in the sense in wnicn tnis term is used in the treaty witn of 1800. (Pub. Trs., 225, expired by limitation.) 6. Where a French vessel was captured and condemned as lawful prior to the treaty with France of 1800, (Pub. Trs., 22 pired by limitation,) and one moiety had been paid to the tors and the other to the United States, after the signing o treaty, and on hearing before the Supreme Court on writ of the decree of the circuit court had been reversed, and the v &c., had been ordered to be restored, and pursuant theret moiety of the United States had been paid over and a claim for the other moiety which had been paid to the captors: that the United States are not liable for such moiety. The schooner Peggy, 1 Op., 114 Lincoln, (1 7. On a reconsideration of the case referred to in the preceding opi and examination of the opinion, delivered by the Supreme Co giving a judicial interpretation of the treaty referred to, the ceding opinion is substantially re-affirmed. The schooner Peggy, 1 Op., 119, Lincoln, (1 8. Proceedings in the vice-admiralty court at St. Domingo are nullit for the reason that the court is not legally constituted. The vice-admiralty court at St. Domingo, 5 Op., 689; appendix, Lee, (17 9. The condemnation of a vessel and cargo in a prize-court is no criminal sentence. No person is charged with an offense, and no person is in a condition to be relieved and reinstated by pardon. Effect of pardon, 10 Op., 452, Bates, (186 10. After a regular condemnation of a vessel and cargo in a prize-cour for breach of blockade, the President cannot remit the forfeitu and restore the property or its proceeds to the claimant. 11. Section 2 of the prize act of 1863, (12 Stat., 759,) authorizing th taking by the Government of any captured property and the de posit of its value in the Treasury, subject to the jurisdiction o the prize-court in which proceedings may be instituted for con demnation of the property, is a valid exercise of the power o Congress to make rules concerning captures. Lord Lyons's communication concerning prizes, 10 Op., 519, Bates, (1863.) 12. The provision of that section is not in conflict with the public law of war, and does not impair the just rights of neutrals under that law. lb. - France Ib. less binding upon the courts of the United States; though s conflict might lead to diplomatic reclamations, and possibly war. [NOTE.-The act of 1863 was repealed by act 1864, (13 Stat., 306,) the latter was embodied in the Revised Statutes. The act of 1 did not expressly provide for, but assumes, the existence of right of the Government to appropriate prizes.] 14. The capture of a vessel of a country at peace with the United Sta made by a vessel fitted out in one of our ports and comman by one of our citizens, is illegal. If a privateer, duly com sioned by a belligerent, collude with a vessel so fitted out a commanded, to cover her prizes and share with her their ceeds, such collusion is a fraud on the law of nations. Talbot vs. Janson, 3 Dallas, 15. In 1799 there was a limited state of hostilities between this coun and France, and the capture of a private armed vessel, office and manned by Frenchmen, and sailing under the French fl was lawful, though the vessel was the property of a neutral, fi whom the French possessors had captured her. Talbot vs. Seeman, 1 Cranch 16. It is a universal principle, which applies to those engaged in a p tial as well as to those engaged in a general war, that wh there is probable cause to believe the vessel met with at sea is the condition of one liable to capture, it is lawful to take her, a subject her to the examination and adjudication of the courts. Ib. 31, 17. The law of prize is part of the law of nations. In it a hostile ch acter is attached to trade, independently of the character of trader who pursues or directs it. The Rapid, 8 Cranch, 155, [10 18. Under the instructions of the President, a privateer may lawfu capture a vessel, liable to capture, within the territorial limits the United States, and bound to a port of the United States. The Joseph, 8 Cranch, 19. In cases of recapture the rule of reciprocity is applied. If Fra would restore in a like case, then we are bound to restore otherwise, then the whole property must be condemned to recaptors. It appears that by the law of France in cases recapture, after the property has been twenty-four hours in p session of the enemy, the whole property is adjudged good pr to the recaptors, whether it belonged to her subjects, to her all four hours, it must, so far as it belonged to persons dom France, be condemned to the captors. Schooner Adeline, 9 Cranch, 2 20. If a capture be made by a privateer, which had been illegally e in a neutral country, the prize-courts of such neutral have power, and it is their duty to restore the captured pr if brought within their jurisdiction, to its owner. Brig Alerta vs. Moran, 9 Cranch, 35 21. A shipment was made by Messrs. Burnett & Co., of London, to A Ivens & Burnett, of St. Michael's, and the invoices declare the to be by order, and for account and risk of the latter. It i tended, on behalf of the captors, that both houses are compo the same persons, namely, William S. Burnett, who is dom at London, and William Ivens, who is domiciled at St. Mich and that the documentary evidence and private correspond show that the shipment was made on account of the hostile h If the fact of the identity of the two houses were material to th cision of the cause, it might furnish a proper ground for an o for further proof. But admitting the fact to be as the cap contend, we are satisfied that it can be of no avail to them. is clear, from the whole documentary evidence, that this shipm was not made on the account and risk of the hostile house, bona fide on the account and risk of the neutral house. It d not, therefore, present a case for the application of the princi that the property of a house of trade in the enemy's country condemnable as prize, notwithstanding