are

bound to submit to the obligation of those | subject to the court of France, and the properrules which that society has assumed for their government; rules which are founded in truth and wisdom, and, but for the misapplication of fraud and flagitiousness of power, are well calculated to produce the best effects.

It is not in our courts that redress is to be sought for the errors or injustice of foreign adjudications. Nations pledge to each other the lives, the fortunes of their citizens, and even their very national existence, for the integrity and correctness of their judicial tribunals, and "when justice is refused, or palpable and evident injustice done, or rules and forms openly violated, or an odious distinction adopted, to the prejudice of the subjects of another," and negotiation for satisfaction fails, the appeal lies to the ultima ratio of nations:

The government is bound to extend a protecting arm to her citizens, whilst confining themselves strictly within the limits of their duty, and to make compensation to them for such injuries as policy may withhold her from resenting.

ty revested by jus postlimini. I am sorry here again to be under the necessity of adopting a different opinion. Mere locality will not, of itself, deprive the prize court of one nation of its jurisdiction, nor give jurisdiction to another. The taking as prize is the foundation of admiralty jurisdiction. A prize, brought into our ports by a belligerent, continues subject to the jurisdiction of the capturing power, although the corpus be within the limits of another jurisdiction; and it is now the general practice of European nations to condemn in their own courts captured vessels carried into the ports of an ally or even a neutral. On the other hand, a prize brought into our ports would be in no wise subjected by that circumstance to our jurisdiction, except, perhaps, in the single case of its being necessary to assume a jurisdiction to protect our neutrality or sovereignty; as in the case of capture within our jurisdictional limits, or by vessels fitted out in our ports. Nor does it appear to me that the jus postliminii can at all attach in this case, because that this capture was not a reprisal upon us as a nation, but upon a single offending individual in the commission of an act unauthorized by his nation. To satisfy the mind on this subject, it is necessary to inquire what is the liability of an individual of a neutral state, who commits an act inconsistent with his neutrality, or even with the municipal laws of another nation? How is his state affected by his conduct, and who is to decide upon the offense with which he is charged? As to the tribunal that must determine on the ion entertained among civilized nations. Every nation is the arbiter and vindicator of its own rights, and the courts of the capturing power have exclusive jurisdiction of questions arising on supposed breaches of neutrality, the violation of belligerent rights, or even of municipal law. With regard to the liability of individuals charged with these offenses, it is proper to observe, that in strictness every *[515 nation is bound to restrain its own citizens from the commission of offenses against all other nations. But as it is impossible, in the present state of things, for the most vigilant government to prevent these aggressions, which a desire of gain and the spirit of adventure are hourly producing, nations have agreed in giving up the individual to the consequence of his own temerity, and the offender is now treated as an individual enemy, abandoned by his own government, and who cannot ever claim the rights of war, but from the humanity or policy of his captor. A consideration which will set this idea in a strong point of view, and show that he is considered as waging individual war with the capturing belligerent, is that if he escapes or rescues his vessel after capture, he is never demanded of his government, nor complaint made against him, whatever acts of violence he may commit in so doing, but avoids the danger as another enemy would under similar circumstances.

The jurisdiction of the court of admiralty is of a peculiar nature. Acting wholly in rem, and not affecting the rights of any persons whomsoever, except so far as they exist in the thing which is the subject of the libel, its decrees are laid down to be conclusive against all the world; a doctrine which, as to the right of property in the subject libeled, is strictly and universally correct, "Whenever the court is erected within the jurisdictional limits of the power which constitutes it, when the subject is of admiralty jurisdiction, and the court profess-offense, there is no longer a contrariety of opines to sit and judge according to the law of nations, and the style of the admiralty." Nor must it be supposed that to produce this effect upon the right of property, the decision of the court must be formed upon a just idea of the law of nations, as applies to any particular case; a decision founded upon an erroneous opinion will be as efficient, in that respect, as one which flows from the most unerring judgment. It is the thing decreed that courts of justice are to look to. not to the reasons from whence the conclusions are deduced.

514*] *Governments will, indeed, examine into the correctness of proceedings against their citizens, and insist on satisfaction, or dissolve the bonds of peace.

