the public officers, to prevent the departure of a registered or sea-letter vessel on a foreign voyage. The language of the act is certainly not very happily chosen; but when we look into the definition of the word embargo, we find it to mean "a prohibition to sail." Substituting this periphrasis for the word "embargo," it reads "a prohibition to sail shall be imposed," etc., or, in other words, "such vessels shall be prohibited to sail," which words, had they been used in the act, would have left no scope for doubt. The only facts which it will be necessary to notice in this case, in order to show the grounds of our decision, are these: The Ino, the supposed capturing vessel, sailed from Guernsey, for Boston, in September, 1808. She bore an English commission, and is commonly called a British privateer. But as there exists no distinction, that we know of, between a privateer and letter of marque, but what results from their equipments and habits, and as, although she mounted ten guns, she had but twelve men, and confessedly came to Boston for a cargo, we are induced to think, that her habits were rather commercial than roving. These three vessels lay in Boston harbor, some time, together; the two brigs sailed, within a few days of each other, bound to Baltimore, for a cargo of flour, and the Ino sailed soon after. As the embargo prevented her taking in a cargo, as such, the master cleared out for the Cape of Good Hope, and was permitted to take in a large stock of provisions as for a long voyage; but the master admits, that he was, in fact, bound to Jamaica, and sailed for that port, and affected to be destined to the Cape, in order to get permission to take in a large stock of provisions, because he knew provisions in the West Indies to be dear. In the mean time, the two brigs had taken in a cargo at Baltimore, and cleared out for Boston; but, as they allege, on account of contrary winds, they put into Hampton Roads, where they remained from the 1st of November to the 8th of the same month. Whilst the two brigs lay in Hampton Roads, the Ino also put into the same port and the reason alleged for doing so is, that after leaving the port of Boston, she encountered high winds, which carried away her mainboom, and finding herself in the latitude of the Capes of Virginia, she put in, to obtain a spar for a boom. * * * Three days after the arrival of the Ino, the two brigs sailed; the Ino immediately pursued, overhauled them before night, put a prizemaster and one man on board the William King, a prize-master and two men in the other, and ordered them for Jamaica, with instructions to rendezvous at St. Nicholas Mole, if separated. Being overhauled, on this voyage, by the Garland [a British] frigate, the Ino fled, and the brigs were examined. But being liberated, they proceeded to Cape Nicholas Mole, where the Ino joined them, and leaving the Short Staple there, the Ino and this vessel proceeded to Jamaica. Off that place, the Ino restored a man which she had taken from the William King, and putting also the owner, Southcote, into her, she bore away, whilst the William King entered the harbor of Kingston. There she was given up to the master, who, as it is alleged, was refused permission by the government to sail with his cargo, was obliged to sell it, and obtained. about $20 clear per barrel, for what had cost five or six dollars at Baltimore. So far the evidence stands unimpeached; it constituted, in fact, the defence of the claimant. But at the trial below, in this cause, a witness was produced in behalf of the prosecution, of the name of Gustaff Forsberg, who went out mate of the William King, and who, among a variety of facts, testifies to the following: That when the William King sailed from Boston, she carried off a Vineyard pilot, not having been able to land him; and that previous to her leaving Baltimore, this pilot was put on board the Federal George, Captain Field, then taking in a cargo of flour for Boston, with a request from the master of the William King, to return him to Boston, and the brig then sailed, without a Boston pilot. That, after putting into Hampton Roads, the masters of the two brigs went up to Norfolk, and did not return, until the evening before they sailed; that this was the true cause of their detention in that port, as vessels went to sea, whilst they lay there, and the winds would have admitted of their doing the same. That, after the capture by the Ino, this witness intimated his intention to do no more duty, as he was then a prisoner; and was prevailed upon by the master to return to duty, by having his wages raised from $9 to $20, which alteration was entered on the shipping articles. That the man put on board with the prize-master was called Colonel Kirkland, was not a seaman, and that Captain R. Daniel, of the William King, still navigated the vessel, the prize-master exercising no authority, and this witness keeping the log-book, under the directions of the master. That at sea, in calm weather, the master and owner of the Ino, and the masters of the two brigs, met and amused themselves, in each other's vessels; that on their sailing from Jamaica, they took on board a number of articles, some of which were marked Ino; that Southcote, the owner of the Ino, came out with them as passenger; that the day after they left Kingston, they fell in with the Ino, and put on board of her, her owner, and the articles taken on board at Kingston, with the exception of certain parcels of bagging, which they took out with them. to Exuma, for the purpose of taking in salt. And lastly, that after their arrival in New York, the master decoyed him on board a packet, and hurried him off, without his clothes, to Boston, and particularly cautioned him to be on his guard to say nothing to any one, but what had been entered on the log-book, and informing him, that if he remained in New York, he would be put in jail. It is evident, that these circumstances, taken together, afford very ample ground for condemnation. There could be no reason urged, for putting the Vineyard pilot on board another vessel, which was not yet ready for sea, if the master of this vessel had really intended to return to Boston; and abandoning their vessels for five or six days in Hampton Roads, looks too much like waiting for the expected convoy; whilst leaving the navigation of this vessel, and the keeping of the log-book, to the original master and mate, presents a state of confidence inconsistent with all idea of hostility. And this confidence is further conspicuous in all the subsequent occurrences to which this witness testifies. Independently of his testimony, the case is loaded with suspicious circumstances, but his testimony leads to conviction. Aware of this, the counsel for the claimants have contented themselves with attacking his credibility. But after duly weighing all the circumstances insisted on in the argument, we are of opinion,, that as to several material facts, his testimony pointed out the means of detection, if it was not consistent with the truth. * Upon the whole, the court are of opinion, that the capture was fictitious, and that the decision below must be affirmed. Decree affirmed. SECTION 2.