The cause was argued at last term, by Martin, Key, and Mason for the claimant.

No counsel was present for the libellant.

For the claimant it was contended, that the sale of the schooner to Shattuck was bona fide, and that he was a Danish subject. That although she was in possession of French mariners, she was not an armed French vessel within the acts of congress, which authorised the capture of such vessels. That neutrals are not bound to take notice of hostilities between two nations, unless war has been declared.

That the right of search and seizure is incident only to a state of war. That neutrals are not bound to take notice of our municipal regulations. That the non-intercourse act was simply a municipal regulation, binding only upon our own citizens, and had nothing to do with the law of nations; it could give no right to search a neutral. That in all cases where a seizure is made under a municipal law, probable cause is no justification, unless it is made so by the municipal law under which the seizure is made.

As to the position, that the sale was bona fide, the counsel for the claimant relied on the evidence, which came up with the transcript of the record, which was very strong and satisfactory. Upon the question whether Shattuck was a Danish subject or a citizen of the United States, it was said, that although he was born in Connecticut, yet there was no evidence that he had ever resided in the United States, since their separation from Great Britain. But it appears by the testimony that he resided in St. Thomas's during his minority, and served his apprenticeship there. That he had married into a family in that island, had resided there ever since the year 1789, had complied with the laws which enabled him to become a burgher, and had carried on business as such, and had for some years been the owner of vessels and lands. Even if by birth he had been a citizen of the United States, he had a right to expatriate himself. He had at least the whole time of his minority, in which to make his election of what country he would become a citizen. Every citizen of the United States, has a right to expatriate himself and become a citizen of any other country which he may prefer, if it be done with a bona fide and honest intention, at a proper time, and in a public manner. While we are inviting all the people of the earth to become citizens of the United States it surely does not become us to hold a contrary doctrine, and deny a similar choice to our own citizens. Circumstances may indeed shew the intention to be fraudulent and collusive, and merely for the purpose of illicit trade, c. But such circumstances do not appear in the present case. Shattuck was fairly and bona fide domiciliated at St. Thomas's before our disputes arose with France. The act of Congress, "further to suspend," c. cannot, therefore, be considered as operating upon such a person. The first act to suspend the intercourse was passed on the 13th of June, 1798, vol. 4. p. 129, and expired with the end of the next session of Congress. The next act, "further to suspend." c. was passed on the 9th of February, 1799, vol. 4. p. 244, and expired on the 3d of March, 1800. The act upon which the present libel is founded, and which has the same title with the last, was passed on the 27th of February, 1800, vol. 5. p. 15. All the acts are confine in their operations to persons resident within the United States, or under their protection.

She was not such an armed French vessel as comes within the description of those acts of Congress, which authorized the hostilities with France. She had only one musket, twelve ounces of powder, and twelve ounces of lead. The only evidence of further arms arises from the deposition of one M'Farlan. But he did not go on board of her till some days after the capture, and his deposition is inadmissible testimony, because he was entitled to a share of the prize money if the vessel should be condemned; and although a release from him to captain Murray appears among the papers, yet that release was not made until after the deposition was taken; and the fact is expressly contradicted by other testimony. The mere possession by nine Frenchmen did not constitute her an armed vessel. She was unable to annoy the commerce of the United States, which was the reason of the adjudication of this court, in the case of the Amelia, (See 1 Cra. Rep. 1. Talbot v. Seeman.) The proces verbal is no evidence of any fact but its own existence. If she had arms they ought to have been brought in, as the only competent evidence of that fact. No arms are libelled, and none appear, by the account of sales, to have been sold in Martinique.

It being then a neutral unarmed vessel, captain Murray had no right to seize and send her in. A right to search a neutral arises only from a state of public known war, and not from a municipal regulation. In time of peace the flag is to be respected. Until war is declared, neutrals are not bound to take notice of it.

The decrees of both the courts below have decided, that the vessel was not liable to capture. The only question is, whether the claimant is entitled to damages? Captain Murray has libelled her upon the non-intercourse act. He does not state that he seized her because she was a French armed vessel, although he states her to be armed at the time of capture. It has also been decided by both the courts that she is Danish property. If an American vessel had been illegally captured by captain Murray, he would have been liable for damages; a fortiori in the case of a foreign vessel, where, from motives of public policy, our conduct ought not only to be just but liberal.

In cases of personal arrest, if no crime has in fact been committed, probable cause is not a justification, unless it be made so by municipal law. As in the case of Hue and Cry, he who raises it is liable if it be false.

If the sheriff has a writ against A, and B is shewn to him as the person, and he arrests B instead of A, he is liable to an action of trespass at the suit of B. 1 Buls. 149. Wale v. Hill. So if he replevies wrong goods, or takes the goods of one upon a fi. fa. against another. In these cases it is no justification to the officer that he was informed, or believed he was right. He must in all cases seize at his peril. So it is with all other officers, such as those of the revenue, c. probable cause is not sufficient to justify, unless the law makes it a justification. If the information is at common law for the thing seized and the seizure is found to have been illegally made, the injured party must bring his action of trespass; but by the course of the admiralty, the captor, being in court, is liable to a decree against him for damages. 2 Rob. 202. (The Fabius.) The case of Wale v. Hill, in 1 Bulstrode 149, shews that where a crime has not been committed, there probable cause can be no justification. But where a crime has been committed, the party arresting cannot justify by the suspicion of others; it must be upon his own suspicion.

In the case of Papillon v. Buckner, Hardr, 478, although the goods seized had been condemned by the commissioners of excise, yet it was not held to be a good justification. In 1 Dall. 182. Purviance v. Angus, it was held that an error in judgment would not excuse an illegal capture; and in Leglise v. Champante, 2 Str. 820, it is adjudged that probable cause of seizure will not justify the officer.

In 3d Anstruther 896, is a case of seizure of hides, where no provision was made in the law that probable cause should be a justification. This case cites 7 T.R. 53, Pickering v. Truste. For what reason do the revenue laws provide that probable cause shall be a justification, if it would be so without such a provision? In these cases the injury by improper seizures can be but small, compared with those which might arise under the non-intercourse law. Great Britain has never made probable cause, an excuse for seizing a neutral vessel for violating her municipal laws. A neutral vessel is only liable to your municipal regulations while in your territorial jurisdiction. But as soon as she gets to sea, you have lost your remedy. You cannot seize her on the high seas. Even in Great Britain, if a vessel gets out of the jurisdiction of one court of admiralty, she cannot be seized in another. It is admitted that a law may be passed authorising such a seizure, but then it becomes a question between the two nations. If the present circumstances are sufficient to raise a probable cause for the seizure, and if such probable cause is a justification, it will destroy the trade of the Danish islands. The inhabitants speak our language, they buy our ships, c. It will be highly injurious to the interests of the United States; and this court will consider what cause of complaint it would furnish to the Danish nation. If a private armed vessel had made this seizure, the captain and owners would have been clearly liable on their bond, which the law obliges them to give. The object of this act of Congress, was more to prevent our vessels falling into the hands of the French, than to make it a war measure by starving the French islands.

