TALBOT

V.

SEEMAN.

liable to capture, it is lawful to take her, and fubject her to the examination and adjudication of the courts.

The Amelia was an armed veffel commanded and manned by Frenchmen. It does not appear that there was evidence on board to ascertain her character. It is not then to be questioned, but that there was probable cause to bring her in for adjudication.

The re-capture then was lawful.

But it has been infifted that this re-capture was only lawful in confequence of the doubtful character of the Amelia, and that no right of salvage can accrue from an act which was founded in mistake, and which is only juftified by the difficulty of avoiding error, arifing from the doubtful circumftances of the cafe.

The opinion of the court is, that had the character of the Amelia been completely afcertained by capt. Talbot, yet as she was an armed veffel under French authority, and in a condition to annoy the American commerce, it was his duty to render her incapable of mifchief.-To have taken out the arms of the crew, was as little authorized by the construction of the act of congrefs contended for by the claimants, as to have taken possession of the veffel herself.

It has, I believe, been practifed in the course of the prefent war, and if not, is certainly very practicable, to man a prize and cruise with her for a confiderable time without fending her in for condemnation. The property of fuch veffel would not, ftrictly speaking, be changed fo as to become a French veffel, and yet it would probably have been a great departure from the real intent of congrefs, to have permitted fuch veffel to cruise unmolefted. An armed fhip under thefe circumftances might have attacked one of the public veffels of the United States. The acts which have been recited exprefsly authorise the capture of such veffel fo commencing hoftilities, by a private armed fhip, but not by one belonging to the public. To fuppofe that a capture would in one cafe be lawful, and in the other unlawful; or to fuppofe that even in the limited state of hoftilities in which we were placed, two

veffels armed and manned by the enemy, and equally TALBOT cruizing on American commerce, might the one be law- v. fully captured, while the other, though an actual affailant, SEEMAN. could not, or if captured, that the act could only be justified from the probable caufe of capture furnished by appearances; would be to attribute a capriciousness to our legislation on the fubject of war, which can only be proper when inevitable.

There must then be incidents growing out of those acts of hoftility specifically authorised, which a fair conftruction of the acts will authorize likewife.

If by the laws of congrefs on this fubject, that body shall appear to have legiflated upon a perfect conviction that the state of war in which this country was placed, was such as to authorize re-captures generally from the enemy; if one part of the fyftem fhall be manifeftly founded on this construction of the other part, it would have confiderable weight in rendering certain what might before have been doubtful.

Upon a critical investigation of the acts of congrefs it will appear, that the right of re-capture is exprefsly given in no fingle inftance, but that of a veffel or goods belonging to a citizen of the United States.

It will also appear that the quantum of salvage is regulated, as if the right to it exifted previous to the regulation.

Although no right of re-capture is given in terms for the veffels and goods belonging to persons refiding within the United States not being citizens, yet an act, paffed fo early as the 28th of June 1798, declares, that veffels and goods of this description, when re-captured, shall be restored on paying falvage; thereby plainly indicating that fuch re-capture was fufficiently warranted by law to be the foundation of a claim for falvage.

If the re-capture of veffels of one description, not exprefsly authorized by the very terms of the act of congrefs E

TALBOT

be yet a rightful act, recognized by congrefs as the foun dation for a claim to falvage, which claim congress proSEEMAN. ceeds to regulate, then it would feem that othere-cap

บ.

tures from the fame enemy are equally rightful; and where the claim they afford for falvage has not ben regulated by congrefs, fuch claim must be determined by the principles of general law.

In this fituation remained the re-captured veffels of any other power alfo at war with France, until the act of the 2d of March, 1799, which regulates the falvage demandable from them. Neither by that act, nor by any previous act, was a power given in terms, to re-capture fuch veffels. But their re-capture was an incident which unavoidably grew out of the ftate of the war. On the capture of a French veffel, having with her as a prize, the vessel of fuch a power, the prize was inevitably re-captured. On the idea that the re-capture was lawful and that it was a foundation on which the right to salvage could stand, the legiflature in March 1799, declare what the amount of that falvage fhould be.

