The Sally, Porter, Master , 3 L. Ed. 597 ( 1814 )

12 U.S. 382 (1814) 8 Cranch 382

THE SALLY, PORTER, MASTER.

Supreme Court of United States.

March 15, 1814.

Absent... . MARSHALL, Ch. J.

STORY, J. delivered the opinion of the Court.

This case cannot be distinguished from that of the Rapid. It was there decided that property engaged in an illicit intercourse with the enemy, is liable to confiscation as prize of war, and the only remaining question now before us, is, to whom it shall be condemned — to the captors, or to the United States.

By the general law of prize, property engaged in an illegal intercourse with the enemy, is deemed enemy property. It is of no consequence whether it belong to an ally or to a citizen; the illegal traffic stamps it with the hostile character, and attaches to it all the penal consequences of enemy ownership. In conformity with this rule, it has been solemnly adjudged, by the same course of decisions which has established the illegality of the intercourse, that the property engaged therein must be condemned as prize to the captors, and not to the crown. This principle has been fully recognized by sir William Scott, in the Nelly, 1 Rob. 219; and, indeed, seems never to have admitted a serious doubt.

But a claim is interposed by the United States, claiming a priority of right to the property in question, upon the ground of an antecedent forfeiture to the United States, by a violation of the non-intercourse act, (of March 1, 1809, vol. 9, p. 246, § 5) the goods having been put on board at a British port, with an intent to import the same into the United States.

We are all of opinion that this claim ought not to prevail. The municipal forfeiture under the non-intercourse act, was absorbed in the more general operation of the law of war. The property of an enemy seems hardly to be within the purview of mere municipal regulations; but is confiscable under the jus gentium.

But even if the doctrine were otherwise, which we do not admit, we are all satisfied that the prize act of 26th June, 1812, ch. 107, operates as a grant from the United States of all property rightfully captured by commissioned privateers, as prize of war. The language of the 4th, 6th and 14th sections is decisive.

The decree of the Circuit Court, condemning the vessel and cargo to the captors, is affirmed.