The St. Lawrence. 8 C.

persons carrying on trade there, she was furnished with a British license, which extended both to British and American property; and the bills of lading, not being in a very common form, were well calculated to excite suspicion. But these circumstances, strong as they are, might, if every thing had been fair, have been so explained as to have convinced the court that the property was truly American. Was this done, or even attempted? If we look at the conduct of the master and the claimants, we find them both acting in a way which left the court no other safe conclusion but that the cargo of The St. Lawrence was enemy property. The captain, instead of delivering to the captors, or bringing into court the letters to the consignees, which, no doubt, covered invoices and bills of lading, lets us know, in a way not to be misunderstood, that he had delivered or sent them to the parties to whom they were addressed. Taking his examination with the usual course of business, which is to accompany every shipment with a letter, no doubt can remain that such letters were not only on board, but that they have been regularly received by the *respective consignees; for it is [442 ] not pretended by the master that they were taken from him by the captors. Here, then, is not only a subduction of very important papers by the master, but an acquiescence in such conduct, on the part of the consignees, and a continued suppression of the same papers, to this day. The only proof, then, which the court had of the interest of the claimants, except of Mr. Penniman's, the master's, and Mr. M'Gregor's, is in the claim of Mr. Ogden, who states that he is not acquainted with their concerns, but believes they had an interest in the cargo; without, however, attempting to designate the packages belonging to either of them. The court below, therefore, might fairly consider the claimants as having not only failed in making out a legal title to the property, but as concealing papers which would have shown a title elsewhere.

But if there was a defect of proof below, it is thought the claimants are entitled to time for further proof; and that, if this be allowed, they will be able to show that the property in question was purchased with American funds which were in England previous to the war, and that the claimants were the true and bonâ fide owners thereof. It is certainly not a matter of course, in this court, to make an order for further proof. When the parties are fully apprised of the nature of the proof which their case requires, and have it in their power to produce it, an appellate court should not readily listen to such an application; but when it appears that the parties who ask this indulgence have most pertinaciously withheld from the court letters and other documentary testimony, which must be supposed,

The St. Lawrence. 8 C.

in this particular case, to have been in their possession, they come with a very ill grace to ask for any further time to make out their title. But if we examine the affidavits which have been made to obtain further time, we shall find them all silent as to the papers which they must have received by the St. Lawrence; for in not one of them is a letter of that kind or an invoice mentioned; nor do they deny that such letters or invoices were received by them. Under such circumstances, this court thinks that it cannot, consistent with the circumspection with which such applications ought always to be received, allow the appellants time for further proof. The master's adventure, it is said, has been given up.

[*443 ] * Of Mr. Penniman's claim the court thinks more favorably. In the claim which he filed personally, he not only swears that the property belongs to him, but states very particularly how and when it was purchased. He states, further, that the original invoice and other documentary evidence were at Baltimore; and in the affidavit made by Mr. Campbell, during the present term, there is such a full and distinct history given of this whole transaction, founded upon original letters and bills of exchange, that it is impossible to harbor one moment's doubt that the five chests of merchandise claimed by Mr. Penniman, did, at the time of shipment, and long before, belong to him. To this affidavit is also annexed the original letter and invoice which he received by the St. Lawrence, which must dissipate every doubt on the question, if any had previously existed. Where so strong a case is made out, the court is willing to impute to accident or mistake the non-production of these papers below. Perhaps Mr. Penniman thought he did sufficient in stating they were in his possession. Certain it is, he could have no motive for suppressing' papers which would have established so conclusively his title to the merchandise which he claimed. The court, therefore, allows him until next term, to make proof, by affidavit and the production of documents, of his right to the property claimed, at the time of its shipment at Liverpool, and the same indulgence is allowed to the captors.

In regard to the claim of M'Gregor to a part of the cargo, there is also some difference between his case and that of many others of the claimants. He swears positively to his interest, but that no invoice was delivered to him by the shippers, Ogden, Richards, and Seldon. Ogden, also, swears to the interest of Mr. M'Gregor. Perhaps this testimony is sufficient to satisfy a court, as it did satisfy the district court, that the property really belonged to Mr. M'Gregor. But if that be the case, other questions will arise of too much importance to be decided on the last day of the term, and when the court is not

The Hiram. 8 C.

full. Whether an American citizen has a right to withdraw his funds from the country of a belligerent, after a war; or, if he have, whether he have a right to charter a vessel for that purpose; and if he may go thus far, whether he may bring British goods,

*on freight, to this country, without affecting thereby the [444] safety of his own goods; are questions which the court

does not now decide, and will therefore suspend, at present, giving any final opinion on the claim of Mr. M'Gregor to a part of the cargo; who, in the mean time, is also at liberty to make further proof on the same points with Mr. Penniman;-the captors having the same right.

It may be well doubted whether Mr. Ogden and Mr. M'Gregor have any title to The St. Lawrence, but whether she belong to them or to Messrs. Dickey and Thompson, her fate seems necessarily involved in the decision of The Rapid, which was made this term. She went to England since the war, and is taken bringing a cargo from that country. If the whole of the cargo had belonged to Mr. M'Gregor, or any other American returning with his property to the United States, the court means not to say whether it would or would not have been cause of forfeiture; but when we find but a small portion of the cargo in that predicament, there can be no escape for her. The St. Lawrence was certainly guilty of trading with the enemy; and, being taken on her way from one of his ports to the United States, she is liable, on that ground, to be confiscated as prize of war, to whomever she might belong at the time.

Upon the whole, the sentence of the circuit court is affirmed in all its parts, with costs; except so far as it condemned those portions of the cargo which were claimed by Mr. Penniman and Mr. M'Gregor, respecting which this court will advise until the next term.

9 C. 120.

THE HIRAM, Barker, Master.

8 C. 444.

The decision in the case of The Julia, (8 C. 181,) affirmed, and its principle applied to a case where it w not expressly stated in the license, that its object was to supply the enemy with provisions, but where such object was plainly inferable.

APPEAL from a decree of the circuit court of the United States, for the district of Massachusetts, in a cause of prize. The material facts are stated in the opinion of the court.

The Hiram. 8 C.

Swann, for the claimants.

Dexter, for the captors.

[ * 448 ]

* WASHINGTON, J., delivered the opinion of the court. This vessel was the property of Samuel G. Griffith, an American citizen. On or about the 24th of September, 1812, she sailed, with a cargo of flour and bread, from Baltimore to Lisbon; and on her voyage thither, was captured, on the 15th of October following, by the privateer brig Thorn, and brought into the district of Massachusetts, where she and her cargo were libelled 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 the 5th of August, 1812, addressed to Andrew Allen, junr., as British consul for the States of Massachusetts, New Hampshire, Rhode Island, and Connecticut ; which states, that being aware of the importance of insuring 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 or 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 15th 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 the 5th of August, 1812, (a copy of which is annexed,) with instructions to furnish American vessels so [449] laden and destined, 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 the American brig Hiram, whereof John

The Hiram. 8 C.

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 where 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, 8 C. 181, 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 enemy, in [450 ] 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 rule 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.