Even if a Danish vessel should carry American papers and American colours, it would be no justification. In a state of peace we have no right to say they shall not use them if they please. In time of war, double papers, or throwing over papers, are probable causes of seizure, but this does not alter the property; it is no cause of condemnation. The vessel is to be restored, but without damages.

The mode of ascertaining the damages adopted by the district court, is conformable to the usual practice in courts of admiralty. See Marriott's Reports; and in the same book, p. 184, in the case of the Vanderlee, liberal damages were given.

In the revenue laws of the United States, vol 4. p. 391, probable cause is made an excuse for the seizure; but no such provision is, or ought to have been made in the non-intercourse law. The powers given were so liable to abuse, that the commander ought to act at his peril.

The Ch. J. mentioned the case of the Sally, capt. Joy, in 2 Rob. 185. ( Amer. Ed.) where a vice-admiralty had decreed, in a revenue case, that there was no probable cause of seizure.

This cause came on again to be argued at this term by Dallas for the libellant, and Martin and Key for the claimant.

Dallas, as a preliminary remark, observed, that the Judge of the district court had referred to the clerk and his associates to ascertain, whether any and what salvage should be allowed. This was an improper delegation of his authority, not warranted by the practice of courts of admiralty, or by the nature of his office. Although they had not reported upon this point, yet he submitted it to the court for their consideration.

After stating the facts which appeared upon the record, and such as were either admitted or proved, he divided his argument into three general points.

1. That Jared Shattuck was a citizen of the United States, at the time of capture and recapture; and therefore the vessel was subject to seizure and condemnation, under the act of Congress usually called the non-intercourse act.

2. That she was in danger of condemnation by the French, and therefore, if not liable to condemnation under the act of Congress, capt. Murray was at least entitled to salvage.

3. That if neither of the two former positions can be maintained, yet captain Murray had probable cause to seize and bring her in, and therefore he ought not to be decreed to pay damages.

1. The vessel was liable to seizure and condemnation under the non-intercourse act; Shattuck being a citizen of the United States, at the time of recapture.

Captain Murray's authority to capture the Charming Betsy, depends upon the municipal laws of the United States, expounded by his instructions, and the law of nations.

Before the non-intercourse act, measures had been taken by Congress to prevent and repel the injuries to our commerce which were daily perpetrated by French cruizers.

By the act of 28 May, 1798, vol. 4. p. 120, authority was given to capture "armed vessels sailing under authority or pretence of authority from the republic of France," c. and to retake any captured American vessel.

The act of 28 June, 1798, vol. 4. p. 153, regulates the proceedings against such vessels when captured, ascertains the rate of salvage for vessels recaptured, and provides for the confinement of prisoners, c.

The act of July 9, 1798, vol. 4. p. 163, authorises the capture of armed French vessels any where upon the high seas — and provides for the granting commissions to private armed vessels, c.

The right to retake an armed, or unarmed neutral vessel in the hands of the French, is no where expressly given; but is an incident growing out of the state of war; and is implied in several acts of Congress. This was decided in the case of Talbot v. Seeman in this court, at Aug. term, 1801.

The right of recapture, carrying with it the right of salvage, gave the right of bringing into port; and that port must be a port of the captor.

The first non-intercourse act was passed June 13, 1798, vol. 4. p. 129. — A similar act was passed Feb. 9, 1799, vol. 4. p. 244.

The act upon which the present libel is founded was passed Feb. 27, 1800. Vol. 5. p. 15.

These are not to be considered as mere municipal laws for the regulation of our own commerce, but as part of the war measures which it was found necessary at that time to adopt. It was quoad hoc tantamount to a declaration of war.

Happily there is not, and has not been, in the practice of our government, an established form of declaring war.

Congress have the power, and may by one general act, or by a variety of acts, place the nation in a state of war. As far as Congress have thought proper to legislate us into a state of war, the law of nations in war is to apply.

By the general laws of war, a belligerent has a right not only to search for her enemy, but for her citizens trading with her enemy. If authorities for this position were necessary, a variety of cases decided by Sir William Scott might be cited.

As to the present case, France was to be considered as our enemy. The non-intercourse act of 1800, prohibits all commercial intercourse "between any person or persons resident "within the United States, or under their protection, "and any person or persons resident within the territories of "the French republic, or any of the dependencies thereof," "And declares that "any ship or vessel, owned, hired, or "employed, in whole, or in part, by any person or persons "resident within the United States or any citizen "or citizens thereof resident elsewhere," c. "shall be "forfeited and may be seized and condemned."

A citizen of the United States, resident " elsewhere," must mean a citizen resident in a neutral country. If Shattuck was such a citizen, the case is clearly within the statute. It is not necessary that the vessel should be registered as an American vessel; it is sufficient if owned by a citizen of the United States Registering is only necessary to give the vessel the privileges of an American bottom. Nor is it it necessary that she should have been built in the United States.

By the 8th section of the act of 27 th Feb. 1800, vol. 5. p. 20, reasonable suspicion is made a justification of seizure, and sending in for adjudication. The officer is bound to act upon suspicion — and that suspicion applies both to the character of the vessel, and to the nature of the voyage.

Although the act of congress mentions only vessels of the United States, still from the nature of the case, the right to seize and send in must extend to apparent as well as real American vessels.

Such is the contemporaneous exposition given by the instructions of the executive.

The words of these instructions are "you are not only "to do all that in you lies, to prevent all intercourse whether " direct or circuitous, between the ports of the United " States, and those of France and her dependencies, in "cases where the vessels or cargoes are apparently, as "well as really American, and protected by American "papers only, but you are to be vigilant that vessels or "cargoes really American, but covered by Danish or other "foreign papers, and bound to or from French ports, do "not escape you."

The law and the instructions having thus made it his duty to act on reasonable suspicion, he must be safe though the ground of suspicion should eventually be removed.

Under our municipal law, therefore, the following propositions are maintainable.

1. That a vessel captured by the French, sails under French authority; and if armed, is, quoad hoc, a French armed vessel. The degree of arming is to be tested by the capacity to annoy the unarmed commerce of the United States.

2. The right to recapture an unarmed neutral, is an incident of the war, and implied in the regulations of congress.

3. The non-intercourse law justifies the seizure of apparent, as well as of real American vessels.

Nor does this doctrine militate with the law of nations. A war in fact existed between the United States, and France. An army was raised, a navy equipped, treaties were annulled, the intercourse was prohibited, and commissions were granted to private armed vessels. Every instrument of war was employed; but its operation was confined to the vessels of war of France upon the high seas.

So far as the war was allowed, the laws of war attached.

That it was a public war, was decided in the case of Boas v. Tingey, in this court, Feb. Term, 1800.

No authorities are necessary to shew that a state of war may exist without a public declaration. And the right to search follows the state of war. Vattel, B. 3. c. 7. § 114 — 1. Rob. 304. (The Maria,) 8 Term. Rep. 234. Garrels v. Kensington. Whether the vessel was American or Danish, she was taken out of the hands of our enemy.