It remains for me to consider the second of the principles upon which the court below founded its decree of April last in favor of the libellants, to wit, "That as the property of the actors was actually brought into their own jurisdiction long before any judicial decision had taken place elsewhere, and the marshal of this court had the custody of it at least three months prior to any such decision, that alone might have been good cause for ordering restitution." In the argument upon this head, the counsel contended that it was the possession alone which could bring the subject within the jurisdiction of the court of admiralty which condemned it; that in parting with the possession, by the sale, the court then lost its jurisdiction, If an American vessel charged with a breach and could not affect the right of property by of neutrality, were to be captured by a belligertheir decree. The court below, without adoptent beyond our jurisdictional limits, and before ing this idea in the extent contended for, appears to assume another, to wit, that coming within our jurisdiction, it could no longer be

condemnation were to be driven into one of our ports, either by stress of weather or the pursuit of any enemy, will it be contended that this court

could interfere to devest the captor of his possession? It must be recollected that such an attempt would draw to this court the jurisdiction of a question which it is the acknowledged right of the belligerent to have decided by his own tribunals. Therefore, in the case of a neutral captured on a charge of a breach of neutrality, the jus postliminii can only attach in case of rescue or recapture, and his nation cannot interfere to restore him that possession which he has lost by the capture, without becoming a party in the contest; she regards the individual and capturing power as belligerents, between whom she is bound equally to observe the laws of neutrality, and particularly to consider possession as the criterion of right, at least while the cause of capture is in its progress to adjudication. It will be perceived how large a portion of the argument went to justify and condemn the trade in which this vessel was engaged; the one side contending that the libellants had committed no act for which she was liable to condemnation; the other, that they had a question which is exclusively cognizable in the courts of the capturing power, but which this court would be compelled to decide upon if the libel be sus tained upon a claim interposed on behalf of the captors, or, even, I conceive, of their vendee, ! unless there were reason to contend that the vessel was piratically captured.

that the sale was made with the consent of the captain, but there was no evidence to prove it. In two important features, these cases are parallel, and I might rest my opinion on this point, on precedent alone; but it affords me more satisfaction to be able also to decide on principle. As the sale was not made by order of a competent tribunal, and was made by the captors at a time when their rights were not consummated by a judicial decision, the claimant in this case could have acquired no more than an inchoate right, subject to be confirmed or defeated by the event of the decision of the court to which the cause was preferred; that is, he acquired no more interest than what was possessed by the captor from whom he purchased. Had the decision been against the captors, with the evidence now before me, I should not hesitate to decide in favor of restitution; but when once the decree of condemnation was passed, the government of France has made the act of capture its own, and all questions of individual interest are at an end.

The whole of the argument founded on the violation of the treaty, is subject to the general objection, that it leads to a revision of a decree of a foreign tribunal.

by an erroneous opinion, that would not, of itself, vitiate their decrees. With regard to the ground of the argument drawn from the 12th article, to wit, that Port de Paix is the port *of an enemy of France, and, therefore, a [*517 trade with it is sanctioned by that article, I think

The French courts are bound by the convention with France, and it is to be presumed, that they bear it in mind in their decisions. They At the same time I heartily concur in the possess the same power in construing its meanopinion, that as far as between neutrals, at least,ing and effect that we do, and though influenced a sentence of condemnation is indispensably necessary to produce a complete devesture of property, and unless the neutral property captured be put in a train for legal adjudication, I should think a nation at liberty to seize it as being piratically taken; for the capturing power is bound to satisfy the neutral nation that she had a legal | is totally incorrect in point of fact. France has right to attack her citizen; and it will be found, upon reflection, that this cannot be satisfactorily 516*] done in any other mode than *by a decree of her tribunals of justice. Much has been said about the different rules adopted by European nations respecting the devesture of property. These rules were universally adopted by the respective nations to regulate the claims of their own citizens in questions of salvage and restitution. In case of alliances in war, each nation extended to its ally the benefit of a rule which ascertained the rights of her own citizens. And the correctness of these rules was mere matter of speculation, in no wise affecting the interest of neutrals, until Great Britain thought proper, in the last war, to exact a salvage on the recapture of neutral property. There appears to me to remain but two of the points made by counsel, on which it may be necessary for me to remark.

