The Julia. 8 C. By the prize code of Lewis XIV., (which I quote the more readily because it is, in general, a compilation of prize law as recognized among civilized nations,) it is a sufficient ground of condemnation that a vessel bears commissions from two different States. Valin Traite des Prises, p. 53, says: "A l'égard du vaisseau ou se trouverent des commissions de deux differens princes *ou [199] états, il est également juste qu'il soit declaré de bonne prise, soit parce qu'il se peut arborer le pavillon de l'un, enconsequence de sa commission, sans faire injure à l'autre, ceci, au reste, regarde les Français comme les étrangers." In what consists the substantive difference between navigating under the commissions of our own and also of another sovereign, and navigating under the protection of the passport of such sovereign which confers or compels a neutral character? Valin, in another place (sur l'ordinance, lib. 3, tit. 9, art. 4, p. 241,) declares, "si sur un navire Français il y a une commission d'un prince étranger avec cette de France, il sera de bonne prise, quoiqu'il n'ait arboré que le pavillon Français." It is true that he just before observes, "que ce circonstance de deux congés ou passeports, ou de deux connaissements, dont l'un est de France, et l'antre d'un pays ennemi, ne suffit pas seule faire declarer le navire ennemi de bonne prise, et que cela doit dependre des circonstances capables de faire découvrir sa véritable destination." But Valin is referring to the case of an enemy ship having a passport of trade from the sovereign of France. I infer from the language of Valin, that a French ship sailing under the passport, conge, or license of its enemy, without the authority of its own sovereign, would have been lawful prize. This leads me to another consideration, and that is, that the exist ence and employment of such a license affords a strong presumption of concealed enemy interest, or, at least, of ultimate destination for enemy use. It is inconceivable that any government should allow its protection to an enemy trade, merely out of favor to a neutral nation, or to an ally, or to its enemy. Its own particular and special interests will govern its policy; and the quid pro quo must materially enter into every such relaxation of belligerent rights. It is, therefore, a fair inference, either that its subjects partake of the trade under cover, or that the property, or some portion of the profits, finds its way into the channel of the public interests. It has been argued that the use of false or simulated papers is allowable in war as a stratagem to deceive the enemy and elude his vigilance. However this may be, it certainly cannot authorize the use of real papers of a hostile character, to carry into effect the avowed purpose of the enemy. We may be allowed [200] to deceive our enemy, but we can never be allowed to set The Julia. 8 C. up, as such a deception, a concert in his own measures for the very purposes he has prescribed. An allusion has been made to the passports or safe-conducts granted, in former times, to the fishing vessels of enemies; and it has been argued that such passports or safe-conducts have never been supposed to induce the penalty of confiscation. This will at once be conceded, as to the belligerent nation who granted these indulgences; but as to the other nation, where such passports were not guaranteed by treaty or mutual pacts, I have no authority to lead me to an accurate decision. The French ordinance of 1543, authorized the admiral to make fishing truces with the enemy; and, where no such truces were made, to deliver to the subjects of the enemy, safeconducts for fishing upon the same stipulations as they should be delivered to French subjects by the enemy. This, therefore, was an authority to be exercised only in cases of reciprocity; and it seems to have been abolished from the manifest inconveniences which attended the practice; Valin, sur ord. lib. 1, pp. 689, 690. I do not think that any argument in favor of the validity of the present license (unrecognized as it is by our government) can be drawn from these ancient examples as to fisheries. It has been argued that the voyage was lawful to a neutral port, and the mere use of a license cannot cover a lawful voyage with the taint of illegality. This, however, is assuming the very point in controversy. It is not universally true that a destination to a neutral port gives a bona fide character to the voyage. If the property be ultimately destined for an enemy port or an enemy use, it is clear that the interposition of a neutral port will not save it from condemnation; 4 Rob. 65, 79, The Jonge Pieter. Suppose, in the present case, the vessel and cargo had been destined to Lisbon for the express use of the British fleet there, could there be a doubt that it would have been a direct trade with an enemy? Whether the voyage, therefore, be legal or not, depends not merely upon the destination, but the ultimate application of the property, or the ascertained inten tions of the party. A contract to carry provisions to St. [201] Bartholomew's for the ultimate supply of the British West India Islands, would be just as much an infringement of the law of war, as a contract for a direct transportation. On the whole, I adopt, as a salutary maxim of war, the doctrine of Bynkershoek: Vetatur quoquo modo host iumutilitati consulere. It is unlawful in any manner to lend assistance to the enemy, by attaching ourselves to his policy, sailing under his protection, facilitating his supplies, and separating ourselves from the common character of our country. The Julia. 