Open main menu

Page:United States Reports, Volume 2.djvu/10

This page has been validated.
4
Cases ruled and decreed in the

1781.

terms and ſpirit, or intention, of it. Prize is generally uſed as a technical term to expreſs a legal captures; and Congreſs having adopted it in ſraming of the ordinance, the general ſenſe or acceptation of it muſt determine its import and ſigniſication. But ſuppoſe the term prize merely imported a capture, without any reference to its legality, and that it was the ſpirit and intention of the ordinance to ſubject to prize all captures, both legal and illegal, after twenty-four hours; it does not follow that it would affect the preſent caſe. The municipal laws of a country cannot change the law of nations, ſo as to bind the ſubjects of another nation; and by the law of nations a neutral ſubject, whoſe property has been illegal captured; may purſue and recover that property in whatever country it is found, unleſs a competent juriſdiction has adjudged it prize. The municipal laws of a country can only bind its own ſubjects.

The ordinance of Congreſ is in truth a new regulation of the jus poſt liminii, and limits it to a recapture within twenty-four hours, and therefore can only relate to the ſubjects of the United States: it adopts the ordinance of France, and that ordinance relates only to the ſubjects of France. In both caſes, which regard to the owner, a ſubject, the property captured is not paſſed away before the expiration of twenty-four hours. But put the caſe of a capture and the ſale of it before twenty-four hours to a neutral ſubject; the ſale is certainly good and concluſive upon the owner; for the queſtion muſt be decided by the law of nations, and by the law of nations, the property capture is transferred to the captor as ſoon as it is taken.

Both the ordinances therefore of Congreſs and of France, in our opinion, relate only to property captured form a ſubject and recaptured; and not to property captured from a netural and recaptured. It is ſaid., "that arguments drawn from the law of nations with regard to Pirates, do not apply to the preſent caſe, becauſe pirates have not the rights of war."

If the principal fact was properly attended to, the preſent caſ could be queſtioned. Whence is it that pirates have not the rights of war? Is it not becauſe, they act without authority and commiſſion from their ſovereign? And is it not objected and proved, that the Britiſh privateer, with regard to the property captured, acted without commiſſion and authority from the Britiſh crown? So far from there being any diſſimilarity in the caſes, it is in fact the very caſe in judgment, conſidering it on the firſt ground of argument.

But, it is alledged, "that the capture by the Britiſh privateer muſt be conſidered as legal: For, after a capture and occupation for twenty-four hours, the legality of the capture is not open for queſtion and examination."

This