1st. How far the sentence of condemnation would affect the property after the sale.

2d. Whether the whole transaction was not inconsistent with the treaty subsisting between the two nations, and, therefore, producing no change of property.

1st. In the case of Sheafe and Turner v. A parcel of Sugars, decided in the district court of this district in the year 1800, in favor of the purchasers, and affirmed on appeal to the circuit court, the property captured was carried into the Havanna and libeled and condemned by a French court sitting at the Cape. The sale also took place prior to the condemnation. It was, indeed, asserted in that case, as it was in this,

not yet relinquished the contest, and until she does, I think that all the ports of the island are still ports of France, and that she possesses the right to exclude all the world from a commerce with them, and to fix the penalty for a breach of such exclusion. There is a peculiarity in the unhappy conflict raging in that devoted island, which should make us hesitate in applying to it the general rules of war between independent nations. Great Britain, deeply interested as she is in embarrassing and distressing her enemy, has not ventured to apply the general laws of war to this newly erected empire. On the contrary, she condemns our vessels carrying contraband of war to the brigand ports, as if carrying to the ports of her enemy, although, in fact, it is carrying them to the most inveterate enemy of her rival. As the 20th article relates only to the case of a capture for carrying contraband of war to an enemy's port, I shall pass it over without any observations, and shall close with a few remarks on the 22d article, the last noticed in the argument.

The first clause of this article, and the only one relating to this case, is in the following words: "It is further agreed, that in all cases, the established courts for prize causes in the country to which prizes may be conducted, shall take cognizance of them," &c. It strikes me, upon an attentive consideration of this article, that the only object of it was a recognition of the established doctrine, that the courts of the capturing power shall judge of the legality of capture, and to add the very necessary provision

of treaties which would make me reject the one here contended for, were it necessary to decide upon it. I could never be induced to think that a point of such importance would be left to mere inference, by the able men who negotiated that treaty, when it could have been so easily expressed, in a single unequivocal sentence. Nor do I think the interest of the neutral would be promoted by a construction which would *subject the fair trader to the melancholy [*518 inconvenience of being detained in some distant port, until he could be safely conveyed to that of the captor for adjudication, or be exposed, perhaps, to the perils of the ocean during some tedious voyage for the same purpose.

that the reasons of condemnation shall be in all, erality and candor necessary in the construction cases expressed in their decrees. But certainly the words literally taken, will produce the inference contended for by counsel, to wit, that vessels captured from our citizens by France, cannot be condemned, except in a French port, for it would be absurd to suppose that it was intended to give jurisdiction to the courts of any neutral or ally, into whose ports such prizes might be carried. If this were a just construction of the article alluded to, it would only follow, that a violation of the treaty had been committed, for which France is bound to make atonement, and that the court of admiralty of Santo Domingo was incorrect in proceeding to adjudicate a vessel not lying in their own port. But I conceive that the validity of the decree will still remain unshaken as to the change of property.

If this article was not brought to the notice of that court, it may well be attributed to the laches of the libellant himself in not making this defense, or, indeed, any other in a court that was open to his claims. But there is a lib708

Upon the whole, I am of opinion that the decrees in these cases should be reversed, and the libels be dismissed. But as the claimant purchased before condemnation, and the libellant had a fair claim to this investigation, I am of opinion that each party should pay his own costs. Cranch 4.

FEBRUARY TERM, 1807.

GENERAL RULE.

IT IS ORDERED, that where damages are given by the rule passed in February term, 1805, the said damages shall be calculated to the day of affirmance of the said judgment in this court.

FEBRUARY TERM, 1808.

GENERAL RULES.

1. ORDERED, that all parties in this court, not being residents of the United States, shall give security for the costs accruing in this court, to be entered on the record.

2. ORDERED, that upon the clerk of this court producing satisfactory evidence, by affidavit or acknowledgment of the parties or their sureties, of having served a copy of the bill of costs due by them respectively in this court, on such parties or sureties, and of their refusal to pay the same, an attachment shall issue against such parties or sureties respectively to compel payment of the said costs.