8 C. I am aware that the opinion which I have formed as to the general nature of licenses, is encountered by the decisions of learned judges for whom I entertain every possible respect. This circumstance alone, independent of the novelty and importance of the question, would awaken in my own mind an unusual hesitation as to the correctness of my own opinion; but, after much reflection upon the subject, I have not been able to find sufficient grounds to yield it, and my duty requires that, whatsoever may be its imperfections, my own judgment should be pronounced to the parties. I am glad, however, to be relieved from the painful necessity of deciding the more general question, by the peculiar terms of the pre sent license, which I consider as affording irrefragable proof of an illicit intercourse with the enemy, and a direct contract to transport the cargo for the use of the British armies in Spain and Portugal. The very preamble to the license of Admiral Sawyer shows this in a most explicit manner, and discloses facts which it is no harshness to declare, are not very honorable to the principles or the character of the parties. It has been attempted to distinguish the present claimants from Mr. Elwell, to whom the original license was granted. It could hardly have been expected that such an attempt would be successful. The assignees cannot place their derivative title on a better footing than the original party. They must be considered as entering into the views and contracting to effectuate the intentions of the latter; and at all events, the illegality of the employment of the license attaches indissolubly to their conduct. If it were material, however, it might deserve consideration how far an actual assignment is *shown in the case. It rests on the affidavit of one of the [202] claimants, and on the mere face of papers which carry no very decisive character, and are quite reconcilable with concealed interests in other persons, as the records of prize courts abundantly show. However, I only glance at this subject, as it in no degree enters into the ingredients of my judgment. A very bold proposition was, at one time, advanced in the argument by the claimants' counsel, that if this cargo had been actually destined to Portugal for the use of the allied armies of Great Britain and Portugal, or even for the use of the British army, it would not be an offence against the laws of war. In the sequel, if I rightly understand, this proposition, in this alarming extent, was not contended for; and certainly it is utterly untenable upon the principles of national law. But it was insisted on, that the British armies in Portugal and The Julia. 8 C. Spain were to be considered as incorporated into the armies of those kingdoms, and as not holding the British character. If I could so far forget the public facts of which, sitting in a prize court, I am bound to take notice, there is sufficient in the papers before me to prove the contrary of this suggestion. In Admiral Sawyer's license, and Mr. Allen's certificate, they are expressly called the allied armies, thereby plainly admitting a separate character and organization; and so, in point of fact, we all know it to be; if, indeed, the British character be not predominant throughout these countries. I reject the distinction, therefore, as utterly insupportable in point of fact. It has been further argued that, if the conduct be illegal, it is but a personal misdemeanor in no degree affecting the vessel and cargo; and at all events, that the illegality was extinguished by the termination of the outward voyage. The principles of law afford no countenance to either part of the proposition. If the property be engaged in an illegal traffic with the enemy, or even in an attempt to trade, it is liable to confiscation as well on the return as on the outward voyage; and it may be assumed as a proposition, liable to few, [203] if any, exceptions, that the property which is rendered auxiliary or subservient to enemy interests, becomes tainted with forfeiture. I cannot but remark that the license in this case, issued within our own territory by an agent of the British government, carries with it a peculiarly obnoxious character. This circumstance, which is founded on an assumption of consular authority that ought to have ceased with the war, affords the strongest evidence of improper intercourse. The public dangers to which it must unavoidably lead, by fostering interests, within the bosom of the country, against the measures of the government, and the breach of faith which it imports in a public functionary receiving the protection of the government, can never be lost sight of in a tribunal of justice. I forbear to dwell further on this delicate subject. Upon the whole, I consider the property engaged in this transaction as stamped with the hostile character; and I entirely concur in the decision of the district judge, which pronounced it subject to condemnation." 8 C. 203, 444; 2 W. 143. The Aurora. 8 C. THE AURORA, PIKE, Master. 8 C. 203. The acceptance and use of an enemy's license on a voyage to a neutral port, prosecuted in furtherance of the enemy's avowed objects, is illegal, and subjects vessel and cargo to confiscation. It is not necessary, in order to subject the property to condemnation, that the person granting the license should be duly authorized to grant it, provided the person receiving it takes it with the expectation that it will protect his property from the enemy. Sailing, with an intention to further the views of the enemy, is sufficient to condemn the property, although that intention be frustrated by capture. THIS was an appeal from the circuit court for the district of Rhode Island. The material facts of the case appear in the opinion of the court. Hunter and Dexter, for the appellants. J. Woodward, and Pinkney, for the appellees. [* 219 ] *LIVINGSTON, J., delivered the opinion of the court:The ship Aurora and cargo, owned by the claimants, who are American citizens, and documented as American property, were captured, on the 26th of November, 1812, by the private armed ship Governor Tompkins, on an ostensible destination for St. Bartholomew's. From the documents on board, and the preparatory examinations, it appears that the ship sailed from Newburyport to Norfolk, in ballast, took in her present cargo, consisting of bread, flour, corn, &c., at the latter place, and sailed from thence on the voyage on which she was captured, on or about the 12th November, 1812. The cargo was consigned to the supercargo of the ship; and the destination thereof upon the ship's papers, supported by the preparatory examinations, was St. Bartholomew's, for which island the ship obtained her clearance. At the time of capture, she was to the leeward of that island; and certain passports or protections from the agents of the British government were found on board, which are familiarly known by the title of British licenses; which documents are as follows: - "To the commanders of any of his Majesty's ships of war, or of private armed ships belonging to his Majesty. "Whereas from a consideration of the great importance of continuing a regular supply of flour and other dry provisions and lum |