APPEAL from the circuit court for the district of Georgia. This was an enemy's vessel, captured by the privateer Ultor, in sight of Surinam, on the 17th of May, 1813; and on the 13th of June, 1813, recaptured by an enemy's vessel of war, about two leagues from the coast of Georgia, and, on the same day, recaptured by the privateer Midas, and brought into the port of Savannah, for adjudication. The prize was adjudged to the last captors, by the decree of the court below, from which the first captors appealed to this court.
Charleton, for the appellants, contended, that the prize interest vested in the first captors. He argued, that the opinions of eminent civilians, and the practice of the continental nations of Europe, ought to prevail, rather than the decisions of the British courts of prize; which last are founded on reasons of commercial and naval policy, peculiar to England. Sir William Scott himself admitted, that there is no general rule,a but adopted the rule of condemnation, as most convenient for his own country; because, by protracting the period for the devesture of British interests, it places the property of British subjects upon a better and more secure footing than the rule adopted by any other nation. It gives a wider range to the jus postliminii, and enlarges the probability of recapture; a probability, which is converted almost into a certainty, by the maritime strength of Great Britain. Other nations, not having the same means of giving protection and security to captures, have adopted rules requiring a less firm and shorter possession, in order to devest the property. These rules are, 1st. That of immediate possession. 2d. That of pernoctation and twenty-four hours possession. 3d. The bringing infra proesidia.b The first is held sufficient by Azuni;c and though his own opinion is entitled to but little weight, it deserves consideration how far he is supported by authorities. It is the maxim of the civil law, that things taken from the enemy immediately become the property of the captors. Quoe ex hostibus capientur STATIM capientium funt. Grotius and Vattel are guilty of great inconsistencies in expounding the rule in question. Burlamaqui is clear and explicit, that mere possession immediately vests a title.d Bynkershoek does not require a sentence of condemnation
Harper, contra, was stopped by the court.
March 4th.
MARSHALL, Ch. J.
An interest acquired by possession, devested by the loss of possession from the very nature of a title acquired in war. The law of
Sentence of the circuit court affirmed.
Notes edit
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