Damages for illegal acts. feeble and fruitless, notwithstanding that enlightened and enlarged considerations of national policy have shown it to be for the general benefit of mankind, to surrender the licentious practice, and to obstruct, as little as possible, the freedom and security of commercial intercourse among the nations.a It has been a question, whether the owners and officers of private armed vessels were liable, in damages, for illegal conduct beyond the amount of the security given. Bynkershoeck has discussed this point quite at large, and he concludes that the owner, master and sureties, are jointly and severally liable, in solido, for the damages incurred; and that the master and owners are liable to the whole extent of the injury, though it may exceed the value of the privateer and her equipment, though the sureties are bound only to the amount of the sums for which they become bound. This rule is liable to the modifications of municipal regulations; *99 *and though the French law of prize was formerly the same as the rule laid down by Bynkershoeck, yet the new commercial code of Francec exempts the owners of private armed vessels in time of war, from responsibility for trespasses at sea, beyond the amount of the security they may have given, unless they were accomplices in the tort. The English statute of 7 Geo. II. c. 15, is to the same effect, in respect to embezzlements in the merchants' service. It limits the responsibility to the amount of the vessel and freight, but it does not apply to privateers in time of war; and where there is no positive local law on the subject, (and there is none with us,) the general principle is, that the liability is commensurate with the injury. This was the rule, as declared by the 1 Emerigon, des Ass. 129-132. 457. Mably's Droit Public, c. 12. sec. 1. Edinburgh Review, vol. viii. pp. 13-15. North American Review, N. S. vol. ii. p. 166. During the war between the United States and Great Britain, the legislature of New-York went so far as to pass an act to encourage privateering associations, by authorizing any five or more persons, who should be desirous to form a company for the purpose of annoying the enemy and their commerce, by means of private armed vessels, to sign and file a certificate, stating the name of the company and its stock, &c., and that they and their successors should thereupon be a body politic and corporate, with the ordinary corporate powers. Laws N. Y. 38 sess. c. 12. Oct. 21st, 1814. b Q. J. Pub. b. 1. c. 19. • Code de Commerce, art. 217. Supreme Court of the United States, in Del Col v. Arnold ;a and though that case has since been shaken as to other points,b it has not been disturbed as to the point before us. We may, therefore, consider it to be a settled rule of law and equity, that the measure or damages is the value of the property unlawfully injured or destroyed, and that each individual owner is responsible for the entire damages, and not rateably pro tanto.c Vattel admits, that an individual may, with a safe conscience, serve his country by fitting out privateers; but he holds it to be inexcusable and base, to take a commission from a foreign prince, to prey upon the subjects of a state in amity with his native country. The laws of the United *States have made ample provision on this subject, and *100 they may be considered as in affirmance of the law of nations, and as prescribing specific punishment for acts which were before unlawful. An act of congress prohibits citizens to accept, within the jurisdiction of the United States, a commission, or for any person, not transiently within the United States, to consent to be retained or enlisted, to serve a foreign state in war, against a government in amity with us. It likewise prohibits American citizens from being concerned, without the limits of the United States, in fitting out, or otherwise assisting, any private vessel of war, to cruise against the subjects of friendly powers.f Similar prohibitions are contained in the laws of other countries;g and the French ordinance of 3 Dallas, 333. b 1 Wheaton, 259. 1 Paine's Rep. 111, to the same point. The Karasan, 5 Rob. Rep. 291. The Anna Maria, 2 Wheaton, 327. But the owners of a privateer are not liable civilly beyond the security given by law, and the loss of a vessel, for piratical acts committed by the officers and crew of the privateer. They are only liable, by the maritime law, for the conduct of the officers and crew, while in the execution of the business of the cruise. Dias v. Privateer Revenge, 3 Wash. Cir. Rep. 262. The New-York scheme (see sup. p. 98. n. a.) of making privateering companies actual corporations, or bodies politic, would seem to exempt the members from the personal responsibility ordinarily incident to the owners of privateers. d B. 3. c. 15. sec. 229. • Talbot v. Janson, 3 Dallas, 133. Brig Alerta v. Blas Moran, 9 Cranch, 359. Act of Congress of 20th April, 1818, c. 83. See the Austrian Ordinance of Neutrality of August 7, 1803, art. 2, 3. By the law of Plymouth Colony, in 1682, it was declared to be felony to commit Prizes. In the marine of 1681, treated such acts as piratical. The better The right to all captures vests primarily in the sovereign, and no individual can have any interest in a prize, whether made by a public or private armed vessel, but what he *101 receives *under the grant of the state. This is a general principle of public jurisprudence, bello parta cedunt reipublicæ, and the distribution of the proceeds of prizes depends upon the regulations of each state; and unless the local laws have otherwise provided, the prizes vest in the sovereign. But the general practice, under the laws and ordinances of the belligerent governments is, to distribute the proceeds of captured property, when duly passed upon, and condemned as prize, (and whether captured by public or private commissioned vessels,) among the captors, as a reward for bravery, and a stimulus to exertion.c When a prize is taken at sea, it must be brought, with due care, into some convenient port, for adjudication by a competent court; though, strictly speaking, as between the bellige hostilities on the high seas, under the flag of any foreign power, upon the subjects of another foreign power in amity with England. Bailies' Historical Memoir, vol. ii. part 4. 