The Commercen
APPEAL from the circuit court for the district of Massachusetts. This was the case of a Swedish vessel captured on the 16th of April, 1814, by the private armed schooner Lawrence, on a voyage from Limerick, in Ireland, to Bilboa, in Spain. The cargo consisted of barley and oats, the property of British subjects, the exportation of which is generally prohibited by the British government; and, as well by the official papers of the custom-house, as by the private letters of the shippers, it appears to have been shipped under the special permission of the government, for the sole use of his Britannic majesty's forces then in Spain. Bonds were accordingly given for the fulfilment of this object. At the hearing in the district court of Maine, the cargo was condemned as enemy's property, and the vessel restored, with an allowance, among other things, of the freight for the voyage, according to the stipulation of the charter-party. The captors appealed from so much of the sentence as decreed freight to the neutral ship; and, upon the appeal to the circuit court of Massachusetts, the decree, as to freight, was reversed, and from this last sentence an appeal was prosecuted to this court.
Key, for the appellant and claimants. 1. The general principle of law allows freight to the neutral carrier of enemy's property. It is incumbent upon the captors to show, that this case forms an exception to the rule, which they can only do by alleging this to be an unlawful interposition in the war between the United States and Great Britain; but an interposition in the Peninsular war, was not necessarily an interposition in the American war. Were it so, it would follow that the Spaniards and Swedes might not trade with the United States, they being the allies of Great Britain; as the prize courts of England decide, that the subjects of an ally cannot lawfully trade with the common enemy. Bynkershoek puts the case of two powers allied during a truce, but before enemies:a What would be the situation of neutrals? If they came to the assistance of either, they might be liable to be treated as enemies by the other. In the present instance, if the British forces had been so situated as that they might operate against the United States as well as France, it would alter the case. But remote and uncertain consequences cannot be held to affect the conduct of neutrals with illegality. 2. There is no proof or presumption that the master knew the special destination of the cargo. His act cannot be unlawful, unless done knowingly and wilfully, as in the case of carrying enemy's despatches, where Sir William Scott at first went entirely on the ground of the master's privity; afterwards he adopted a rule more strict and severe; but still knowledge was held to be necessary, and presumed wherever there was a want of extraordinary diligence on the part of the master. It is conceded that the onus is on the claimant to show his ignorance of the contents of the papers concerning the cargo, which, if the present testimony is not sufficient, may be done upon farther proof.
a
Q. J. Pub. L. 16. p. 125. of Du Ponceau's Translation.
[STORY, J. Ignorance of the master was not pretended in the court below.]
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