fense is committed, and the property is instantly devested.

(The counsel then proceeded to comment upon this position, and concluded as follows.)

If, in this proceeding, the question of prize cannot be raised, or decided; if the court cannot proceed to condemn, and therefore will not permit defendant, collaterally and incidentally, to avail himself of such a ground of defense, as little ground is there for the analogous defense upon which the circuit court seems to have rested that portion of the decree from which we have appealed, viz.: that the pleadings disclose a case of probable cause of capture which justified the seizure and bars this

action.

This point, it is believed, was not argued in the court below, but was gratuitously taken by the learned judges themselves, the chief judge not sitting in the cause.

It is apprehended, that in deciding this to be a bar to the action, the whole principle of the law as to probable cause has been lost sight of. Probable cause is recognized as a justifiable ground of seizure, either as prize jure belli, or for a statute forfeiture. In the first class of cases, where the capture has been made as prize of war, the general principles of the law of nations provides this defense; where made for an alleged forfeiture under a statute, such protection must be conferred by statute, or it is not available. But whether in the one case or the other, these principles are believed to be incontrovertible and universal.

1. The question of probable cause belongs exclusively to the court which has jurisdiction to condemn or to decree forfeiture.

2. It can be adjudged in that court only in a proceeding to obtain condemnation.

3. Only in such court, after a decree refusing condemnation and directing restitution. 505] 4. The only legal operation of a certificate of probable cause is to bar a recovery of damages for an unlawful seizure.

The general principles which govern cases of this character are embodied in our statute book. 1 Stat. at Large, 696, 122. The 89th sec. of the Act of March 2, 1799, provides for cases of seizures under the collection laws, and enacts that "when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, etc., and judgment shall be given for the claimant or claimants; if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the said court shall cause & proper certificate or entry to be made thereof; and in such case, the claimant or claimants shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor, be liable to action, suit or judgment, on account of such seizure and prosecution." Similar provisions may be found in other statutes inflicting forfeitures.

The Act of June 26, 1812 (2 Stat. at Large, 759, c. 107), concerning letters of marque, prizes, and prize goods, in its 6th section, provides "that before breaking bulk of any vessel which shall be captured as aforesaid, or other disposal or conversion thereof, or of any article which shall be found on board the same, such captured vessel, goods or effects, shall be brought into some port of the United States,

and shall be proceeded against before a competent tribunal; and after condemnation and forfeiture thereof, shall belong to the owners and captors thereof, and be distributed as aforesaid; and in the case of all captured vessels, goods and effects, which shall be brought within the jurisdiction of the United States, the District courts of the United States shall have exclusive original jurisdiction thereof, as in civil cases of admiralty and maritime jurisdiction; and the said courts, or the courts being courts of the United States, into which said cases shall be removed, and in which they shall be finally decided, shall and may decree restitution in whole or in part, when the capture shall have been made without just cause; and if made without probable cause, or otherwise unreasonable, may order and decree damages and costs to the party injured."

These provisions embody the correct doctrine of the law relating to probable cause; and it is confidently asserted that no case can be produced in which even a certificate of probable cause, given by a court exercising exclusive jurisdiction, was ever thought to present a bar to a claim for restitution of property.

The argument of the counsel for the respondent, viz.: the competency of the court in California, is omitted.

Upon the question presented by the second demurrer, viz.: "Can the respondent [*506 defend himself in this suit by the matters and things stated in his answer?" a part of the argument of the counsel was as follows:

It is contended, by the learned counsel for the libelants, that the respondent cannot defend himself in this suit by showing any "act or thing on the part of the captain or crew of the ship Admittance; or any act of omission or commission of any sort or kind as a justification of the said seizure of said ship or her cargo, as lawful prize of war, or which might amount to probable cause for said seizure, etc."

It is thought this position cannot be maintained; it indicates a fear upon the part of the libelants, themselves admitted wrong-doers, to meet the respondent upon fair ground, the mer. its of the case. They ask for heavy damages, and at the same time admit that they accrued by reason of their own illegal acts.

What is there in the nature of this suit that should exclude the defense set up by the respondent? What is the injury complained of? It is, as stated in the libel, that the respondent, "without any lawful cause or probable cause of suspicion," seized and took possession of the ship Admittance, her cargo, and papers, and that the same were not brought nor sent within the jurisdiction of any court of the United States for adjudication; and that the libelants "have been, for more than a twelvemonth, deprived of the use, possession, management, and control of the said property;" and that the same has been “illegally sold and disposed of." The remedy pursued, is a proceeding instituted to compel the respondent to bring in the property, and proceed to adjudication, or in default thereof, that restitution in value should be decreed against him. It is a very common proceeding in the admiralty courts, and by looking into its nature and object, it will be perceived that the defense contended for is necessarily granted. It will be found that the mere fail

ure of a captor to proceed to adjudication, is not enough to entitle a claimant to restitution in value, but that the court will look back to the original cause of seizure, and if the claimant has violated any law which rendered his property liable to condemnation, restitution in value will not be decreed.

