#### The Joseph, Sargent, Master.

*Prize.*— Hostile *trade.*

Case of hostile trade. Not excused by the necessity of obtaining funds to pay the expenses of the ship; nor by the opinion of an American minister, expressed to the master, that by undertaking the voyage, he would violate no law of the United States.

If an American vessel be captured on a circuitous voyage to the United States, in a former part of which voyage, she had been guilty of conduct subjecting her to confiscation, though at the time of capture, she is committing no illegal act, she must be condemned.

Where the *termini*of a voyage are already fixed, the continuity of such voyage cannot be broken, by a voluntary deviation o£ the master, for the purpose of carrying on an intermediate trade. A capture as prize of war may lawfully be made within the territorial limits of the United States, at any place below low-water mark.

The Joseph, 1 Gallis. 545, affirmed.

This was tbe case of a vessel, tbe Joseph, owned by American citizens, captured by tbe privateer Fame, on tbo 16th of July 1813. The Joseph sailed from Boston, with a cargo on freight, on or about the 6th of April *2861812, on a voyage to Liverpool and the north of Europe, and thence directly or indirectly to the United States. She arrived in Liverpool, and there discharged her cargo ; and on the 30th of June following, with another cargo of mahogany, taken in at Hull, sailed for St. Petersburg, under the protection of a British license, granted on the 8th of June 1812, authorizing *the export of mahogany to St. Petersburg, and the importation of a return-cargo to England. The brig arrived at St. Petersburg, and *- there received news of the war between the United States and Great Britain. About the 20th of October 1812, she sailed from St. Petersburg for London, with a cargo of hemp and iron on freight, consigned to merchants in London; and having wintered in Sweden, in the spring of 1813, she sailed, under convoy instructions from the British ship Ranger, for London, where she arrived and delivered her cargo. About the 29th of May, she sailed for the United States, in ballast, under a British license ; and was captured, on the 16th of July, at no great distance from Boston light-house. She was sent into the port of Salem, for adjudication as prize.

In the district court of Massachusetts, the claim of the owners, Messrs. Dali & Yose, was rejected, and the property condemned to the United States. From this decree, the captors and claimants appealed. In the circuit court, the property was condemned to the captors. From this decree, the claimants and the United States appealed.

It was contended, on the part of the claimants :

1. That it was lawful, in June 1812 (before the war), to take the license to go from England to the north of Europe, and to bring back a cargo to England.

2. That the taking a freight from the north of Europe to England, was from necessity to obtain funds to pay the debts of the ship, the master not having been able to sell the cargo at St. Petersburg for any price.

3. That the opinion of the minister of the United States, at St. Peters-burg, who told the master of the Joseph that there was no law against his returning to England, under the protection of his license, and who also sent dispatches by the Joseph to the government of the United States, though he knew of the intention to return to England, and thence to the United States, was, in effect, a license, especially as to the claim of the United States.

*4. That there was no trade with the enemy, but with neutrals r* only ; the freight having been taken on neutral account, in a neutral *- territory, and delivered to a neutral house in Great Britain.

5. That if any offence was committed, it was completed upon the delivery of the freight in Great Britian ; and that, therefore, the vessel was not liable to capture or seizure, on that account, in a subsequent voyage from Great Britain to the United States.

6. That if she was liable to seizure for having adopted the character of an enemy vessel, by any act contrary to the allegiance of the owners, yet she was not to be eondemened as prize to the captors, as she was voluntarily returning to the United States and her port of discharge, and had actually arrived within the district of Massachusetts. That the capture, therefore, was not the occasion of her being brought in ; so that if she was liable at all, even as enemies’ property, the condemnation must be to the United. States as a *droit*of admiralty. But—

*2877. That the vessel was not liable to be condemned to the United States, because the declaration of war was, in effect, an invitation, if not a command, to the citizens of the United States, abroad at the time, to return home, and the law allowed reasonable time and way to effect that return.

*Pitman,*

for the captors, contended, 1. That the facts appearing in the

case proved a trading with the enemy, which subjected the vessel to confiscation as prize.

2. That the vessel was not captured within the territorial jurisdiction of the United States : that this appeared from the ¡preparatory examinations of the master and the mate, the first of whom stated “ that he was captured in sight of Half-way-rock, off Salem harbor,” which was a marine league from the shore ; and the latter, “ that the vessel was captured about two leagues east from Boston light-house.”

