in the courts of France, I shall hold that to be sufficient ground to induce me to pronounce for salvage in that particular case. With regard to the precedent of the Jonge Lambert (5 C. Rob., 54, note), I think I am warranted to consider the authority of that case as in a great measure done away by the subsequent decision of the Lords in the late war, in which they have repeatedly pronounced for salvage on the recapture of neutral property. In departing from the old rule they have in some degree disclaimed the principle; and, I think, with great propriety, as far as it could be considered as an universal principle, governing the practice of our prize courts in all possible cases, without any possible exception. In the present instance there does not appear to me to be any grounds on which it can be supposed that this property would have been condemned, merely because it came out of the hands of a British privateer, or because the original voyage had been the colony of Spain to London. No edict has been produced from the French code to shew that this property would have been subject to any such penalty on either of those accounts, in the prize courts of France. The expenses of the recaptors must be fully paid; but I shall not pronounce salvage to be due." 1

THE "EMILY ST. PIERRE."

(Lawrence's Wheaton, 667, 1021.)

It is not the duty of a neutral government to restore a private vessel of one of its citizens which has been rescued by her crew from a belligerent captor before condemnation.

This was a British vessel, captured by the United States blockading squadron, in the act of breaking the blockade of Charleston, S. C., and ordered to Philadelphia for adjudication in charge of a prize crew. The original crew, by fraud and force, regained possession, and took the vessel to Liverpool and restored her to the possession of her owners. Mr. Adams applied to Earl Russell for a restoration of the vessel, on the ground that the rescue was a violation of the law of nations, which furnished sufficient cause for condemnation, and a breach of the duty of a neutral, who is bound to submit to the adjudication of the prize court of the captor. Earl Russell refused the demand on two grounds,-first, that, as the rescue

1 For an account of the laws of different countries on the subject of recapture and salvage, see Dana's Wheaton, pp. 466-472.

was not a violation of any municipal law of England, and as the vessel was not in the custody of the British Government, that government had no legal right to take her from the hands of her owners, or to prosecute or proceed against the vessel or the owners for any violation of law; and, second, that, in addition to the technical objection, the offense was solely one against the laws of war made for the benefit of captors, which the captors could assert and vindicate only in their own tribunals. Admitting that rescue was ground for condemnation, he contended that the decree could only be made by the belligerent prize court. No other court, either of the belligerent or of a neutral country, had jurisdiction to condemn or restore property taken in war. If the private neutral rescues his vessel by force he takes all risks of the captor's rights of force recognized by nations, but nothing more. The courts and government of the neutral country cannot decide that the title to the vessel has passed to the captor before condemnation by the prize courts of the captor's country. All they can do is to restore to the captor the temporary possessory right, which he has between capture and condemnation. Such possessory right he held to be one of force, which the captor's government could guard and assert by condemnation or other penalty on the property, if in its possession, through its prize court; but, even by the courts of the captor, the neutral rescuer could not be personally punished, as for a crime. He contended that it was not incumbent on neutral governments to make laws to enforce such belligerent possessory rights against their own citizens, any more than it is in case of crimes committed by their own citizens abroad, whom they do not even deliver up to the offended government for trial, except by treaty stipulation; or in case of violations of the revenue or embargo laws of other countries, which they never even indirectly take active cognizance of; or in case of successful breach of blockade.

In the course of the correspondence Mr. Adams cited a parallel case, in which the position of the two governments was reversed, as early as 1799, that of the brig Experience. She was an American vessel, captured (with two other vessels) by a British cruiser, rescued by her crew, and brought to Philadelphia. By direction of Lord Grenville, of Oct. 21, 1799, Mr. Liston demanded her restoration by the American government, by letter of May 2, 1800.

The Secretary of State, Mr. Pickering, by letter to Mr. Liston, of May 3, 1800, declined to interfere, and upon the ground that it was an inchoate and belligerent right of captors, which the neutral government cannot be expected to enforce against its own subjects; but referred the British Minister to the Admiralty Courts of the United

States, giving no opinion on the question beyond declining executive intervention.

The papers on the interesting question of the brig Experience were searched for and exchanged between the two governments by both Earl Russell and Mr. Adams; and Earl Russell stated that there was no evidence in the Foreign Office that the opinion of the law-officer of the crown had been taken in that case, or that any further proceedings were had after the reply of Mr. Pickering. Mr. Adams, on his part, did not press further the case of the Emily St. Pierre, nor attempt proceedings in the Admiralty Courts of Great Britain.