Various authorities are cited to show that the distinction between the prize and instance side of the district courts, as courts of admiralty, has an important bearing on this question.

It is stated, in the argument of the learned counsel, that "this is a suit instituted on the instance side of the admiralty for an alleged marine trespass," and also, "that it is not a suit for damages." I would ask what is a decree of restitution in value, but a decree of damages for a marine trespass? And is the respondent, merely because the proceedings are in507] stituted on the instance side of the admiralty, to be ousted of his defense, and not to be permitted to show that no trespass was committed?

What is a tort of which a court of admiralty has jurisdiction? Vide Conkling's United States Admiralty, p. 21, where Judge Story enumerates the different injuries redressed by a court of admiralty; see, also, p. 334, 336, note a. The passages referred to describe the various injuries for which legal redress can be obtained, and point out the particular remedies; and yet there is nothing like a claim for damages because the property was not condemned; but they refer to the legality or illegality of the seizure; and in the last reference it is said, "if no proceeding is instituted, as is sometimes the case when the captor himself has become convinced of the invalidity of the capture, or the captured property has been lost by recapture or otherwise, the injured party may, in such case, himself become the primary actor, by calling on the captor to proceed to adjudication, and at the same time invoking the justice of the court to award damages, if the capture shall be adjudged to have been tortious;" not because the captor had not proceeded to adjudication. In Wheaton on Captures, p. 280, sec. 18, the same redress is pointed out. "If the captors omit or delay to proceed to the adjudication of the property, any person claiming an interest in the captured property may maintain a monition against them, citing them to proceed to adjudication; which, if they do not do, or show cause why the property should be condemned, it will be restored to the claimants proving an interest therein; and this process is often resorted to when the property is lost or destroyed through the fault or negligence of the captors, in order to obtain a compensation in damages for the unjust seizure and detention."

In 2 Wheat. App. p. 11, it is said: "If the captors unjustifiably neglect to proceed to adjudication, the court will, in case of restitution, decree demurrage against them," and cites The Madonna del Burso, 4 Rob. 169; The Corier Maratimo, 1 Rob. 287; The Peacock, 4 Rob. 185; The Anna Catherina, 6 Rob. 10.

Hence, whenever a restitution in value is decreed, it is upon the ground that there would have been a restitution of the property valued, and no case cited by the learned counsel controverts this position.

(The counsel then proceeded to comment upon the following cases: The Lucy, 3 Rob. 208; The Huldah, 3 Rob. 235; The Madonna del Burso, 4 Rob. 169; The St. Juan Baptista, 5 Rob. 33; The Wilhelmsberg, 5 Rob. 143; The Lively, 1 Gallison, 315; The Felicity, 2 Dodson, 381; The Rover, 2 Gallison, 239.)

Various Acts of Congress have been referred to, to show that it is the duty of a captor to bring in captured property, and proceed to adjudication. *This general principle, [*508 it has been before stated, is admitted. It is not contended, in behalf of respondent, that a captor may, at his pleasure, under any circumstances, disregard the injunctions of the law, omit to bring his prize into court, convert it into money, and retain it in his own hands. The maintenance of such principles is not necessary to his defense in this suit.

But I would ask, is a veil to be thrown over the conduct of the libelants or their agents? Is the fact to be kept out of view, that the master of the Admittance sailed from New Orleans with the intent to trade with the enemy, and did in fact trade with the enemy? Will this court aid an unworthy claimant? "It is a good moral and legal principle, that a man must come into a court of justice with clean hands, and that the law will not lend its aid to a person setting up a violation of law on the face of his claim." Wheat. on Captures, 225.

The Anna Maria, 2 Wheat. 328. Chief Justice Marshall says: "To sustain the claim of the libelants, the first point to be established is the fairness of the voyage."

The Gran Para, 7 Wheat. 483. "A claim founded on piracy, or any other act, which, in the general estimation of mankind, is held to be illegal or immoral, might, I presume, be rejected in any court on that ground alone." And is not the present claim founded on an illegal act? The demurrer admits the illegal act, and yet the claim is for restitution.

The Bello Corrunes, 6 Wheat. 169. "But can a citizen of this country, who has violated its laws, ever be recognized in our courts as a legal claimant of the fruits of his own wrong?"

It will be perceived, by referring to the answer of the respondent, and the amendment to the answer, that the seizure may be justified on two grounds: first, a trading with the enemy; and, second, that it was the property of the enemy. The Rugen, 1 Wheat. 74. It is important, in the view now about to be taken, to ascertain the national character of the libelants. The libel states they were neutrals, some of them subjects of the Queen of Spain, and the others subjects of France. This is denied by the answer, which avers that they were resident merchants of Mexico, conducting there a commercial establishment-a fact beyond dispute. "If a person has a residence in a hostile country, and conducts a commercial establishment there, notwithstanding his place of birth, he will be considered as an enemy in regard to his commercial operations." 1 Kent, 74, 75.