the neutral domicile of o of its partners. On the contrary, it presents a case for the app cation of the ordinary principle which subjects to confiscatio jure belli, the share of a partner in a neutral house where his ow domicile is in a hostile country. The Antonia Johanna, 1 Wheaton, 15 22. The capture of a neutral ship having enemy's property on board i a strictly justifiable exercise of the rights of war. It is no wron done to the neutral, even though the voyage be thereby defeated The captors are not therefore answerable in pœnam to the neutra for the losses which he may sustain by a lawful exercise of bellig erent rights. It is the misfortune of the neutral and not the faul of the belligerent. Ib. 23. By the capture the captors are substituted in lieu of the original owners, and they take the property cum onere. They are therefore responsible for the freight which then attached upon the property, of which the sentence of condemnation ascertains them to be the rightful owners, succeeding to the former proprietors. So far the rule seems perfectly equitable; but to press it further, and charge them with the freight of goods which they have never received, or with the burden of a charter-party into which they have never entered, would be unreasonable in itself and inconsistent with the admitted principles of prize-law. It might, in case of a justifiable capture, by the condemnation of a single bale of goods, lead the captors to their ruin with the stipulated freight of a whole cargo. Ib. 24. If a neutral ship, laden in part with neutral and in part with enemy's property, be captured, the whole freight is not a charge on the property condemned; that pays only its own freight. Ib. 25. In general the rules of the prize-court as to the vesting of property are the same with those of the common law, by which the thing sold, after the completion of the contract, is properly at the risk of the purchaser. But the question still recurs, when is the contract executed? It is certainly competent for an agent abroad, who purchases in pursuance of orders, to vest the property in his principal immediately on the purchase. This is the case when he purchases exclusively on the credit of his principal or makes an absolute appropriation and designation of the property for his principal. But where a merchant abroad, in pursuance of orders, either sells his own goods or purchases goods on his own credit, (and thereby, in reality, becomes the owner,) no property in the goods vests in his correspondent until he has done some notorious act to divest himself of his title or has parted with the possession by an actual and unconditional delivery for the use of such correspondent. The St. José Indiano, 1 Wheaton, 208. 26. The United States not having acknowledged the existence of a Mexican republic or state at war with Spain, the Supreme Court does not recognize the existence of any lawful court of prize at Galveston. The Nueva Anna and Liebre, 6 Wheaton, 193. 27. A capture of Spanish property, in violation of our neutrality, by a vessel built, armed, equipped, and owned in the United States, is illegal, and the property, if brought within our territorial limits, will be restored to the original owner. La Concepcion, 6 Wheaton, 235. 28. It is firmly settled that if captures are made by vessels which have violated our neutrality acts, the property may be restored, if brought within our territory. The Gran Para, 7 Wheaton, 471. 29. A vessel armed and manned in one of our ports, and sailing thence to a belligerent port, with the intent thence to depart on a cruise with the crew and armament obtained here, and so departing and capturing belligerent property, violates our neutrality laws, and her prizes coming within our jurisdiction will be restored. Ib. 30. A bona-fide termination of the cruise for which the illegal armament was here obtained, puts an end to the disability growing out of the violation of our neutrality laws, which does not attach indefi. nitely, but a colorable termination has no such effect. Ib. 31. Whoever sets up a title under a condemnation is bound to show that the court had jurisdiction of the cause; and that the sentence has been rightly pronounced upon the application of parties competent to ask it. For this purpose, it is necessary to show who are the captors, and how the court has acquired authority to decide the cause. The Nereyda, 8 Wheaton, 108, [168.] 32. In the ordinary cases of belligerent capture, no difficulty arises on this subject, for the courts of the captors have general jurisdiction of prize, and their adjudication is conclusive upon the proprietary interest. But where, as in the present case, the capture is made by captors acting under the commission of a foreign country, such capture gives them a right which no other nation, neutral to them, has authority to impugn, unless for the purpose of vindicating its own violated neutrality. The courts. of another nation, whether an ally or a co-belligerent only, can acquire no general right to entertain cognizance of the cause, unless by the consent or upon the voluntary submission of the captors. Ib. 33. As to right to impugn capture, where the capturing vessel is equipped in our waters, in violation of neutrality, see The Fanny, 9 Wheaton, 668. 34. Neither the President nor any military officer can establish a court in a conquered country and authorize it to decide upon the rights of the United States or of individuals in prize causes, or to administer the law of nations. Jecker vs. Montgomery, 13 Howard, 498. 35. Though it is the duty of the captor, under the law of nations, affirmed by the act of Congress, (R. S., § 4615,) to send in captured property for adjudication by a court of his own country having competent jurisdiction, yet he may be excused by imperative circumstances for making a sale of such property and afterward seasonably subjecting the proceeds to the jurisdiction of a proper court of prize. |