35. The same acts were declared to be felony by a law of the colony of New-York, in 1699. Smith's edition of the Laws of the Colony, vol. i. 25. a Valin's Com. tome ii. 235, 236. Bynkershoeck, c. 17, and note by Duponceau to his translation, p. 129. Sir L. Jenkins' Works, 714. See post, pp. 188. 191. b Grotius, b. 3. c. 6. Vattel, b. 3. c. 9, sec. 164. The Elsebe, 5 Rob. Rep. 173. Home v. Earl Camden, 2 H. Blacks. Rep. 533. At common law the goods taken from an enemy belong to the captor. Finch's Law, 28. 178. 1 Wils. Rep. 213. See infra, p. 357. Lord Loughborough, 1 H. Blacks. Rep. 189-191. p. 7, note c. and p. 71. 12 Mod. Rep. 135. Wheaton's R. vol. 2. App. rent parties, the title passes, and is vested when the capture is complete, and that was formerly held to be complete and perfect when the battle was over, and the spes recuperandi was gone. Voet, in his Commentaries upon the Pandects, a and the authors he refers to, maintain with great strength, as Lord Mansfield observes in Goss v Withers,b that occupation of itself transferred the title to the captor per solam occupa tionem dominium prædæ hostibus acquiri. The question never arises but between the original owner and a neutral purchasing from the captor, and between the original owner and a recaptor. If a captured ship escapes from the captor, or is retaken, or if the owner ransoms her, his property is thereby revested. But if neither of these events happens, the question as to the change of title is open to dispute, and many arbitrary lines have been drawn, partly from policy, to prevent too easy dispositions of the property to neutrals, *and partly from equity, to extend the jus postliminii *102 in favour of the owner. Grotius,e and many other writers, and some marine ordinances, as those of Louis XIV. and of congress during the American war,d made twenty-four hours' quiet possession by the enemy, the test of title by capture. Bynkershoecke says, that such a rule is repugnant to the laws and customs of Holland; and he insists, that a firm possession, at any time, vests the property in the captor, and that ships and goods brought infra præsidia, do most clearly change the property. But by the modern usage of nations, neither the twenty-four hours possession, nor the bringing the prize infra præsidia, is sufficient to change the property in the case of a maritime capture. A judicial inquiry must pass upon the case, and the present enlightened practice of commercial nations, has subjected all such captures to the scrutiny of judicial tribunals, as the only sure way to furnish due proof that the seizure was lawful. The property is not changed in favour of neutral vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some court of competent a Tome ii. p. 1155. b2 Burr. Rep. 683. c B. 3. c. 6. Valin, lib. 3. tit. 9. art. 8. Journals of the Confederation Congress, March 27th, 1781, vol. vii. p. 59. e Q. J. Pub. b. 1. c. 4 and 5. Martens' Summary, b. 8. c. 3. sec. 11. S. P. jurisdiction, belonging to the sovereign of the captor; and the purchaser must be able to show documentary evidence of that fact, to support his title. Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration. It cannot be alienated or disposed of, but the possession of it by the government of the captor is a trust for the benefit of those who may be ultimately entitled. This salutary rule, and one so necessary to check irregular conduct and individual outrage, has been long established in the English admi*103 ralty, *and it is now everywhere recognised as the law and practice of nations.b a с The condemnation must be pronounced by a prize court of the government of the captor, sitting either in the country of the captor or of his ally. The prize court of an ally cannot condemn. Prize or no prize, is a question belonging exclusively to the courts of the country of the captor. The reason of this rule is said to be, that the sovereign of the captors has a right to inspect their behaviour, for he is answerable to other states for the acts of the captor. The prize court of the captor may sit in the territory of the ally, but it is not lawful for such a court to act in a neutral territory. Neutral ports are not intended to be auxiliary to the operations of the power of war; and the law of nations has clearly ordained, that a prize court of a belligerent captor cannot exercise jurisdiction in a neutral country. This prohibition rests not merely on the unfitness and danger of making neutral ports the theatre of hostile proceedings, but it stands on the ground of the usage of nations.d a Carth. 423. Rep. 97, in notis. b Flad Owen, 1 10 Mod. Rep. 79. 12 Mod. Rep. 143. 2 Burr. Rep. 694. 3 Rob. 1 Rob. 139. Rob. Rep. 117. Henrick and Maria, 4 Rob. Rep. 45. Vattel, b. 3. c. 14. sec. 216. Heineccii Opera, edit. Geneva, 1744, tome ii. 310. 360. 5 Rob. Rep. 294. Doug. Rep. 591. 8 Cranch, 226. 4 Wheaton, 298. 6 Taunt. Rep. 25. 2 Dallas, 1, 2. 4. Every court has a right to inquire into the competency of the jurisdiction of a foreign court to condemn captured property, and if it has none, the sentence is null. The consul of a belligerent in a neutral country has no power to condemn prizes. See cases, Abbot on Shipping, Amer. edit., 5th edit. Boston, 1846, pp, 30-32. But a prize carried into the country of an ally may be condemned there, and even by a consul belonging to the country of the captors. Id. p. 33. Rutherforth's Institutes, b. 2. c. 9. с d Glass v. The Sloop Betsey, 3 Dallas, 6. Flad Owen, 1 Rob. Rep. 135. Have |