Then the libelants must be considered as belligerents, and this must be taken as admitted by the demurrer.

Was condemnation necessary to devest the libelants of the property?

*In Gelston v. Hoyt, 3 Wheat. it was [*509

decided that a forfeiture attached in rem at the moment the offense was committed, and the property was instantly devested, so that no action could be maintained for the subsequent seizure. This, it is said, was a case of a statute forfeiture, and has no analogy to the question under consideration; but it is submitted that it has an important bearing, inasmuch as it shows that whatever may be the subsequent conduct of a captor, an action cannot be maintained against him.

The Mars, 1 Gallison, 192. In this case it will be found, that upon principles of common law the following propositions were discussed by Judge Story:

1. What is the interest or right which attaches to the government in forfeitures of property, before any act done to vindicate its claims?

2. What is the operation of such act, done to vindicate its claim, as to the offender and as to strangers?

ture was an English ship, seized by the French. The French captors made a donation of her to the crew of an American brig, who brought her into Norfolk, and claimed her as their property, acquired by the donation of the captors. Mr. Justice Johnson, in delivering the opinion of this court, says: "As between the belligerents, the capture undoubtedly produces a complete devestiture of property."

Admitting the principle supposed to be decided in the case of Price v. Noble, 4 Taunt. 123, to be correct, that the property was not changed, because there was a spes recuperandi, it would not affect this case, the property hav ing been brought infra praesidia; and this may be also observed of the reference to 15 Vin. Abr. 51.

In the case of Camden v. Home, 6 Bro. P. C. 2 H. B. the statute expressly vested the right in the captor after adjudication.

On these grounds it is submitted that con. demnation was not necessary to devest the libel ants of their property.

Then, upon the authority of this case, it is submitted that the libelants were absolutely devested of their property upon the commission of the offense. A captor may destroy property. 1 Kent, 104. "Sometimes circumstances will not permit property captured at sea to be sent into port, and the captors in such cases may either destroy it or permit the original owner to ransom it."

There are decisions to the effect that it requires a sentence of condemnation to change the property, but this applies to a neutral purchaser; as in the case of The Flad Oyen, 1 Rob. 117, the substance of which decision was, that the owner could have restitution of his property from a neutral vendee, unless it had been condemned to the captors; and the reason of this is obvious, the neutral purchaser can only take that which his condition of neutrality permits him to take; and when he takes the property without condemnation from the captors, he occupies the position of a captor, which is inconsistent with his neutrality.

In Goss v. Withers, 2 Burr. 694, Lord Mansfield says, "the property is not changed so as 510] to bar the owner, in favor of a *vendee, or recaptor, till there has been a sentence of condemnation," intimating that it is changed without condemnation so as to bar the owner in a claim against the captor.

In 1 Kent, 101, it is said: “When a prize is taken at sea, it must be brought with due care into some convenient port for adjudication by a competent court; though strictly speaking, as between the belligerent parties, the title passes and is vested when the capture is complete; and this question never arises but between the original owner and a neutral purchasing from the captor, and between the original owner and a recaptor."

The Adventure, 8 Cranch, 226. The Adven1. This case more particularly applies to the first ground of seizure "trading with the enemy."

valuable cargo in the pocket of the respondent." What will or will not go into the pocket of the respondent, is a question not pertinent to the issues presented by the record; but, it may be observed, that one half of the property in question, if lawful prize, belongs to the government; and upon the institution of this suit it asserted its rights so far as to employ counsel for the respondent.

By directions from the Navy Department, the proceeds of the sale of the ship and cargo were not distributed, but were sent into the United States, and placed in the Treasury, where they now are, a circumstance which, it is believed, was known to the libelants; and if they had thought proper to institute proceedings calling on the respondent to bring in the proceeds, they would have been forthcoming. The property has not been "illegally [*511 or unjustifiably" converted, and under the authority of the case of The Eole, 6 Rob. 224, the proceeds are entitled to the privilege of prize property, and subject to the judgment of the court.

There is not a single circumstance connected with this seizure which can justify the impu tation of misconduct. For reasons, which were conclusive in the mind of the respondent, he directed an officer to board and seize the Admittance. Upon the examination of her papers, it was at once seen that his reasons were well founded. The deceptive clearance, the erasures upon the bills of lading, the false entries in the log book, the position of the ship on the coast of Mexico when she had cleared for Honolulu, were all circumstances indicating guilt. The subsequent testimony of the mate of the Admittance, that she had been sailing under false colors, answering private signals given from various points on the shore, receiving and answering written communications, her name on the stern concealed with canvas, the captain expressly avowing his intention of discharging his cargo at some port or place in possession of the enemy, and expressing a fear of falling in with an American