¶1(Prize.)'
¶2An American véfeel was captured by the enemy, and after condemnation,and sale to a subject of the enemy, was recaptured by,an American privateer. Held, that the original owner was not entitled to restitution on payment of salvage, undei the salvage act of the third of March, 1800, ch. 14, and the prize act of the 26th of June, 1712, ch. 107.
¶3*79By the general maritime law, a sentence of condemnation com pletely extinguishes tire title of the .original proprietor.
¶4By the British Statute of thp 13th George II. c.h. 4, the jus posiliminii is reserved to British svbjecis upon all recaptures of their vessels and goods by British Ships, even though they have been previously condemned, except where such vessels, after capture, have been set forth as ships of war.
¶5The statute of the 13d George III. ch. 160, s. 39. has no farther-altered the previous British laws, than to fix the salvage at uniform stipulated rates, instead of leaving it to depend'upon the length of time the recaptured ship was in the hands of the enemy.
¶6Neither of these, statutes extends to neutral property.
¶7T he 5th section of the prize act of the 26th June, 1812, ch. 107 does not repeal any ofthe provisions ofthe salvage act ofthe 3d of March, 18Ó0, ch. 14', but is merely affim,ative of thepre-existing law.
¶8By the law of this country the rule of reciprocity prevails upon the re-capture of the property of friends.
¶9The law of France denying restitution upon salvage after 24 hours possession by the enemy, the property of persons domiciled in Franco is condemned as prize by our courts on recapture, after being in possession of the enemy that length of time.
¶10Appeal from the circuit court for the district of New-Y ork.
¶11It appeared by the libel', claim, evidence, and admissions of the parties in this cause, that the ship Star ■ was captured by the American privateer Surprise,, on the high seas, on the 27th of January.,,1815. That the ship Star was then on a voyage from the British East Indies to London. That she was under the British flag,, had British papers as a trading vessel, and a license from the British East India Company, and that. *80her'ostensible, owners were British subjects, residing in London. It further appeared, thatprnviously to the late'war, and till, and at the time of the capture and condemnation in the British court of admiralty hereinafter mentioned, the said ship was a duly registered American ship, and was owned by Isaec Clason, deceased, an American citizen,, residing in New-York, or by the . claimants, his executors, who were also- American citizens, residing in New-York.
¶12That soon after the commencement of the late wa r? the said, ship sailed' from the United States on a .foreign voyage, and immediately after leaving a port of the United States on the said voyage, was captured by. a British vessel of war, and carried into Ualifax, Nova Scotia, where she was regularly libelled and condemned as. prize in the court of vice-admiralty of that province ; after which she was, purchased by the British subjects who claimed to. own her, at the time she was. re-captured by the Surprise. This last'mentioned capture Having been made, the ship Star was brought into the port of New-York, and libelled in the district court of New-York, as prize to the said privateer; upon which libel the appellants put in a elaim, claiming the said ship as the property of their testator^ and claiming to have the said ship restored to them upon the payment of salvage; which claim was rejected, and the ship was condemned. The cause was then carried. to the cweuit court, where the decree of the district court has affirmed. It was then brought,. by appeal, to this court.
¶13Mr. Key, for the appellants and claimants.
