(PRIZE.)

#### The Astrea.

Ap enemy's vessel was captured by a privateer, recaptured by another enemy’s vessel, and again recaptured by another privateer, and brought in for adjudication. It was held that the prize vested in‘the last captor.- An interest acquired in War, by possession, is .devested by the loss of possession.

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 J*7th of May, 18Í3 *;*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 *126general rule,a but adopted the rule, of condemnaration, 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 pernoctátibn and twenty-four hours possession. 3d. The bringing *infra prcesidia.*
      *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 tiie property of the captors. *Quce ex hostibus copien-, tur*státim *capientiumfiunt.*Grotius. and Yattel are guilty of great inconsistencies in expounding the rule in question. Burlamaqui is clear 'and explicit, that mere'possession immediátely vests a title.d Bynkershoek does not require a sentence of condemnation *127and he enumerates “ fleets” among *the pmsidia,*um> der' the protection of which the thing taken may be considered as safe *;*
      *e*
      *so*that a bringing into the territorial limits is not indispensable, because the fleet into which the captor brings his prize may be remote from the coasts of his country. It results, then, that the loss of the *spes recuperandi*is the true' foundation of the rule established by *jurists:*it is this which consummates the title of the captors, and destroys, the *jus postliminii*of the law of nations; it is the municipal code of England alone which requires a sentence of condemnation to perfect the title. 2. But, supposing the *jus postliminii*still to continue, it is a right to be asserted by the subjects of the- state from whom the property has been captured. But is it competent for one citizen of the belligerant state to devest another of the incipient inchoate title he had acquired by the first capture ? The recapture by the enemy might, indeed, enable the original owner to reclaim his property; if a sentence of condemnation be necessary, it might affect the title of a neutral purchaser; but the *jus postliminii*can have no operation as between the first and second captors.

Harper, contra,

was stopped by the court.

**1 *Rob.*50. The Santa Cruz.

*Wheaton on*Captures, c. 8. s. 14, 15. 17, 18.

*2 Azuni,*236.

*Burlam. Nat. and Pol.*Law, 222.

*Bynk. Q. J. Pub.*c. 3. p. 29. of Du Ponceau’s Translation

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 *128our own country, ag to salvage, settles the question, and the case of the Adventuref is directly in. point and conclusive.

Sentence of the circuit court affirmed.

**February Term,1814. — This was the case of a British ship captured by two French frigates, and, after a part of the cargo was taken] out, presented to the libellants in the cause, citizens of the United- States, (then neutral,) whose vessel the frigates had before taken and burnt; by whom she was navigated into a port of this country, and, pending the suit instituted by them, War was declared between the United States and Great Britain. A question arose, whether this was a case of salvage? . Mr. J. Johnson, by whom the opinion of the court was delivered, stated, that *“*the fact of the gift was established by a writing under the hand of the commander of the squadron of rigates, in these words, *Je ¿tonne au capilaine,*&c., in the language of an unqualified donation, *inter vivos.*In this case, the most natural mode of acquiring a definite • idea of the rights'of the 'parties in the subject matter, will be, to follow it through the successive chaug.es of circumstances, by which the nature and extent of those rights were affected : — -the capture, the donation, the arrival in the neutral country, and the subsequent ftate of war. As be* tweqn belligerants, Capture un-i dqubtedly produces a complete devest'ure of .property. ' Nothing remains to the original proprietor but a mere *scintilla juris,*the *spes recuperandi.*The modern and enlightened practice of. nations has subjected all such captures to the scrutiny of judicial tribunals, as the only practical means of furnishing documentary evidence to accompany vessels that have been captured, for the purpose of proving, that the seizure was the act of sovereign authority, and not of mere individual outrage. In the case of a purchase made by a neutral, Great Britain demands the production of such documentary evidence, issuing from a court of competent authority, or will dispossess the purchaser of a Ship .originally British. 1. *Rob.*135. The Fiad Oyen. Uponthedonation, therefore, whatever right might, in the abstract,- have existed in the captor, the donee could acquire no more than what was Consistent with his neutral character to fake. ,He could be in no better situation than a prize master, navigating the prize in pursuance of orders from his com*129mander. The vessel remained liable to British recapture on the ■whole voyage: ■ and on her arrival in a neutral territory, the donee sunk into a mere bailee for the British claimant, with those rights over tile thing in possession which ,the municipal'law (civil and common) gives'fpr care' and' labour bestowed upon it. The question then recurs, is this a case of salvage? Oh; the negative of the proposition it was contended, that it is a case of forfeiture under the municipal law, and, therefore, pot a case of salvage, as against the United States; that it was an uiiy neutral act to assist the French belligerant in bringing the vessel *infra, pdmsidia,*or into any situation where the rights of capture would cease ; and, therefore, not a case of salvage as against the British claimant. But, the court entertains an opinion unfavourable to both those objections. This could not have been a case within the view of the legislature when passing the non-importation act of March, 1809. The ship was the plank on which the shipwrecked mariners reached the shore; b.ut to have cast into the sea the cargo, the property of a belligerant, would have been to do him an injury, by taking away the chance .of recovery, subject to which-•they took it into their possession. Besides, bringing it into the United States does not necessarily presuppose a violation of the nod-importation laws. If it came within the description of property cast casually on our shores, as the court is-of opinion it did, legal provision existed for disposing of it, in such a manner as would comport with -the policy of those laws. At last, they could but deliver it Up to the hands of the government, to be ire-shipped by-the British claimants, or otherwise appropriated under the sanction of judicial process. And such was the' course that they pursued. Far-from attempting any violation of the laws of the country, upon theiivarrival they delivered it up to -the custody of the laws,' and , left it .ttf be disposed of under judicial authority. The case has no feature of illegal importation, and cannot possibly have imputed to it the violation of municipal law. As to the question arising on the interest of the British claimants, •it will, at this time, (war having supervened,) be a sufficient answer, that they who have no rights in this court cannot urge a violation of their rights against the libellants. But there is still a much more satisfactory answer. To have attempted to carry the vessel *infra prmsidia*-of the enemy, would, unless it could have been excused on the ground of necessity, have been an unneutral act. But where every exertion is made-to bring it into a place of safety, in which the original *right, of*the captured would be revived, and might be asserted, instead of aiding his enemy, it is doing an act exclusively resulting to the benefit of the British claimant.'’ A sal *130*age of one half whs allowed by the court, andas to the residue, it was determined that it must stand on the same footing with other property found within the territory at the declaration of war, and might be claimed upon the termination of war, unless, previously epnfiscated by the sovereign power. The court, therefore, made such order respecting it as would preserve it, subject to the will of the court, to. be disposed .of as future circumstances, might render proper,