
    Page and others against Lenox and Maitland.
    
      American cüptored'e‘eby carrfíd “into1 Sisiandfbut eeSon1 ofPtbé mmpleteiym? der their control, Sweden, at that time being at war with Great Britain: the goods, while at Fula, were proceeded against as prize in the court of admiralty in England, and pending the proceedings, peace was concluded between Great Britain and Sweden, and the goods were, afterwards, condemned, without ever having been in Great Britain. Held, that the condemnation was legal, and devested the property of the original owners.
    Whether a court of admiralty sitting in one country can adjudicate upon property captured as prize of war, and taken into a neutral territory, and never coming within the jurisdiction of the court? Quare.
    
    But it may adjudicate upon a prize carried into the porte of an ally in the war.
    THIS was an action of trover, tried before Mr. J. Yates, at the New-York sittings, in November, 1816.
    The agent of the plaintiffs purchased a large quantity of German linens at Hamburg, on the account, and with the hinds °h the plaintiffs, with which he proceeded from Ham-with intention to transport them to Copenhagen, there to be shipped for the United States. The Danish sloop St. Jorgen, on board of which the goods were laden for Copenhagen, was obliged, by adverse winds, to put into a port in the Danish dominions, and while lying there was, on the 24th of May, 1812, cut out and captured by the boats of the British frigate Helder, and sloop of war Bellette. The sloop and her cargo were sent by the captors to, and, about the middle of July, arrived at, Futa, a small island near Wingo sound, and 16 or 17 miles west of Gothenburg, within the Swedish dominions, but at that time in the possession of the British, having been taken by Vice Admiral Sir James Saumarez, during the war between Great Britain and Sweden, which commenced in 1810, and was terminated by the treaty of peace signed by the ministers of the two powers on the 18th of July, 1812, and ratified by Sweden on the 18th of August, following. This island was used as a place of rendezvous by the British, for the prosecution of their commerce in the Baltic, and was held without the permission or consent of Sweden, although the war was merely nominal, Sweden having been forced into the contest by Napoleon. The intercourse between Futa and Gothenburg, was unrestricted, and Swedish vessels passed the British fleet without molestation ; but the island was still under the complete control of the British. Commissioners were established for the purpose of taking the examinations of the masters and owners of prizes brought in there, and forwarding them and the captured vessels to the judge of the court of admiralty in England. These commissioners had previously resided akGothenburg^itb. the consent of the Swedish government; but on the breaking out of the war, transacted their official business at Futa. Proceedings were instituted in the English court of admiralty against the St. Jorgen, and her cargo, while at Futa, (where, on her arrival, the preliminary examinations were taken by the commissioners, and with the papers were sent to England,) and they were condemned, on or about the 2d of September, 1812. After the condemnation, the captors sold the goods in question, being the greater part of the linens originally purchased by the agent of the plaintiffs at Hamburg, to one Dickenson of Gothenburg, who sold the same to Loza and Smith of the
    
      same place, by whom they were sent to New-York, consigned to the defendants.
    A verdict was taken for the plaintiffs, for 50,000 dollars, subject to the opinion of the court.
    The case was argued, with great learning and ability, by Wells and T. A. Emmet, for the plaintiffs, and D. B. Ogden and Hoffman, for the defendants;
    but as the opinion of the court was founded merely on the question of fact, that the island of Futa was not, at the time, neutral territory, but in the hostile possession of the British, and under the jurisdicton and control of the British forces, it is unnecessary to state the arguments of the counsel on the points raised in the cause.
   Thompson, Ch. J.

delivered the opinion of the court.

