1820.

The Josefa

First, where the capture is made within its territorial limits; and, secondly, when made by a vessel armed or re-equipped in its ports. The same principles Segunda. apply where the captor violates the laws of police, or the revenue laws of the neutral State. The infringement of the one is as injurious to that State, and to the captured belligerent, as the infringement of the other. The injury to the original owner is equally great, whether the privateer was fitted in the neutral ports, or is permitted to carry his prizes into those ports for sale. The spes recuperandi is gone; and will the neutral sovereign condescend to avail himself, as against an innocent friend, of the forfeiture incurred by the misconduct of the enemy of the latter? The captor cannot sell; he cannot completely devest the original owner of his remaining right to the captured property before its lawful condemnation: shall he then be permitted to do so by smuggling, or even by attempting, or barely intending to smuggle it in a neutral port? It is the well established doctrine of public law, that belligerents have no right to sell or dispose of their prizes in a neutral port, before they are judicially condemned in a competent Court of the captor's country; unless in case of necessity, or when the right is secured to them by treaty, or by the express permission of the neutral government; or in case of the intervention of peace. If, then, the captor has not such an

a Bee's Adm. Rep. 263. The Flad Oyen, 1 Rob. 114. The Purissima Conception, 6 Rob. 45. The Schoone Sophie, Ib. 138. 2 Bro. Civ. & Adm. Law, 255. 1 Peters' Adm. Dec. 24. 2 Peters' A. D. 345. The Kierlighett, 3 Rob. 82. Wheel

1820.

interest in his uncondemned prize, as will enable The Josefa him to dispose of it by sale to another, how can he Segunda. be said to have such an interest as will enable him to forfeit it to the neutral State for a breach of its municipal laws? This is a novel question, both here and in the European Courts of prize. It is indeed settled, that the Prize Court may dismiss the claim of a citizen, violating the law of his own country where the court sits; or of an ally or neutral violating the treaties between his own country and that of the Court; and that it may dismiss the libel of a captor (of the country where the Court sits,) for a collusive capture, or for a violation of the laws of trade. But the moment the neutral Court, in the present case, ascertained that this was a capture jure belli, or piratical, it had nothing to do but to restore it to the original possessor. The captor had not such a proprietary interest as rendered him capable of forfeiting it to the United States. The first case of a forfeiture in the Prize Court for a breach of municipal law, which is reported, is that of the Walsingham Packet: that was the case of a British packet, retaken from the enemy, wherein a claim was given for the cargo as the property of British and Portuguese merchants, and resisted on the part of the captors, on the ground that such trade was prohibited by act of Parliament. Here the jurisdiction of the

right v. Depeyster, 1 Johns. Rep. 471. 481. 2 Valin. Com. Sur l'Ord. 272. and seq. Vattel, l. 4. c. 2. s. 22. Marten's Law of Nations, 323. Wheat. on Capt. 262.

a 2 Rob. 64.

1320.

Segunda.

Court, with respect to the thing recaptured, was unquestionable; and Sir W. Scott rejected the claim The Josefa on account of the claimants own personal misconduct, reserving the ultimate question, to whom the property should be condemned. In the case of the Etrusco," it was subsequently determined, that condemnation in such cases should be, not to the captors, but to the crown. In the case of the Recovery, Sir W. Scott determined, that the claim of a neutral could not be rejected in a Prize Court of the captor's country, for violating the municipal law of that country. Why? Because, as to him, it was a mere Court of the law of nations, though as to British subjects it was also a Court of municipal law. As to him, the offence was merely malum prohibitum; as to British subjects, it was malum in se: and they had no right to complain if they were punished for it in any tribunal of their own country, however constituted. The cases of the Bothnea and the Jahnstaff, and of the George, in this Court, were also cases where the Court had undoubted prize jurisdiction, and the original owner being an enemy, could interpose no claim. The captor had been guilty of collusion with the public enemy, and had assisted him in violating the non-importation act. The Court, therefore, dismissed his libel, and condemned the property to the United

a 4 Rob. 256. Note.

b 6 Rob. 341.

c 2 Wheat. 169,

d Ib. 278.

1820.

The Josefa

States. A similar observation is applicable to the case of the Venus," in which the joint claim of a citiSegunda. zen, and an alien, to the vessel, was rejected, on the ground that the former had made a false oath, in order to obtain a register, whereby she became liable to forfeiture under the registry act. The District Court of Louisiana, beside its Circuit Court powers, may exercise jurisdiction as a Prize Court, or an Instance Court of Admiralty. In neither of these capacities could it take cognizance of the present case. Not as a Prize Court: for the jurisdiction belonged exclusively to the Venezuelan tribunals. Nor as an Instance Court of the law of nations: since, as such, its decree could only be for restitution to the captors or to the original owners, according as our neutrality had or had not been violated. Nor as an Instance Court of municipal law, could it condemn the captured property of a friend before it had been declared good prize by a competent prize tribunal; unless perhaps where the owner or his agent had subjected his property to such a forfeiture by an offence against the municipal law, consummated before the capture. The proper course of proceeding, where there is no collusion between the captor and the former owner, is to punish those captors who attempt to violate our municipal laws in the same manner as those who violate our neutrality; that is, by dispossessing them of their prizes, and restoring them to the original proprietors. Such was the conduct of Holland on a similar omission, as

a 8 Cranch, 253.

1820.

stated by Bynkershoek. It is true, that he animadverts upon these ordinances of the States General; The Josefa but his reflections will be found to be solely applica- Segunda. ble to his own favourite notion of the right of belligerents to carry their prizes into neutral ports, and to

a The passage of Bynkershoek here alluded to is as follows: He begins by observing: "Although it be lawful, on national principles, to carry a prize into neutral territory, and there to sell it, if the captor thinks proper, laws have, nevertheless, more than once been made to the contrary." He then proceeds: "The States General, on the 9th of August, 1658, issued an edict, by which they ordered, that no foreign captor who might be compelled by stress of weather, or some other reasonable cause, to bring his prize into the ports of this country, should presume to sell any part of it, or even to break bulk, but that be should inform the bailiff of the place of his arrival, who, having placed a guard on board of the ship, should keep a strict watch over her, until her departure: inflicting, moreover, a discretionary penalty, and a fine of one thousand florins, on any one that should assist in unloading, or purchase any thing out of her. To which edict, the said States General, on the 7th of November, in the same year, enacted a supplement, by which it was ordered, that no prize ship should be brought into the port itself, but merely into the outer roads, where she might be sheltered from danger, and that nothing should be unladen or sold out of her; and if any one should act to the contrary, the prize should be restored to the former owner, as though it had never been taken, and the captor himself should be detained, and his own vessel seized and confiscated. The remainder of the edict merely confirms that of the 9th of August above mentioned. Whether those edicts were extorted from the States General by fear, or by any other cause, I do not know; but lest they should hereafter militate against national principles, we must declare, that we rather believe them to have been temporary than perpetual laws." Bynk. Q. J. Pub. L. 1. p. 121. of Mr. Duponceau's translation.