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THE The law of prize is part of the law of nations. In it, RAPID, a hostile character is attached to trade, independently of PERR ,

the character of the trader who pursues or directs it. MASTER. Condemnation to the use of the captor is equally the fate

of the property of the belligerent, and of the property found engaged in anti-neutral trade. But a citizen or ally may be engaged in a hostile trade, and thereby involve bis property in the fate of those in whose cause he embarks.

This liability of the property of a citizen to condemnation as prize of war, may be likewise accounted for under other considerations. Every thing that issues from a hostile country is, prima facie, the property of the enemy; and it is incumbent upon the claimant to support the negative of the proposition. But if the claimant be a citizen or an ally at the same time that he makes out his interest, he confesses the commission of an offence which, under a well known rule of the civil law, deprives him of his right to prosecute his claim.

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This doctrine, however, does not rest upon abstract reason. It is supported by the practice of the most enlightened (perhaps we may say of all) commercial nations. And it affords us full confidence in our decision, that we find, upon recurring to the records of the Court of appeals in prize cases established during the revolutionary war, that, in various cases, it was reasoned upon as the acknowledged law of that Court. Certain it is that it was the law of England before the revolution, and therefore constitutes a part of the admiralty and maritime jurisdiction conferred on this Court in pursuance of the constitution.

After taking this general view of the principal doctrine on this subject, we will consider the points made in behalf of the claimant in this case, and,

1. Whether this was a trading, in the eye of the prize law, such as will subject the property to capture ?

The force of the argument on this point, depends upon the terms made use of. If by trading, in prize law, was meant that signification of the term which consists in negotiation or contract, this case would certainly not come under the penalties of the rule. But the object, policy and spirit of the rule is to cut off all communication or actu

al locomotive intercourse between individuals of the bel THE ligerent states. Negotiation or contract has, therefore, RAPID, no necessary connexion with the offence.

Intercourse PERRY, inconsistent with actual hostility, is the offence against MASTER. which the operation of the rule is directed: and by substituting this definition for that of trading with an enemy, an answer is given to this argument.

2. Whether, on the breaking out of a war, the citizen has a right to remove to his own country with his property, is a question which we conceive does not arise in this case.

This claimant certainly had not a right to leave the United States for the purpose of bringing home his property from an enemy country; much less could he claim it as a right to bring into this country goods, the importation of which was expressly prohibited. As to the claim for the vessel, it is founded on no pretext whatever; for the undertaking, besides being in violation of two laws of the United States, was altogether voluntary and inexcusable. With regard to the importations from Great Britain about this time, it is well known that the forfeiture was released on grounds of policy and a supposed obligation induced by the assurances which had been held out by the Ameri. can charge d'affaires in England. But this claimant could allege no such excuse.

3. On the third point, we are of opinion that the fore going observations furnish a sufficient answer.

If the right to capture property thus offending, grows out of the state of war, it is enough to support the condemnation in this case, that the act of congress should produce a state of war, and that the commission of the privateer should authorize the capture of any property that shall assume the belligerent character.

Such a character we are of opinion this vessel and cargo took upon herself; or at least, she is deprived of the right to prove herself otherwise,

We are aware that there may exist considerable hardship in this case ; the owners, both of vessel and car. go, may have been unconscious that they were violating the duties which a state of war imposed upon them. It does not appear that they meant a daring violation eith.

THE er of the laws or belligerent rights of their country. RAP D, But it is the unenvied province of this Court to be diPERRY, rected by the head, and not the heart. In deciding upMASTER. on principles that must define the rights and duties of

the citizen and direct the future decisions of justice, no latitude is left for the exercise of feeling.

Friday, March 11th.

The claim of the United States was taken up.

Rusu, Attorney General.

The United States claim the property in question, as a for-feiture under the non-intercourse act of 1st March, 1809. This act was in force at the breaking out of the war, and still continued in force at the time of the capture of the Rapid.' The 6th section of the act declares the prohibited goods liable to forfeiture immediately on being shipped with intention of importing the same into the United States. The United States do not claim in any case but wliere the vessel was unquestionably bound and sailing to the United States, and when no force was necessary to bring her in. When such a vessel actually arrives in a port of the United States, the intent is not only evidenced, but carried into effect, and the offence is complete.

