1781.
rage and capture, supra altum mare, by his subjects of the property of subjects of another nation, shall be an illegal and piratical act, or an act of hostility: That the sovereign is not obliged to promulge his will on the moment he makes war, and that as the human will has no physical existence, it cannot be ascertained but by a declaration of it by the sovereign himself, and therefore non constat, but that the capture in the present case was authorized by the British crown, and so a fair act of hostility, authorized by the rights of war.”
This argument is ingenious and plausible, but not solid. As the state of nature was a state of peace, and not a state of war, the natural state of nations is a state of peace and society, and hence it is a maxim of the law of nations, founded on every principle of reason, justice and morality, that one nation ought not to do an injury to another. As the natural state (that of nations) is a state of peace and benevolence, nations are morally bound to preserve it. Peace and friendship must always be presumed to subsist among nations; and therefore he who founds a claim upon the rights of war, must prove that the peace was broken by some national hostility, and war commenced: but mere conjecture, supposition and possibility, can render no competent evidence of the fact. But it is said there was a national hostility—viz. The capture by the British privateer; and the act of the subject is the act of the sovereign.”
The act of the subject can never be the act of the sovereign; unless the subject has been commissioned by the sovereign to do it: But, in this case, there is no evidence that the commission of the British privateer extended to property, under the circumstances of the property captured.
But it is asked “what private or public mischief can be apprehended from considering property under the circumstances of this case as prize: For, the wrong was committed by the British privateer, and therefore the British nation is chargeable with it, and bound to make compensation.”
We are inclined to think, that were the claimants to apply to the British crown for compensation, they would be told “that altho’ satisfaction were done, yet it would be in proportion only to the wrong done by the British privateer, which consisted only in the seizure and detention. But if compensation was expected for ship and cargo, they must look to that nation for it, whose subjects reaped the fruits of it.”
But, ’tis alledged, that “the late ordinance of Congress is express and decided, that after a capture and occupation for twenty-four hours the property captured shall be prize.”
The ordinance of Congress certainly speaks of a legal capture; to admit a different construction would be a violence both to the