court could interfere to devest the captor of his | possession? It must be recollected that such an attempt would draw to this court, the jurisdiction of a question which it is the acknowledged right of the belligerent to have decided by his own tribunals. Therefore, in the case of a neutral captured on a charge of a breach of neutrality, the jus postliminii can only attach in case of rescue or recapture, and his nation cannot interfere to restore him that possession which he has lost by the capture, without becoming a party in the contest; she regards the individual and capturing power as belligerents, between whom she is bound equally to observe the laws of neutrality, and particularly to consider possession as the criterion of right, at least while the cause of capture is in its progress to adjudication. It will be perceived how large a portion of the argument went to justify and condemn the trade in which this vessel was engaged; the one side contending that the hibellants had committed no act for which she was liable to condemnation; the other, that they had a question which is exclusively cognizable in the courts of the capturing power, but which this court would be compelled to decide upon if the libel be sustained upon a claim interposed on behalf of the captors, or, even. I conceive, of their vendee, unless there were reason to contend that the vessel was piratically captured.

At the same time I heartily concur in the opinion, that as far as between neutrals, at least, a sentence of condemnation is indispensably necessary to produce a complete devesture of property, and unless the neutral property captured be put in a train for legal adjudication, I should think a nation at liberty to seize it as being piratically taken; for the capturing power is bound to satisfy the neutral nation that she had a legal right to attack her citizen; and it will be found, upon reflection, that this cannot be satisfactorily done in any other mode 516*] than by a decree of her tribunals of justice. Much has been said about the different rules adopted by European nations respecting the devesture of property. These rules were universally adopted by the respective nations to regulate the claims of their own citizens in questions of salvage and restitution. In case of alliances in war, each nation extended to its ally the benefit of a rule which ascertained the rights of her own citizens. And the correctness of these rules was mere matter of speculation, in no wise affecting the interest of neutrals, until Great Britain thought proper, in the last war, to exact a salvage on the recapture of neutral property. There appears to me to remain but two of the points made by counsel. on which it may be necessary for me to remark.

1st. How far the sentence of condemnation would affect the property after the sale.

2d. Whether the whole transaction was not inconsistent with the treaty subsisting between the two nations, and, therefore, producing no change of property.

1st. In the case of Sheafe and Turner v. A parcel of Sugars, decided in the district court of this district in the year 1800, in favor of the purchasers, and affirmed on appeal to the circuit court, the property captured was carried into the Havanna and libelled and condemned

by a French court sitting at the Cape. The sale also took place prior to the condemnation. It was, indeed, asserted in that case, as it was in this, that the sale was made with the consent of the captain, but there was no evidence to prove it. In two important features, these cases are parallel, and I might rest my opinion on this point, on precedent alone; but it affords me more satisfaction to be able also to decide on principle. As the sale was not made by order of a competent tribunal, and was made by the captors at a time when their rights were not consummated by a judicial decision, the claimant in this case could have acquired no more than an inchoate right, subject to be confirmed or defeated by the event of the decision of the court to which the cause was preferred; that is, he acquired no more interest than what was possessed by the captor from whom he purchased. Had the decision been against the captors, with the evidence now before me. I should not hesitate to decide in favor of restitution; but when once the decree of condemnation was passed, the government of France has made the act of capture its own, and all questions of individual interest are at an end.

The whole of the argument founded on the violation of the treaty, is subject to the general objection, that it leads to a revision of a decree of a foreign tribunal.

The French courts are bound by the convention with France, and it is to be presumed, that they bear it in mind in their decisions. They possess the same power in construing its meaning and effect that we do, and though influenced by an erroneous opinion, that would not, of itself, vitiate their decrees. With regard to the ground of the argument drawn from the 12th article, to wit, that Port de Paix is the port *of an enemy of France, and, [*517 therefore, a trade with it is sanctioned by that article, I think is totally incorrect in point of fact. France has not yet relinquished the contest, and until she does, I think that all the ports of the island are still ports of France, and that she possesses the right to exclude all the world from a commerce with them, and to fix the penalty for a breach of such exclusion. There is a peculiarity in the unhappy conflict raging in that devoted island, which should make us hesitate in applying to it the general rules of war between independent nations. Great Britain, deeply interested as she is in embarrassing and distressing her enemy, has not ventured to apply the general laws of war to this newly erected empire. On the contrary, she condemns our vessels carrying contraband of war to the brigand ports, as if carrying to the ports of her enemy, although, in fact, it is carrying them to the most inveterate enemy of her rival. As the 20th article relates only to the case of a capture for carrying contraband of war to an enemy's port, I shall pass it over without any observations, and shall close with a few remarks on the 22d article, the last noticed in the argument.

The first clause of this article, and the only one relating to this case, is in the following words: "It is further agreed, that in all cases, the established courts for prize causes in the country to which prizes may be conducted, shall take cognizance of them," &c. It strikes me, upon an attentive consideration of this article,

that the only object of it was a recognition of, the established doctrine, that the courts of the capturing power shall judge of the legality of capture, and to add the very necessary provision that the reasons of condemnation shall be in all cases expressed in their decrees. But certainly the words literally taken, will produce the inference contended for by counsel, to wit, that vessels captured from our citizens by France, cannot be condemned, except in a French port, for it would be absurd to suppose that it was intended to give jurisdiction to the courts of any neutral or ally, into whose ports such prizes might be carried. If this were a just construction of the article alluded to, it would only follow, that a violation of the treaty had been committed, for which France is bound to make atonement, and that the court of admiralty of Santo Domingo was incorrect in proceeding to adjudicate a vessel not lying in their own port. But I conceive that the validity of the decree will still remain unshaken as to the change of property.

this defense, or, indeed, any other in a court that was open to his claims. But there is a liberality and candor necessary in the construction of treaties which would make me reject the one here contended for, were it necessary to decide upon it. I could never be induced to think that a point of such importance would be left to mere inference, by the able men who negotiated that treaty, when it could have been so easily expressed, in a single unequivocal sentence. Nor do I think the interest of the neutral would be promoted by a construction which would subject the fair trader to the [*518 melancholy inconvenience of being detained in some distant port, until he could be safely conveyed to that of the captor for adjudication, or be exposed, perhaps, to the perils of the ocean during some tedious voyage for the same purpose.

Upon the whole, I am of opinion that the de crees in these cases should be reversed, and the libels be dismissed. But as the claimant purchased before condemnation, and the libellant had a fair claim to this investigation, I am of opinion that each party should pay his own

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