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much ability and learning, for the light which they have BROWN thrown upon a path so intricate and obscure. I have given these questions as much consideration as the state U.STATES. of my health and the brevity of time would allow; and I shall now give them a distinct and separate discussion, that I may at least disclose the sources of my errors, if any, and enable those who unite higher powers of discernment with more extensive knowledge, to give a more exact and just opinion.

And first... As to the jurisdiction of this Court in matters of prize.


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This depends partly on the prize act of 26th June, 1812, ch. 107, 86, and partly on the true extent and meaning of the admiralty and maritime jurisdiction conferred on the Courts of the United States. The act of 26th June, 1812, ch. 107, provides that in all cases of captured vessels, goods and effects which shall be brought within the jurisdiction of the United States, the district Court shall ha've exclusive original cognizance thereof, as in civil causes of admiralty and maritime jurisdiction. The act of 18th June, 1812, ch. 102, declaring war, authorizes the president to issue letters of marque and reprisal to private armed ships against the vessels, goods and eff cts of the British government and its subjects; and to use the whole land and naval force of the United States to carry the war into eff-ct. In neither of these acts is there any limitation as to the places where captures may be made on the land or on the seas; and, of course, it would seem that the right of the Courts to adjudicate respecting captures would be co-extensive with such captures, wherever made, unless the jurisdiction conferred is manifestiy confined by the former act te captures made by private armed vessels. It is not, however, necessary closely to sift this point, as it may now be considered as settled law, that the Courts of the United States, under the judicial act of 30th September, 1789, ch. 20, have, by the delegation of all civil causes of admiralty and maritime jurisdiction, at least as full jurisdiction of all causes of prize as the admiralty in England. Glass and al. v. the sloop Betsey and al. 3 Dall. 6. Talbot v. Janson, 3 Dall. 133. Penhallow and al. v, Doane's administrators. 3 Dall. 54 Jennings v. Carson, 4 Cranch, 2. Over what captures, YOL. VIII.


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BROWN then, has the admiralty jurisdiction as a prize Court?

This is a question of considerable intricacy, and has not U.STATES, as yet, to my knowledge, been fully settled. It has

been doubted whether the admiralty has an inherent jurisdiction of prize, or obtains it by virtue of the commission usually issued on the breaking out of war. That the exercise of the jurisdiction is of very high antiquity and beyond the time of memory, seems to be incontestible. It is found recognized in various articles of the black book of the admiralty, in public treaties and proclamations of a very early date, and in the most venerable relics of ancient jurisprudence. See Robb. Coll. Marit. Intro. p. 6,7. Id. Instructions, 3 H. 8, p. 10, art. 18, fc. lii. p. 12, note letter. Edw. 3, A. D. 1343. Treaty Henry 7 and Charles 8, s. 1), 1497. Rob. "Coll. Marit. p. 83 und p. 98, art. 8. Rob. Coll. Mar. p. 189, note. Roughton, art. 19, 20, &c. fc. passim. In Lindo v. Rodney, Doug. 613, ote, Lord Mansfield, in discussing the subject, admits the immemorial antiquity of the prize jurisdiction of the admiralty ; but leaves it uncertain whether it was coeval with the instance jurisdiction, and whether it is constituted by special commission, or only called into excrcise thereby. After the doubts of so eminent a judge, it would not become me to express a decided opinion. But taking the fact that, in the earliest times, the jurisdiction is found in the possession of the admiralty, independent of any known special commission; that, in other countries, and especially in France, upon whose ancient prize ordinances the administration of prize law seems, in a great measure, to have been modelled, ( Vide Ordin. of France, A.D. 1400, Rob. Coll. Marit. p. 75. Ordin. of France, A. D. 1584. Id. p. 105.

Id. p. 105. Treaty Henry 7 and Charles 8. Id. p. 83, and Rob. note, H. 105) the jurisdiction has uniformly belonged to the admiralty; there seems very strong reason to presume that it always constituted an ordinary and not an extraordinary branch of the admiralty powers : and so I apprehend it was con sidered by the Supreme Court of the United States, in Glass and al. v. the Betsey, 3 Dall. 6.

However this question may be, as to the right of the admiralty to take cognizance of mere captures made on the land, exclusively by land forces, as to which I give no opinion, it is very clear that its jurisdiction is not


confined to mere captures at sea. The prize jurisdiction does not depend upon locality, but upon the subject matter. The words of the prize commission contain, U.STATES. authority to proceed upon all and all manner of captures, seizures, prizes and reprisals of all ships and goods that are and shall be taken. The admiralty, therefore, not only takes cognizance of all captures made at sea, in creeks, havens and rivers, but also of all captures made on land, where the same have been made by a naval force, or by co-operation with a naval force. This exercise of jurisdiction is settled by the most solemn adjudications. Key and Hubbard v. Pearse, cited in Le Caux v. Eden, Doug. 606. Lindo v. Rodney, Doug. 613, note. The capture of the Cape of Good Hope, 2 Rob. 274. The Stella del Norte, 5 Rob. 349. The island of Trinidad, 5 Rob. 92. Thorshaven, 1 Edw. 102. The capture of Chrinsurah, 1 Deten. 179. The Rebeckal, 1 Rob. 227. The Gertruyda, 2 Rob. 211. The Maria Francoise, 6 Rob. 282.

