Rose view to annoy an enemy. When a neutral violates his It Himely. neutrality, he becomes, quoad hoc, an ally to the enemy, and the ground of condemnation is always as enemy property. But here was no feature of public war. was merely an insurrection. All the world considered the blacks of St. Domingo as revolted subjects. Our government has acknowledged the right of France to legislate over those colonies. The French arrete is * 245 not a measure of war, but of government; and is a mere municipal regulation to enforce obedience to her laws, and for the reduction of the insurgents. The law of France rendered the trade illicit, but a seizure for illicit trade is not the exercise of a right of war. It had no relation to a state of war; and might have been passed, if the most profound peace had existed throughout the world. In the year 1802, France, Spain, and England were at peace with each other, and with all the world. The proceedings of France against her revolted colonies were of a civil nature; at least they were so considered by her. (See Bonaparte's letter to Toussaint, and Le Clerc's letter of November, 1802, and his addreŝs to the people of St. Domingo.) Toussaint also considered himself as holding under the government of France, and to show his confidence, left his children in France as hostages. The tribunals in Santo Domingo were the ordinary tribunals of municipal jurisdiction, and not exclusively courts of prize. Their jurisdiction depended upon the arretes of the consuls of France, of the 18th of June, and 2d of October, 1802,(a) (a time of profound peace,) (a) The following is the arrete of 18th of June, 1802. "Árrete of the consuls concerning the mode of administration of civil and criminal justice in the colonies restored to France by the treaty of Amiens. "The consuls, &c. on the report, &c. decree: "1. In the colonies restored to France by the treaty of Amiens of 6th Germinal last, (27th March, 1802,) the tribunals which existed in 1789, shall continue to administer justice in civil as well as criminal matters, according to the forms of proceedings, laws, regulations, and tables of fees then observed, and so that nothing be innovated as to the organization, jurisdiction and competence of the said tribunals. 2. The denominations of seneschalsea, admiralty, and royal jurisdiction courts, shall be supplied by that of tribunal of the first instance; but from this change of denomination no change is to be inferred as to the jurisdiction of the ancient tribunals, and particularly of the courts of admiralty. "3. The public ministry shall be exercised by commissaries of the government and their substitutes. *and which refer to the year 1789, a time when France was also at peace with all the world. There was, then, no necessity of a prize court; and neither of those *arretes allude particularly to the insurrection of the blacks. That of 2d October, 1802, relates generally to the smuggling trade of the colonies, and refers to the ancient laws, not to the laws of war; but the municipal laws. From the jurisdiction of the court, then, it cannot be inferred that this was a case of prize of war; nor will such an inference be drawn from the colonial regulations respecting the trade. The first of these is the arrete of the captain-general, dated the 22d of June, 1802, (a) which is entirely muni "4. There shall be provided a special regulation for the changes to be made in the present tribunals at Tobago. 5. Judgments shall run in the name of the French Republic. "6. The members of the tribunals shall be provisionally nominated according to the requisite forms, by the captain-general. He shall receive from each of them a promise of fidelity to the French republic." The following is the arrete of 2d October, 1802. "Arrete for regulating the forms to be observed for the proceedings and judgment of contraventions to the laws concerning foreign commerce in the colonies. "The consuls, &c. on the report, &c. decree: "1. The contraventions to the dispositions of the laws and regulations concerning foreign commerce in the colonies shall be proceeded on and adjudicated in the form hereinafter mentioned. 2. The instruction" (proceedings in preparatorio) "and first judgment shall belong to the ordinary tribunal of the place where the prize shall have been conducted, subject to an appeal in all cases to special commissioners, who shall pronounce in the last resort. "The said instruction shall be made summarily and on simple memoirs. 66 3. Within the extent of each captain-generalship, the commission shall be composed of the captain-general, the colonial prefect, the commissary of justice, or the grand judge; and in case of impediment of any of them, then of a substitute, (celui qui le remplace,) and besides, of three members of the court of appeal, chosen for each cause by the captain-general. [Here follows a particular regulation as to Tobago.] "4. In case of a division of opinions, that of the president shall prepon. derate. "5. The inspector of the marine, or the officer of administration doing the duty of inspector, shall, of right, exercise the functions of the publie ministry in the said commission of appeal. "The functions of clerk shall be exercised by a secretary appointed for that purpose by the captain-general. "6. As to the residue, the ancient laws shall be executed, so far as they are not altered by the present regulation. "7. The minister of the marine and the colonies is charged with the execution of the present arrete, which shall be inserted in the bulletin of the laws. (a) The 13th article of that arrete, which is the only article referred to in the sentence of condemnation, is as follows: "Every vessel, French or foreign, which shall be found by the vessels of he republic anchored in any of the ports of the island not designated by Rose V. Himely. * 247 Rose V. Himely. * 248 cipal, and applies as well to French as to foreign vessels, and is limited in its operation to within two leagues of the coast. The next is that of the 9th of October, 1802, which is to the same effect. The last is that of 1st March, 1804, which as to these cases was clearly ex post facto, but if applicable at all, shows itself to be merely an exercise of a municipal right. The sentence of condemnation itself does not pretend to consider the vessel as prize of war, but as a seizure made for the violation of those municipal regulations of trade which it recites. The order that the proceeds should