single case of its being necessary to assume the 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." In the Flad oyen, 1 Rob. 134, 146. Sir William Scott asserts the same doctrine, and declares, that prize of war is a matter over which "a neutral country has no cognizance whatsoever, except in the single case of an infringement of its own territory." The doctrine which seems asserted in the cases of Glass v, the Betsey,and Del. Col. v. Arnold, so far as applies to the present discussion, is encountered also, and in no small degree shaken by the opinion of the supreme court in Hudson v. Guestier, 4 Cranch, 293. 1 Hall 5. The chief justice, in delivering the opinion of the court, speaking of a vessel captured as prize, says, "In the port of a neutral she is in a place of safety, and the possession of the captor cannot be lawfully devested, because the neutral sovereign by himself, or his courts, can take no cognizance of the question of prize or no prize. In such case, the neutral sovereign cannot wrest from the possession of the captor, a prize of war, brought into his ports." Applying the same reasoning to the case of a seizure for the violation of a munici pal law, he declares it to be the opinion of the court, "that a possession thus lawfully acquired under the authority of a sovereign state, could not be devested by the tribunals of that country into whose ports the captured vessel was brought. It will be recollected, that in this case the property belonged to American citizens, and had been condemned while lying in a Spanish port, by a French tribunal, and afterwards brought to this country. But in Rose v. Himely, 4 Cranch, 241, which was argued at the same time, and involved in many respects, the same questions as Hudson v. Guestier, the property was actually brought into the United States, and libelled for restitution, before any proceedings were instituted in any French tribunal. The doctrine, therefore, in Hudson v. Guestier, must be supposed to apply to the case of American, as well as neutral property, captured and brought into an American port. In either respect, it would be inconsistent with that which seems to be assumed in the cases in 3 Dallas, to which I have alluded.

But, allowing these cases to have the fullest effect, which the most liberal.construction can impute to them, they only decide

that the jurisdiction of our courts, in matters of prize, made by foreign cruisers, attaches whenever the prize property is within our own ports. In the case before the court, the cruiser itself only is within the country, and not the captured ship in the character of prize. It is therefore clearly distinguishable. The cruiser too, comes into port by compulsion, in the hands of American recaptors, succeeding to enemy captors. It is not, therefore, a case, where even a voluntary asylum is sought. I accede to the position, that in general, in cases of maritime torts, courts of admiralty will sustain jurisdiction, where either the person or his property is within the territory. It is not even confined to the mere offending things; it spreads its arms over the tangible as well as incorporeal property of the offending party, to enable it to afford an adequate remedy. The admiralty may, therefore, arrest the person, or the property, or by a foreign attachment, the choses in action of the offending party, to answer ex delicto. But it affords such remedies only, where the tort is a mere maritime trespass, and not where it involves directly the question of prize. No case has been produced at the argument, where a neutral tribunal has sustained jurisdiction, over a cruiser, on account of her having made illegal prizes on the high seas, where the prize was not within its territory. After considerable research, I have not been able to find any such case in modern times. From the works of sir Leoline Jenkins, (2 Vol. 714, 754) it does however appear, that in 1675, the English admiralty confiscated a French privateer, on account of illegal depredations committed on English and Dutch vessels, against the remonstrances of the French government, who claimed a renvoy of the cause as rightfully belonging to them. But the particular ground of the decision does not appear; and as one charge was for an infringement of the territory of Great Britain, it might have turned upon that point. 2 Woodes. 425.

On the other hand, in the case of the United States vs. Richard Peters, 3 Dall. 121. the supreme court awarded a prohibition to the district court, against proceeding on a libel against a French national ship of war, for an alleged illegal capture of an American schooner and cargo, the prize having been carried into a French port for adjudication. The prohibition asserted, that by the law of nations, belligerent cruisers, duly commission