The questions which have been .made and discussed in this case are, 1. Whether, admitting the island of Futa to have been neutral territory, it was competent for a British. court of admiralty to proceed against and condemn the property in question, whilst lying at that place. If not, then, 2. Whether, in point of fact, Fula was not, at the time, so far a part of the British territory, or in the possession of Admiral Saumarez, as to render valid the condemnation. In the argument of the first question, we have been called upon to review some of the principles laid down by this court in the case of Wheelwright v. Depeyster; (1 Johns. Rep. 479.) for although the principal question in that case was, whether a condemnation by a prize court, established in a neutral country, was valid; yet the late chief justice, in pronouncing the opinion of the court, went into an examination of the question, whether a prize court in the belligerent country could proceed against a prize lying within the territory of a neutral power; and upon a very able examination of the point, was of opinion that it could not. A contrary doctrine seems, however, to prevail in the supreme court of the United States, according to the case of Hudson and others v. Guestier. (4 Cranch, 293. 6 Cranch, 281.) The high respect we entertain for that court, and the fitness and propriety of a uniformity of decision, especially on questions of this kind, might induce us again to turn our attention to this question, if it had become necessary to the decision of the case before us. But thinking, as we do, that the condemnation was valid, on the other ground taken by the defendants' counsel, we forbear to touch the first point. The property in question, being a quantity of linens, was captured as prize, on board a Danish vessel, in May, 1812, by the British ship Holder, and in July following, carried by the captors into the harbour of the island of Futa, which is situated in Wingo sound, about 17 miles west of the city of Gothenburg, being one of the outermost Swedish islands. From the evidence, it is very satisfactorily established, that this island was some time before taken possession of by Vice Admiral Sir James Saumarez, in the name of his Britannic Majesty, and held as a place of rendezvous, for prizes taken by the British fleet, and to facilitate British commerce", that the British flag was flying in the harbour, and that no other naval or military force was stationed there; that, in point of fact, and for every naval, military, and commercial operation, the island could only be considered a British station; that it was not then held barely by permission of Sweden, but was taken and held, as a hostile measure, war having been declared by Sweden against Great Britain, in the year 1810. This declaration of war was probably made under the coercion of the Emperor of France, and we do not find any active hostile operations carried on; yet there was an existing state of war between Great Britain and Sweden, when possession was taken of this island, and there was no testimony whatever, to show that such possession was taken or held by permission of the Swedish government. This question was pressed upon most, if not all of the witnesses who were examined, and no one pretended to say that such permission was ever asked or obtained. On the contrary, several of the witnesses state explicitly, that the island was taken possession of by the British admiral, and held as a place of rendezvous, on account of the then existing war between Great Britain and Sweden ; and that this was without the consent and permission of the Swedish government. Commissioners were appointed and established there, by and under the authority of the English admiralty, for the purpose of taking the examinations and depositions of witnesses, in the cases of prize vessels sent by British cruizers into this island. This commission was executed, at this place, under the protection of the British fleet there stationed, and without the consent of the Swedish government. We are fully warranted, from the testimony, in saying, that, from the time this island was taken possession of, no civil or military power was exercised there by the Swedish government, until after the treaty of peace, in August, 1812. Indeed, the case does not furnish us with any evidence, that this island was even then given up to Sweden; and the treaty of peace is entirely silent on the subject. One of the witnesses speaks of its being in possession of Sweden at the time of his examination, which was in the year 1815. I have not thought it necessary to refer particularly to the evidence of the several witnesses who have testified in relation to the possession of this island. The proof is clear, that when the prize was taken and carried in for examination, the island was, to all intents and purposes, in the undisturbed possession of the British, and considered a station for their naval and commercial operations; and that it so continued until after the commencement of the admiralty proceedings, if not even down to the time of the condemnation, on the 2d of September, 1812. The time of the commencement of the admiralty proceedings does not, with certainty, appear; and, it is not very important that it should, for the treaty of peace between Great Britain and Sweden may, perhaps, bear the construction of making the latter an ally of the former; and there can be no question but that a condemnation of prizes brought into the port of an ally would be valid. (2 Rob. 209. 1 Johns. Rep. 484.) This, however, is barely thrown out, without intending to place the cause, in any measure, upon the construction of this treaty.

If, in point of fact, then, the island of Futa was in the "possession, and under the jurisdiction and control of the British forces, there certainly can be no objection to a British court of admiralty proceeding against prizes, brought in there. None of the reasons which may be urged against a prize court proceeding to the condemnation of property, lying within the territory of a neutral power, can he applied to the case. The great objection to such proceedings is that the res ipso is not within the possession, and under the control of the court, so that the sentence, or decree, could he enforced; the proceedings being in rem. But no such difficulty rests here. This prize remained not only in the possession of the captors, but at a place under the exclusive control of the sovereign of the captors. Here is all the possession necessary to give jurisdiction to a British court of admiralty. On this ground, therefore, we think the condemnation valid, and the right of the plaintiffs to the property in question thereby devested, and that the defendants are accordingly entitled to judgment.

Judgment for the defendants. 
      
      
         The treaty, (art. 2.) recognised the status quo ante bellum.
      
     