having on board a cargo on freight belonging to citizens of the United States, and bound on a voyage from Charleston, South Carolina, to Cadiz, was on the high seas in the latter part of March 1813, unlawfully, and in violation of the law of nations, and of treaties, captured by L'Invincible, before her capture by the Mutine, and carried to places unknown to the claimants, whereby the same ship Mount Hope and cargo, became wholly lost to the owners; and thereupon, praying among other things, that after payment of salvage, the residue of said ship L'Invincible and cargo, might be condemned and sold for the payment of the damages sustained by the said claimants, by reason of the premises.

At the same term, by agreement of the parties, an interlocutory decree of condemnation to the captors, passed against said ship L'Invincible, and she was ordered to be sold; and one moiety of the proceeds after deducting expenses, was ordered to be paid to the captors as salvage, and the other moiety to be brought into court, to abide the final decision of the respective claims of the French consul and Messrs. Hill and M'Cobb. The sale was accordingly made, and a moiety of the net pročeeds amounting to five thousand four hundred and thirty-four dailars fifty cents, delivered to the libellants, and the remaining moiety delivered on stipulation to the proctor, for the owners of L'Invincible. The cause was then continued for a further hearing, unto September term 1813, when Messrs. Maisonerara and Deruet of Bayonne, owners of L'Invincible, appeared, by their proctor, under protest, in answer to the libel and claim of Messrs. Hill and M'Cobb; and alleged among other things, that the ship Mount Hope, was lawfully captured by said ship L'Invincible, on account of having a British license on board, and of other suspicious circumstances, inducing a belief of British interests, and ordered for Bayonne for adjudication; that (as the protestants believed) on the voyage to Bayonne, the Mount Hope was recaptured by a British cruiser, sent into some port in Great Britain, and there finally restored by the admiralty to the owners, after which restoration she pursued her voyage, and safely arrived with her cargo at Cadiz; and the protestants thereupon pray, that the claim of Messrs. Hill and M'Cobb, may be dismissed.

The replication of Messrs. Hill and M'Cobb, among other

things, denies the legality of the capture, and the having of a British license on board the Mount Hope, and alleges embezzlement and plunderage by the crew of the ship L'Invincible, upon the capture of the Mount Hope; admits the recapture by a British cruiser and restoration by the admiralty upon payment of expenses; which, together with outfits for the voyage to Cadiz, amounted to nine thousand dollars; and prays that the protestants may be directed to appear absolutely, and without protest. Upon these allegations, the District Court overruled the objections to the jurisdiction of the court, and obliged the own ers of the ship L'Invincible, to appear absolutely, and without protest; and thereupon, the said owners appeared absolutely, and alleged the same matters in defence, which were stated in their answer under protest, and prayed the court to assign the said Hill and M'Cobb, to answer interrogatories touching the premises, which was ordered by the court. Accordingly, M'Cobb and Hill made answers to the interrogatories proposed, except an interrogatory which required a disclosure of the facts, whether there was a British license on board? which M'Cobb (who was master of the Mount Hope, at the time of her capture) declined answering, upon the ground, that he was not compelled to answer any question, the answer to which would subject him to any penalty, forfeiture or punishment, and. this refusal the District Court, on application, allowed. Hill, in: answer to the same interrogatory, denied any knowledge of the existence of a British license. The cause was thereupon heard upon the allegations and evidence of the parties, and the District Court decreed, that Messrs. Hill and M'Cobb should recover against the owners of the Invincible, the sum of nine thousand dollars, damage and costs of the prosecution. From this decree the owners appealed to this court; and the preliminary question as to the jurisdiction of the court has been ably argued, and is now to be decided.

It is contended on the part of the protestants, that the prize courts of the United States, have no cognizance of captures made by a foreign power; but that the right to decide upon the legality, belongs exclusively to the courts of the capturing power. On the other hand, it is contended by the counsel of Messrs. Hill and M'Cobb, that although the general principle be admitted, that the courts of the capturing power have exclusive

jurisdiction as to the legality of all captures made under its authority, yet the principle applies only when the captured is actually brought within the jurisdiction of the capturing power, so that prize proceedings may attach upon it. That the admiralty courts of every country, have general jurisdiction in all cases of torts committed on the high seas, whenever the person or thing by whom the tort is committed, is within the territory. That in the present case, the ship Mount Hope, never having been carried into France, the jurisdiction of its courts never attached; and therefore, the present question as to damages, could never attach as an incident to the general jurisdiction of such

courts.

