This is an appeal from a decree in admiralty by the circuit court of the United States for the District of Columbia, by which decree the ship Admittance, claimed by the appellants, Charles B. Fessenden and Richard S. Fay, as owners, and the cargo of the same ship claimed by the appellants, Jecker, Torre and Co. and Manual Quintana, were upon a libel filed by the appellee, John B. Montgomery, condemned as prize of war.
It will serve to explain the nature of the present controversy, and the character of the decree of the circuit court above mentioned, to refer to the proceedings heretofore had therein upon a libel filed by the claimants of the cargo for restitution, and to the decision of this court upon cross-appeals from those proceedings, both by the claimants and the captor, out of which lastmentioned decision the case before us has arisen.
By the decision of this court just referred to, (see 13 Howard, p. 498,) we hold the following propositions to have been expressly ruled:--
1. That the admiralty court of the District of Columbia had jurisdiction of the libel for the condemnation of the property in contest, although such property was not brought within its jurisdiction; and if they found the subject liable to condemnation, might proceed to condemn, although not in fact within the custody or control of the court.
2. That the admiralty court in the District of Columbia, having jurisdiction of the case, it was its duty to order the captors to institute proceedings in that court to condemn the property as prize, by a day to be named in the order; and in default thereof to be proceeded against upon a libel for an unlawful seizure; because the property of the claimant is not devested by the capture, but by condemnation in a prize court-is not devested until condemnation, though such condemnation will relate back to the capture.
3. That the grounds alleged for the seizure of the vessel and cargo, namely, that the vessel sailed from New Orleans with the design of trading with the enemy, and did in fact hold illegal intercourse with them, are sufficient, if supported by testimony, to subject both vessel and cargo to condemnation.
4. And if they were liable to condemnation, the reasons assigned in the answer for not bringing the vessel and cargo into a port of the United States for trial-namely: that it was impossible so to do consistently with the public interest-is sufficient, if supported by proofs, to justify the captors in selling vessel and cargo in California, and to exempt the captors from damages on that account.
5. That to a libel for restitution, probable cause for seizure in no defence; but is so only against a claim for damages, in cases in which the property has been restored or lost after seizure.
Under the authority of the rulings just enumerated, and in obedience to the mandate founded thereupon, the libel in the cause now before us was filed; and the case made by the parties presents, as the material questions for consideration, the inquiries; 1. Whether the vessel sailed with the design of trading with the enemy, and did in fact hold illegal intercourse with them. 2. Admitting that the vessel and cargo were in the first instance liable to condemnation, whether the reasons assigned for not bringing them within the United States were so supported by proof, as to justify the captor in not bringing them within the United States, and in selling them in California, without a forfeiture of their rights as captors.
As a principle applicable to the first of these inquiries, it may be averred as a part of the law of nations-forming a part, too, of the municipal jurisprudence of every country-'that in a state of war between two nations, declared by the authority in whom the municipal constitution vests the power of making war, the two nations and all their citizens or subjects are enemies to each other.' The consequence of this state of hostility is, that all intercourse and communication between them is unlawful. Vide Wheaton on Maritime Captures, cap. 7, p. 209, quoting from Bynkershoeck this passage: 'Ex natura belli commercia inter hostes cessare, non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli, commercia inter hostes esse vetita, ipsae indictiones bellorum satis declarant.