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Page:United States Reports, Volume 2.djvu/9

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Federal Court of Appeals.

1781.

rage and capture, ſupra altum mare, by his ſubjects of the "property of ſubjects of another nation, ſhall be an illegal and "piratical act, or an act of hoſtility: That the ſovereign is not obliged to promulge his will on the moment he makes war, and that as the human will has no phyſical exiſtence, it cannot be aſcertained but by a declaration of it by the ſovereign himſelf, and therefore non conſlat, but that the capture in the preſent caſe was authorized by the Britiſh crown, and ſo a fair act of hoſtility, authorized by the rights of war."

This argument is ingenious and plauſible, but not ſolid. As the ſtate of nature was a ſtate of peace, and not a ſtate of war, the nature ſtate of nations is a ſtate of peace and ſociety, and hence it is a maxim of the law of nations, founded on every principle of a reaſon, juſtice and morality, that one nation ought not to do an injury to another. As the natural ſtate (that of nations) is a ſtate of peace and benevolence, nations are morally bound to preſerve it. Peace and friendſhip muſt always be preſumed to ſubſiſt among nations; and therefore he who founds a claim upon the rights of war, muſt prove that the peace was broken by ſome national hoſtility, and war commence: but mere conjecture, ſuppoſition and poſſibility, can render no competent evidence of the fact. But it is ſaid there was a national hoſtility—viz. The capture by the Britiſh privateer; and the act of the "ſubject is the act of the ſovereign."

The act of the ſubject can never be the act of the ſovereign; unleſs the ſubject has been commiſſioned by the ſovereign to do it: But, in this caſe, there is no evidence that the commiſſion of the Britiſh privateer extended to property, under the circumſtances of the property captured.

But it is aſked "what private or public miſchief can be apprehended from conſidering property under the circumſtances of this caſe as prize: For, the wrong was committed by the Britiſh privateer, and therefore the Britiſh nation is chargeable with it, and bound to make compenſation."

We are inclined to think, that were the claimants to apply to the Britiſh crown for compenſation, they would be told that altho' ſatisſaction were done, yet it would be in proportion only to the wrong done by the Britiſh privateer, which conſiſted only in the ſeizure and detention. But if compenſation was expected for ſhip and cargo, they muſt look to that nation for it, whoſe ſubjects reaped the fruits of it."

But, 'tis alledged, that "the late ordinance of Congreſs is expreſ and decided, that after a capture and occupation for twenty-four hours the property captured ſhall be prize."

The ordinance of Congreſs certainly ſpeaks of a legal capture; to admit a different conſtruction would be a violence both to the
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