pelled to qualify the generality of the expression, " establishing courts for receiving and determining finally, appeals in all cases of captures," by adding, " as prize." The addition is indispensably necessary; for without it, the words would comprehend every kind of taking, on land and water, in peace and war. Having been obliged to go so far, in qualifying the extent of the original expression, we are under the same necessity of explaining the terms of qualification themselves; and certainly we have the same right, founded on reason and law, to explain them, that we had to introduce them. In doing this we shall find

Secondly, That" captures, as prize, by citizens of the United States, may be carried into foreign countries, and be legally proceeded against, in the courts of admiralty there;" and therefore it is to be inferred, that the confederation intended only such captures, brought infra praesidia of the United States. That this was the intention thereof, further appears, as,

Thirdly, Congress, in the commission and resolution before mentioned, have shown their sense of the words "cases of captures," by using them in reference to appeals in "cases of capture, which then were duly entered and depending,” as well as to future cases; but none were " then entered and depending," except where the "captures" were brought infra praesidia of the United States. This sense of congress, will appear still more plain from their several following resolutions, prior to the confederation; which were in force at the time of the capture made by captain Talbot, and which were the groundwork of the ninth section of the confederation.

November 25, 1775.

That it be recommended to the several legislatures, as soon as possible, to erect courts of justice, or give jurisdiction to the courts now in being, to determine concerning captures to be made. If the capture be made on open sea, the prosecution shall be in the court of such colony as the captor may find most convenient; provided, that nothing in this resolution, shall be construed so as to enable the captor to remove his prize from

any colony competent to determine concerning the seizure, after he shall have carried the vessel so seized, within any harbour of the same. That in all cases, an appeal shall be allowed to congress, or persons appointed by them. That when vessels are fitted out by private persons, the captures made shall be to the use of the owners.

December 5.

That in cases of recaptures, the recaptors shall retain for salvage, according to the time, &c.

March 23, 1776.

That all vessels and goods belonging to inhabitants of Great Britain, taken on the high seas, by armed vessels of private persons, and commissioned, being libelled and prosecuted in any court erected for trial of maritime affairs in any of the colonies, shall be deemed and adjudged to be lawful prize. Vessels and goods taken near the shores of a colony, by the people, or a detachment of the army, shall be deemed lawful prize, and condemned in the court of admiralty of that colony. Commissions to be obtained, and bonds to be given for observance of instructions from congress.

Instructions to the commanders of private vessels of war: "You shall bring such vessels, &c. as you shall take, to some convenient port of the united colonies, that proceedings may thereupon be had in due form, before the courts which are or shall be there appointed, to hear and determine causes civil and maritime. You shall bring one or two of the principal persons of the vessel, as soon as may be, to the judge of such court, to be examined, and deliver to the said judge all papers, &c. You shall keep and preserve every vessel, &c. by you taken, until they shall, by sentence of a court properly authorized, be adjudged lawful prize, not breaking bulk, nor suffering such a thing to be done."

Fourthly, By the maritime law of nations, the appropriation of jurisdiction to a particular court of admiralty depends upon

the capture being infra praesidia,* that law regarding proceedings in rem, the acquittal or condemnation of the ship or goods. It would be injurious to nations if it was otherwise; for it would cause competition of jurisdictions, and occasion frauds. The usual method is simple and fair.

Fifthly, The articles in the treaties of the United States with France, the United Netherlands, and Sweden, with relation to prizes, refer to the cases of prizes conducted into the ports of the contracting powers, relying on cautions against malversations and contraventions to be given by commanders of private vessels of war, rules and regulations for deciding the legality of prizes, and trials in courts of admiralty generally.

Sixthly, An authority to “establish rules for deciding in all cases, what captures on land or water shall be legal, and courts for receiving and determining finally, appeals in all cases of captures," as prize, brought infra praesidia of the United States, together with the other powers vested in congress, will sufficiently obviate the mischiefs apprehended from the irregularities of citizens of confederated America upon the high seas.

