all statutes; and in this view we are of opinion that the doctrine contended for by the claimant ought not to prevail. In the first place, the section in question contains no repealing clause of any of the provisions of the salvage act of 1800, and therefore the whole laws on this subject are to be construed together, and unless so far as there is any repugnancy between them, are to be considered as in full force. That the section is free from all doubt in its language need not be asserted; but that every portion of it may, by fair rules of interpretation, be deemed merely affirmative of the existing law, is with great confidence maintained. There is no repugnancy which requires or even affords a presumption of legislative intent to repeal any portion of the salvage act. It is true that the section declares that all vessels, goods, and effects recaptured shall be restored; but to whom are they to be restored? Certainly, by the very terms of the act, to the "lawful owners," which to prevent the most injurious, and we had almost said absurd, consequences, must mean the "lawful owners" at the time of the recapture. But the lawful owners of recaptured property, which has been, already, lawfully condemned, is not the original proprietor, but the person who has succeeded to that title under the decree of condemnation. Suppose the property at the time of the capture had belonged to one neutral, and after condemnation had been sold to another neutral, and then captured and recaptured by the enemy, can there be a doubt that the latter is, to all intents and purposes, the true and lawful owner, and that he may assert his 1818. The Star. title against the first proprietor? Besides, recapture by force of the term would seem most properly applied to cases where an inchoate title only was vested by capture. Can it be said in strict propriety of language, that property captured from an enemy, which at the time is the lawful property of an enemy purchaser, is recaptured from his hands? The recapture is always supposed to be from those who are the original captors, not from persons who have, by operation of law, succeeded to the title acquired under a decree of condemnation. The section, however, does not stop here; nor is it necessary to rest its construction upon the import of a few detached terms. It proceeds to declare that the recaptured property shall be restored to the lawful owners upon payment of a reasonable salvage, "according to the nature of each case, agreeably to the provisions heretofore established by law." Here is a direct and palpable reference to the salvage act, not for the purpose of repeal, but for the purpose of recognizing it as in full force in respect to all cases of recapture. It is argued that the reference is confined to the mere rates of salvage established by that act. Let us see whether, consistently with any supposed legislative intention, or any reasonable principle, such a construction can be sustained. In the first place, it would make a discrimination between recaptures of property belonging to the United States, and property belonging to neutrals and citizens, wholly unaccountable upon any principles of national policy. In case of a previous condemnation, the property, if belonging to citizens or ncutrals, would be restored on salvage; if belonging to the United States, it would be wholly condemned as good prize of war. In the next place, the property of neutrals and citizens, if recaptured by public ships, would be good prize; but if recaptured by private armed ships, would be restored on salvage. Yet in respect to neutrals or citizens, if the intention was to confer a benefit on them, the reason would seem equally to apply to both cases. And if there was a policy in discouraging captures by privateers, and encouraging captures by public ships, it is strange that the legislature should not, in relation to captures not within the purview of this clause, have made a similar discrimination. The reason would be the same, and yet in those cases the salvage act uniformly gives a higher rate of salvage to private armed ships than to public ships; and the prize acts superadd an exclusive bounty on prisoners of war captured by private armed ships, of no inconsiderable value. And whatever might be the case in relation to our own citizens, it is somewhat singular that the legislature should be paying bounties out of the treasury to encourage privateers, when they were in favour of neutrals, having no legal title, taking from them a large proportion of the lawful proceeds of prize. that There is yet another case which affords a more striking illustration of the difficulties which surround this construction. The salvage act of 1800 declares, upon the recapture of neutral property the rule of reciprocity shall prevail. If the neutral would in the like case restore on salvage, then the American courts are to restore on the same salvage: if otherwise, then they are to condemn. If, therefore, by 1818. The Star. the prize act of 1812, restitution is to be made in all cases of recapture of neutral property, and yet in the like cases the neutral sovereign would not restore, it would follow that the restitution would be without payment of any salvage, which would be repugnant not only to the intent, but to the words both of the salvage act and the prize act in any mode of interpretation. In a recent case in this court, (The Adeline, 9 Cranch. 244.) condemnation passed upon some French property which, during the late war, had been captured by the enemy, and recaptured by an American privateer, upon the ground that the rule of reciprocity established by the salvage act of 1800, applied to the case; and as France would deny restitution, our courts were bound to apply the same principle to her. There does not, therefore, seem any solid reason on which to rest the construction contended for by the claimant. And there are the most weighty reasons, founded upon public inconveniency, upon national law, and upon the very terms of the salvage and prize acts, for the contrary construction. In considering the section in question as merely affirmative, every difficulty vanishes, and the symmetry of a system apparently built up with great care and caution, as well as in strict accordance with the received principles of public law, is maintained and enforced. But it has been asked if the section is merely affirmative, what reason can be assigned for its enactment? If no satisfactory answer could be assigned, it would not impair the force of the preceding reasoning. It is very common for the legislature to make laws in affirmance both of the common and statute law. This very act gives the district courts cognizance of captures, and yet it was clearly settled that the courts already possessed the same jurisdiction. Doubts may and often do arise how, far a provision already in existence may be applied to cases contemplated in new statutes. To obviate such doubts, whether real or imaginary, is certainly not an irrational or unsatisfactory mode of legislation, and often prevents serious mischiefs during the fluctuations of professional opinions, prior to a legal adjudication. It was probably to obviate some doubt of this sort that the clause in question was inserted in the act. Nor is it difficult to perceive some room for subtle doubt from the generality of the preceding (s. 4) section. That section declares that "all captures and prizes of vessels and property shall be forfeited," and accrue to the owners, officers, and crew of the capturing private armed ship; and from the generality of this language it might possibly (we do not say upon any sound interpretation) have been doubted whether the words "all captures" might not be held to comprehend captures of neutral property, which had not yet been condemned. At all events upon every view of this case the court are of opinion that the property having been previously condemned and title passed to the enemy, and, consistently with the salvage and prize acts, must be decreed to be good prize of war. Decree affirmed, with costs." a Vide ante, Vol. II. Appendix, note I. pp. 40-49. As by the salvage act of the 3d of 1818. The Star. |