¶14The question in this cause arises under the prize act of the 26tb of June, 181.2, sec. 5. which, it is contended *81repeals the salvage- act of 1800, as to this matter. The latter act' provides, that condemnation in the enemy’s prize courts shall be a bar to restitution on salvage to' the original owner. The 5th.section of the 'prize aGt cf. 1812, declares, “that all vessels, goods and- effects, the property of any citizen of.' the United States, or of persons resident within, and under the jurisdiction of .the United States, or of persons permanently resident within, ¿nd under the pro?tection of any foreign prince, government, ór state, in amity with the United States, which shall have been captured by the enemy, and which shall be recaptured by vessels commissioned as aforesaid, shall be restored to the lawful owners, upon payment by them respectively, of a- j ust and reasonable salvage, to be ¡determined by the mutual agreement off the parties concerned, or by the decree of any court of competent jurisdiction, according to the nature of each case^ agreeably to the provisions hjretoforfe by law · Case Law">established by law.” This section directs all vessels, goods, and effects, of citizens and neutrals, recaptured from the enemy, to be - restored on payment of salvage, without reference to the fact,, whether they had been previously condemned or not; and so far it modifies and repeals the salvage act of ,|80f>. The original owner is, therefore, entitled to *restitution, notwithstanding the British’ condemnation. Upon any other interpretation, the entire section would become .-wholly inoperative, as. every case, is included in the previous act of 1800. , When that act passed, our law conformed to the English rule, which then prevailed. England subsequently altered her law, and our act *82of 1812 copied the British statute of th,e 43d George III.a That act must have been intended to make* some change in the existing legislation on the sub-' ject; and it is probable that congress meant to make a distinction between recaptares' by public ships and by private ships, unfavourable to the latter. The “provisions heretofore established,” do not refer to all the provisions of the act of 1.80.0.; these words merely refer to the rate of salvage fixed by that act, and not to the principle of restitution. The latter, is changed - the forriier remains unaltered.
¶15Mr. Winder, and Mr. Harper,_ eontra..
¶16The act of 1800 was not" a prize act for privateers. The provision in the act of 1812,. is merely incidental, áncí refers - to the pre-existing law. Our. policy of 18121 was not like that of England, which contemplate;? the extreme- probability of the recapture of British vessels, even after condemnation by the enemy. Our object was to hold out the most liberal encouragement fo pruizing. The British salvage acts merely refer to the recapture of British property; our act extends' to neutral, as well as American property. The British statutes are merely an exception to the genéral rule, municipal and local. Our law' is founded on the law of nations. The construction contended for might extend to enforce a demand of restitution after the lapse of an indefinite length of time, and after the intervention, of repeated treaties of peace. *83The act of 1800 ds merely in affirmance of the law of-nations, which universally devests the title of the original' owner after condemnation. The. very term recapture, implies former, ownership still subsisting; but it does not subsist here. H°w could the former owner be considered the “lawful owner” after condemnation? “The nature of each case” is to be determined by reference to the act of 1800, and imports something more than the mere rate of salvage. The contrary construction would make a distinction between public ships \and privateers, • unfavourable to the latter, contrary to the uniform policy of the country; and would create a confusion as to the recapture of the property of friends, which it cannot be supposed the legislature intended to introduce. The equitable rule of reciprocity - would be prostrated; and' neutral property must, in all cases, be restored, (after or before twenty-four hours possession, by the enemy,) although the friendly power wrould not in the same .case restore. Such a departure from the public law of the world is not to be lightly presumed ; and statutes made in pari materia are to be construed together, arid nothing is to be repealed by mere implication that may stand consistently with former enactments.
¶17Mr. Jones, in reply.
¶18The claimants found their claim to restitution on payment of salvage, upon-the 5th section of the act of the 26th of June, 1812. Tjhe captors resist the claim because the vessel was condemned before the recapture- — and contend that the act of the 3d of March, 1800, is the law which is to determine the rights of the. parties. This seems, *84in fact,, to be contending that -a' prior law repeals a subsequent one. If the act of 1812 is taken by itself, there can be no doubt but there must be restitution. But -.the captors insist that the words, “ according to the nature of the case agreeably .to the provisions heretofore established by ■ law,” which are found in the act of .1812, refer to the act of 1800, so as to determine by that |aw when restitution is, or is ■not to be made. Yet it seems obvious that these words refer to that law only for the measure and rule of salvage. According to the law of 18Í2, property of a citizen of the United States, re-captured from. the enemy, is liable to.be restored, but it is to be restored upon the payment Of salvage, agreeably to the nature of the case. And - to determine the nature of the case, and for no other purpose, wéj are referred to the pre-existing