prove a benefit conferred, who can say it was worth 94,000 dollars, the half of the gross amount of sales of the ship and cargo? Neither the service rendered, the danger to the property, nor the exertion in saving it, can justify so enormous a reward.

The decree of France might be only in terrorem, and so no danger. If the Amelia was not liable to condemnation in the French courts, then no service was rendered, and, consequently, no salvage ought to be allowed.

*But if she was liable to condemnation, then the recapture is a violation of the rights of France.

If France violates the laws of nations, it is no justification of a violation of them on our part. An illegal power to take, given by France to her cruisers, does not authorize us to retake.

In the case of Bass v. Tingey, Feb. term, 1800, in the supreme court of the United States, the reasoning of the court seems to admit that the act of 2d March, 1799, will not apply, in the present state of hostilities, to recaptures of the vessels of nations in amity with the United States, unless the owners are residents of the United States; because there could be no lawful recapture of a neutral from the hand of a belligerent.

Judge Moore, in delivering his opinion in that case says, "It is, however, more particularly urged that the word enemy' cannot be applied to the French; because the section, in which it is used, is confined to such a state of war as would authorize a recapture of property belonging to a nation in amity with the United States, and such a state of war does not exist between America and France. A number of books have been cited to furnish a glossary on the word enemy; yet, our situation is so extraordinary, that I doubt whether a parallel case can be traced in the history of nations. But if words are the representatives of ideas, let me ask by what other word the idea of the relative situation of America and France could be communicated, than by that of hostility or war? And how can the characters of the parties engaged in hostility or war, be otherwise described than by the denomination of enemies.' It is for the honour and dignity of both nations, therefore, that they should be called enemies; for it is by that description alone, that

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either could justify or excuse the scene of bloodshed, depredation and confiscation, which has unhappily occurred; and, surely, congress could only employ the language of the act of June 13, 1798, towards a nation whom she considered as an enemy.

"Nor does it follow that the act of March, 1799, is to have no operation, because all the cases in which it *might operate, are not in existence at the time of passing it. During the present hostilities, it affects the case of recaptured property belonging to our own citizens, and in the event of a future war it might also be applied to the case of recaptured property belonging to a nation in amity with the United States."

And in the same case, Judge Washington observed, "that hostilities may subsist between two nations, more confined in its nature and extent, being limited as to places, persons and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorized to commit hostilities, act under special authority, and can go no further than to the extent of their commission." And again he says, "It has likewise been said that the 7th section of the act of March, 1799, embraces cases which, according to pre-existing laws, could not then take place, because no authority had been given to recapture friendly vessels from the French, and this argument was strongly and forcibly pressed.

"But because every case provided for by this law was not then existing, it does not follow that the law should not operate upon such as did exist, and upon the rest whenever they should arise. It is a permanent law embracing a variety of subjects; not made in relation to the present war with France only, but in relation to any future war with her, or with any other nation. It might, then, very properly allow salvage for recapturing of American vessels from France, which had previously been authorized by law, though it could not immediately apply to the vessels of friends; and whenever such a war should exist between the United States and France, or any other nation, as, according to the law of nations, or special authority, would justify the recapture of friendly vessels, it might, on that event, with similar propriety, apply to them; which furnishes, I think, the true construction of the

act.

"The opinion which I delivered at New-York, in Talbot v. Seeman, was, that although an American vessel could not justify the taking of a neutral vessel from the French, because neither the sort of war that subsisted, nor the special commission under which the American acted, authorized the proceeding; yet that the 7th section of the act of 1799, applied to recaptures from France, as an enemy, in all cases authorized by congress. And on both points my opinion remains unshaken; or, rather, has been confirmed by the very able discussion which the subject has lately undergone in this court, on the appeal from my decree."*

Similar sentiments were also expressed by Judge Chase and Judge Paterson, in the same case. From these opinions it seems clearly to result that the act of March 2, 1799, cannot be the rule of salvage in this

case.