The law of nations in war, gives not only the right to search a neutral, but a right to recapture from the enemy. On this point the case of Talbot v. Seeman is decisive, both as to the law of nations, and as to the acts of Congress, and that the rule applies as well to a partial as to a general war.

Captain Murray's authority, then, was derived not only from our municipal law, and his instructions; but from the law of nations. If he has pursued his authority in an honest and reasonable manner, although he may not be entitled to reward, yet he cannot deserve punishment.

It remains to consider, whether the vessel was, in fact, liable to seizure and condemnation.

What where the general facts to create suspicion at the time?

1. The vessel was originally American. The transfer was recent and since the non-intercourse law. The voyage was to a dependency of the French republic and therefore prohibited, if she was really an American vessel.

2. The owner was an American by birth. The captain was a Scotchman. The crew were not Danes, but chiefly Americans, who came from Baltimore.

3. The proces verbal calls her an American vessel; which was corroborated by the declarations of some of the crew.

4. The practice of the inhabitants of the Danish islands, to cover American property in such voyages.

What was there then to dispel the cloud of suspicion, raised by these circumstances?

1. The declarations of Wright, the captain, whose testimony was interested, inconsistent with itself, and contradicted by others.

2. The documents found on board.

These were no other than would have been found, if fraud had been intended. T were

1. The sea letter or pass from the governor-general of the Danish islands, who did not reside at St. Thomas's, but at St. Croix. It states only by way of recital that the vessel was the property of Jared Shattuck a burgher and inhabitant of St. Thomas's. It does not state that he was naturalized or a subject of Denmark.

2. The muster roll, which states the names and number of the captain and crew, who were ten besides the captain, viz. Wm. Wright, captain, David Weems, John Robinson, Jacob Davidson, John Lampey; John Nicholas, Frederick Jansey, George Williamson, William George, Prudentio, a Corsican, and Davy Johnson, a Norwegian. There is but one foreign name in the whole. Wright in his deposition says, that three were Americans, one a Norwegian and the rest were Danes, Dutch and Spaniards.

The muster roll was not on oath, but was the mere declaration of the owner.

3. The invoice, which only says that Shattuck was the owner of the cargo.

4. The bill of lading, which says that he was the shipper.

5. The certificate of the oath of property of the Cargo, states only by way of recital, that Shattuck, a burgher, inhabitant and subject c. was the owner of the Cargo, but says nothing of the property in the vessel.

By comparing this certificate with the oath itself, it appears that the word " subject" has been inserted by the officer and was not in the original oath.

6. Shattuck's instructions to captain Wright.

7. The bill of sale by Phillips, the agent of the American owners, to Shattuck — but his authority to make the sale was not on board. To shew what little credit such documents are entitled to, he cited the opinion of Sir. W. Scott, in the case of the Vigilantia, 1 Rob. 6, 7, and 8. Amer. ed. and in the case of the Odin 1. Rob. 208, 211.

The whole evidence on board was a mere custom-house affair, all depending upon his own oath of property. His burgher's brief was not on board, nor did it appear even by his own oath, that Shattuck was a burgher. And no document is yet produced in which he undertakes to swear that he is a Danish subject.

Such documents could not remove a reasonable suspicion founded upon such strong facts.

There could never be a seizure upon suspicion, if this was not warrantable at the time.

What has appeared since to remove the suspicion, and to prove Shattuck to be a Danish subject?

All the original facts remain, and the case rests on Shattuck's expatriation, whence arise two inquiries.

1. As to the right, in point of law, to expatriate.

2. As to the exercise of the right, in fact.

1. As to the right of expatriation.

He was a native of Connecticut, and, for aught that appears in the record, remained here until the year 1789, when we first hear of him in the island of St. Thomas's. This was after the revolution, and therefore there can be no question as to election, at least there is no proof of-his election to become a subject of Denmark.

If the account of the case of Isaac Williams, (1. Tucker's Blackstone, part 1, appendix, p. 436 ) is correct, it was the opinion of Ch. J. Elsworth, that a citizen of the United States could not expatriate himself. That learned Judge is reported to have said in that case, that the common law of this country remains the same as it was before the revolution.

But in the case of Janson v. Talbot, 3. Dall. 133, this Court inclined to the opinion that the right exists, but the difficulty was that the law had not pointed out the mode of election and of proof.

It must be admitted that the right does exist, but its exercise must be accompanied by three circumstances.

1. Fitness in point of time.

2. Fairness of intent.

3. Publicity of the act.

But the right of expatriation, has certain characteristicks, which distinguish it from a locomotive right, or a right to change the domicil.

By expatriation the party ceases to be a citizen and becomes an alien. If he would again become a citizen, he must comply with the terms of the law of naturalization of the country, although he was a native.

But by a mere removal to another country for purposes of trade, whatever privileges he may acquire in that country, he does not cease to be a citizen of this.

With respect to other parties at war, the place of domicil determines his character, enemy, or neutral, as to trade. But with respect to his own country, the change of place alone does not justify his trading with her enemy; and he is still subject to such of her laws as apply to citizens residing abroad. 1 Rob. 165, ( The Hoop.) 1 Term Rep. 84. Gist v. Mason, and particularly 8 Term Rep. 548. Potts v. Bell, where this principle is advanced by Doct. Nicholl, the king's advocate, in p. 555, admitted by Doct. Swabey in p. 561, and decided by the court.

This principle of general law is fortified by the positive prohibition of the act of congress.

In France the character of French citizen remains until a naturalization in a foreign country. In the United States we require an oath of abjuration, before we admit a person to be naturalized.

If he was naturalized, he has done an act disclaiming the protection of the United States, and is no longer bound to his allegiance. But if he has acquired only a special privilege to trade, it must be subject to the laws of his country.

2. But has he in fact exercised the right of expatriation? And is it proved by legal evidence?

His birth is prima facie evidence that he is a citizen of the United States and throws the burden of proof upon him. No law has been shewn by which he, could be a naturalized subject of Denmark, nor has he himself ever pretended to be more than a burgher of St. Thomas's. What is the character of burgher, and what is the nature of a burgher's brief?

It is said that to entitle a person to own ships, there must have been a previous residence; but no residence is necessary to enable a man to be a captain of a Danish vessel.

It is a mere licence to trade — a permit to bear the flag of Denmark — like the freedom of a corporation. It implies neither expatriation, an oath of allegiance, nor residence. 1 Rob. 133. The Argo, 8 Term Rep. 434, Pollard v. Bell. These cases shew with what facility a man may become a burgher; that it is a mere matter of purchase, and that it is a character which may be taken up and laid aside at pleasure, to answer the purposes of trade.

But there is no evidence that he ever obtained even this burgher's brief. He went from Connecticut, a lad, an apprentice or clerk in 1788 or 1789. He was not seen in business there until 1795 or 1796. In going in 1789, he had no motive to expatriate himself, as there was then no war. We find him first trading in 1796, after the war, and the law of Denmark forbids a naturalization in time of war.

At what time then did he become a burgher? If he ever did become such in fact, and it was in time, he can prove it by the record. Wright's burgher's brief is produced and shews that they are matters of record. The brief, itself then, or a copy from the record duly authenticated, is the best evidence of the fact, and is in the power of the party to produce.

