12 U.S. 382
8 Cranch 382
3 L.Ed. 597
THE SALLY, PORTER, MASTER.
March 15, 1814
THIS was an appeal from the decree of the Circuit Court for the district of Massachusetts.
The facts of the case were as follow:
The brig Sally, John Porter, master, was captured by the privateer Jefferson, John Kehew, cammander, July 7, 1812, as prize, and sent into the port of Salem, in the district of Massachusetts, for adjudication. The Sally, at the time of her capture, bad on board a coaster’s manifest, and a permission from the collector of the port of Passamaquoddy, dated July 7, 1812, to proceed to Boston. From the manifest, her cargo purported to be one box of hones, and one box of furs. She had on board, also, about four thousand bushels of salt.
The Sally was licensed and enrolled for the coasting trade, at New London, June 6, 1812, upon the oath of John Patterson, of the city of New York, who swore that he was the agent of James Mavor, of New York, the owner.
Patterson was on board at the time of capture. Upon the return of the monition in the District Court, Patterson claimed the brig for Mavor, and Edward Monroe claimed the salt for himself and Lemuel P. Grosvenor, of Boston.
The affidavit of claim of Monroe did not state where the salt was taken on board, nor for what reason it was not mentioned in the manifest.
Patterson, Porter, the master, and the crew, upon the preparatory examinations, swere that the salt was put on board the brig at Robinstown and Eastport, in the district of Maine.
Among the papers found on board the Sally, was a permission to land her cargo of 60 tons of cordage and 50 bolts of duck, from the deputy collector of the port of Passamaquoddy, dated June 20, 1812.
There was also found on board, a letter to Messrs. Monroe and Grosvenor, Boston, dated Eastport, July 7, 1812, signed ‘L. P. G.‘ covering a bill of lading of the salt. In this letter it is said, ‘I am sorry to say that no clearance of the salt can be obtained on board the brig; I have however despatched her, with a clearance of two small packages of John Brewer, consigned to us, and leave you to manage; it will, at least, be as well as the other goods sent—and I am hourly expecting a seizure to pay for sundry prizes taken from St. Andrews.’ Again—’A protection can be had, for any vessel bound here with provisions, from the English admiral, &c.’ St. Andrews is a small town in New Brunswick, a province belonging to Great Britain.
In the manifest of the Sally, the two small packages above mentioned are consigned to Monroe and Grosvcnor, Boston.
The captors produced witnesses in the District Court, who proved that the Sally ilischarged at St. Andrews, her cargo of cordage, after the 1st July, 1812, and took in there the salt.
The vessel and cargo were condemned, in the District Court, to the captors, and an appeal entered by the Claimants. In the Circuit Court the decree was affirmed, and Monroe and Grosvenor appealed to this Court.
A claim was interposed by the United States as for a forfeiture under the non-intercouse act.
On the above statement (and upon the argument in the case of the Rapid, ante p. 155,) the case was submitted.
Tuesday, March 15th. Absent. MARSHALL, Ch. J.
STORY, J. delivered the opinion of the Court.
This case cannot be distinguished from that of the Rapid. It was there decided that property engaged in an illicit intercourse with the enemy, is liable to confiscation as prize of war, and the only remaining question now before us, is, to whom it shall be condemned—to the captors, or to the United States.
By the general law of prize, property engaged in an illegal intercourse with the enemy, is deemed enemy property. It is of no consequence whether it belong to an ally or to a citizen; the illegal traffic stamps it with the hostile character, and attaches to it all the penal consequences of enemy ownership. In conformity with this rule, it has been solemnly adjudged, by the same course of decisions which has established the illegality of the intercourse, that the property engaged therein must be condemned as prize to the captors, and not to the crown. This principle has been fully recognized by sir William Scott, in the Nelly, 1 Rob. 219; and, indeed, seems never to have admitted a serious doubt.
But a claim is interposed by the United States, claiming a priority of right to the property in question, upon the ground of an antecedent forfeiture to the United States, by a violation of the non-intercourse act, (of March 1, 1809, vol. 9, p. 246, § 5) the goods having been put on board at a British port, with an intent to import the same into the United States.
We are all of opinion that this claim ought not to prevail. The municipal forfeiture under the non-intercourse act, was absorbed in the more general operation of the law of war. The property of an enemy seems hardly to be within the purview of mere municipal regulations; but is confiscable under the jus gentium.
But even if the doctrine were otherwise, which we do not admit, we are all satisfied that the prize act of 26th June, 1812, ch. 107, operates as a grant from the United States of all property rightfully captured by commissioned privateers, as prize of war. The language of the 4th, 6th and 14th sections is decisive.
The decree of the Circuit Court, condemning the vessel and cargo to the captors, is affirmed.