The arrival, in this case, must be taken as a voluntary coming into port. For as the Rapid was bound to the United States previous to the capture, the intervention of the privateer was immaterial, and cannot be considered as rendering the arrival involuntary. The commencement of the illegal act was at the time of the shipment, and was prior to any forfeiture under belligerent rights. The forfeiture under th non intercourse act, therefore, relates back to the inception of the offi-nce. The municipal law, we contend, abrogated the jus belli,

pro tanto.

It is true that, by the 14th section of the prize act of 26th June, 1812, (laws U. S. vol. 11, p. 238,) provision is maile for the importation of British goods captured from the enemy and made good and lawful prize of war; and it is admitted that such goods are forfeited anıl accrue to the captors; but the question recurs, what is

good and lawful prize of war? Not, we contend, Amer THE ican property in an American bottom coming to the RAPID, United States, as in the present case.

PERRY,

MASTER. By the 16th section of the same act, the act of 4th of April, 1812, laying an embargo, and the non-exportation act of the 14th of the same month, are repealed so far as they relate to ships and vessels having commissions or letters of marque and reprisal. It was equally necessary that there should be an express repeal of the non-intercourse act.

By the act of 20 January, 1813, (laws U. S. vol. 11, p. 311,) directing the secretary of the treasury to remit fines, forfeitures and penalties in certain cases, property shipped and departing from Great Britain between the 23d of June and 15th of September, and forfeited, under the non-intercourse acts, to the United States, is to be restored to the owners: no notice is taken of any claim of the captors. The plain inference is, that the legislature did not suppose that any claim existed on the part of the captors. The same inference may be drawn from the act of 27th February, 1813, (laws U. S. vol. 11. p. 388.)

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The sovereign is not to be deprived of his rights by implication. Where the rights of the sovereign clash with those of a private individual, the rights of the latter must yield to those of the former. 2 Crunch, 358. Fisher v. Blight.-Plowd. fo. 253. Hales 0. Petit. This last is a leading case on this point.

From the act of 13th July, 1813, (laws U. S. vol. 12, p. 14,) it is clearly to be inferred. that, previous to the passage of that act, the rights of the captors were considered as being merged in the forfeiture under the nonintercourse acts. The act of July has merely suspended the right of the United States.

PITMAN, contra, for the captors.

We do not claim adversely to the United States, but under the United States, as grantees. We were authorized by our commission to capture this vessel, and, upon capture, it was forfeited to us : condemnation, we

THE

contend, is not necessary to give us title: our title acRAPID, crued at the moment of capture. The United States PERRY, relinquished to us their right by the 4, 9 of the MASTER. prize act.

The non-intercourse act had reference solely to time

of peace.

The property in question could not be forfeited to the United States, merely by being put on board; for a municipal law can only have a municipal operation; it cannot operate extra-territorially ; it can have no effect upon goods in a foreign country, whether that country be hostile or neutral.

Again by the act of 1st March, 1809, 8, no persons are authorized to seize property for a violation of that act, except the officers particularly mentioned therein. Until, therefore, a seizure was made by some person so authorized, no forfeiture to the United States could attach: and if, as in the present case, a seizure had been made jure belli, no seizure under the municipal act could subsequently be made, until the first was determined. 1 Rob. 68, 81. The Mercurius.

The non-intercourse act was merged in the declaration of war, as it respected British subjects and American citizens : this property was therefore forfeited to the United States jure belli : they had a right to seize it jure belli : this right they have granted to us, and our title to the property we have captured must be tried jure belli. If this were a municipal seizure, and if the property were British, the British owner would have had a right to come into Court and assert his claim; but this he could not now do, being an alien enemy.

The 28 of the act of the 13th July, 1813, we consider, notwithstanding what has been said by the counsel for the United States, as acknowledging a previous right in the captors.

JONES, on the same side, considered,

1st. The law independent of the instructions of the president to privateers.

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