1818.

The Star,

in fact, to be contending that a prior law repeals a
subsequent one. If the act of 1812 is taken by it-
self, there can be no doubt but there must be restitu-
tion. But the captors insist that the words, "ac-
cording to the nature of the case agreeably to the
provisions heretofore established by law," which are
found in the act of 1812, refer to the act of 1800, so
as to determine by that law when restitution is, or is
not to be made. Yet it seems obvious that these
words refer to that law only for the measure and rule
of salvage. According to the law of 1812, property
of a citizen of the United States, re-captured from
the enemy,
is liable to be restored, but it is to be re-
stored upon the payment of salvage, agreeably to the
nature of the case: And to determine the nature of
the
case, and for no other purpose, we are referred to
the pre-existing laws. If the act of 1812 is to be
construed as the captors would construe it, then this
fifth section is an absolute nullity. For if the law of
1800 is to be resorted to in order to determine, as well
when restitution is to be made, as the salvage to be
paid, there is no case in which the law of 1812 can
have any operation. By the marine law of England,
as it stood previously to any statute regulation on the
subject, there could be no restitution after condemna-
tion. Our law of 1800 adopted this principle. But
by the English law, restitution is now to be made in
all cases on the payment of salvage. The act of
1812 was doubtless intended to be in conformity to
this just modification of the English law, of which
it is almost a literal copy. There was good reason
for this modification of the marine law in respect to
our privateers. The enemy had their courts of vice

admiralty at our very doors; our vessels would be captured one day and condemned the next. The legislature did not intend that the American owner should be deprived of his right of restitution by a condemnation, when there would be no more merit in recapturing a vessel that had been condemned than one that was not. There might have been reason for distinguishing between captures by our public and by private armed vessels. It was to be supposed that our privateers would be cruising about the ports of the enemy in our neighbourhood, and would be likely to recapture American property recently captured and recently condemned. The employment of our men of war, it might have been contemplated, would be more distant and difficult. Why should the condemnation have any effect as to the right of restitution, when the property is recaptured from the hands of an enemy? The law, as to restitution on salvage, would have no operation, if the property after condemnation came to the hands of a citizen or a neutral, because then there could be no recapture. To let the title to restitution depend on the condemnation, is to let the right of the citizen depend on the act of the enemy.

1818.

The Star.

Mr. Justice STORY delivered the opinion of the Feb. 16th. court. This is the case of an American ship, captured by the enemy during the late war, and after condemnation and sale to an enemy merchant, recaptured by the American private armed ship Surprise. And the question is, whether, under these cir

1818.

The Star.

maritime law,

condemnation

tinguishes the

mer owner.

cumstances, the ship is to be restored on salvage to the former American owner, or condemned as good prize of war. If the case were to stand on the general salvage act of 1800, in cases of recapture, (act of 3d of March, 1800, ch. 14.) it is perfectly clear that the claimants are barred of all right; for that act expressly excepts from its operation, all cases where the property has been condemned by competent auBy the general thority. The same result would flow from the princompletely ex- ciples of the law of nations. It is admitted, on all title of the for- sides, by public jurists, that in cases of capture a firm possession changes the title to the property; and although there has been in former times much vexed discussion as to the time at which this change of property takes place, whether on the capture or on the pernoctation, or on the carrying infra præsidia, of the prize; it is universally allowed, that at all events, a sentence of condemnation completely extinguishes the title of the original proprietor, and transfers a rightful title to the captors or their sovereign. It would follow, of course, that property recaptured from an enemy after condemnation would, by the law of nations, be lawful prize of war, in whomsoever the antecedent title might have vested.

It is supposed, however, that the provisions of the salvage act of 1800, ch. 14, are materially changed, in cases of captures by private armed ships, by the fifth section of the prize act of the 26th of June, 1812, ch. 107. That section declares, "that all vessels, goods, and effects, the property of any citizen of the United States, or of persons resident within and under the protection of the United States, or of persons

permanently resident within, and under the protection of any foreign prince, government, or state, in amity with the United States, which shall have been captured by the enemy, and which shall be recaptured by vessels commissioned as aforesaid, shall be restored to the lawful owners upon payment by them respectively of a just and reasonable salvage, to be determined by the mutual agreement of the parties concerned, or by the decree of any court of competent jurisdiction, according to the nature of each case, agreeably to the provisions heretofore established by law." The argument is, that as the section directs all vessels, goods, and effects of citizens and neutrals recaptured from the enemy to be restored, without any reference to the fact, whether they had been previously condemned or not, it so far qualifies and repeals the salvage act of 1800; and that consistently with this construction, the words "agreeably to the provisions heretofore established by law," may and ought to be referred to the rate of salvage fixed by the act of 1800, and not to the provisions of that act generally. In support of this argument, it has been urged, that upon any other construction the whole section becomes completely inoperative, as every case is embraced in the previous law. That congress may well be presumed to have intended to make a discrimination between cases of recapture by public and private ships of war, unfavourable to the latter; and that congress may have had in view a conformity to the British prize code, which since the passing of the act of 1800 had been changed in the manner now contended for by the claimant.

1818.

The Star.

1818.

The Star.

salvage acts

The argument asserted from the British prize code, certainly, cannot be supported 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 reserve the postlimini was, by statute, reserved to British subas to vessels of jects upon all recaptures of their vessels and goods, only, even af- by British ships, even though a previous condemnation had passed upon them, with the exception of after capture cases where such vessels, after capture, had been set

jus postliminii,

British subjects

ter condemnation, unless

they have been

set forth

ships of war.

as

forth as ships of war.
ch. 160. s. 39. has no
laws, than to fix the salvage at uniform stipulated
rates, instead of leaving it to depend upon the length
of time the recaptured ship was in the hands of the
enemy. And the terms of this statute, are very dif-
ferent from the language of the fifth section of our
prize act of 1812, and expressly exclude from its ope-
ration and benefits all neutral property.

The statute of 43 Geo. III.
farther altered the previous

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 passed during 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 to encourage this species of force. But we are not at liberty to entertain any discussions in relation to 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