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1818.

The Star.

ter condemna

after capture

The argument asserted from the British prize code, certainly, cannot be suported upon the notion of any supposed recent change in the law relative to recapThe British tures. So early as the reign of George II. the jus salvage acts reserve the jus postliminii was, by statute, reserved to British subpostliminii, as to vessels of jects upon all recaptures of their vessels and goods, by British subjects' only, even af British ships, even though a previous condemnation tion, unless had passed upon them, with the exception of cases they have been where such vessels, after capture, had been set forth set forth as as ships of war. The statute of 43 Geo. III. ch. 160, ships of war. s. 39. has no farther altered the previous laws, than to fix the salvage at uniform stipulated rates, instead of leaving it to depend upon the length of time the recap. tured ship was in the hands of the enemy. And the terms of this statute, are very different from the language of the fifth secton of our prize act of 1812, and expressly exclude from its operation and benefits all neutral, property.

In respect to the legislative intention, it is extremely difficult to draw any conclusion unfavourable to private armed ships from the language or policy of the prize act, or any subsequent act of congress passedduring the war. The bounties held out to these vessels, not only by the prize act, but by other auxiliary acts, manifest a strong solicitude in the government are not to encourage this species of force. But we at liberty to entertain any discussions in relation tò the policy of the government, except so far as that policy is brought judicially to our notice in the positive enactments, and declared will of the legislature. We must interpret, therefore, this clause of the prize act by the general rules of construction applicable to

all statutes; and in this view we are of opinion that the doctrine contended for by the claimant ought not to prevail.

1818.

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tion of the

the 26th June,

does not repeal

so any of the proto visions of the

Salvage act of is 3d March, 1800 ch. 14, but is

In the first place, the section in question contains. The 5th secno repealing clause of any of the provisions of the Prize Act of salvage act of 1800, and therefore the whole laws on 1812, ch. 107. this subject are to be construed together, and unless far as there is any repugnancy between them, are be considered as in full force. That the section free from all doubt in its language need not be assert- merely affirma tive of the preed; but that every portion of it may by fair rules of existing law. interpretation, be deemed merely affirmative of the existing law, is with great confidence maintained. There is no repugnancy which requires or even affords a presumption of legislative intent to repeal any portion of the salvage act. It is true that the section declares that all vessels, goods, and effects recaptured shall be restored; but to whom are they to be restored? Certainly, by the very terms of the act, to the "lawful owners," which to prevent the most injurious, and we had almost said absurd, consequences, must mean the "lawful owners" at the time of the recapture. But the lawful owners of the recaptured property, which has been, already, lawfully condemned, is not the original proprietor, but the person who has succeeded to that title under the decree of condemnation. Suppose the property at the time of the capture had belonged to one neutral, and after condemnation had been sold to another neutral, and then captured and recaptured by the enemy, can there be a doubt that the latter is, to all intents and purposes, the true and lawful owner, and that he may assert his title against the VOL. III.

13

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first proprietor? Besides, recapture by force of the term would seem most properly applied to cases where an inchoate title only was vested by capture, Can it be said in strict propriety of language, that property captured from an enemy which at the time is the lawful property of an enemy purchaser, is recaptured from his hands? The recapture is always supposed to be from persons who have, by operation of law, succeeded to the title acquired under a decree of condemna. tion.

The section, however, does not stop here; nor is it necessary to rest its construction upon the import of a few detached terms. It proceeds to declare that the recaptured property shall be restored to the lawful owners upon payment of a reasonable salvage, "according to the nature of each case, agreeably to the provisions heretofore established by law." Here is a direct and palpable reference to the salvage act, not for the purpose of repeal, but for the purpose of recognizing it as in full force in respect to all cases of recapture. It is argued that the reference is confined to the mere rates of salvage established by that act. Let us see whether, consistently with any supposed legislative intention, or any reasonable principle, such a construction can be sustained.

In the first place it would make a discrimination between recaptures of property belonging to the United States, and property belonging to neutrals and citizens, wholly unaccountable upon any principles of national policy. In case of a previous condemnation the property, if belonging to citizens or neutrals, would be restored on salvage; if belonging to the United States,

1818.

It would be wholly condemned as good prize of war. in the next place, the property of neutrals and citizens, The Star, if recaptured by public ships, would be good prize; but if recaptured by private armed ships, would be restored on salvage. Yet in respect to neutrals or citizens, if the intention was to confer a benefit on them, the reason would seem equally to apply to both cases. and if there was a policy in discouraging captures by privateers, and encouraging captures by public ships, it is strange that the legislature should not, in relation to captures not within the purview of this clause, have made a similar discrimination. The reason would be the same, and yet in those cases the salvage act uniformly gives a higher rate of salvage to private armed ships than to public ships; and the prize acts superadd an exclusive bounty on prisoners of war captured by private armed ships, of no inconsiderable value. And whatever might be the case in relation to our own citi zens, it is somewhat singular that the legislature should be paying bounties out of the treasury to encourage privateers, when they were in favour of neutrals, having no legal title, taking from them a large proportion of the lawful proceeds of prize.

By our law, the rule of re

There is yet another case which affords a more striking illustration of the difficulties which surround ciprocity prethis construction. The salvage act of 1800 declares, vails upon the re-capture of that upon the recapture of neutral property the rule the property of friends. If they of reciprocity shall prevail. If the neutral would in restore on salthe like case restore on salvage; then the American store; if they courts are to restore on the same salvage: if other- condemn. wise, then they are to condemn. If, therefore, by

vage, we re

condemn, we

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the prize act of 1812, restitution is to be made in all cases of recapture of neutral property, and yet in the like cases the neutral sovereign would not restore, it would follow that the restitution would be without payment of any salvage, which would be repugnant not only to the intent, but to the words both of the salvage act and the prize act in any mode of interpretation. In a recent case in this court, (The Adeline, 9 Cranch. 244.) condemnation passed upon some French property which, during the late war, had been captured by the enemy, and recaptured by an American privateer, upon the ground that the rule of reciprocity established by the salvage act of 1800, applied to the case; and as France would deny restitution, our courts were bound to apply the same principle to her.

There does not, therefore, seem any solid reason on which to rest the construction contended for by the claimant. And there are the most weighty reasons, founded upon public inconveniency, upon national law, and upon the very terms of the salvage and prize acts, for the contrary construction. In considering the section in question as merely affirmative, every difficulty vanishes and the symmetry of a system apparently built up with great care and caution, as well as in strict accordance with the received principles of public law, is maintained and enforced.

But it has been asked if the section is merely af firmative, what reason can be assigned for its enactment? If no satisfactory answer could be assigned, it would not impair the force of the preceding reasoning. It is very common for the legislature to make laws in affirmance both of the both of the common

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