Sir Stephen Lushington, in dismissing a claim for lien preferred on behalf of an alien having a Russian domicile, said :-" It is a very different question whether lenity should be shown to British merchants, when the captured vessel had been lying in a British port, where they had had transactions in the way of business with it; and whether, as in cases of this kind, the court should allow an alien to put in a claim to defeat the right of the captors, by upholding a claim in the nature of a mortgage on an enemy's vessel." (The Aina, 28, Eng. Law & Eq., 600.)

The equity and the justice that would view with lenity the lien of the subject of the government of the captor against the ship of an alien enemy, captured during ordinary war, should prevail infinitely à fortiori, in favor of a loyal citizen as against the property of another citizen, who is a specialty debtor, in rebellion against the government.

In the case of the Constantia, (Edw., 232,) Sir William Scott, in granting a claim of a neutral ship for freight on enemy's goods, said: "The crown is bound to take cum onere, although not cum onere universali; and as the owners of the ship and cargo were entitled to set off against each other all deductions arising out of the immediate transaction, the crown, which succeeds to the right of the neutral master exactly in that proportion in which he would have pos sessed them, in accepting those rights, is bound to make such deductions as the Danish master would have allowed, if he had continued neutral."

In "the Vrow Henrica, (4 C. Rob., 343,) Sir Wm. Scott allowed a claim for freight on enemy property in preference even to the captor's expenses, on the ground that the captor took cum onere, and that freight was a lien, which, in ordinary cases, took the place of all others.

I have quoted these cases, not because I consider them applicable to the present case for I maintain that no case, adjudicated as Prize of war under the general law of nations, can apply to or bind the judgment of the court in this case-but in order to show that the rule so broadly contended for in the Prize Court, on the subject of liens, is not universal. The present case is clearly exceptional. There are no cases in the books which assimilate with it, but the class of cases to which I have referred as having been decided in the British Admiralty during the Revolution, the proceedings as well as the judgments in which were regulated and governed, not by the law of nations, but entirely by the terms of the Prohibitory act. The questions then that arise on the present occasion are these the court is asked to dismiss the libellant's suit from the Instance side of the Admiralty, because a suit in the Prize Court of the Admiralty is supposed to override it; but before the court can safely grant such an application, it must be satisfied that the Court of Prize possesses jurisdiction to deal with a rebel ship, or with a ship owned by subjects of a foreign power at peace with the United States, endeavoring to enter a port of the United States, at present held by rebel citizens. Unless the court is satisfied on that point, it will not do us the great wrong to dismiss us, who, apart from the supposed controlling jurisdiction of the Prize Court, are undeniably

recti in curia upon these records. What would be the effect of dismissing us now, in case it should be hereafter found that the Prize Court, which is a court of the law of nations only, has no jurisdiction, under the act of 13th July, 1861, nor under any other law, to condemn a rebel ship, and if not a rebel ship, then, à fortiori, not a ship owned by aliens engaged in giving assistance to rebels?

There is another class of cases which are to be found in our own books, and which it may be well to refer to, inasmuch as they tend, in some measure, to direct the Court to a solution of the present difficulty. I allude to the cases decided in our admiralty during the Revolutionary struggle between Spain and her South American colonies. In that contest the government of the United States, as England and France have done in our's, recognized a condition of civil war to exist between Spain and her revolted colonies, and adopted a strict neutrality between the belligerents; but Spain held her revolted citizens, as we now maintain the citizens of the Southern Confederation, to be rebels and traitors.

In the case of the Divina Pastora, (4 Cond. Rep., 388, 4 Wheaton, 52,) these relative positions are well defined. The representative of Spain claimed the restitution of the vessel on the ground that she was the property of a Spanish subject, and had been captured on the high seas by a vessel commissioned by a pretended authority called "The United Provinces of Rio de la Plata," contrary to the lawful rights of the subjects of the king; that the said provinces of Rio de la Plata were and had been for a long course of years provinces and colonies of successive kings of Spain; and that the people, persons, and inhabitants dwelling therein had been, and still were, Spanish subjects, owing allegiance and fidelity to his said majesty; and that the persons who assumed the right to commission vessels to wage war against his majesty had no lawful authority to do so; and that such acts constituted, in fact, acts of piracy.

In answer to this, the court said that they were not in a position to judge between the king of Spain and his revolted subjects; that the government of the United States had recognized a condition of civil war as existing between Spain and her colonies, and had announced a strict neutrality; and that, therefore, the courts of the Union were bound to consider those acts lawful which war authorized.

In the Nuestra Senora de la Caridad, (4 Cond. Rep., 517, 4 Wheat., 497,) the court said, that "civil war having been recognized to exist between Spain and her colonies by the government of the United States, when a capture was made by either of the belligerent parties, without any violation of our neutrality, and the captured prize was brought innocently within our jurisdiction, it was the duty of the courts of the United States to leave things in the same state they found them, or to restore them to the state from which they may have been forcibly removed by the act of our own citizens."