The general doctrine, that the trial of prizes belongs exclusively to the courts of that state to whom the captor belongs, is now too firmly settled to admit of doubt. In the great arguments respecting the Silesia Loan, it is laid down in emphatic terms, that "this is the clear law of nations; and by this method prizes have always been determined in every other maritime country of Europe, as well as England." Coll. Jurid. This right attaches not only where the captured property is brought within the territory of the capturing power, but also where it is ..brought within a neutral territory. The seizure as prize, vests the possession in the sovereign of the captors, and subjects the property.to.the jurisdiction of his courts; and that possession is deemed firm and secure in a neutral port, and cannot be lawfully devested by a neutral tribunal. Bynk. 2 P. I. ch. 15 and 17. Heinec. De Nav. ob vect. merc. vet. com. ch. 2 § 9. Hudson v. Guestier, 4 Cranch 293. The Henrick and Maria, 4 Rob. 43. It makes no difference, whether the captured property in such case belongs to an enemy or a neutral. Valin, traité des prises ch. 14 42, Duke of Newcastle's letter, Coll. Jurid. U. S. vs. Peters, 3 Dall. 121. Hudson v. Guestier, 4 Cranch 293. It would seem, therefore, to follow as a necessary inference, that the courts of neutral nations were bound to abstain from the exercise of all jurisdiction over property captured as prize, by a regularly commissioned foreign cruiser, and brought into their ports. But, inasmuch as captures may have been made without a lawful commission, or fraudulently, or piratically, or in violation of the territorial rights of the country into which the prize property is brought, for the purpose of enquiries of this

kind, neutral courts may entertain jurisdiction, and in proper cases, award restitution. It seems settled, that if a capture has been made within the territorial seas of a neutral country, or by a privateer, illegally equipped in a neutral country, or by persons who could not, without a violation of their allegiance to a neutral country act under a belligerent commission, such a capture is invalid, and the property, to whomsoever belonging, may be rightfully restored by the prize courts of such neutral country, when brought within its ports. Talbot v. Janson, 3 Dall. 133. The principle upon which such decisions are sustained, seems perfectly sound and consistent with the acknowledged rights of belligerent powers. A neutral nation is bound to abstain from every act of hostility, and to conduct itself with perfect impartiality. If it suffers its neutral arm to be used, to aid one belligerent, and to oppress its own friends, it becomes a party to the war, and is justly responsible for every act of injustice or hostility, which flows from such conduct. It has a right therefore, to protect its own sovereignty from violation, and to punish the offenders; and as far as it is in its power, to restore the parties injured by the illegal act, to the same situation in which they were, before it was committed. So far then, as the sovereignty and rights of neutral nations are concerned, they form an exception to the general doctrine, as to the exclusive jurisdiction of the courts of the capturing power over prizes. The exception seems, indeed, to have been pressed somewhat further in some decisions in our own country; farther indeed, than in my humble judgment, and I speak with the utmost deference, can be easily reconciled with general principles. It seems to have been held, that wherever neutral or American property is captured on the high seas, by a lawfully commissioned ship of a foreign belligerent, and brought into our ports, the courts of the United States have jurisdiction to enquire into the merits of the capture; and if in their judgment, the captors are not entitled to a condemnation, to award restitution, notwithstanding even a probable cause for the capture. Glass The Sloop Betsey, 3 Dall. 6. Del. Col. v. Arnold, 3 Dall. 333. In time of war, it is an unquestionable right of the belligerent to search neutral ships and cargoes upon the ocean, and in cases of suspicion, to carry them in for adjudication. The evidence to acquit or condemn, comes in the first instance, from the ship's

v.

papers, and the persons on board. If a breach of neutrality or fraud, or gross misconduct appears, the courts of prize are competent in such cases, to decree confiscation of the property by way of penalty. If, therefore, a neutral tribunal shall undertake to try these questions which regularly belong to the court of the belligerent, there is certainly some danger that the case will not always be tried by the same proceedings and rules, which ordinarily govern in prize causes. In cases of capture of enemy's property, strictly so called, under like circumstances, the exercise of such a jurisdiction would be utterly inconsistent with the admitted exclusive right of the captors; for no neutral country can interpose to wrest from a belligerent, prizes lawfully taken. 1 Rob. 65. The Santa Cruz. As all neutral property when captured, is, if condemned, deemed quasi enemy's property, the neutral tribunal does in fact, undertake to decide on the title to the captured property and settle its hostile or innocent character. If the property turn out to be hostile, it will not undertake to condemn it, for that would be a voluntary interposition in the war; if neutral, it seems difficult to conceive how it can right

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fly settle the question, how far its character of neutrality has been comprofitted or injuriously used against the belligerents. Its fut, that by the ordinance of Louis 14, Des Prizes, art. 15. it is expressly declared, that if on board of prizes, brought into French poris by foreign armed vessels, there shall be found goods belonging to the subjects of France, or its allies, the goods so belonging to French subjects, shall be restored. Valin says, that this right is exercised in favour of subjects by way of compensation for the asylum granted to the captor and his prize; but he expressly states, that the rule does not extend to the goods of allies. 2 Valin Comm. 274. Valin Traité des prises, ch. 7. p. 106. At best, this is but a mere municipal regulation of France; and in countries where no similar regulation exists, it should seem fit that the general rule of the law of nations should prevail. The true principle seems laid down by judge Johnson, in his very able opinion in Rose v. Himely, 1 Hall 11.4 Cranch, appendix. Note (C). "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. A prize brought into our ports, would be in no wise subjected by that circumstance to our jurisdiction, except perhaps, in the