*4541 *3- That, though the fact be admitted, as contended for by the J claimants, yet the captors Were authorized by their commission to capture within the territorial jurisdiction of the United States, on the high seas, which were stated in their instructions as extending to low-water mark.

Wednesday, March 16th, 1814.

(Absent, Marshall, C. J.)

Washington, J.,

after stating the facts of the case, delivered the following opinion

of the court: — After the decision of this court in the cases of *The JRapid*and of *The Ship Alexander,*it is not to be contended, that the sailing with a cargo, on freight, from St. Petersburg to London, after a full knowledge of the war, did not amount to such a trading with the enemy as to have subjected both the vessel and cargo to condemnation as prize of war, had she been captured whilst proceeding on that voyage. The alleged necessity of undertaking that voyage, to enable the master, out of the freight, to discharge his expenses at St. Petersburg, countenanced, as the master declares, by the opinion of our minister at St. Petersburg, that by undertaking such a voyage he would violate no law of the United States, although these considerations, if founded in truth, present a case of peculiar hardship, yet they afford no legal excuse which it is competent to this court to admit as the basis of its decision. See *The Hoop,*1 Rob. 167 ; *Potts*v. *Bell,*8 T. R. 554.

The counsel for the claimants seemed to be aware of the insufficiency of this ground, and applied their strength to show that the vessel was not taken *in delicto,*having finished the offensive voyage in which she was engaged, at London, and being captured on her return home and in ballast. It is not denied, that if she be taken during the same voyage in which the offence was committed, though after it was committed, she is considered as being still *in delicto,*and subject to confiscation ; but it is contended, that her voyage ended at London ; and that she was, on her return, embarked on a new voyage. This position is directly contrary to the facts in the. case. The voyage was an entire one from the United States to England, *4551 ^ence the north of *Europe, and thence directly or indirectly to J the United States. Even admit that the outward and homeward voyages could be separated, so as to render them two distinct voyages, which is not conceded, still it cannot be denied, that the *termini*of the homeward voyage were St. Petersburg and the United States. The continuity of such. *288a voyage cannot be broken by voluntary deviation of the master, for the purpose of carrying on an intermediate trade. That the going from St. Petersburg to London was not undertaken as a new voyage, is admitted by the claimants, who allege that it was undertaken as subsidiary to their voyage to the United States. It was, in short, a voyage from St. Petersburg to the United States, by the way of London ; and consequently, the vessel, during any part of that voyage, if seized for conduct subjecting her to confiscation as prize of war, was seized *in delicto.*

Another objection relied upon by the claimants, is, that this vessel was captured within the territorial limits of the United States. The fact upon which this objection is raised is not cleai-ly established one way or the other. But admit it to be as contended for by the claimants, the law is nevertheless against them. The commission granted to privateers authorizes them to seize and take any British vessels found within the jurisdictional limits of the United States, or elsewhere on the high seas, and to bring them in for adjudication ; and also to detain, seize and take all vessels and effects, to whomsoever belonging, which shall be liable thereto according to the law of nations and the rights of the United States, as prize of war. The first instructions given by the president to the private armed vessels of the United States, define the high seas, referred to in the commission, to extend to low-water mark, with the exception of the space of one league, or three miles, from the shore of countries at peace with Great Britain or the United States. The general expressions of the commission, explained by these instructions, and containing no exception but in relation to friendly powers, prove incontestibly, that all captures as prize of war may lawfully be made within the territorial limits of the United States, at any place below low-water mark.

The court is also of opinion, that there is no weight *in another ^ objection made by the claimants, that this vessel was on her way and *- near to an American port, at the time she was captured. The right of the captor to the property which he may seize as prize of war, is derived under his commission, which is general and unqualified as to place and circumstances, and not from any peculiar merit which he may claim in any particular case. It is not for him to know whether a vessel which has offended against the law of nations, and is apparently destined to a port of the United States, will certainly enter the port: and certainly he is bound by no law to forego the opportunity which chance or his own vigilance may have presented to him to acquire property which, under his commission, he is authorized to appropriate to himself. ■

Decree affirmed.