Page:United States Reports, Volume 1.djvu/114

Rh 

1784.

facred obligations for juftice and humanity, or the precious fentiments of the good and wife in their own and fucceeding ages, they will not difturb the repofe of the world, by violating the law of nations, upon flight claims of their fubjects, or ‘‘ in reminine du bia. ’’ Anfwer of the Britiʃh Court. 23 Vattel, bo. II, ch.4. 5. 7. Neither can one oƒ theʃe States prey upon another, without violating the Confederation, for by that, ‘‘ No veffel of war fhall be kept up in time of of peace by any State, except fuch number only, as fhall be deemed neceffary by The United States  in Congrefs affembled, for the defence of fuch State, or its trade ; nor fhall any State engage in any war without their confent, unlefs invaded by enemies ; or certainly advifed of an intended invafion by Indians :  Nor grant commiffions to any fhips or veffels of war, nor letters of marque, or reprifal, except it be after a declaration of war by The United States in Congrefs affembled, fhall determine otherwife. ’’ Befides, ‘‘ difputes and differences concerning any cauʃe whatever, are determinable by Courts to be eftablifhed under the authority of Congrefs. ’’

Let us now enquire whether the prefent cafe is fuch a cuaʃe oƒ prize as is mentioned in the many cafes quoted  by the Council for the Refpondent.

In what circumftances is any of thofe cafes like this ? Does it appear from an of them, that the Prize Court in England, would decide fuch a caʃe at this is ?  Does it appear that the Courts of  Weʃt-miniʃter-Hall,  in any action for  ʃuch a treʃpaʃs at this, would refufe to take cognizance, becaufe the original taking was a capture as prize?  Does it appear that they would refufe to take cognizance, under colour that the fecond taking was a capture as prize ?  If they fhould, ought any fuch decifion to have weight with us in this cafe? What are the cafes quoted? A juftification by perfons of ORIGINAL captures made by themʃelves, becaufe made as prize. What is this cafe? A juftification by perfons of  their conduct, after a capture made in battle, by others in their fight,  under pretention of right, founded on that circumʃtances.  If they fay, the fecond taking was an original capture as prize,  their affertion is ʃalfiʃied by their own proofs,  that they ʃaw the captive made by others,  the day before. It they fay, their proceedings were united with the original capture aʃ prize, by being in ƒight at the time, let them take care that their pretenʃion of right is well founded. Comb 367. If it is not, their proceedings are diʃtinct from the original capture, and they are plainly Trefpaffers, and muft abide by the confequences. We are clearly of opinion, that their pretenʃion of right is utterly unfounded, and that the whole conduct of the Commanders and Crews of the Brigs, was cruel, unprovoked, warton, and mala ʃide.  In this very fingular and extraordinary cafe, they have exerted themfelves to difable the  proving the capture to be prize; and