1816. The benefits of it to the individual, without ever resorting to compulsory or restrictive process upon the state Commercen. tribunals; a right which, I repeat again, congress has not asserted, nor has this court asserted, nor does there appear any necessity for asserting. The remaining points in the case being mere questions of practice, I shall make no remarks upon them. Judgment affirmed. (PRIZE.) The Commercen.-LINDGREN, Claimant. Provisions, neutral property, but the growth of the enemy's country, and destined for the supply of the enemy's military or naval forces, are contraband. Provisions, neutral property, and the growth of a neutral country, destined for the general supply of human life in the enemy's country, are not contraband. Freight is never due to the neutral carrier of contraband. Quere, in what cases the vehicle of contraband is conûscable? It makes no difference in such a case, that the enemy is carrying on a APPEAL from the circuit court for the district of Massachusetts. This was the case of a Swedish 1816. The 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 car- Commercen. go 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. Bond's 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 1816. The so, it would follow that the Spaniards and Swedes might not trade with the United States, they being Commercen. 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: 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.] Dexter, for the respondents and captors. The rule, that the neutral carrier of enemy's property is entitled to freight, is a mitigated rule, and Bynkershoek argues with much force against its reasonableness. But the master, in the present case, is not entitled to the benefit of it, having, by his conduct, made himself an enemy, pro hac vice. The principle, as to the nature of the Spanish war, was settled when the court determined that to carry goods to Lisbon, under a British license, was cause of confiscation. Can a party in a similar predicament be entitled to freight? Can a neutral stand on any better ground than a citizen? Either the British troops in the peninsula were enemies or friends? If enemies, this is an interposition which cannot be permitted to neutrals. Being at war, the British fleets and armies were hostile in every quarter of the globe. Where shall the line be drawn to mark when they became our enemies? At what period from the time of their landing in Portugal, until their crossing the Pyrennees, and embarking at Bordeaux for the United States? It is impossible to aid the operations of our enemy in any part of the world, without strengthening his means of annoying us. The very men fed by this trade came here to fight us on our own soil, and to destroy our capital. It is said that this involves the consequence that we were at war b Q. J. Pub. C. 14. p. 111. of Du Ponceau's Translation. VOL. I. 3 C 1816. The Commercen. 1816. The with Spain and Portugal; but it depends upon the councils of every country to judge what acts of hosCommercen. tility shall render it expedient to make war; it depended on us to be at war with the allies of our declared enemy. It is a general rule that it is not unlawful to carry provisions to a neutral country; but if the enemy be there, and the articles are destined for his use, it is unlawful. The whole evidence shows that the master knew he was carrying provisions for the supply of the British forces, and his ignorance of the law is immaterial. But even if it were material, the inflamed rate of freight shows that he was conscious of the risk he run. Harper, in reply. The principle contended for by the captors is stricti juris, and extreme in its application to this particular case, where there is nothing like moral guilt in the conduct of the master, who did not intend to interfere in our distinct war. There is no adjudged case that comes up to this; and freight is refused from analogy to the general principle established by the British prize courts as to neutral interposition in the war. But an interference in the coasting and colonial, or other privileged trade of the enemy, and relief to him, is a direct assistance, and the rule cannot justly be extended to a remote and consequential aid not contemplated by the party. The license cases determined by this court, went on the ground of an adoption of the enemy character, and an incorporation with enemy interests; the case of the Liverpool Packet, determined by the same learned judge who tried this cause, shows the distinc |