be distributed according to the laws respecting prizes, would have been unnecessary, if it had been a case of prize, to which those laws would have applied independent of the order. There would have been à gross inconsistency in France treating the revolters as rebels, and yet claiming that other nations should consider them as acknowledged enemies. Yet before France can claim the rights of war from neutrals, in regard to the insurgents of St. Domingo, she must #admit them to be enemies, and not rebels. If they are independent, and France is at war with them, France can claim from us only the rights which war gives. We shall have a clear right to trade with them, unless in contraband of war, or to blockaded ports. There are only It either is, or is not, prize of war. two sides to the question. Prize is a seizure jure belli. There must be a war to raise a question of prize. No open war then existed with any nation. It is said that by aiding rebels we make a common cause with them; but the assistance, to justify such an inference, must be the act of the nation, not the unauthorized act of individuals. Until the year 1806, the United States had never declared the trade to be unlawful; nor did France require our government to take notice of the trade, until the fall of 1805. The law of nations does not authorize the seizure and confiscation of the property of foreigners trading with rebels. No authority to that effect has been cited from any writer upon that law. A state has, by the these presents, or within the bays, coves, or landings of the coast, or under sail at a distance less than two leagues from the shore and communicating with the land, shall be arrested and confiscated.” Rose V. law of nations, a right to regulate its own trade. A parent state may choose to exercise greater or less degree Himely. of severity, with regard to the trade of its colonies. England did not, until 1776, wholly prohibit trade with her North American colonies. The statute of 16 Geo. III. c. 5. prohibiting such trade, would have been altogether useless, if such trade had been unlawful in consequence of the rebellion. It declares "that all manner of trade and commerce is and shall be prohibited with the colonies of New Hampshire," &c. (naming the colonies,) “and that all ships and vessels of, or belonging to the inhabitants of the said colonies, together with their cargoes," &c. " and all other ships and vessels whatsoever, with their cargoes," &c. which shall be found trading in any port or place, of the said colonies, or going to trade, or coming from truding, in any such port or place, shall become forfeited to his majesty, as if the same were the ships and effects of open enemies, and shall be so adjudged, deemed and taken, in all the courts of admiralty, and in all other courts whatsoever." The French arretes limit the right of seizure to the extent of their territorial jurisdiction; but if they had *claimed a right under the law of nations, they would have authorized seizures as well on the high seas as within two leagues of the coast. . The title of the arrete of General Ferrand, of the 10th Ventose, year 12, (1st March, 1804,) which is referred to in the sentence of condemnation is, " an arrete relative to vessels taken in contravention to the dispositions of the laws and regulations concerning the French and foreign commerce, with the colonies," and the reason of passing the arrete, is stated in the preamble to be, "that some of the French agents in the allied and neighbouring islands, had mistaken the application of the laws and regulations concerning vessels taken in contravention, upon the coasts of Santo Domingo, occupied by the rebels, and had confounded these prizes with those made upon the enemies of the state; wishing to put an end to the abuses which may result therefrom, and which are as derogatory to the territorial sovereignty, as they are to neutra rights," &c. &c. thus clearly taking a distinction in terms between these municipal seizures, and prizes of w The 8th article also speaks of acquitting the accuse *249 Rose V. the contravention, and the sentence of the appellate court, Himely. speaking of its jurisdiction, describes it thus: "For pronouncing in the last resort upon appeals, from judgments rendered in the first instance, by the provisional commission of justice, sitting in the town of Santo Domingo, upon prizes made by the vessels of the state, and by French privateers upon neutrals, taken in contravention of the laws and regulations, concerning the smuggling trade of the colony," (a l'occasion des prises faites par les batiments de l'etat, et par les corsaires François, sur les neutres pris en contravention aux lois et reglemens concernant le commerce interope de la colonie.) * 250 If this trade was illegal by the law of nations, there was no necessity for these French laws upon the subject. 2d point. Whether the seizure were made as prize of war, or for violating a municipal law of trade, it was not competent *for the court sitting at Santo Domingo, to condemn the property while lying in a foreign neutral port. No title could vest in the purchaser by a sale, without a condemnation; although, perhaps, a subsequent legal condemnation might relate back to the time of the sale, and vest a legal title in the purchaser. But the condemnation of the property in this case could not be a legal condemnation, while the property was not only in South Carolina, but actually in the custody of our law. It had got back to the country of its original owner, who had claimed the protection of our laws. The mere capture, even by a belligerent and jure belli, does not devest the title of the property out of the neutral owner; but an order or sentence of some competent tribunal is necessary for that purpose. The title of the captor, before condemnation, does not extend beyond his actual possession; and if he loses or quits the possession, his title is entirely gone. Here had been a change of possession before condemnation. If a captured vessel escape before condemnation, the title revests in the former owner. 4 Rob. 50. The Henrick and Maria. Collection of Sea Laws, 629. 8 T. R. Havilock v. Rockwood. 1 Rob. 114. The Flad Oyen. 2 Burr. 693. Goss v. Withers. Institute 2. 1. 17. Although new evidence may be admitted upon the appeal, yet the sentence of condemnation in this case ought not to have been admitted, because it was not the sentence of a competent tribunal. The question of compe |