laws. If the act of 1812 is to be construed as the eaptors would construe it, .then this fifth section is an absolute nullity. For if the law of 1800 is to be resorted to in order to determine, as well when restitution is to be made", as the salvage to be paid, there is no case in which the law of 1812 can .'have any. operation. By the marine law of England, ■us it stood previously to any statute regulation on the subject, there could bp-no restitution after condemnation. Our Jaw of 1800 adopted this principle. But "by. the 'English law, restitution is now to’be made in. ■all cases on the payment-of salvage. The act of 1812- was doubtless intended to be Jn conformity to .this' just .modification of the English law, of which it is almost a . literal' copy. There was good reason for this modification of the mariné law in respect to our piiyateeis. The enemy had their courts of vice-*85admiralty .'at our very doors ; pur vessels-wouldbe captured one day and condemned the next. The legislature did not intend that the-'American owner should be deprived of his right of restitution by a condemnation, when there' would be no more merit .in recapturing a vessel that had-been condemned than one that was not. There might have been reason for digtinguising between captures by our public and by- private armed -vessels.. It was to be supposed that our.privateers would be cruising about the ports of the enemy in our neighbourhood, and would be likely tcreCapture American property-recently captuied and-recently condemned. The employment' of our men of war, it might have been contemplated,, would be more distant and difficult. Why should the condemnation have any effect as to the right of restitution, when the property .is recaptured from the hands of an enemy ? The law* as to restitution on salvage, would have no operation, if the property after condemnation - came to the hands of a citizen or a neutral, because then there could be •no recapture.. To let the title to restitution depend on the condemnation, is to’let the right of the citizen de~ . pend on’theactief the enemy..
¶21delivered the opinion of the court. This is the case of an American ship, •ed by the enemy during the late war, and after -con-damnation and sale to an enemy merchant, recaptured b.y the American private armed ship Surprise., And the question is, whether, under these circumstances. *86the ship is to be restored on salvage to the former ^merican owner, or condemned as good prize of war. If the case were to stand on the general salvage act of 1800, in cases of recapture, (act of 3d of March, 1800, ch. 14.) it is perfectly clear that the claimants are barred of all right; for that act expressly excepts f.cm its operation, all cases where the property has been condemned by competent authority. The same result would'flow from the principles of the law nations. .It. . , , ,, , admitted, on all sides, by puouc jurists, that m cases °f capture a .firm possession changes the title to the property ; and although there has been in former times much vexed discussion as to the time at which this change of property takes place, whether on the capture or .on the pernoctation, or on thé carrying infra preesidia, of the prize ; it is universally allowed, that at all events a sentence of condemnation completely extinguishes the title of the original proprietor, and transfers a rightful title to the captors or their sovereign. It would follow, of course, that property recaptured from an enemy. after condemnation would, by the law of nations, be lawful prize of war, in whomsoever the antecedent title might have vested.
¶22„ .. , .maritime law, condemnation completely tiüf the tormerowner,
¶23It is supposed, however, that the provisions of the salvage act of .1800, ch. 14, are materially changed, in cases of Captures by private armed, ships, by the fifth section of the prize act'of the 26th of June, 1812, ch. 107. That section declares, “that all vessels, goods, and effects, the property of any citizen of the United States, or of persons resident within and under the protection of the United States, or of persons permanently *87resident within, and under the. protection of any foreign prince, government, or state, in amity with the United States, which shall have been captured by the enemy^ and which shall be recaptured by vessels commissioned as aforesaid, shall be„resto'red to the ' lawful owners upon payment by them respectively of a just and reasonable salvage,, to. be determined by the mutual agreement of the parties concerned, or by the decree of any court- of competent jurisdiction, according to the nature of each case, .agreeably to the provisions heretofore established by. law” The argument is,that as the section directs all vessels, goods, and effects of citizens and neutrals recaptured from the enemy to be restored, without any reference to the fact, whether they .had been previously condemned, or not, it so far qualifies and repeals the salvage act of 1800 ; and that consistently with this construction, the words “agreeably to fhe provisions heretofore established by law,” may and ought to be referred to the rate of salvage fixed by the act of 1800, and not to the provisions of that act generally. In su pport of this argument, it has been urged, that upon any other construction the whole section becomes completely inoperative, as every case is embraced in th.e previous law. That congress may well be presumed to have intended to make a descrimination between cases of recapture by public and private ships of war, unfavourable to the latter; and that congress may have had in view a conformity to' the British- prize code, which since the passing of the act of 1800 had been'changed in the manner now contended for by fhe claimant.
