1795. Moodie Cathcart. our neutrality. Though some of the evidences say they were not all native Frenchmen from their language, The Betty yet they all agree that the strength of the crew were so, the others were a mixture, there is no proof of any one American citizen being on board, unless Quin was; as to other nations, I know of no right we have to control their seamen. The 27th article of our treaty with Holland, which, by the 3d article of the treaty with France, in my opinion is confirmed to them also, admits the carrying away seamen or other natives or inhabitants of the respective nations on board of any of their vessels, whether of merchandize or war. From a careful review of the evidence produced in this cause, it appears clearly to me that the ship Citizen of Marseilles, at her arrival in Philadelphia, mounted only twelve guns, and had others, but the precise number is not ascertained, in her hold: that at the time of her leaving the river, she had twenty-six or twenty-eight mounted: That captain Chabert having been refused permission to open new ports in Philadelphia, and declaring he did not wish to infringe the laws; and having afterwards done so within the territories of the United States, could not and does not plead ignorance as an excuse. Whatever he did was with his eyes open, and being forewarned, he must abide the consequences. It remains now for me to inquire into the law arising from the foregoing facts, and the power and duty of this court thereupon. There cannot be a doubt that if a prosecution was instituted against captain Chabert, or any of the persons concerned in inoreasing, augmenting, or procuring to be increased or augmented, the force of the vessel, under the act of June last, but that a conviction must follow. There a penalty of fine and imprisonment is declared, as a punishment for a breach of the sovereignty 1795. Moodie sovereignty and neutrality of the United States, and this by a municipal law of our own: but what does the law of nations require further? I have in the course of The Betty the last summer, delivered my opinion on this question Catheart. so fully in this court, that I need only now repeat some part of the law then laid down. In the case of Janson v. Talbot, I stated that this court, by the law of nations, has jurisdiction over captures made by foreign vessels of war, of the vessels of any other nation, with whom they are at war, provided such vessels were equipped here, in breach of our sovereignty and neutrality, and the prizes are brought infra præsidia of this country. By the law of nations, no foreign power, its subjects or citizens, has any right to erect castles, enlist troops, or equip vessels of war in the territory or ports of another. Such acts are breaches of neutrality, and may be punished by seizing the persons and property of the offenders. Vessels of war so equipped, are illegal ab origine, and no prizes they make will be legal as to the offended power, if brought infra præsidia. The seizure and restoration of such prizes are what the laws of neutrality justly claim. You must either permit both parties to equip in your ports, or neither. Should either equip without your consent, the least you can do, is to divest them of the prizes they may have thus illegally taken, and restore them to the other party, or else permit them to equip also. This cause and this decree were submitted to the circuit court in October last, and there affirmed. An appeal to the supreme court is still undetermined, but until this opinion is overruled by that tribunal, I hold myself bound to consider it as a law. I gave a like decision lately, in the case of the schooner Nancy, from a full conviction that the principles I laid down formerly, were founded on the rules of propriety and the law of nations. Henry 1804. Sept. 6. captured by Property a French privateer, nish port before con by the chasers to this place, will be restored by this court, upon suit brought by the first own. identified, and the ori Henry Rose v. Himili, Gronings, and a quantity of LTHOUGH two separate libels have been filed in this cause, yet it has been considered all along sold in a Spa- as forming but one suit. There have been, also, separate claims interposed, and the pleadings are made up demnation, in both cases separate; but all the evidence adduced, and brought and the arguments of counsel, have, in a great meapursure, considered this cause in one view only, with the exception of its being contended that the claimants, Gronings, stand in a different situation, as being purchasers (without notice, and at second hand) of a part an agent of only of the coffee in dispute. The libels, which are ers; the pro-transcripts of each other, state, that the schooner Saperty being rah, commanded by Joshua Hubert, with Henry Rose sufficiently on board as supercargo for the owners, American citiginal owners zens, residing at Norfolk in Virginia, being on a voybeing citizens of the age from Port-au-Prince, where she had taken a cargo entirely belonging to citizens of the United States, and bound to Virginia, was, on the 24th February last, on the high seas, a few leagues from the island of Cuba, forcibly taken possession of by a French privateer called La François, commanded by one Domnaque, and carried into Barracoa under Danish colours; where, without any investigation or con demnation, according to the established laws of nations, the cargo was sold and disposed of to a certain Raymond Cott, either on his own account or as agent for others, and the greater part thereof clandestinely removed in the night from the said schooner Sarah on board the schooner Example, commanded by the said Cott, and brought into this port by him in the month of March last, when it was attached by process U. States. from V. from this court, on account of the former owners. To 1804. this libel two several claims and answers have been Henry Rose filed: one by I. I. Himili, as consignee and agent for Himili et al. Nathaniel Bingley, a citizen of Virginia, and owner of twenty-eight hogsheads, two tierces, and six sacks of coffee, imported in the schooner Sarah and arrested as stated in the libel; the other by Lewis and R. Groning as owners of forty hogsheads of coffee imported in the schooner Example, and arrested as also stated in the libel. The claimants neither admit nor deny the allegations in the libels, having, as they allege, no knowledge thereof; but say, that they had heard and believe that the schooner Sarah and cargo were captured as there stated, and were forfeited by the laws of France for trading with the brigands of Hispaniola. The claims and answers further state, that the said Henry Rose, fully sensible of the forfeiture incurred, and to prevent the delay incidental to condemnation, which only could be effected by sending to the tribunal of St. Domingo, agreed to purchase the vessel and a part of the cargo from the commander of the privateer, on terms settled between them, without waiting for a formal condemnation. The claimants further state that they have heard and believe, that a regular condemnation had been made of vessel and cargo at one of the ports of St. Domingo; that the sentence was detained for forty days by some accidental causes, but afterwards forwarded to the captain of the privateer. The claimants further state that a special agent had been sent to procure a copy of the condemnation, and they contend that, admitting the capture as stated in the libel, yet as the sale was with the assent of the actor in the first instance, and since sanctioned by the decree of condemnation, (as they have heard and believe) therefore their right and title is good in law, and the libel ought to be dismissed. Replications have been filed to these claims and answers, which admit the 1804. the purchase of the schooner Sarah by the said Henry Henry Rose Rose, and the claims and answers in relation thereto, Himili et al. but protest against every other part of the same. From this view and statement of the pleadings, several questions have been made and agreed upon by the different counsel. 1. As to the identity of the articles. 2. As to the legality of the capture. 3. As to any change of property by the capture. 4. Whether the libellant's title to the property is such as will entitle him to maintain suit for the same. In considering these questions I will begin with the last, viz. Whether under existing circumstances of the trade to Port-au-Prince, the actors could acquire property in any article purchased there. The counsel for the claimants have, with great ingenuity, contended this point, and adduced a variety of reasoning to prove that the cargo of the brig Sarah having been purchased in a brigand port, the title is bad in the first instance. Admitting the force of this argument, as far as it may apply in a court of the nation claiming the jurisdiction and where this is stated to be an offence, the question occurs-Is this court competent to decide? The proclamation said to have been issued, forbidding such trade, is not produced. Hearsay evidence of its being issued is brought forward, but in such a loose and vague way as to afford no precise knowledge of its tenor; and even if it did exist, it being only a municipal law of that country, this court can have no cognizance of a breach of it. The case of the Walsingham packet, quoted from 2 Robertson 77, does not apply. The question there was, whether a British court of admiralty was not bound to take notice of a flagrant breach of the municipal laws of that country, as respected the transactions of their own subjects, coming immediately before them: even there the principle was not recognized in the |