1781.
terms and spirit, or intention, of it. Prize is generally used as a technical term to express a legal capture; and Congress having adopted it in framing of the ordinance, the general sense or acceptation of it must determine its import and signification. But suppose the term prize merely imported a capture, without any reference to its legality, and that it was the spirit and intention of the ordinance to subject to prize all captures, both legal and illegal, after twenty-four hours; it does not follow that it would affect the present case. The municipal laws of a country cannot change the law of nations, so as to bind the subjects of another nation; and by the law of nations a neutral subject, whose property has been illegal captured; may pursue and recover that property in whatever country it is found, unless a competent jurisdiction has adjudged it prize. The municipal laws of a country can only bind its own subjects.
The ordinance of Congress is in truth a new regulation of the jus post liminii, and limits it to a recapture within twenty-four hours, and therefore can only relate to the subjects of the United States: it adopts the ordinance of France, and that ordinance relates only to the subjects of France. In both cases, with regard to the owner, a subject, the property captured is not passed away before the expiration of twenty-four hours. But put the case of a capture and the sale of it before twenty-four hours to a neutral subject; the sale is certainly good and conclusive upon the owner; for the question must be decided by the law of nations, and by the law of nations, the property capture is transferred to the captor as soon as it is taken.
Both the ordinances therefore of Congress and of France, in our opinion, relate only to property captured from a subject and recaptured; and not to property captured from a neutral and recaptured. It is said, “that arguments drawn from the law of nations with regard to Pirates, do not apply to the present case, because pirates have not the rights of war.”
If the principal fact was properly attended to, the present case could be questioned. Whence is it that pirates have not the rights of war? Is it not because, they act without authority and commission from their sovereign? And is it not objected and proved, that the British privateer, with regard to the property captured, acted without commission and authority from the British crown? So far from there being any dissimilarity in the cases, it is in fact the very case in judgment, considering it on the first ground of argument.
But, it is alledged, “that the capture by the British privateer must be considered as legal: For, after a capture and occupation for twenty-four hours, the legality of the capture is not open for question and examination.”
This