Such, then, being the acknowledged extent of the prize jurisdiction of the admiralty, it is, at least in as ample an extent, conferred on the Courts of the United States. For the determination, therefore, of the case before the Court, it is not necessary to claim a more ample jurisdiction; for the capture or seizure, though made in port, was made while the property was waterborne. Had it been landed and remained on land, it would have deserved consideration whether it could have been proceeded against as prize, under the admiralty jurisdiction, or whether, if liable to seizure and condemnation in our Courts, the remedy ought not to have been pursued by a process applicable to municipal .confiscations. On these points I give no opinion. See the case of the Oester Eems cited in the Two Friends, 1 Rob. 284, note. Hale de Portubus Maris, &c. in Harg. Law tracts, ch. 28, p. 245, 8c. Parker Rep. 267.

Having disposed of the question as to the jurisdiction of this Court, I come to one of a more general nature; viz. Whether, by the modern law of nations, the sovereign has a right to confiscate the debts due to his enemy, or the goods of his enemy found within his territory at the commencement of the war. I might spare myself the consideration of the question as to debts; but, as it

B'ROWN has been ably argued, I will submit some views respect

ing it, because they will illustrate and confirm the docU.STATES. trine applicable to goods. It seems conceded, and in

deed is quite too clear for argument, that, in former times,
the right to confiscate debts was admitted as a doctrine
of national law. It had the countenance of the civil law.
(Dig. lib. 41. tit. 1.-id. lib. 49, tit. 15.)-of Grotius, (De
jure belli et pacis, lib. 3, ch. 2, 82, ch. 6. § 2 ch. 7. 3 and
4, ch. 13, § 1, 2.)—of Puffendorf, (De jure Nat. et Nat.
lib. 8, ch. 6, § 23,)--and lastly of Bynkershoek; (Quæst,
Pub. Juris, lib. 1, ch. 7,) who is himself of the highest
authority, and pronounces his opinion in the most expli-
cit manner. Down to the year 1737, it may be consid-
ered as the opinion of jurists that the right was unques-
tionable. It is, then, incumbent on those who assume a
different doctrine, to prove that, since that period, it
has by the general consent of nations, become incorpo-
rated into the code of public law. I take upon me to say
that no jurist of reputation can be found who has denied
the right oi' confiscation of enemies debts. l'attel has
been supposed to be the most favorable to the new doc-
trine. He certainly does not deny the right to confis-
cate; and if he may be thought to hesitate in admitting
it, nothing more can be gathered from it than that he
considers that, in the present times, a relaxation of the
rigor of the law has been in practice among the sove-
reigns of Eyroje. Vattel, lib. 3, ch. 5, \ 77. Surely a
relaxation of the law in practice cannot be admitted to
constitute an abolition in principle, when the principle is
asserted, as late as 1737, by Bynkershoek, and the re-
laxation shewn by Vattel in 1775. In another place,
howrver, Vattel, speaking on the subject of reprisals,
admits the right to seize the property of the nation or
its subjects by way of reprisal, and, if war ensues, to
confiscate the property so seized. The only exception
he makrs, is of property which has been deposited in the
hands of the nation, and intrusted to the public faith ; as
is the case of property in the public funds. Vattel, lib.
2, ch. 18, 342, 343, 344. The very exception evinces
pretty strongly the opinion of Vattel as to the general
rule. Of the character of Vattel as a jurist, I shall not
undertake to express an opinion. That he has great
merit is conceded; though a learned civilian, sir James
Mac Intosh, informs us that he has fallen into great mis-
takes in important practical discussions of public law."

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Discourse on the law of nations, p. 32, note. But if he is BROWN singly to be opposed to the weight of Grotius and Puffendorf, and, above all, Bynkershoek, it will be difficult for U:STATES. him to sustain so unequal a contest.

I have been pressed with the opinion of a very distinguished writer of our own country on this subject.-Camillus, No. 18 to 23, on the British treaty of 1794. I admit, in the fullest manner, the great merit of the argument which he has adduced against the confiscation of private debts due to cnemy subjects. Looking to the measure not as of strict right, but as of sound policy and national honor, I have no hesitation to say that the argument is unanswerable. Н.

li proves incontrovertibly what the highest interest of nations dictates with a view to permanent policy : but I have not been able to perceive the proofs by which he overthrows the ancient principle. In respect to the opi. nion of Grotius, quoted by him in No. 20, as indicating a doubt by Grotius of his own principles, I cannot help thinking that the learned writer has himself fallen into a mistake. Grotius, in the place referred to, lib. 3, ch. 20, § 16, is not adverting to the right of confiscation, but merely to the general results, of a treaty of peace. He says (f 15,) that, after a peace, no action lies for damages done in the war; but ($ 16,) that debts due before the war are not, by the mere operations of the war, released, but remain suspended during the war, and the right to recover them revives at the peace. It is impossible to doubt the meaning of Grotius, when the preceding and succeeding sections are taken in connexion. Grotius, therefore, is not inconsistent with himself, nor is «Bynkershoek more inconsistent;" for the latter explicitly avows the same doctrine, but considers it inapplicable to debts confiscated during the war; for these are completely extinguished. Bynk. Quæst. Pub. Juris, ch. 7.

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It is supposed by the same learned writer, that the principle of confiscating debts had been abandoned for more than a century. That the practice was intermitted, is certainly no very clear proof of an abandonment of the principle. Motives of policy and the general interests of commerce may combine to induce a nation not to inforce its strict rights, but it ought not therefore to be construed to release them. It may, however, be well doubted if the practice is quite so uniform as it is suppo.

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