The expreffion of this act is by no means explicit. If it extends to neutrals then it governs in this cafe; if otherwife, the law refpecting them continued ftill longer on the fame ground with the law refpecting a belligerent, prior to the paffage of the act of the 2d of March, 1799. Thus it continued until the 3d of March 1800, when the legiflature regulated the falvage to be paid by neutrals, re-captured from a power against which the United States have authorized defence or reprisals.

This act having paffed fubfequent to the re-capture of the Amelia, can certainly not affect that cafe as to the quantity of falvage, or give a right to falvage which did not exist before. But it manifefts, in like manner with the laws already commented on, the fyftem which congrefs confidered itself as having established. This act was paffed at a time when no additional hoftility against France could have been contemplated. It was only defigned to keep up the defenfive fyftem which had before been formed, and which it was deemed neceffary to continue, till the negotiation then pending should have a pacific termination. Accordingly there is no expression in the act ex

tending the power of re-capture, or giving it in the case of neutrals. This power is fuppofed to exist as an incident growing out of the ftate of war, and the right to salvage produced by that power is regulated in the act.

In cafe of a re-capture fubfequent to the act, no doubt could be entertained, but that falvage, according to its terms, would be demândable. Yet there is not a fyllable in it which would warrant an idea that the right of recapture was extended by it, or did not exist before.

It must then have exifted from the paffage of the laws, which commenced a general refiftance to the aggreffions we had fo long experienced and submitted to.

It is not unworthy of notice that the first regulation of the right of falvage in the cafe of a re-capture, not exprefsly enumerated among the specified acts of hoftility warranted by the law, is to be found in one of those acts which constitute a part of the very fyftem of defence determined on by congrefs, and is the first which subjects to condemnation the prizes made by our public fhips of

war.

It has not escaped the confideration of the court that a legislative act, founded on a mistaken opinion of what was law, does not change the actual state of the law as to pre-existing cafes.

This principle is not shaken by the opinion now given. The court goes no further than to use the provisions in one of several acts forming a general fyftem, as explanatory of other parts of the fame fyftem; and this appears to be in obedience to the best established rules of expofition, and to be neceffary to a found conftruction of the law.

An objection was made to the claim of falvage by one of the counsel for the defendant in error, unconnected with the acts of congrefs, and which it is proper here to notice.

He states that to give title to falvage the means used must not only have produced the benefit, but must have

TALBOT

V.

SEEMAN.

TALBOT been used with that fole view. For this he cites Beawes lex mercatoria 158.

SEEMAN.

The principle is applied by Beawes to the fingle cafe of a vessel saved at fea by throwing overboard a part of her cargo. In that cafe the principle is unquestionably correct, and in the case of a re-capture it is as unquestionably incorrect. The re-captor is feldom actuated by the fole view of faving the veffel, and in no cafe of the fort has the enquiry ever been made.

It is then the opinion of the court on a confideration of the acts of congrefs, and of the circumftances of the cafe, that the re-capture of the Amelia was lawful, and that, if the claim to falvage be in other refpects well founded, there is nothing to defeat it in the character of the original taking.

It becomes then neceffary to enquire

2d. Whether there has been fuch a meritorious fervice rendered to the re-captured as entitles the re-captor to falvage.

The Amelia was a neutral fhip, captured by a French cruizer, and re-captured while on her way to a French port, to be adjudged according to the laws of war.

It is ftated to be the fettled doctrine of the law of nations, that a neutral veffel captured by a belligerent is to be discharged without paying falvage: and for this several authorities have been quoted, and many more might certainly be cited. That fuch has been a general rule is not to be queftioned. As little is it to be queftioned that this rule is founded exclufively on the fuppofed fafety of the neutral. It is expressly ftated in the cafe of the War Onfkan, cited from Robinson's reports, to be founded on this plain principle, " that the liberation of a clear neutral from the hand of the enemy, is no effential service rendered to him, in as much as that the fame enemy would be compelled by the tribunals of his own country after he had carried the neutral into port, to release him with cofts and damages for the injurious seizure and detention." It is not unfrequent to confider and speak of a