On the part of the libellant it was stated, in reply, as to the admissibility of the despatches from the Amecan envoys, and the French arrêt of 18th January, 1798, that courts of admiralty will always take notice of such laws of foreign countries as go to modify or change the law of nations, and are not bound by the same rules of evidence, as courts of common law. 1 Dal. 364. Loft, 631. Doug. 619. 622. 649, 650. 554. The opposite counsel have cited and relied on Robinson's Reports to show what was the ancient law of France, and surely we have as good a right to cite the same book to show what is the present law of France. 1 Rob. 288. (The Maria,) this arrêt of France is cited and argued upon by the judge.

In

The cases cited by the opposite counsel to show that foreign laws must be proved as facts, are all cases at common law, or relate to the mere municipal laws of a foreign country; and are not such as go to modify or explain the law of nations, as that country has adopted it.

The case in P. Williams refers to a municipal law which had no connection with the law of nations. The same observation applies to the cases from 6 Mod. and 2 Salk. No case can be produced where a law

• This case of Talbot v. Seeman was argued once before, in this court, at Philadelphia,

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of a foreign country, authenticated as this is by an act of the legislature of our country, has been refused to be considered by a court.

*As to the objection that the cargo does not appear to be the production of England, or her possessions, because there is no evidence that the whole of the province of Bengal has been subjected to the dominion of England; it may be sufficient to observe, that the libel and answer admit Calcutta to be an English port, and the case stated says, the vessel sailed from Calcutta, in Bengal, loaded with a cargo of the product and manufactory of that country. It being admitted that Calcutta is an English port, and that the cargo was the production of that country, it follows, unless the contrary is clearly shown in evidence, that the cargo was the product of an English possession.

It is said that there is no evidence that France carried her unjust decrees into execution, and that they might only be enacted in terrorem. But the fact is notorious to all the world. Congress have expressly declared it in the preambles of their acts. The whole system of hostility is founded upon it, and can be justified on no other ground. They have further declared it by ordering the despatches to be published and distributed among the citizens of the United States, for their information. It would be strange if this court, sitting here as a court of the law of nations to try a cause in which all the world are parties, should be the only persons in the world ignorant of the fact.

The general principle is admitted that salvage is not due for the recapture of a neutral from a belligerent, and for this reason that by the law of nations the neutral would be restored by the captor with damages and costs. But cessante ratione, cessat lex. And it follows by powerful inference, that if the captor would not have restored the neutral with damages and costs, salvage ought to be allowed. To bring the Amelia within this inference, it is only necessary to show that she would not have been restored with damages and costs. If the court should take into consideration the arrêt of the 18th of January, 1798, and the fact that the cargo was the production of an English possession, there is no doubt but, instead of being re

stored with damages and costs, she would have been condemned and totally lost to the owners. Is no salvage due for so certain and so signal a benefit?

*It is said that unless salvage is expressly given by the act of congress, it can only be claimed upon a contract, either express or implied. This is not the case. The claim of salvage upon recapture never is supposed to arise ex contractu. It is given as a reward for the benefit received, and where there is no express statute upon the subject, the amount is to be regulated, not by the labour or hazard of the recaptor, nor by his intention to confer a benefit, but by the supposed amount which the owner would have been willing to give for the rescue of his property. Wooddeson, 423. In 1 Rob. 234, 235. (The Two Friends,) the rule of salvage on rescue is said to be quantum meruit. And in the same case, p. 232. Sir W. Scott says, "it has been slightly questioned in the act of court, (which contains the exposition of facts given by both parties,) whether there was such a state of hostilities between America and France as to raise a title of salvage for American goods retaken from the French. But this point has not been pursued in argument; and indeed I should wonder if it had, after the determinations of this court, which have, in various instances, decreed salvage in similar cases. It is not for me to say whether America is at war with France, or not; but the conduct of France towards America has been such de facto, as to induce American owners to acknowledge the services by which they have recovered their ships and cargoes out of the hands of French cruisers by force of arms.”

In the case of Bass and Tingey, the question was not argued, whether salvage could be claimed upon the recapture of a neutral, on the ground of benefit rendered; and, therefore, the opinion of the court in that case does not militate with our claim.

August 11. MARSHALL, Ch. J. delivered the opinion of the court.

This is a writ of error to a decree of the circuit court for the district of New-York, by which the decree of the district court of that state, restoring the ship Amelia to her owner on the payment of one half

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