Why is it withheld, and other ex parte evidence picked up there, and witnesses examined here? All the evidence they have produced is merely matter of inference. They have examined witnesses to prove that he carried on trade at St. Thomas's, owned ships and land, married and resided there. By the depositions they prove that a man is not by law permitted to do these things without being a burgher; and hence they infer his burghership.

These facts are equivocal in themselves, and not well proved.

Certificates of citizenship are easily obtained, but are not always true. This is noticed by Sir W. Scott in the cases before cited. A case happened in this country, 2 Dall. 370, U.S. v. Gallato, where a person having taken the oath of allegiance to Pennsylvania, agreeably to the naturalization act of that state, obtained a certificate from a magistrate confirmed by the attestation of the supreme executive of the state, that he was a citizen of the U. States. But upon a trial in the circuit court of Pennsylvania, it was adjudged that he was not a citizen. Captain Barney also went to France, became a citizen, took command of a French ship of war, returned to this country, and is now certified to be a citizen of the U.S. So in the case of the information against the ship John and Alice, Captain Whitesides, he was generally supposed to be a citizen of the U. S.

On the trial, evidence of his citizenship was called for, when it appeared that his father brought him into this country in the year 1784, and remained here until 1792, when the father died. Neither he nor his father were naturalized, and the vessel was condemned. These instances shew the danger of crediting such custom-house certificates.

All these certificates, in the present case do not form the best evidence, because better is still in the possession of the party, and he ought to produce it.

The general and fundamental rules of evidence are the same in courts of admiralty as in courts of common law. If they appear to relax, it is only in that stage of the business where they are obliged to act upon suspicion.

In the present case the opinion of merchants only is taken as to the laws of Denmark. — No judicial character, not even a lawyer was applied to. Certificates of merchants are no evidence of the law. 1 Rob. 58. (The Santa Crux.)

The evidence offered is both ex parte, and ex post facto. Fraud is not to be presumed, but why was not the burgher's brief produced, as well as the other papers, such as the oath of property, c. when it was certainly the most important paper in the case?

The only reason which can be given, is, that it did not exist. It was a case like that of Captain Whitesides, where people were led into a mistake from the length of his residence, and from having seen him there from the time of his youth.

Upon the whole then we have a right to conclude that Jared Shattuck was not a Danish subject — or that if he was, the fact is not proved, and therefore he remains a citizen of the U.S. in the words of the act of congress, " residing elsewhere."

The consequence must be a condemnation of the vessel.

II. She was in danger of condemnation in the French courts of admiralty, and therefore Captain Murray is intitled to salvage.

This depends 1. on the right to retake — 2. on the degree of danger — and 3. the service rendered.

1. He had a right to retake, on the ground of suspicion of illicit trade, in violation of the non-intercourse law, as well as on the ground of her being a vessel sailing under French authority, and so armed as to be able to annoy unarmed American vessels. He had also a right to bring her in for salvage, if a service was rendered.

If his right to retake depends upon the suspicion of illicit trade, or upon her being a French armed vessel, he could take her only into a port of the U.S.

The point of illicit trade has already been discussed. That the vessel was sailing under French authority is certain; the only question is whether she was capable of annoying our commerce.

She had port-holes, a musket, powder and balls, and eight Frenchmen, who probably, as is usual, had each a cutlass. Vessels have been captured without a single musket. Three or four cutlasses are often found sufficient.

The vessel was sufficiently armed to justify Captain Murray under his instructions in bringing her in.

If then the taking was lawful, has she been saved from such danger as to entitle Captain Murray to salvage?

There is evidence that Captain Wright requested Captain Murray to take the vessel to prevent her falling into the hands of the English. He consented to be carried into Martinique. He protested only against the privateer, not against Captain Murray. His letter to Captain Murray does not complain of the recapture, but of the detention. The taking was an act of humanity, for if Captain Murray had taken out the Frenchmen, and left the vessel with only Captain Wright and the boy, they could not have navigated her into port, and she must have been lost at sea, or fallen a prey to the brigands of the islands. This alone was a service which ought to be rewarded with salvage.

But she was in danger of condemnation in the French courts of admiralty.

The case of Talbot v. Seeman has confirmed the principle adopted by Sir W. Scott in the case of the War Ouskan, 2 Rob. 246. that the departure of France from the general principles of the law of nations, varied the rule that salvage is not due for the recapture of a neutral out of the hands of her friend; and that the general conduct of France was such as to render the recapture of a neutral out of her hands, an essential service which would intitle the recaptors to salvage. If she had been carried into a French port, how unequal would have been the conflict? Who would have been believed, the privateer or the claimant? The Danish papers would have been considered only as a cover for American property. The danger is shewn by the apprehensions of Captain Wright and his crew; by the declarations of the privateer; by the proces verbal; and by the actual imprisonment of the crew.

But independent of the general misconduct of France, there are several French ordinances under which she might have been condemned. The case of Pollard v. Bell, 8 Term Rep. 444, shews that such ordinances may justify the condemnation. The case of Bernardi v. Motteaux, Doug. 575, shews that the French courts actually do proceed to condemnation upon them, as in the case of throwing over papers, c. So in the case of Mayne v. Walter, Park on Insurance, 414, (363) the condemnation was because the vessel had an English supercargo on board.

By the ordinances of France, Code des prises, vol. 1, p. 306, § 9, "all foreign vessels shall be good prize in which there shall be a supercargo, commissary, or chief officer of an enemy's country; or the crew of which shall be composed of one third sailors of an enemy's state; or which shall not have on board the roles d'equipage certified by the public officers of the neutral places from whence the vessels shall have sailed."

And by another ordinance, 1 Code des prises, 303, § 6, "No regard is to be paid to the passports granted by neutral or allied powers to the owners or masters of vessels, subjects of the enemy, if they have not been naturalized, or if they shall not have transferred their domicil to the states of the said powers three months before the 1st of September in the present year; nor shall the said owners and masters of vessels, subjects of the enemy, who shall have obtained such letters of naturalization, enjoy their effect, if, after they shall have obtained them, they shall return to the states of the enemy, for the purpose of there continuing their commerce;" and by the next article, "vessels, enemy built, or which shall have been owned by an enemy, shall not be reputed neutral or allied, if there is not found on board authentic documents, executed before public officers who can certify their date, and prove that the sale or transfer thereof had been made to some of the subjects of an allied or neutral power, before the commencement of hostilities; and if the said deed or transfer of the property of an enemy to the subject of the neutral or ally, shall not have been duly enregistered before the principal officer of the place of departure, and signed by the owner, or the person by him authorised."