Exactly the same principles were held in the Josefa Segunda, (4 Cond. Rep., 678, 5 Wheat., 338.)

In the case of The United States v. Palmer, (4 Cond. Rep., 350, 3 Wheaton, 610,) the principles that should govern the courts of the United States in such cases were thus stated:

"When a civil war rages in a foreign nation, one part of which separates itself from the old established government, and erects itself into a distinct government, the courts of the Union must view such newly constituted government as it is viewed by the legislative and executive departments of the government of the United States. If the government of the Union remains neutral, but recognizes the existence of civil war, the courts of the Union cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against the enemy.".

It is not, therefore, upon any recognized principles of public law that the courts of the Union have proceeded in dealing with questions arising out of the revolutionary contests of foreign States or countries. They have been guided wholly by the position assumed in respect to such States by our government and Congress. When government and Congress have recognized the domestic relations of a foreign power with its own citizens to be those of civil war, and have assumed a strict neutrality between the belligerents, the courts have declined to interfere as between the revolted citizens and their supposed sovereign.

The struggle now occurring on this continent has been recognized by certain foreign countries, as that between Spain and her Colonies was by the United States in 1816, as amounting to civil war, and an attitude of neutrality has been assumed by those governments towards ourselves as belligerents, as was the case with our government then. But what do we say what do our government and Congress say, on the subject? They say, as Spain said on the records of our Admiralty in the case of "the Divina Pastora," that there is but one government within the territory of the United States, and that government is established at Washington. They deny that the conspiracy, now armed against our Union in the South, amounts to more than a formidable act of rebellion. They insist, and rightly insist, that the persons who are in arms against the government, are still citizens of the United States, and that it is to bring these back to their allegiance that the military power of the government is being employed.

We have only to peruse the official dispatches of the Secretary of State to our ministers at foreign courts, to be assured of the extent to which our government repudiates the existence of war, in the sense in which it is understood under the provisions of international law.

And as regards Congress: if war existed between the United States and a foreign nation, why pass an act of "confiscation," such as has just received the assent of the President? Is that an act of war contemplated by the provisions of international law, or is it simply a punitory act directed against citizens acting the part of traitors? The title of that act, "An Act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels," &c., defines at once and forever the relations between the government and its revolted citizens as being those of rebellion, and nothing less or more.

The courts have to deal with the question now not as the judiciary of a neutral, but in the same relation to the other belligerent as

Spain occupied in the case of the Divina Pastora. It is safe for the courts to be guided in this case, as they were in that, by the attitude preserved by the government and Congress in relation to the present contest. If the government and Congress had treated the Southern Confederation as an independent government, capable of declaring war against this country, then this Court might have held the Nassau to be strictly Prize of war, subject to the jurisdiction of a Prize Court. If the government and Congress, on the other hand, have refused to recognize any such right in the South, but have asserted the pretended independence of the South to be nothing less than organized rebellion, then, sir, this court cannot, on the authority of the Spanish American cases, deal with this, or any similar case, as Prize of war. How, then, can the suit in the Prize Court be held to oust the jurisdiction of this court to enforce the lien claimed by us in rem against the ship now in court? And will the court, under such circumstances, go the length of dismissing our suit without a hearing before the question of jurisdiction can be said properly to have arisen in the Prize Court?

If ever there was a case in which equity should supersede precedent, however apposite, this is that case. Admit the "Nassau" to be, in the widest sense of the term, a "Prize of war," and the right to confiscate her, as the property of rebels, or of confederates of rebels, undeniable, yet justice, and equity, and reason-aye, and law, which has been said to be the perfection of reason-forbid that more of her should be confiscated than belongs to rebels, or their abettors. On what principle of justice, of equity, or of law, could it be argued, or judicially affirmed, that the treason of the owners of "the Gordon "operated as a confiscation of the money of loyal citizens incorporated in her, as she stood when captured? On what principle shall it be held that because the present or late owners of the Gordon" are themselves rebels, and have used their ship to aid the rebel cause against the Federal government, therefore loyal citizens, belonging to a State that has never seceded, who have had neither act nor part in such treason, shall be punished for the crime of others, when they possess a claim which under the law of the United States would override even the rights of ownership? This case stands independently of precedent. It is a case that, apart from the strong legal considerations to which I have directed attention, appeals powerfully to the equity of the court. Sir James Marriott, in the case of "the Rebecca," already quoted, in dealing with a question of strong analogies, cast precedent to the winds, and on restoring a vessel, which, by the strict letter of the Prohibitory act, was undoubtedly liable to forfeiture, he said: "If I am mistaken, I shall be happy in the error; and I can only refer, so far as regards this court and my own opinion, to the expression and feelings of the old Roman :

"Si pugnent sententiæ, valeat mitior."""When opposite opinions are equal, humanity should prevail."

On the same principle, I cannot doubt that in this case equity will prevail, and that your Honor will not dismiss our suit without a hearing, on grounds so very questionable.