1781.
This doctrine must never be suffered; there is no example or precedent for it to be found in any of our books; it breaks down and destroys the distinction between right and wrong; it gives a sanction to injustice, robbery and piracy, and it is reprobated by the laws, usage and practice of nations. Lord Mansfield, in the case so often quoted, 2 Burr. 693, says, “The question, whether the property is transferred by the capture, can only happen between the owner and vendee, and between the owner and the recaptor.” But the question could never happen between the owner and the recaptor, if the legality of the capture was not examinable on every libel for condemnation as prize. The question is—Prize or no Prize? That is whether the capture be legal or not.
The legality of a capture is open for question and examination, till a competent jurisdiction has decided the question, and a decree passes for condemnation as prize; then, and not before, all further questions and examinations are precluded; then, all parties, and all foreign courts, are estopped to say, “the capture is not legal;” and if the decree be erroneous or iniquitous, the party injured must apply for redress to that nation, whose courts have committed the error or iniquity.
“Great difficulties, it is said, will arise, if capture and occupation for 24 hours should not be considered as conclusive evidence of property in the captor, and that the capture was legal.” And it is asked “must a regular title be deduced from the first proprietor to the captor, as in the case of an ejectment at the common law?” And “must common law strictness, in making out titles, be adopted in Admiralty courts?”
Every libel states a title to the thing captured; the title must not only be stated, but it must also be proved. It is stated in the libel in this case, that the property captured was British property, and the evidence to prove it is, “possession and occupation of it by the British privateer.”
A title thus traced is a good one, in a court of common law, except in a single case: it is a good title against all the world except the right owner. This exception is founded on every principle of reason and justice; it ought not only to be adopted in courts of common law, but in every court, where the distinction between right and wrong is preserved, and justice regarded. Possession and occupation ought, upon a question of property, to have the same influence in courts of admiralty, as in courts of common law: it ought to be considered as a good title, and conclusive upon all mankind except the right owner. Such a title is clear of all difficulties in the proof of it; it excludes the necessity of a regular deduction of title from the first proprietor down to the captor; it is disengaged from those entanglements, which result from a variety of possible changes and mutations of the