In violation of these ordinances, the chief officer, Captain Wright, was a Scot, an enemy to France; for although he had a burgher's brief, yet it did not appear that he had resided three months before he obtained it; and we have before seen that a previous residence was not necessary by the laws of Denmark to entitle him to a burgher's brief for the purpose of being master of a vessel. In the next place, the whole number of the crew, with the Captain, being eleven, and three of the crew being Americans and the captain a Scot, more than one third of the crew were enemies of France. The muster roll did not describe the place of nativity of the crew. The vessel was purchased after the commencement of hostilities between France and the U.S. — And there was no authority on board from the American owners to Phillips, the agent who made the sale, in violation of the regulation of 17th February 1694, Art. 4. 2 Code des prises, p. 14, which declares "the vessel to be good prize, if being enemy built, or belonging originally to the enemy, the neutral, the allied, or the French proprietor, shall not be able to shew, by authentic documents found on board, that he had acquired his right to her before the declaration of war." — See also 2 Valin. 249, § 9 — 251 § 12 and 244.

What chance of escape had this vessel, under all these ordinances which the French courts were bound to enforce? The case of Pollard v. Bell, 8 Term, 434, is precisely in point. The vessel in that case was Danish, and had all the papers usually carried by Danish vessels. But she was condemned in the highest court of appeal in France because the captain was a Scot who had obtained a Danish burgher's brief subsequent to the hostilities.

Has there, then, been no service rendered?

It is no objection to the claim of salvage that it is not made in the libel. Salvage is a condemnation of part of the thing saved. The prayer for condemnation of the whole includes the part. It may be made by petition, or even ore tenus.

The means used for saving need not be used with that sole view. Talbot v. Secman.

As to the quantum of salvage, he referred to the opinion of Sir W. Scott, in the case of the Sarah. 1 Rob. 263.

III. But if the Charming Betsey is not liable to condemnation under the non-intercourse law, and if Captain Murray is not entitled to salvage, yet the restitution ought to be made of the net proceeds of the sale only, and not with damages and costs.

In maritime cases probable cause is always a justification. The grounds of suspicion in the present instance have been already mentioned; and when to these are added the circumstances that it was at Captain Wright's request that Captain Murray took possession of the vessel — that he consented to be carried into Martinique — that if he had taken out the Frenchmen and left the vessel in the midst of the ocean with only Captain Wright and his boy, they would have been left to destruction — that part of the cargo was damaged, part rifled, and all perishable — and that Captain Murray offered to release the vessel and cargo, on security, there can hardly be a stronger case to save him from a decree for damages.

In the case of the Two Susannahs, 2 Rob. 110, it is by Sir W. Scott, taken as a principle that a seizure is justified by an order for further proof, and he decreed a restitution of the proceeds only, it not being shewn that the captors conducted themselves otherwise than with fair intentions.

In the present case there is no pretence that Captain Murray did not act from the purest motives, and from a wish faithfully to execute his instructions.

Key, contra.

1. The schooner Charming Betsey and her cargo were neutral property, and not liable to capture under the non-intercourse law.

2. When recaptured she was not an armed French vessel capable of annoying our commerce, and therefore not liable under the acts of congress authorising the capture of such vessels.

3. She was not in imminent danger when recaptured, and therefore Captain Murray is not entitled to salvage.

4. Under all the circumstances of the case, he acted illegally, and is liable for damages which have been properly assessed.

I. As to the neutral character of the vessel and cargo, he contended,

1. That Jared Shattuck never was an American citizen.

2. That if he was, he had expatriated himself, and had become a Danish subject.

3. That if not a Danish subject, yet he was not a citizen of the U.S.

The evidence is that he was born in Connecticut, but before the declaration of independence, and was therefore a natural born subject of Great-Britain. He was in trade for himself in St. Thomas's in 1794. — This he could not do until he was 21 years of age, which will carry back the date of his birth to the year 1773. He was an apprentice at St. Thomas's in the year 1788 or 1789. — There is no evidence of his being in the U.S. since the declaration of independence. But if he had been, yet he went away while a minor, and he could not make his election during his minority. There is no evidence that his parents were citizens of the United States. Being a natural born subject of Great-Britain, he could not become a citizen of the U.S. unless he was here at the time of the revolution — or his parents were citizens, or unless he became naturalized according to law.

It is incumbent upon Captain Murray to prove him to be a citizen of the U.S. It is sufficient for us to shew that he was born a subject of Great-Britain. — They must shew how he became a citizen. This is a highly penal law, and every thing must be proved which is necessary to bring the case within the penalty.

2. But if he ever was a citizen of the U.S. he had expatriated himself.

That every man has a right to expatriate himself, is admitted by all the writers upon general law; and it is a principle peculiarly congenial to those upon which our constitutions are founded.

Some of the states of the Union have expressly recognized the right, and even prescribed the form of expatriation. But where the form is not prescribed, nothing more is necessary than that it be accompanied with fairness of intention — fitness of time — and publicity of election.

In the present instance, all these circumstances concur.

No time could have been more fit, than the year 1788 or 1789, when all Europe and America were in a state of profound peace. His country had then no claim to his service.

The fairness of intention, is evidenced by its having been carried into effect by an actual bona fide residence of 10 or 11 years — by serving an apprenticeship — by actual domiciliation — by marriage — by becoming a burgher — by acquiring lands — and by owning ships.

The publicity of election, is witnessed by the same acts, and by taking the oath of allegiance to Denmark.

The United States have prescribed no form of expatriation. All that he could do to render the act public and notorious has been done.

It is said a man cannot cease to be a citizen of one state, until he has become a citizen or subject of another. But a man may become a citizen of the world — an alien to all the governments on earth. It is in evidence that by the laws of Denmark, a man cannot become a subject and carry on trade, without being naturalized — that an oath of allegiance, and an actual domicil are necessary to naturalization — but that a domicil is not necessary to become a burgher for the purpose of navigating a Danish vessel.

In the two cases cited from 1 Rob. 133, the Argo, and 8 Term Rep. 434, Pollard v. Bell, the question was only as to the national character of the master of the vessel, not of the owner; and therefore they do not apply to the present case.

The burgher's brief of Captain Wright is dated 19th May, 1794, and certifies that he had taken the oath of fidelity to his Danish majesty, and was entitled to all the privileges of a subject.

3. But if the facts stated in the record are not sufficient to prove Shattuck to be a Danish subject, yet they do not prove him to be a citizen of the U.S. and if he is not a citizen of the U.S. it is immaterial of what country he is a subject.

By the law of nature and nations a man may, by a bona fide domicil, and long continued residence in a country, acquire the character of a neutral, or even of an enemy. In the case of Scott v. Schawrtz, Comyns' Rep. 677, it was decided that residence in, and sailing from Russia, gave the mariners of a Russian ship, the character of Russian mariners, within the meaning of the British navigation act: and in the case of the Harmony, 2 Rob. 264, Sir W. Scott condemned the goods of an American citizen, because by a residence in France for four years he had acquired a domicil in that country which had given his property the character of the goods of an enemy. In the case of Wilson v. Marryat, 8 Term Rep. 31, it was adjudged that a natural born British subject might acquire the character of a citizen of the U.S. for commercial purposes.

II. The Charming Betsey was not a French armed vessel, capable of annoying our commerce, and therefore not liable to capture or condemnation, by virtue of the limited war which existed between the United States and France.

