TALBOT ข. SEEMAN. court was bound to notice. In the cases cited by the oppofite counsel the arrets were read by confent. A common law court is as much bound as a court of admiralty to take notice of the law of nations, on a question where that law applies; and the rules by which common law courts are bound, as to evidence of the law of nations, are equally binding on courts of admiralty. The court fuffered the dispatches, and decrees of France, to be read, but referved the queftion, whether they ought to be confidered in their decifion of this cause, until the whole argument of the cafe fhould be finished. The counsel for the libellant proceeded in the argument on the 2d point. The decree of 18th of January, 1798, was not repealed till the 14th of December, 1799, and confequently was in full force at the time of the capture on the 6th of September, 1799. The facts stated in the appendix to 2d vol. of Robertfon's reports, fhew that the French had discarded the law of nations, and that their conduct towards neutrals had been fuch as to exclude every poffibility of escape. So notorious was this conduct that fir William Scott makes it the ground of his decifion in various cafes. It is not neceffary to fhew that the Amelia would certainly have been condemned. To entitle to falvage it is only neceffary to fhew that she was in a better condition by the re-capture. Her cargo was the production of the poffeffions of England, and therefore by the decree of 18th January, 1798, was liable to condemnation. The general conduct of France and of the French courts of admiralty towards neutrals has been repeatedly adjudged by Sir William Scott a good ground for falvage. Rob. 232. (The Two Friends) 2 Rob. 246. (The War Onfkan.) I 3dly. But without reforting to the general principle of a fervice being a ground for falvage, we claim it under the exprefs terms of the act of congrefs of the 2d of March, 1799, entitled " an act for the government of "the navy of the United States," §. 7. vol. 4. p. 472. by V. SEEMAN. which it is enacted "that for the fhips or goods belong- TALBOT ❝ing to the citizens of the United States, or to the citi"zens or fubjects of any nation in amity with the "United States, if re-taken from the enemy within twen"ty-four hours, the owners are to allow one-eighth part "of the whole value for falvage, &c. and if after nine"ty-fix hours, one half; all of which is to be paid with❝ out any deduction whatsoever." In the case of Bafs and Tingey it was decided by this court that France was to be confidered as an enemy. The cafe of the Amelia comes within the very words of this act of congrefs. She is a fhip belonging to citizens of a nation in amity with the United States, re-taken from the enemy after a poffeffion of ninety-fix hours. By the act of congrefs of 25th June, 1798, vol. 4. p. 149, 150. property of American citizens, re-captured by armed merchant veffels, is to be restored on the payment of not less than one-eighth, and not more than onehalf for falvage. And by the act of 3d March, 1800, not lefs than one-fixth is allowed on re-capture by a private armed veffel, and one-eighth by a public fhip of war. If then the re-capture of this veffel was a lawful act, and if fervice was rendered thereby to the owners, the re-captors are entitled to falvage, and the rate of that falvage is by the act of congrefs fixed at one-half of the value of the fhip and cargo. On the part of the claimant it was faid, that if France and America were at peace, the re-capture was not authorized by the law of nations. The claim of falvage must rest on two grounds. 1. A right to interfere. 2. A benefit conferred on the owners. 1. It is admitted that a belligerent has a right to detain a neutral veffel and carry her into port for the purpose of examination. The poffeffion of a belligerent muft, by third parties, be confidered as lawful, whatever may be the motive or intent of fuch poffeffion. 2 Woodefon TALBOT V. SEEMAN. 424. The belligerent has a lawful right to search merchant veffels, and this right cannot be confidered as injurious to the fair neutral trader. Refiftance to fuch fearch is unlawful, and such resistance, a rescue, or an escape, are fufficient causes to condemn the neutral veffel. Vattel. B. 3. c. 7. §. 114. p. 507. 1 Rob. 304. (The Maria.) The act of the re-captor's, then being in aid of the unlawful refiftance of the neutral, muft in itself be illegal. The courts of the captors only are competent to decide the question of prize or no prize. American citizens have no right to interfere, and wreft the neutral veffel from the poffeffion of the belligerent. The French have been represented as pirates, hoftes bumani generis. But if France has waged fo general a war on neutral property, has not England done the fame ? We find in their courts, that when a benefit is to accrue to British subjects, by fuch a decifion, they decide that France must be prefumed to respect the law of nations and to decree restitution; 1 Rob. 84, 85. (The Betfey.) 7 Term Rep. 695. Geyer v. Aquilar; but when salvage is to be given to British re-captors of neutral property, then it appears that Frrnce has loft all regard for the law of nations, and there is no chance of efcape from her courts of admiralty. Rob. 232. (The Two Friends.) 