The Saunders

21 F. Cas. 526, 2 Gall. 210

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1814
• Status: Published

Opinion

STOKY, Circuit Justice

(after reciting the facts). Upon these facts, the question presented for the decision of the court is, whether, under the second section of the act of the 2d of August, 1813 (chapter 56), the said brig is liable to seizure and condemnation, for having had and used a British license on a voyage, which was, at the time of the seizure, completely terminated. This section provides, that any ship of the United States, sailing under, or found on the high seas using, a British license, shall be considered and held, as sailing under the flag of the government of Great Britain, and may be seized on the high seas or elsewhere, by the public or private armed ships of the United States, and upon due proof thereof be, together with her cargo, condemned to the use of the captors, and the proceeds distributed according to the rules prescribed in the cases of prizes made from the enemy. This section must now be taken to have been made merely in affirmance of the general law of prize; and, in its terms, it is confined to captures made by commissioned ships, during the existence of the illegal voyage. It is the actual use of the license. at the time of the seizure, and not. the former use in a previous voyage, which authorizes the search and capture. The authority to seize, also, is given only to commissioned ships, and is not extended to the mere civil officers of the government. Upon the express provisions of this section, therefore, the ease cannot be sustained. It must stand, if at all, upon the general law of prize, and the right of the United States to enforce the prerogatives of war against all, who shall offend against them, and, in a more special manner, the execution of their own laws against their own citizens. Admitting then, what indeed cannot be denied, that the sailing under a British license subjects a vessel of the United States to be deemed as sailing under the enemy’s flag, it remains to be considered, whether the forfeiture continues to attach, although the hostile character so acquired be completely gone. In cases of breaches of blockades, and of contraband of war, the doctrine seems to be established, that the vessel must be captured in delicto; otherwise the offence is purged. The Imina. 3 Rob. Adm. 167; The Lisette, 6 C. Rob. Adm. 387. If, therefore, the port of destination have become neutral, or the blockade have been raised, before the capture, the corpus delicti is deemed to be extinguished. The same principle has been applied, where the intention was to trade with the enemy; if, at the time of carrying the design into effect, the person is no longer an enemy, or the port no longer hostile, the offence is not committed; for there must be - both intention and act. The Abby, 5 C. Rob. Adm. 251.

It strikes me, that the present case must be decided upon analogous principles. ' No case has been adduced, in which the penalty has been inflicted for an illegal traffic with the enemy, upon the mere footing of the prize law, unless wliere the vessel has been captured during her delinquency. The very silence of the books, in such a case, furnishes some argument against the existence of a rule, which should attach an indissoluble taint. The reasonable principle, to be extracted from the authorities, would seem to be, that so long as you retain the hostile character by your illegal conduct, either in contraband trade, in violation of blockade, or in hostile intercourse, you shall be subject to all the penalties of such character. But when without fraud, you have resumed your real national character, it purges away all the noxious qualities, which previously infected it. In the case before the court, it is clear, that, during the voyage, the vessel might have been seized and condemned, as an enemy’s vessel, sailing under an enemy’s flag. But at the time of her seizure, her American character had re-attached. She was no longer engaged in hostile traffic, or sailing under an enemy’s license, or using an enemy’s protection. In no respect was she, then, to be deemed an enemy’s vessel. I hold, therefore, that not having been taken in delicto, the prize law would not adjudge her good and lawful prize.

I give no opinion, how the law would be in a case founded on the first section of the act of the 2d of August, 1813 (chapter 56). There may be a material distinction, founded on the language of that section. The forfeiture there imposed is absolute, without reference to the time of seizure. Nor do I give any opinion as to a case, where, by fraudulent suppression or false destination, the forfeiture could not be inflicted on the original Voyage, and, under such circumstances, is sought to be enforced on a capture in a subsequent voyage. See The Christiansberg, 6 C. Rob. Adm. 376.