In supporting this proposition it is not intended to interfere with the decision of this court in the case of Talbot v. Seeman. There is a great difference between the force of the Amelia, in that case, and that of the Charming Betsey. — The Amelia had eight cannon, was manned by twelve Frenchmen, and had been in possession of the French ten days, and must be admitted to have been such an armed French vessel as came within the meaning of the acts of congress

But in the present case, the vessel was built at Baltimore, and owned by citizens of the United States. — When she sailed from Baltimore she had four cannon, a number of muskets, c. which Shattuck was obliged to purchase with the vessel, and which he afterwards sold at a considerable loss.

The captain swears that at the time of recapture she had only one musket, a few balls, and twelve ounces of powder; and although McFarlan deposes to a greater quantity of arms, yet it appears that he did not go on board of her until eight days after the recapture.

It arms were on board, they ought to have been brought in with the vessel. This is particularly required by the act of congress. No arms are mentioned in the account of sales. It is to be presumed, as none were brought in, that none were on board. The captain expressly swears that the French put no force or arms on board when they took her.

She could not, therefore, be such an armed vessel as was intended by the acts of congress.

III. She was not in imminent danger when recaptured, and therefore the recaptors are not entitled to salvage.

It is a general principle that the recapture of a neutral does not entitle to salvage.

It is not intended to question the correctness of the decision of this court in the case of Talbot v. Seeman, nor that of Sir W. Scott, in the case of the War Ouskan. Those cases were exceptions to the general rule, because the conduct of France was in violation of the law of nations, and because neutral vessels had no chance of escaping the rapacity of the French prize courts. This system of depredation upon neutral commerce continued during the years 1798 and 1799. The Amelia was recaptured by Captain Talbot in September, 1799, while the arret of 18th January 1798, so injurious to neutral commerce, and the violences of the prize courts were in full operation.

The Charming Betsey was recaptured by Captain Murray on the 3d of July 1800. During this interval great events had occurred in France.

On the 9th of November 1799, Bonaparte was placed at the head of the government, and a new order of things commenced.

On the 24th of December 1799, the arret of the council of five hundred of 18th January 1798, which made the character of neutral vessels dependent upon the quality of the cargo, and declared good prize all those laden in whole or in part with the productions of England or her possessions, was repealed, and by a new decree the ordinance of 1778 was re-established. The government adopted a more enlightened and liberal policy towards neutrals.

On the 26th of March 1800, a new tribunal of prizes was erected, at the head of which was placed the celebrated Portalis, author of the Civil Code.

On the 29th of May 1800, their principles were tested in the case of the Pigou, an American ship belonging to Philadelphia. This case was a public declaration to all the world that they began to entertain a proper respect for the law of nations, and from this time the rule of salvage, as established in the case of the War Ouskan, ceased.

The Pigou had been condemned in an inferior tribunal.

On an appeal to the council of prizes, Portalis, with a degree of liberality and correctness which would confer honour upon any court in the world, declared that "excepting the case when a prize is evidently and actually "enemy's property, all questions about the validity "or invalidity of prizes, come to the examination of a fact of neutrality." And in discussing the question as to the necessity of a role d'equipage, he says, "I will "begin with the principle that all questions about "neutrality, are what are called in law, questions bona " fide, in which due regard is to be had to facts, and "weigh them properly without adhering to trifling appearances." — "But it would be a gross error in believing "that the want of, or the least irregularity in, "one of these papers, could operate so far as to cause "the vessel to be adjudged good prize.

"Sometimes regular papers cover an enemy's property, "which other circumstances unmask. In other circumstances "the stamps of neutrality break through "omissions and irregularities in the forms, proceeding "from mere negligence, or grounded on motives free "from fraud.

"We must speak to the point; and in these matters "as well as in those which are to be determined, we "must decide not by mere strict forms, but by the principles "of good faith; we must say with the law, that "mere omissions or mere irregularities in the forms, "cannot prejudice the truth, if it is stated by any other "ways: and si aliquid ex solemnibus deficiat, cum equitas " poscit, subveniendum est." — "The main point in every "case is, that the judge may be satisfied that the "property is neutral or not." He then cited a case decided upon the 6th article of the regulation of the 21st of October 1744; by which article the act of throwing over papers is made a substantive ground of condemnation. But it was decided that the papers ought to be of such a nature as to prove the property to be enemy's.

The two grounds upon which the Pigou was condemned in the inferior tribunal were, that she was armed for war, without any commission or authority from the U.S. and that there was on board no role d'equipage attested by the public officers of the port of departure. She mounted ten guns, and was provided with muskets and other warlike stores.

Upon the first point it was decided in the council of prizes that she was not armed for war, but for lawful defence; and on the second that a role d'equipage was not absolutely necessary, if the property appeared otherwise clearly to be neutral.

In another case (the Statira) which was decided very shortly after that of the Pigou, by the same council of prizes, two questions arose — 1st, whether the Statira, being an American vessel captured by a British ship and recaptured by a French privateer, was liable to confiscation on the ground of her being in the hands of an enemy; and 2d, whether her cargo was ground of condemnation?

On the first point it was held, that the mere capture does not before condemnation, vest the property in the captor, so as to make it transferable to the recaptor, and therefore no ground of confiscation.

On the 2d there were two inquiries. 1st, whether, in point of law, the character of the vessel, neutral or not, should be determined by the nature of the cargo? 2d. whether the cargo consisted of contraband?

As to the first, the commissary (Portalis,) reviews the laws upon this subject prior to the arret of the council of 500, of the 29th Nivose, year 6, (January 18, 1798, ) the severity of which he condemns; but as the Statira was captured while it was in force, the captor was entitled to have the capture tried by it. He observes that such regulations are improperly styled laws, and they are essentially variable pro temporibus et causis; that they should always be tempered by wisdom and equity. He adverts to the words in whole, or in part, by which he says ought to be understood a great part, according to the judicial maxim parum pro nihilo habetur. Upon this principle he is of opinion, that a ship ought not to be subject to confiscation, even under the law of the 29 th Nivose, unless such a part of the cargo comes under the description of what is there made contraband, as ought to excite a presumption of fraud against all the rest.

The question of contraband, related to 40 barrels of pitch, part of the cargo of the Statira. He observed that pitch was not made contraband by the treaty of 1778, but as France was by that treaty, entitled to all the advantages of the most favored nation, and as by a subsequent treaty between the United States and Great Britain, pitch was among the enumerated articles of contraband, it necessarily became such in regard to France.

He however decides the quantity to be too small to justify condemnation, even upon the principle of the law of 24th, (quere 29 th) Nivose. And the ship was restored.

These cases are read to show that France had abstained from those violations of the law of nations, which had caused the rule in the case of the War Ouskan; and to bring the present case within the principles established by the court in the case of Talbot v. Seeman.

The general conduct of France having been changed, it is to be presumed, she would have been released with damages and costs; if not upon the principles of justice, good faith, and the law of nations, yet upon those of policy. France was at war with Great Britain; partial hostilities existed with the United States. The non-intercourse law prevented our vessels from trading with France or her dependencies; and the French West-Indies could only be supplied from the Danish islands. It is not to be believed, therefore, that they would, by condemning this vessel, (coming to them with those very supplies which they wanted,) embarrass a trades necessary to their very existence.