¶24*88jwiftmtnii, to vessels British subjects'* only, even af after ^capture-set forth as snips of-war..
¶25The argument-asserted from the British prize code; certainly, cannot be .suported. upon the notion of-any supposed recent change in the law relative to recap-So early'.as the reign of George IL the jus was, by statute, reserved, to British sub-upon all recaptures of their vessels and goods,.by . % . . • ■ British ships, even though a previous condemnation had passed upon them, with the exception of cases 'if'^lere such vessels, after capture, had been set forth as ships of war. The statute of 43 Geo. III. ch. 160, . , ■ s. 39. has-no farther altered the previous.laws,, than to fix the salvage ¿t uniform stipulated rates, instead of leaving it to depend-upon the length of-time the recap. tured ship was in the hands of the enemy. And the terms of this statute, are very different from the language of the fifth secton of our .prize, act of 1812,' and' expressly ¡xclude from its - operation and benefits'all neutral, property.
¶26In respect.to the legislative intention; it is extremely difficult to draw any conclusion unfavourable to private armed ships from, the language or policy of the prize act,, or any. subsequent act 'of congress passed^during the war. The bounties held out-to these vessels, not only by the prize act, but by other auxiliary acts, manifest a strong solicitude in the government to encourage this species of force. Biit.we are not at-liberty to ;entertain any discussions in relation to the policy of the government, except so far as that policy is brought judicially to oür notice in the positive enactments, and declared will of the legislature. We must interpret, therefore, this clause of the prize act by the general rules of. construction applicable to *89all statutes; and in this view we are of opinion that the doctrine contended for by the claimant ought not to prevail.
¶27tio^heo|tht^' Act of 1812, ch. 107. anyofthepfí gXage°aCt of 3dMarch,l800 ch. 14, but is merely affirma existing law?
¶28In the first place, the section in question contains no repealing clause of any of the provisions of salvage aet of 1800, and therefore'the whole law's .on this subject are to be construed together, and unless so far'as there is any repugnancy between them, are t° be considered as in full force. That the section is . free from all doubt in its language heed not.be asserted; but that every portion of it may by fair rules of interpretation, be deemed merely affirmative of the-existing law, is with great confidence maintained. There is no repugnancy which requires or even affords a presumption of legislative intent to repeal .any portion of the salvage act. It is true that the section declares that all vessels, goods, and effects recaptured shall be restored; but to whom are they to be restored? Certainly, by the very terms of the act, to the “lawful owners,” which to prevent the most injurious, and we had almost said absurd, consequences, must mean the “lawful owners” at the time of the recapture. But the lawful owners of the recaptured property, which has been, already, lawfully condemned, is not the original proprietor, but the person who has succeeded to that title under the decree of-condemnation. Suppose the property at the time of the capture had be-, longed to one neütral, and after condemnation had been sold to another neutral, and then captured and recaptured by the enemy, can there be a doubt that the latter is, to all intents and purposes, the true and lawful owner, and that he may assert his title against the *90first proprietor?. Besides, recapture by force of the term would seem most properly applied to cases .where an inchoate title only was vested- by capture, Can it be said in’ strict propriety of language,' that property-captured from an enemy which at the time, is the lawful property of an enemy purchaser, is recaptured from his hands? The recapture is always supposed to be from persons who have, by operation of law, succeeded to the. title acquired under a decree of condemnation.
¶29The1 section, however, does not stop here; nor is it necessary to rest its constructiorf upon the import of a ,few detached terms. • It proceeds,to declare that the recap-' turfed property shall be restored to the .lawful owners . upon payment of a reasonable salvage, “according to tl$e nature of each case, agreeably to the provisions heretofore estábl.ished by law.’” Here is a direct and palpable reference to the salvage .act, not for the purpose of repeal, but for the purpose of recognizing it as in full' force in respect to all cases of recapture. It is argued that the reference is confined to the mere rates of salvage established by that act. Let us see whether, .consistently with any supposed legislative intention, or any reasonable principle, such a construction can be sustained,. .