It may, therefore, be considered as settled by these two cases, that a neutral government is not required, by executive action, to restore a private vessel of one of its citizens which has been rescued by her crew from her captors before condemnation, on demand of the gov ernment of the captors. The possessory, belligerent right of the captors, is not to be enforced by neutral powers by any positive action in the way of penalty or seizure for restitution. Whether the right can be vindicated by a possessory suit by the captors in the Admiralty Courts of the neutral, has not been judicially determined; but the course of the political departments of both governments, and the reasoning on which they proceeded, seem to settle the judicial, as well as the political question. (Dana's Wheaton, 475.)1

1 In the case of the Lone, 3 Op. Atty.-Gen., 377, this vessel had entered the port of Matamoras while it was blockaded by a French squadron (1838), and sailed thence for New Orleans. On the voyage she was captured by a French cruiser; but some days later she was rescued by her captain, who brought her into New Orleans. A demand was made on the President by the French Government for her return to the captors. Attorney-General Grundy advised that the President had no power to grant the demand, the case involving questions to be settled by the courts, and not by the executive, and that the claimants must go into the courts. He also advised that if a vessel, after escaping from her captors, terminated her voyage in safety, her liability to condemnation for the escape entirely ceases. (3 Wharton's Digest, 179.)

SECTION 38.--HOSTILE OCCUPATION-CONQUEST.

UNITED STATES v. RICE.

SUPREME COURT OF THE UNITED STATES, 1819.

(4 Wheaton, 246.)

Held, That, while Castine, in Maine, was in the military possession of the British forces, it was not a port of the United States, within the meaning of the revenue laws, so that, after the evacuation of the place, the United States could collect duties on goods imported into it during the occupation.

STORY, J., delivered the opinion of the court:

"The single question arising on the pleadings in this case is, whether goods imported into Castine, during its occupation by the enemy, are liable to the duties imposed by the revenue laws upon goods imported into the United States. It appears, by the pleadings, that on the first day of September, 1814, Castine was captured by the enemy, and remained in his exclusive possession, under the command and control of his military and naval forces, until after the ratification of the treaty of peace, in February, 1815. During this period, the British government exercised all civil and military authority over the place; and established a custom-house, and admitted goods to be imported, according to regulations prescribed by itself, and, among others, admitted the goods upon which duties are now demanded. These goods remained at Castine until after it was evacuated by the enemy, and upon the reëstablishment of the American government, the collector of the customs, claiming a right to American duties on the goods, took the bond in question from the defendant, for the security of them.

"Under these circumstances, we are of opinion, that the claim for duties cannot be sustained. By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance to the

British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them; for where there is no protection, or allegiance, or sovereignty, there can be no claim to obedience. Castine was, therefore, during this period, so far as respected. our revenue laws, to be deemed a foreign port; and goods imported into it by the inhabitants, were subject to such duties only as the British government chose to require. Such goods were, in no correct sense, imported into the United States. The subsequent evacuation by the enemy, and resumption of authority by the United. States, did not, and could not, change the character of the previous transactions.

"The doctrines respecting the jus postliminii are wholly inapplicable to the case. The goods were liable to American duties, when imported, or not at all. That they were not so liable at the time of importation, is clear from what has been already stated; and when, upon the return of peace, the jurisdiction of the United States was reassumed, they were in the same predicament as they would have been if Castine had been a foreign territory ceded by treaty to the United States, and the goods had been previously imported there. In the latter case, there would be no pretence to say that American duties could be demanded; and, upon principles of public or municipal law, the cases are not distinguishable.

"The authorities cited at the bar, would, if there were any doubt, be decisive of the question. But we think it too clear to require any aid from authority."1

FLEMING v. PAGE.

SUPREME COURT OF THE UNITED STATES, 1850.

(9 Howard, 603.)

Held, that goods imported into the United States from Tampico, Mexico, while in the military occupation of the United States forces, are to be considered as importations from a foreign country.

This action is brought by the plaintiffs, merchants, residing in the city of Philadelphia, against the defendant, the late collector of the port of Philadelphia, to recover the sum of one thousand five hun

In the United States v. Hayward, 2 Gallison, 485 (1815), Mr. Justice STORY held that Castine was to be considered a "foreign port," with reference to the non-importation acts.