But independent of the general misconduct of France towards neutrals, the captors rely upon three points arising under French ordinances.

1. That the Role d'Equipage wants the place of nativity of the crew. But according to the opinion of Portalis, this is not a fatal defect, nor is it, of itself, a sufficient ground of condemnation.

2. That more than one third of the crew were enemies of France. The word matelot in the ordinance of 1778, means a sailor, in contradistinction to the captain or master. Exclude the captain and there were only 10 persons on board, and only three of those are pretended to be enemies; so that one third were not enemies within the meaning of the ordinance.

But these three pretended enemies were Americans. The hostilities which existed between France and the United States, amounted at most to a partial, limited war, according to the decision of this court in the case of Boas v. Tingey. It was only a war against French armed force found on the high seas.

It did not authorise private hostilities between the citizens of the two countries. Individuals are only enemies to each other in a general war. The war extended only to those objects pointed out in the acts of Congress; as to every thing else, the state of the two nations was to be considered as a state of peace. It was a war only quoad hoc. The individuals of the two nations were always neutral to each other. A citizen of the United States could only be considered an enemy of France while in arms against her; the neutrality was the counterpart, or (to use a mathematical expression) the complement of the war. A citizen of the United States, peaceably navigating a neutral vessel, could not be burthened with the character of enemy.

3. The captain was a Scot by birth.

The ordinance cited from 1 Code des prises, 303. § 6. in support of this objection, is in the alternative. The master of the vessel must be naturalized in a neutral country, or must have transferred his domicil to the neutral country three months before the first of September in that year. Naturalization is not necessary, if there be such a transfer of the domicil; and the domicil is not necessary if the party be naturalized.

But the authority of Portalis shows that these decrees are not to be considered as laws but sub modo.

They are only regulations made at particular times, for particular purposes.

If the same evidence had been produced at Guadaloupe which has been brought here, (and the same would have been more easily obtained there) there can be no doubt the vessel would have been restored.

It is in evidence that other vessels of Mr. Shattuck had been released.

No salvage can be allowed unless the danger was imminent, not problematical.

IV. Under all the circumstances of the case, Captain Murray acted illegally, and is liable for damages; which have been properly assessed.

His subsequent conduct rendered the transaction tortious ab initio. If he was justified in rescuing the vessel from the hands of the French, his subsequent detention of the vessel, and the sale of the cargo at Martinique by his own agent, without condemnation, were unauthorised acts in violation of the rights of neutrality.

The libel says nothing of the cargo. It is first mentioned in the replication. The libel only prays condemnation of the vessel, on the ground of violation of the non-intercourse law.

By law he was bound to bring the vessel and cargo into a port of the United States for adjudication, and had no authority to sell the cargo before condemnation. — As to the pretence of her being an armed French vessel, he ought to have sent the arms into port with the vessel as the only evidence of their existence.

The commander of the French privater, in his commission to the prize-master, calls her the Danish schooner Charming Betsy, William Wright, master.

There was no evidence to impeach the credence due to the papers found on board of her, and which at that time had every appearance of fairness, and which have since been incontestibly proved to be genuine.

The facts stated in the proces verbal, are that she had no log-book — that the mate declared himself to be an American — that the flag and pendant were American — that the Danish flag had been made during the chase, which was confirmed by the two boys — and that she had no pass from the French consul. Whatever weight might be given to these facts, if true, yet the outrageous and disorderly conduct of the crew of the privateer, entirely destroys the credit of the proces verbal, and at best it would be only the declaration of interested plunderers.

But it is said that, by the law of nations, probable cause is a sufficient excuse; and that this law operates as the law of nations.

In revenue laws, probable cause is no justification, unless it is made so by the laws themselves.

This is not a war measure. If the United States were at war it was unnecessary, because the act of trading with an enemy is itself a ground of condemnation. This law was passed because the United States were not at war, and wished to avoid it, by shewing their power over the French colonies in the West-Indies. It is a municipal regulation, as well suited to a state of peace as of war. It affects our own citizens only. It is no part of the law of nations. What would other nations call it, were they bound to notice it? It can give no right to search and seize neutrals. It could not affect their rights.

He who takes must take at his peril. The law only gives authority to seize vessels of the United States. If he takes the vessel of another nation, he must answer it.

As to the damages. Nothing can justify Captain Murray; but it was a mistake of the head, not of the heart. His intentions were honest and correct, but he suffered his suspicions to carry him too far. If it was an error in judgment, shall he have salvage? If an injury has been done to the innocent and unfortunate owner, shall he have no redress? The consequences to him were the same, whatever might have been the motive. The damages have been properly assessed in the District Court. If damages are to be given they ought not to be less than the original cost of vessel and cargo, with the outfit, insurance, interest and expenses; and upon calculation it will be found that the damages assessed do not exceed the amount of these. Dallas. It is said that Mr. Shattuck never was a citizen of the United States.

What is averred and admitted need not be proved.

Mr. Soderstrom, in his rejoinder, expressly admits that he was once a citizen of the United States by alleging that he had transferred his allegiance from the government of the United States to his Danish majesty.

Mr. Shattuck's burgher's brief, is at length, for the first time, produced and admitted to be made a part of the record. It bears date on the 10th of April, 1797. It may here be remarked that some of the witnesses have testified that he became a burgher in 1795. This shews how little reliance ought to be placed upon their testimony. If then Mr. Shattuck did expatriate himself, it was not until April 1797. It has been conceded, that a man cannot expatriate himself unless it be done in a fit time, with fairness of intention, and publicity of act.

As to the fitness of the time. What was the situation of this country and France in the year 1797.

In 1795 the British treaty had excited the jealousy of France. In 1796 she passed several edicts highly injurious to our commerce. Mr. Pinckney had been sent as an Envoy extraordinary, and was refused. France had gone on in a long course of injury and insult, which at length roused the spirit of the nation. On the 14th of June 1797, the act of Congress was passed, prohibiting the exportation of arms — On the 23d, the act for the defence of the ports and harbours of the United States — On the 24th the act for raising 80,000 militia — On the 1st of July, the ac providing a naval armament — On the 13th of June 1798, the first non-intercourse bill was passed, and on the 7th of July the treaties with France were annulled.

These facts shew that the time when Mr. Shattuck chose to expatriate himself, was a time of approaching hostilities, and when every thing indicated war.

As to the fairness of his intention. The same facts shew what that intention was. It was to carry on that trade which every thing tended to shew would soon become criminal by the laws of war, and from the exercise of which the other citizens of the United States were about to be interdicted.

The act of Congress points to this very case. It was to prevent transactions of this nature, that the word " elsewhere" was inserted.

But why was not this burgher's brief, or a copy of it, put on board the vessel? The answer is obvious — because it would have discovered the time of expatriation, which would have increased the suspicions excited by the origin of the vessel, by the recent transfer, by the nature of the cargo, and by the character of the crew.

Domicil in a neutral country gives a man only the rights of trade: it will not justify him in a violation of the laws of his country.

