Joseph Story

“ If she had a commission under the royal authority of Spain, she was beyond question entitled to make the seizure. If Rodil had due authority to grant the commission, the same result would arise. If he had no such authority, then she must be treated as a non commissioned cruiser, entitled to seize for the benefit of the crown; whose acts, if adopted and acknowledged by the crown or its competent authorities, become equally binding. Nothing is better settled both in England and America, than the doctrine, that a non commissioned cruiser may seize for the benefit of the government ”

“ If, with a view to practise a fraud upon the belligerent, and to escape from his acknowledged right of capture and detention, the voyage is disguised, and the vessel sails under false papers, and with a false destination, the mere deposit of the contraband in the course of the voyage, is not allowed to purge away the guilt of the fraudulent conduct of the neutral. ”

“ If the constitution of the court is not known, it will be presumed to be legal. If known, and is not according to what is usual among civilized nations, it must be proved to have been enacted by competent authority. The erection of a court is the act of the sovereign; nothing is to be presumed in favour of a court erected by a military commander. ”

“ The trade can be no more than a pretence or pretext to such a person. The policy covers all risks on contraband, except the lawful penalties of the trade: the losses lawfully arising from it. But seizure without authority is not one of them; but, in terms, is a loss unlawfully arising.
Every seizure without authority is a trespass and wrong, and the policy means to protect the assured against such injuries.
If the laws of Spain did not prevent a seizure by Rodil, or by a vessel under his commission, the same laws made the seizure unlawful. ”

“ The doctrine of the English adjudication is, that the contraband articles must be taken, the goods must be intercepted. It is wrong to say this must take place when they are in delicto. There is no delictum. 3 Rob. Adm. Rep. 138 (167) .
But it is supposed that some English cases assert the doctrine that if the contraband is carried outward, and the proceeds homeward, they are prize; and if carried out with false papers, or under a false destination, that the penalty may be inflicted on the ship or other goods of the same owner on the homeward voyage. ”

“ Whether a general in the military service of Spain, subordinate to La Serna, viceroy of Peru, under the king of Spain, but having the actual and exclusive command of Callao, and no civil authority existing therein, and cut off by the forces of the enemy by sea and land from all communication with any superior civil or miliary officer, could lawfully seize and detain neutral property for contraband trade, if just cause existed for a condemnation thereof. ”

“ There was nothing in the other facts to make the seizure legal, in consequence of having previously carried contraband. 3. The seizure was not lawful, because no contraband articles were on board at the time of the seizure. This point of course depends on another: that to justify a seizure for contraband, the contraband goods must be seized.
The character of contraband trade, jure belli, is in one respect peculiar. It is a trade which a neutral has a right to carry on; and which a belligerent has a right to intercept and to confiscate. ”

“ According to the modern law of nations, for there has been some relaxation in practice from the strictness of the ancient rules, the carriage of contraband goods to the enemy, subjects them, if captured, in delicto, to the penalty of confiscation; but the vessel and the remaining cargo, if they do not belong to the owner of the contraband goods, are not subject to the same penalty. ”

“ A lawful cause of seizure. 3. Loss by this cause. The question is, whether lawful adjudication is the only proof. No instance has occurred in which there has been a decision that a loss was within the exception, without such an adjudication. Church v. Hubbard, 2 Cranch 187, 1 Cond Rep. 390, requires it.
It is the duty of the captors to proceed to a regular adjudication. The question is, whether the seizure legally affects the property, or what is the operation of law upon the thing taken? How is this proved? Force is not a title which the world respects, without the aid of law to sanction it. ”

“ But in the highest prize courts of England, while the distinction between the outward and homeward voyage is admitted to govern, yet it is established, that it exists only in favour of neutrals who conduct themselves with fairness and good faith in the arrangements of the voyage. ”

“ If the neutral can carry his right into effect or enjoyment, the belligerent cannot complain. If the belligerent can intercept him, and prevent his carrying it into effect, the neutral cannot complain. The neutral commits no offence by the successful attempt. The belligerent commits none by defeating it. The contraband article is alone the offence in the sight of the belligerent ”

“ The commission to make prize of war must issue from a different officer, from the commandant militar de la marina; or if there be no such officer, it must be issued by the captain-general of the province. ”

“ There must be an interpretation of the contract, consistent with the bona fide intentions of both parties to it. The parties had no reference to any thing which had taken place before the policy attached, on the 5th June 1824, at Coquimbo. ”