was taken.
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
Page 12 U. S. 450
enemy in furtherance of his views or interests constitutes such
an act of illegality as subjects the ship and cargo to confiscation
as prize of war,"
and as explanatory 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 claimants 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 connection with the enemy to supply his
armies and a subserviency 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 willfully 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 supplied 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 views of his Majesty's government, he
had been directed 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 subserve
Page 12 U. S. 451
the views and interests of the enemy? Upon the whole, the Court
is of opinion that there is no substantial difference between this
case and that of the
Julia, and that this is fully within
the principle laid down by this Court in deciding that case and the
reasoning to which it refers.
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
$1,600 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 denying 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.