2 Rob. 246. (The War Onskan.). But it is contended that the courts of France would have decided according to the decree of 18th January, 1798, and not according to the law of nations. This is not to be prefumed; but if it was, however tyrannical the conduct of a belligerent may be, no neutral can lawfully interfere, unless the herself is injured, or her property or rights are affected; and even then individuals cannot act. The injury must be redreffed by the government in the way of negociation or war. What was the conduct of our government in fuch a cafe? It first chofe to negociate, and then to prepare for war. At the time the negociation was begun, all the injurious decrees were in force, full in the view of the legislature, who authorized certain measures of hoftility: but no citizen could go one step beyond what was authorized. The liability TALBOT of the Amelia to condemnation in a French court of ad- 20. miralty, created no right in captain Talbot to capture her, SEEMAN. even if that condemnation was certain. But the facts of this cafe do not warrant fuch a conclufion. The fact ftated is that "the fhip Amelia failed from Calcutta in "Bengal in the month of April, 1799, loaded with a car"go of the product and manufactory of that country." What country? Bengal; but Bengal is not stated to be one of the poffeffions of England. Not long fince the province of Bengal was in poffeffion of fovereign princes; but it does not appear how far they have been fubdued by the English. It is true that the libel speaks of Calcutta as being an English port in the Eaft-Indies, but it does not follow that the whole country of Bengal has been fubjected to the British power. Befides it is not the port from whence the veffel fails which taints the cargo, but its quality, as being the production of an English poffeffion. Hence it does not appear that the Amelia was liable to condemnation under the decree of 18th January, 1798, and we cannot prefume that she would have been condemned. The French captors did not pretend she was liable under that decree, but fent her in to be judged according to the laws of war; that is, according to the law of nations as applicable to a state of war; and there being no fact stated to the contrary, we are to suppose that she would have been fo judged, and not otherwife. To have interfered on our part to prevent this would have been a just cause of hoftilities against us. No citizen ought to be allowed to come into our courts to claim a reward for an act which hazards the peace of the country. If benefit be the criterion of falvage, then the greater the service, the greater ought to be the falvage. But if the construction, given by the oppofite coufel, to the act of 2d March, 1799, be correct, then the fame falvage is due for the re-capture of a clear neutral, as of a belligerent. And yet in common wars no falvage at all is due for the re-capture of a neutral. Every neutral nation has a right to choose her own manner of redress. We have no right to interfere, or to decide how far her vessels are liable to condemnation under French decrees. She may be willing to trust to the с v. TALBOT chances of acquittal or indemnification. We have no right to legislate upon the property of a foreign indeSEEMAN. pendent nation, and to say that we will, whether you confent or not, rescue your veffels from the French, and then make you pay us falvage. Vattel. B. 2. ch. 1. §. 7. p. 123. If an act, intended folely for my benefit, is advantageous to another, I am not entitled to reward. Rob. 23, 24. (The Vryheid.) In order to ground a claim of falvage, the danger of the property must have been not hypothetical, but abfolute; not diftant and uncertain, but immediate and imminent: the act of faving muft have been done with that sole intent, and must have been attended with labour, lofs, expense or hazard to the falvor. The Amelia was taken by captain Tabot, and libelled as a French veffel; his object was not to fave a neutral, but to capture a belligerent. Under fuch a mistake he might have a right to examine her further, but the moment the proved to be neutral property he ought to have released her. His mistake can be no ground for a claim of falvage. It is a mere juftification of an act of force, and as fuch may fave him from the payment of damages and costs. In this cafe there was no danger to the property, no trouble in saving it, nor any intention to benefit the owners. In Beares Lex. mer. vol. 1. p. 158, it is faid that to fupport a claim of falvage, the veffel must be in evident hazard, and must be faved by means ufed with that fole view. The owner was a citizen of an independent nation, and ought to have had his election. Where is the law or the authority that allows falvage to one belligerent taking from another the property of a neutral? By the ftate of the cafe this veffel was neutral as to all the belligerent powers. If the captor had applied for her, fhe must have been given up, upon the authority of the cafe of Glafs and Gibbs, 3 Dal. 6. without any compensation for re-capture. Among the cafes cited, the only one against us is 2 Rob. 246. (The War Onfkan.) In that cafe fir William Scott fays, that " lately" it has been the practice of his court to give falvage on re-capture of neutral property out of the hands of the French; but that fuch is not the modern practice of the law of nations; and upon this plain principle, that the liberation of a clear neutral from the hand of the enemy, is no effential service rendered to him; in as much as that fame enemy would be |