ed, have a right in time of war, to arrest, and seize neutral ships, and carry the same into the ports of their sovereign for adjudication; and that such cruisers, or their officers and crew, were not amenable before the tribunals of neutral powers, for their conduct therein. It is argued, that this case is inapplicable to that at bar, because the Mount Hope was recaptured, and thereby the right of the French captors devested, and their courts ousted of jurisdiction. It is certainly law, that in case of a recapture, escape, or voluntary discharge, of a captured vessel, the right of the courts of the belligerent to adjudicate upon the property as prize, is completely gone; for that right remains. only, while the possession of the property remains either actually, or constructively, in the sovereign of the captors. But it does not follow, that such courts are deprived of the authority to award damages to the injured party where the capture has been unlawful, and thereby indirectly, to entertain the question of prize. Much less is it to be inferred, that the fact of recapture alone, enables a neutral tribunal to take cognizance of the capture itself, and try the question of prize, over which originally, it could not assert any jurisdiction. In the first place, it is extremely clear, that the French courts have complete authority, as courts of prize, to award damages for the capture, if it were illegal, of the Mount Hope. The ordinary mode of seeking redress by neutrals, for such injuries, is, to apply to the prize tribunals of the sovereign, under whose authority the capture has been made, for damages. Such cases are familiar in the annals of the admiralty. The Betsey, 1 Rob. 93. The argument therefore of the counsel for Hill and M'Cobb, that if this court has no jurisdiction to award damages, no court has, and there is a right without a remedy, cannot be sustained. In the next place, the principal question involved in a trial under such circumstances, necessarily is the question of prize. It is true, that probable cause would justify the seizure, and destroy the claim for damages; but it must be probable cause to seize as prize, in reference to a violation of belligerent rights. What constitutes such a probable cause, depends on the state of the war; the actual operation of the belligerents; the documents required to be on board; the artificial rules applied by prize tribunals, to sift the colourable papers and commerce of neutrals; and the positive directions of the sovereign power. Of some of these questions No. XXI.

B

at least, the courts of the captors are the most competent judges. Suppose an American ship had been captured under the British orders in council for having a certificate of origin, would it have been competent for an American tribunal, if the cruiser had come within our ports, to have decided upon the legality of the capture thus made, under the orders of the sovereign, who had already declared such certificate to be a good cause of condemnation? It seems to me difficult to maintain, that such a capture so made, could, in an American court, subject the party to damages, even supposing it to be a clear infringement of our neutral rights and of the law of nations. The acts done under the authority of one sovereign, can never be subject to the revision of the tribunals of another sovereign; and the parties to such acts are not responsible therefore, in their private capacities. If the citizens of a neutral country are injured by such acts, it belongs to their own government to apply for redress, and not for judicial tribunals to administer it. One great object in the establishment of prize courts is, to ascertain whether a capture is made under the authority of the sovereign power. When once the courts of any sovereign have definitively pronounced the capture rightful, it becomes the acknowledged act of the sove reign himself; and the parties who made the capture, are completely, as to all foreign nations, justified, however repugnant such capture may seem to the law of nations. How can a neutral tribunal decide, that a capture on the high seas is in opposi tion to the will of the sovereign of the captors? It may perhaps, be competent to decide, that it ought not to have been ratified; but could it hence infer that it would not be? Whether damages then, shall, in any case of capture, be given, must depend upon the law of prize, as understood and administered by the foreign sovereign, or in a case of probable cause upon the subsequent conduct of the captors. The damages therefore, are not an independent or principal enquiry, but the regular incident to the question of prize, in whatever manner process may be instituted. This consideration disposes of that part of the argument, in which it is assumed, that although a neutral tribunal may not directly entertain the question of prize, yet it may collaterally, when it is a mere incident to the question of damages. On the whole, I am of opinion, that in the case before the court, the prize tribunals of France had complete jurisdiction of the cap

ture; and that, although the right to adjudicate as prize, was devested by the subsequent British recapture, yet it was still competent for them to entertain a suit against the owners for damages, if the capture were illegal: that consistently with the law of nations, an American tribunal could not adjudge on the question of prize; and the recapture of the prize, or the bringing the cruiser within our ports, did not vest a jurisdiction in such tribunal, which it was otherwise incapable of assuming. I am therefore, for sustaining the plea to the jurisdiction, and for dismissing the claim of Hill and M'Cobb, with costs.

DAVIS, District Judge, concurred.

Claim dismissed with costs.

G. Blake, for Apt.-Dexter, for Appellees.

On appeal to the supreme court of the United States, this decree was unanimously AFFIRMED, at the February term, 1816.