Foreigners are protected by the confederation, from the irregularities mentioned; for congress can "exclusively, appoint courts for the trial of piracies and felonies committed on the high seas," and can send out a naval force to cruise for and seize the offenders. If the respondent was a Frenchman, and the decree goes against him, he could not justly complain; for he instituted his suit in an American court. If the appellants were Frenchmen, and the decree goes against them, they could not justly complain, for they took without battle, by force and violence, from a friend and ally, that which in their sight, according to their own allegations and proofs, he had before fought for and captured, and afterwards voluntarily put themselves within the jurisdiction, precinct, and power of an American court. What are the sentiments of learned authors, treating of the law of nations, upon such an occasion?" Quae

*Blackst. 108.

Answer of the British court to the memorial delivered by order of the king of Prussia. Exposition des motifs, II. 12 Mod. 143.

ab hostibus capiuntur, statim capientium fiunt," which is to be understood when the battle is over. Voet, and many writers he refers to, maintain with great strength, "per solam occupationem dominium praedae hostibus acquiri." One argument used to prove it, is, that the instant the captor has got possession, no friend, fellow soldier, or ally can take it from him, because it would be a violation of his property." In either case, and in the strongest light in which the affair can be viewed, it is no more than a matter to be treated of between their sovereign and the United States.†

If it be said that congress should have a legal mode of making compensation, by rectifying improper decisions against foreigners, thereby to prevent disagreeable consequences, it is a doctrine that cannot be universally admitted, for reasons too plain to be insisted on. If it be confined to acts on the high seas, provision has been made by the confederation, in the cases where it was judged necessary. What the rulers of nations desire and stipulate for in treaties, as to transactions on the high seas, is, to secure their people from being plundered by the citizens or subjects of those with whom they treat. That great point being guarded, and it is guarded here, the danger of consequences from cases that rarely occur, complicated with a variety of circumstances and decided upon in open court, are not to be apprehended. When sovereigns are determined to quarrel, they will never want pretences; but while they revere the sacred obligations of justice and humanity, or the precious sentiments of the good and wise in their own and succeeding ages, they will not disturb the repose of the world by violating the law of nations, upon slight claims of their subjects, or " in re minime dubia." Neither can one of these states prey upon another, without violating the confederation, for by that "no vessel of war shall be kept up in time of peace by any state, except such number only, as shall be deemed ne

* Lord Mansfield, delivering the resolution of the court, in the case of Goss and another, against Withers.

Show. 232. Raym. 473.

cessary by the United States in congress assembled, for the defence of such state or its trade; nor shall any state engage in any war without their consent, unless invaded by enemies, or certainly advised of an intended invasion by Indians; nor grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the United States in congress assembled, and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, unless infested by pirates, and then only until the United States in congress assembled, shall determine otherwise." Besides, "all disputes and differences concerning any cause whatever, are determinable by courts to be established under the authority of congress."

Let us now inquire, whether the present case is such a cause of prize as is mentioned in the many cases that have been quoted by the counsel for the respondent.

In what circumstances is any of those cases like this? Does it appear from any of them, that the prize court in England, would decide such a case as this? Does it appear that the courts of Westminster-hall, in any action for such a trespass as this, would refuse to take cognisance, because the original taking was a capture as prize? Does it appear that they would refuse to take cognisance, under colour that the second taking was a capture as prize? If they should, ought any such decision to have weight with us in this case? What are the cases quoted? A justification by persons of original captures made by themselves, because made as prize. What is this case? A justification by persons of their conduct, after a capture made in battle, by others in their sight, under pretension of right, founded on that circumstance. If they say the second taking was an original capture as prize, their assertion is falsified by their own proofs, that they saw the capture made by others the day before. If they say their proceedings were united with the original capture as prize, by being in sight at the time, let them take care that their pretension of right is well founded.* If it

Comb. 367.