If then Mr. Shattuck could not expatriate himself, or if he has not expatriated himself, he is bound to obey the laws of the United States. A nation has a right to bind, by her laws, her own citizens residing in a foreign country; as the United States have done in the act of Congress respecting the slave trade, and in the non-intercourse law.

The question, whether the vessel was capable of annoying our commerce, depends upon matter of fact, of which the court will judge. The number of men was sufficient; the testimony respecting the cutlasses is supported by the nature of the transaction and by the usage in such cases. Some arms were necessary to prevent Capt. Wright and his boys from rising and rescuing the vessel. Circumstances are as strong as oaths, and are generally more satisfactory.

The vessel, having port-holes, was constructed for war, and in an hour after her arrival at Guadaloupe might have been completely equipped. Upon the principles of the case of Talbot v. Seeman, Captain Murray was bound to guard against this, and he would have been culpable if he had suffered her to escape.

But it is said that she was not in danger of condemnation by the French, because France had ceased from her violation of the laws of nations, because she had repealed the obnoxious arret of 18th January 1798, and because one third of the crew were not her enemies. Admitting all this, yet if one ground of condemnation remained, she would have been condemned. The vessel was transferred from an enemy, to a neutral, during the heat of hostilities. This alone was a sufficient ground of condemnation under the ordinance already cited from 1. Code des prises, 304. Art. 7. In the case of Talbot v. Seeman, the ground of salvage was, that the vessel was liable to condemnation under a French arret — And that the courts of France were bound to carry the arret into effect.

The conduct of Captain Murray was not illegal. He was bound by law, as well as by his instructions, to take the vessel out of the hands of the French. It was with the consent, if not at the request, of Captain Wright; and it was in itself an act of humanity. His conduct was fair, upright and honorable in the whole transaction. He offered to take security for the vessel and cargo. The cargo was perishable; if it had been brought to the United States it would not have been in a merchantable condition; or if it had been, it would not have sold so high here (being chiefly articles of American produce) as at Martinique. The sale was fair and the proceeds brought to the United States to wait the event of the trial.

Probable cause is a thing of maritime jurisdiction; and authorities in point may be found even at common law.

If it is a municipal regulation, it is one which affects the whole world. It is engrafted upon the law of nations. It is municipal only as it emanates from the municipal authority of the nation. But the whole world is bound to notice a law which affects the interests of all nations in the world.

As to the damages; the principles upon which they are assessed do not appear from the report of the assessors, but the probability is that they were founded upon the estimates of the probable profits of the voyage, as stated in the testimony of some of the witnesses. In a case of this kind, where the purity of intention is admitted, it can never be proper to give speculative or vindictive damages. Martin, in reply.

1. As to the national character of Shattuck.

He was born before the revolution; probably in 1773 or 1774; at least 21 years before April 10th 1797, which will bring it before the declaration of independence.

In Duanc's case, it was decided that even if it had been proved that he was born in New-York, yet his birth being before the revolution, and having been carried to Ireland during his minority, he was an alien.

The rejoinder of Mr. Soderstrom does not admit the fact, that Shattuck was a citizen of the United States; but if it did, it is coupled with an express allegation that he had duly expatriated himself; and if part is taken, the whole must be taken. The words of the rejoinder are, "and this party expressly alleges and avers that "the said Jared Shattuck, at the several times and periods "above mentioned, and long before, and in "the intermediate times which elapsed between the "said several times or periods, had been, then was, "ever since hath been, and now is, a subject of his "majesty the king of Denmark, owing allegiance to his "said majesty, and to no other prince, potentate, state "or sovereignty whatever; and that he the said Jared "Shattuck had, long before his said purchase of the said "schooner, duly expatriated himself from the dominions "of the United States, to those of his said majesty; "and transferred his allegiance and subjection from the "said United States and their government, to his said "majesty and his government." The whole purport of which is, that if he was ever a citizen of the United States he had expatriated himself.

Even if it was an admission of the fact, yet it could not prejudice Mr. Shattuck, as the rejoinder is by Mr. Soderstrom in character of Consul of Denmark, and as the representative of the nation.

If he was born before the revolution he never owed natural allegiance to the United States; and if he remained here after the revolution, during part of his minority, he owed only a temporary and local allegiance; during the existence of which, if he had taken up arms against the United States, he would have been guilty of treason; but that allegiance continued only while he was a resident of the country; he had a right to transfer such temporary allegiance whenever he pleased. Foster Cr. Law, 183. 185.

That he acted with a fair and honest intention is proved by his bona fide residence and domicil for 10 or 11 years. 2. Brown's Civil and Admiralty Law, 328.

The navigation act of Great Britain is a municipal law, and yet a bona fide domicil and residence of foreigners were held sufficient to bring the persons within its provisions. Comyns' Rep. 677. Scott qui tam v. Schwartz.

But a stronger case than that is found in 1 Bos. Pul. 430. Marryatt v. Wilson, in the Exchequer chamber, on a writ of error from the King's bench.

In that case a natural born British subject, naturalized in the United States since the peace, was adjudged to be a citizen of the United States within the treaty, and navigation acts of Great Britain, so as to carry on a direct trade from England to the British East-Indies.

The opinion of Eyre Ch. J. beginning in p. 439, is very strong in our favour.

There is no probability that the vessel would have been condemned at Guadaloupe. Mr. Shattuck, and his course of trade, were well known there, and they had already released some of his vessels. Another reason is, that Bonaparte was at that time negotiating with the northern powers of Europe, to form a coalition to support the principle-that free ships should make free goods; and he would have succeeded, but for the able negotiations of Lord Nelson at Copenhagen.

In Park on Insurance, 363, it is said, "If the ground "of decision appear to be, not on the want of neutrality, "but upon a foreign ordinance manifestly unjust, and "contrary to the law of nations, and the insured has "only infringed such a partial law; as the condemnation "did not proceed on the point of neutrality, it cannot "apply to the warranty, so as to discharge the insurer." And in support of this position he cites the case of Mayne v. Walter.

There is no ordinance of France, which, upon the principles established in the case of the Pigou, would have been a sufficient ground of condemnation.

The circumstances required by those ordinances are only evidence of neutrality, which is always a question of bona fide. A condemnation upon either of these ordinances alone would have been contrary to the law of nations; but if they are considered as only requiring certain circumstances tending to establish the fact of neutrality, they are perfectly consistent with that law. This is the light in which they have been considered by Portalis.

The French have never considered our vessels as the vessels of an enemy. Our vessels have not been condemned by them as enemy-property; but their sentences have always been grounded upon a pretended violation of some particular ordinance of France. Hence it appears that they would not have considered an American vessel, sold to a Dane, as an enemy's vessel transferred to a neutral during a state of war.

But the claim of salvage is an after thought. It was not necessary to bring her to the United States to obtain salvage. Salvage is a question of the law of nations, and may be decided by the courts of any civilized nation. Instead of rendering a service, he has done a tenfold injury. Captain Murray's intentions were undoubtedly correct and honourable, and we do not wish vindictive damages; but Mr. Shattuck will be a loser, even if he gains his cause, and recovers the damages already assessed.

Probable cause cannot justify the taking and bringing in a neutral; but it may prevent vindictive damages.