-HOSTILE THE BOEDES LUST. (High Court of Admiralty, 1804. 5 C. Rob. 233.) This was the case of a Dutch ship on a voyage from Demerara to Batavia, embargoed at the Cape of Good Hope by an English squadron before the actual declaration of war against Holland in 1803, and afterwards condemned as enemy's property. Sir WILLIAM SCOTT.3 * ** This was the state of the first seizure. It was at first equivocal; and if the matter in dispute had terminated in reconciliation, the seizure would have been converted into a mere civil embargo, so terminated. That would have been the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses the direct hostile character upon the original seizure. It is declared to be no embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus, by which it was done, that it was done hostili animo, and is to be considered as an hostile measure ab initio. The property taken is liable to be used as the property of persons, trespassers ab initio, and guilty of injuries, which they have refused to redeem by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restitution of such property taken before a formal declaration of hostilities. No such convention is set & Parts of the opinion are omitted. SCOTT INT.LAW-32 up on either side, and the state, by directing proceedings against this property for condemnation, has signified a contrary intention. Accordingly, the general mass of Dutch property has been condemned. on this retroactive effect; and this property stands upon the same footing as to the seizure, for it was seized at the same time, and with the same intent. There is no ground of distinguishing the time of seizure, between these claims and former cases of a similar nature; it was a provisional seizure in all, declared to be hostile by subsequent events, acting in a reflex manner upon all the property then seized, and declaring it to be all enemy's property, unless some circumstances can be shown to take these particular claims out of the common operation. * * * 4 4 See the earlier decision of Sir William Scott in The Gertruyda, 2 C. Rob. 211 (1799). "The object of a hostile embargo may be by way of reprisal to obtain satisfaction for an alleged injury; or, it may be, in the expectation of the outbreak of war, to get possession of property which will presumably be hostile, for the purpose of confiscating it later-after the actual outbreak of war. Although the government might restore such property at the breaking out of war, it has not been the practice to do so; and hence, as Dana says, embargo 'refers itself directly to the question of the right, on breaking out of war, to seize ships and cargoes found in port.' Dana's Wheaton, p. 372. note. "In the case of Lindo v. Rodney, 2 Douglas, 615 (1782), Lord Mansfield said: 'Ships not knowing of hostilities come in by mistake. Upon the declaration of war, or hostilities, all the ships of the enemy are detained in our ports, to be confiscated as the property of the enemy, if no reciprocal agreement is made.' "The earlier writers upon international law do not mention embargo, at least in the sense of hostile embargo. Until towards the end of the last century, there was really no distinction made between property found on land and that found afloat. In both cases it was liable to capture. At the time of Bynkershoek and of Vattel, private property of the enemy was confiscat ed, though some treaties had exempted it from seizure at the commencement of war. Bynkershoek, [quaestionum juris publici, lib.] I, c. II. Bynkershoek mentions many cases, too, where it was seized before the declaration of war. It was left to the English admiralty courts to formulate the practice into legal maxims by their decisions. As to the retroactive effect of a declaration of war as applied by the courts, it is apparently a necessary invention of Sir William Scott to legalize a practice already in vogue." Freeman Snow, Cases and Opinions on International Law 249, 250, note (1893). SCOTT INT.LAW CHAPTER III RETALIATION THE NEREIDE. * * (Supreme Court of the United States, 1815. 9 Cranch, 388, 3 L. Ed. 769.) MARSHALL, C. J.,1 delivered the opinion of the court as follows: In support of the sentence of condemnation in this case, the captors contend: 1. * * 2. * ** 3. That on the principles of reciprocity this property should be condemned. 4. * 3. The third point made by the captors is, that whatever construction might be put on our treaty with Spain, considered as an independent measure, the ordinances of that government would subject American property, under similar circumstances, to confiscation, and therefore the property, claimed by Spanish subjects in this case, ought to be condemned as prize of war. The ordinances themselves have not been produced, nor has the court received such information respecting them as would enable it' to decide certainly either on their permanent existence, or on their application to the United States. But be this as it may, the court is, decidedly of opinion that reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings toward our citizens, is a political not a legal measure. It is for the consideration of the government not of its courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all. It is not for its courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics. Even in the case of salvage, a case peculiarly within the discretion of courts, because no fixed rule is prescribed by the law of nations, congress has not left it to this department to say whether the rule of foreign nations shall be applied to them, but has by law applied that rule. If it be the will of the government to apply to Spain any rule respecting captures which Spain is supposed to apply to us, the government will manifest that will by passing an act for the purpose. Till such an act be passed, the court is bound by the law of nations which is a part of the law of the land. * 2 1 For the facts of this case, and for the opinion of Chief Justice Marshall on other heads, see post, p. 1014. 2 "So far as the claim is made that the relators should be held in a spirit of comity and reciprocity, we can only say that the comity and reciprocity to |