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crona, 21st of April 1810, for 61 casks of sugar, shipped 1812. by Messrs. Edell, Berg, and Tenyewall, on board the Tre Systrar, under destination for Wolgast, and to the con
against signment of Mr. J. F. Sylvander, without the account KETTLEWELL. being more specifically stated. 10th. Invoice of the said 61 casks of sugar, whereof the total weight is calculated at 64,300lb. llth. Another duplicate bill of lading for eight ship pounds of cork, without specifying account. 12th. Letter of advice of the departure of the ship, written from Landscrona on the 22d April 1810, by Mr. Juleius to Mr. Sylvander, in the name of the expeditors : and 13th. The ship journal.-Seen the memorial presented to the council on the 10th July last, in the name of the outfitters and crew of the privateer captor, stating that it appears by the certificate of the 14th Nov. 1809, signed (Norris), that the ship Three Sisters was originally a Danish vessel captured by the English sloop the Avenger. That the bill of sale of the 16th of November has no certain date: that it is the less doubtful since they antedated the act, in order to represent the sale as effected antecedently to the treaty of peace between France and Sweden. That the said bill of sale confers upon Mr. Berg the purchaser the title of esquire, a title that is only given to an Englishman. That the sale does not imply any adjudication by public auction, which is contrary to the rules generally observed in the disposal of prizes taken by the ships of the state. That the purchaser did not sign the bill of sale ; and that the only precise date that can be given to it being that of the legalization by a notary public, that is to say, that of the 12th of March, the sale consequently can only be considered as having taken place subsequently to the treaty of peace between France and Sweden. That with regard to the cargo of sugar, it was taken in at Gottenburgh. That there was
1812. no certificate on board ascertaining the origin thereof, and
that the want of that document makes it liable to confisNONNEN against
cation : whereupon the said outfitter and crew pray the KETTLEWELL. confiscation of the ship and cargo to their use.—Seen the
memorial presented on the 14th of the same month in the name of the owners and shippers. To the argument urged for the condemnation of the ship, they replied that she was originally Danish property. That the purchaser, Mr. A. E. Berg, a Swede, having acquired it after she had become by the chance of war English property, in no wise contravenes the laws of neutrality; Sweden being then at war with France. That the title of esquire given to the purchaser is a mere expression of politeness and courtesy, which does not confer upon him the character of an Englishman. That the signature of the purchaser would not have added any strength to the bill of sale. That it only required to render it perfect the presence of the captors, and the signature of the representative of their government. That these two conditions are complied with in the bill of sale of the 14th of November with regard to the cargo. They ascribe the want of a certificate of origin to the circumstance of there having been no French consul at Landscrona at the period of the ship’s departure: and they moreover contend against the necessity of such certificate, by reason that the port of departure and that of the destination were equally Swedish. That the navigation was inland ; and that it ought to be therefore exempt from the rules imposed by the circumstances of the war when it respects a long voyage from one state to another. The said owners and shippers consequently pray the council would be pleased to declare the seizure void, and decree restitution of the whole to the proprietors.-Seen the memorial furnished on behalf of the privateer, dated the 16th of the same month,
wherein they reply, that Mr. Norris did not sign the bill
1812. of sale of the 14th Nov. 1809, and that he merely cer
NONNEN tified the capture. That there is a contradiction between against
KETTLEWELL. the measuring bill, stating the ship to have been built at Ek, a small Swedish port near Gottenburgh, and the certificate, where the English commissary asserts the capture to have been effected by the Danes. That the ship was bound from Gottenburgh in the North Sea, to Wolgast in the Baltic; and that she was unprovided with a passport; a circumstance decisive against her. With regard to the cargo, they say, that if there were no French consul at the port of lading, at least recourse ought to have been had to the magistrates of the place, in order to ascertain the origin of the goods. That the ship must unquestionably have sailed from Gottenburgh with the cargo she had on board, and which she is supposed to have taken in at Landscrona. That the muster-roll of the crew is dated at the latter port, although the seamen declared they were hired at Gottenburgh. They conclude from thence that the expedition is fraudulent; and declare that they persist in the prayer of their former memorial.-Seen the conclusions of the imperial attorney-general this day deposited in writing on the table, and heard the report of Mr. Henry Decornel, member of the council. Considering that there was neither a passport nor a licence: that according to a certificate from the English vice-consul at Gottenburgh, the ship had been taken from the Danes by the English: that in endeavouring to prove the Swedish property, they have strongly relied on a bill of sale dated the 14th of November 1809, whereby the English captors are presumed to have sold the ship to a Swedish subject antecedently to the treaty of peace between France and Sweden ; but that this instrument, which is perfectly destitute of every species of authenticity, which even was
1812. not legalized by a notary until long after the existence
of the treaty, cannot under the provisions of the 7th NONNEN
article of the ordinance of the 26th of July 1778, make against KETTLEWELL. the ship, which has constantly belonged to the enemy,
considered as the property of a neutral or ally: that consequently she ought to be confiscated with the whole of her cargo. Considering moreover that she was laden with colonial produce, destitute of every species of certificate of origin, and captured in a port where the English, during their alliance with Sweden, established an entrepot for their merchandise, which leaves no doubt but that the cargo of the Three Sisters, whereof the property remains uncertain from the ship's papers, arises from English commerce.
The council decree that the capture made by the French private ship of war Wagram of the ship Tre Systrar, carried into Dantzig, is good and valid; consequently adjudged to the owner and crew of the said private ship of war, as well the said ship, with all and singular her tackle, apparel, furniture, and appurtenances, as the goods, wares, and merchandises composing her cargo, in order to the whole being sold in manner and form prescribed by law.
Landscrona is a port of the kingdom of Sweden, and Wolgast is a port of the kingdom of Sweden in Swedish Pomerania, both in the Baltic sea. Great Britain and Sweden were in alliance together, and at war with France at the time of the order in council of the 7th of January 1807, hereinafter mentioned; and Great Britain and Sweden, and likewise France and Sweden, were said by one of the witnesses to be at peace at the time of the insurance and capture. The British flag was at the time of the insurance and of the commencemen of the voyage, excluded from both ports, so that the British vessels could not freely trade thereat: but whe
ther this exclusion was produced by the influence or con 1812. trol of France, or her allies, does not appear. The ques
NONNEN tion was whether the plaintiff was entitled to recover ?
against If the Court should be of opinion the plaintiff was en- KETTLEWELL. titled to recover, then the verdict was to stand : or otherwise, a nonsuit was to be entered. By an order of council of the 7th of January 1807, duly notified to foreign powers, his majesty, after reciting the attempts made by the French government, in violation of the laws of nations, to prohibit the commerce of all neutral nations with his majesty's dominions, and also to prevent such nations from trading with any other country in any articles the growth, produce, or manufacture of his majesty's dominions, and to declare his majesty's dominions to be in a state of blockade : and reciting that his majesty, though unwilling to follow the example of his enemies, by proceeding to an extremity so distressing to all nations not concerned in the war, was pleased to order that no vessel should be permitted to trade from one port to another, both which ports should belong to or be in possession of France or her allies, or shall be so far under their control as that British vessels may not freely trade thereat : and every neutral vessel coming from any such port, after being warned by any of his majesty's ships, or after reasonable time for receiving the information of the order, shall be captured and brought in, and, together with her cargo, shall be condemned as lawful prize. And by an instruction, dated 10th of June 1810, his majesty was pleased to order as follows: Our will and pleasure is that Swedish vessels, employed in the coasting trade from one port of Sweden to another port of Sweden, shall not be molested or detained under the order of the 7th of January 1807, till further order. But this instruction shall not be con