holding that the subsequent conduct of the captors, and their treatment of the prize did not invalidate the capture itself. That if the capture was as prize, the common law can not notice it as a trespass. “ The act of Congress is silent as to the consequences to result from a capture by a vessel thus fitted out, and it seems to me that it can not be doubted that a vessel though armed and fitted out in violation of that act may take a prize. It is another question whether it would be a valid capture. These considerations, however, do not belong to this court. We have no power to entertain the question. I only insist that the plaintiff has applied to the wrong forum.” Yates, J., concurred with this opinion. On writ of error from this judgment,
The Court of Errors, (Chancellor Kent delivering the opinion in favor of reversal, and maintaining substantially the same grounds as those in Judge Spencer’s opinion,) reversed the judgment of the Supreme Court unanimously, and ordered the defendant in error, to pay to the plaintiff in error two *7hundred and thirty-two dollars for his costs and charges in and about the prosecuting of his writ of error, in this court, with directions to the Supreme Court to award a venire de novo, &fc.
The decision of the court was pronounced in an elaborate opinion, by Kent, Chancellor.—“ That the owner of the privateer is justly responsible to the plaintiff for all the damages recovered, will not also be denied. The only question is, whether the common law courts of this state have jurisdiction of the case. It is admitted that they have no jurisdiction of the original taking; but it is asserted that the subsequent disposition of the subject, if it be not treated as prize of war, may render the captor a trespasser ab initio, and liable to an action of trespass at the common law.
“ I apprehend that no such distinction exists, and that if property be taken in the first instance as prize of war, the subsequent conduct of the captors, whatever it may be, can not alter the right of jurisdiction.
“ The schooner had a commission from a state assuming powers of government, and was commissioned to take Spanish vessels. The brig captured appeared in a Spanish character. The master admits, that when taken, the privateer put a prize master and five men on board. The fact then is not to be questioned, that the brig was in the first instance, captured as prize of war.
“ This being the case, it belongs exclusively to the admiralty courts of the United States, to judge of the validity of the capture, or of the competency of the commission, of the effect of the original act of arming within the United States and of every possible question arising out of the capture.”
He then reviews the cases on this subject, commencing with the governing case of “ Le Caux v. Eden, Doug. 594, which has since commanded uniform and universal assent.”'
He then pursues. “After a review of these cases, which contain a course of doctrine and precedents very nearly uniform for the last two hundred years, it would seem that there could remain no doubt of the entire and exclusive jurisdiction of the admiralty in the present case. Here is a suit in trover against the captor for property originally taken on the high seas in the character of a prize, It is not a mere inci*8dental question that is raised, but the validity of the very act of capture is directly arraigned.”—“If ever a case was peculiarly fitted for a court of admiralty, sitting under the authority of the United States, and governed by the laws and usages of nations, this must be that cáse.”
The Chancellor then reviews the American cases on the subject, and shows them to lead to the same result.
Lastly, he reviews the opinion of Thompson, Ch. J. “ But the Chief Justice, in delivering the opinion of the court, said that he placed his opinion that the Supreme Court had jurisdiction of the cause, ‘ upon the ground alone,1 that the privateer was illegally fitted out in a port of the United States, in violation of the act of Congress of 5th June, 1794.” He afterwards adds; “ Surely it belonged to the admiralty to take cognizance of such illegal armaments as incidental to the question of prize. It was as much a part of the prize question, as the inquiry touching the authority of the commission or the place of the capture, or the national character of the party captured, or his title to the property.” He proceeds to review the action of the United States executive and judiciary, upon the subject of captures made by vessels illegally fitted out within the United States, and says; “ After the most solemn sanction given to the power of the district and admiralty courts, on this subject, and after the irresistible deductions from these facts, that the common law courts of the individual states, have no jurisdiction in the case, I think I may safely conclude, that the ground taken by the Chief Justice in his opinion, (and which appears not to have been taken at the trial,) is as untenable as any that could have been assumed.” p. 347.
Note by the Reporter; Had the fitting out of the capturing vessel, in this case, not been accompanied with a violation of our neutrality, and laws, it is clear that the question would have belonged exclusively to the courts of the country of the captor; it is only the illegality of the original equipment which can give to our courts admiralty jurisdiction of the case. Vide L'Invincible, 1 Wheat. 238.
£C|= The Supreme Court of the United States there held, that *9the courts of this country have no jurisdiction to redress any supposed torts committed on the high seas upon the property of its citizens by a cruiser regularly commissioned by a foreign and friendly power, except where such cruiser has been fitted out in violation of our neutrality.
Jn the case of La Concepcion, the Supreme Court of the United States held that where a capture was made of the property of the subjects of a nation in amity with the United States, by a vessel built, armed, equipped, and owned, in the United States, such capture is illegal, and the property, if brought within our territorial limits, will be restored to the original owners. La Concepcion, 6 Wheaton, 235; 5 Condy’s R. 77.
In the case of La Concepcion, 1821, Mr. Justice Story, in delivering the opinion of the court, puts the whole question in that case upon the single ground that the ownership of the vessel, she having been originally built in the United States still continued, although she went to Buenos Ayres, and sailed thence under the colors of that government on her cruise during which the capture was made. He says: “ The want of a bill of sale or any document of this nature, or of any direct and positive evidence of an actual sale, leaves no doubt in the mind of the court that no such sale ever was made. The consequence is that the capturing vessel must still be considered as owned in the United States; and according to the decisions which have already been made, the capture was illegal, and the property must be restored to the original Spanish owners.. (Vide The Alerta, 9 Cranch, 359. The Divina Pastora, 4 Wheat. 298. The Estrella, 4 Wheat. 298. La Amistad de Rues, 5 Wheat. 385.)