¶30In the first place it would makw.a discrimination between recaptures of property belonging to the United States, and property belonging to neutrals and citizens; wholly unaccountable upon any principles, of national policy.. In case of a previous .condemnation the propr erty, if belonging to citizens or- neutrals, would be restored on salvage; if belonging to- the- United States; *91it would be wholly condemned as good prize of war. in the next place, the property of neutrals and citizens, if recaptured by public ships, would be good prize; but if recaptured by private armed ships, would be restored on salvage. Yet in respect to neutrals or citizens, if the intention was to. confer a benefit on them, the reason would seem equally to apply to both cases, and-if there was a policy in discouragihg captures by' privateers, and encouraging captures by public ships, it is strange that the legislature should not, in relation to captures not within the purvipw of this clause, have made a similar discrimination. The reason would be the same, and yet in those cases the salvage act uniformly gives a highefTate of salvage to private armed ships than to public ships; and the prize acts superadd an exclusive bounty on prisoners of war captured by private armed ships, of no inconsiderable value. And whatever might be the case in relation to our own citi zens, it is somewhat singular that the legislature should be paying bounties out of the treasury-to encourage privateers, yrhen they, were in favour of neutrals; having no legal title, taking from-them a large proportion of the lawful proceeds of prize. .
¶31By our law, dprodty0^ upon th/ re-capture of ‘he property of friends. Ifthey restore on salJtofe; ifthey W8 ■
¶32There is yet another case which affords a more striking illustration of the difficulties which surround this construction. The salvage act of 1800 a ■ • 7 that upon the recapture of neutral property the rule . . , ,, -, T „ , .of reciprocity shall preyaii. If the neutral would in the like case restore on salvage; then the American courts are to restore on .the same salvage:, if wise,- then they are to condemn. If; therefore, by. *92the prize act of 1812, restitution is to be made in all cases of. recapture of neutral property, and yet in the like, cases .the neutral sovereign would not restore, it would follow that the, restitution woüld be. without pay-, merit of any salvage, which, would be repugnant not only to the intent,- but to the words both of the salvage act and the prize act in any mode of interpretation. In a recent case in this court, (The Adeline, 9 Cranch. 244.) condemnation passed upon some French property which, during the late war, had, been captured by the enemy, and recaptured by an American privateer, upon the ground that the rule of reciprocity established by the salvage act. of-1800, applied to the case; and as France would deny restitution, our courts were bound to apply the same principle to her.
¶33There does not, therefore, seem any solid reason-on which to rest the construction contended- for by the' claimant. And there are the most • weighty reasons, founded upon public inconveniency, upon.national law, and upon the very terms of the salvage and prize acts, fpr. the contrary construction. .In considering the section in question as merely affirmative, every difficulty vanishes an.d the symmetry'of a system:apparently built up with great, care and caution', as well as in strict accordance with the received principles of public law,.is maintained and enforced.
¶34But it has been asked if the section is merely affirmative, what reason can .be assigned for its enactment? If.no satisfactory answer could be assigned,, it would not impair the force of the preceding', reasoning. .It is very common for the legislature to make laws in affirmance both of the . common *93and statute law. This very act gives the district courts cognizance of captures, and yet it was clearly settled that the courts already possessed the same jurisdiction. .Doubts may and often do arise how far a\provision already in existence may be applied to cases contemplated in new statutes. To obviate such doubts, whether real or imaginary, is certainly not an irrational or unsatisfactory mode of legislation, and often prevents serious mischiefs during the fluctuations of professional opinions, prior to a legal adjudication. It was probably to' abviate some doubt of this sort that the clause in question was inserted in the act. Nor is it difficult to perceive some room for subtle doubt from the generality of the preceding (s. 4) section. ' That section declares’ that “ all captures■ and prizes of vessels and property shall be forfeited,” and accrue to the owners, officers, and crew of the capturing private armed ship; and from the generality of this language it might possible (we do not say upon any sound interpretation) have been doubted whether the words “ all captures” might not be held to comprehend captures of neutral property^ which had not .yet been condemned. At all events upon every view of this case the court are of opinion that the property having been previously condemned and the title passed to the enemy, and, consistently with the salvage and prize acts, must be decreed to be good prize of war.