tion mentioned, afterwards and before the said time when, &c., became and was forfeited to his said Majesty: and that, the defendant Napier was ready to verify. The defendants pleaded sixthly, that the vessel was not the property of the plaintiffs; of which the defendants put themselves upon the country.

Replication. Issue on the first plea. To the second the plaintiffs replied, that before and at the time when &c., they the plaintiffs, and also the defendants, were natural born subjects of his present Majesty William the Fourth, and the said steam vessel in the declaration and second plea mentioned was a British registered vessel, and entitled to all and every the privileges and advantages belonging to such British registered vessel. That after the 1st of November, 1819, and during the reign of his said present Majesty, and before the said time when, &c. the said C. Napier, being such natural born subject of his Majesty aforesaid, and not regarding the statute in such case made and provided, without the leave or license of his Majesty in any form whatever, accepted a commission or appointment as an officer in the service of a certain foreign power, that is to say, accepted the office of admiral in the Portuguese navy, and chief commander of a squadron thereof in the service of the said Donna Maria, Queen of Portugal, as in the second plea mentioned, and continually from thence, and at the said time when, &c., was employed and engaged in the service of the said Donna Maria, and served in and on board divers ships and vessels of war of the said Donna Maria, and in and on board divers other ships and vessels used by her for warlike purposes, *785] and in her service, contrary to the said statute. That the said C. Napier at the said time when, &c., whilst he was such officer, and so employed and engaged as aforesaid, and by virtue and in the course of such illegal employment and service, seized and took the said steam vessel of the plaintiffs as in the declaration mentioned; and that, they were ready to verify. A similar replication to the third and fourth pleas.

The plaintiffs demurred to the fifth plea, and shewed the following causes of demurrer; that it was not therein alleged that the said steam vessel was ever seized or condemned as forfeited, or that the defendant had any authority from his majesty to seize the said steam vessel.

They also demurred to the last plea, on the ground that the defendant had not thereby traversed or denied, or attempted to put in issue any allegation contained in the declaration, but had introduced and attempted to put in issue a matter of fact not alleged or necessary to be alleged; and also that the said last plea contained new matter not any where before alleged, and concluded to the country, and not with a verification: that by the said last plea the defendant attempted to raise a question whether the vessel in the declaration mentioned was the property of the plaintiffs, whereas the action and the declaration of the plaintiffs would be supported by shewing a mere possession of the plaintiffs at the time the trespass was committed: and also that the said last plea was no answer to the declaration, and was evasive, argumentative, and uncertain. Demurrer to replications, and joinder in demurrer.

Stephen, Serjt., for the plaintiffs. It appears by the replication, that when the defendant took the plaintiffs' ship, he was engaged in a foreign service con*786] trary to the provisions of the Foreign Enlistment Act, 59 G. 3, *c. 69. And he cannot justify a trespass by shewing that he has violated the provisions of a public act of parliament. He was liable to prosecution for enlisting in the foreign service, and if he had killed any British subject in the course of the illegal enterprise, he would have been guilty of murder or manslaughter. A party who justifies under the command of another must shew an authority either in the person who gives the command, or in himself; but from the replication it appears that the defendant could receive no authority from the Queen of Portugal, and of himself, he could have no right to take the ship of a fellow-subject: so that without resorting to the Foreign Enlistment Act, the pleas furnish no answer to the declaration. The allegation that the plaintiffs had broken the blockade, contrary to the law of nations, amounts to nothing, VOL. XXIX.-49

for this Court is to administer the law of England, not the law of nations: if it means that the plaintiffs broke the blockade in violation of the rights of some belligerent, a third party, subject of the same country as the party breaking the blockade, has no right to interfere; at all events not in opposition to the express enactment of a statute. Independently of the statute 59 G. 3, c. 69, no subject is warranted, without the leave of his own government, to assail even a foreigner's ship: Hale de jure maritimo; part iii. c. 28: it is a depredation: much less to assail ships of his own country, not only without a commission, but even in violation of a statute. In Viner's Abridgment, Trespass, G. a, 32, it is laid down, "if the sheriff has not any writ, and makes a warrant to J. D. to arrest J. S., an action lies for J. S. against J. D. for this arrest, and against the sheriff likewise." So F. a, 4, pl. 9. "Trespass quare clausum fregit et averia cepit et asportavit: the defendant came and justified, and pleaded a bylaw, &c., and that he, as bailiff, took the beasts as a distress for breach *of the bye-law by the plaintiff; and upon prolix pleadings, which were drawn upon the precedent of Tinteney's case, 1 Cr. Car. 532, and March, 28, the plaintiff demurred, and many exceptions were taken, but in the resolution of the Court, Holt, C. J., said, that the pleadings are ill, because that the defendant had not shewn a precept to make the distress; for he could not do it ex officio, no more than a sheriff might execute a judgment of B. R. Command in this case is traversable; for this is the difference between a justifies tion in trespass, and an avowry in replevin, that the justification there is in the right, and therefore not traversable."

[*787

No man can sue on a cause of action which is in violation of an act of parlisWetherell v. Jones, 3 B. & Adol. 221; Bensley v. Bignold, 5 B. & Ald. 335. In Langton v. Hughes, 1 M. & S. 597, Le Blanc says, "It is an established principle, that the Court will not lend its aid in order to enforce a contract entered into with a view of carrying into effect any thing which is prohibited by law." In Lightfoot v. Tenant, I B. & P. 555, it is said, "no Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act." And Montefiore v. Montefiore, 1 W. Bl. 363, shews that the same principle applies to a defence affected by the same infirmity. There Lord Mansfield says, "that no man shall set up his own iniquity as a defence, any more than as a cause of action." In Doe dem. Roberts v. Roberts, 2 B. & Ald. 367, it was held, that no man can be allowed to allege his own fraud to avoid his own deed; and therefore, where a deed of conveyance of an estate from one brother to another was executed to give the latter a colourable qualification to kill game, it was held, that as against the parties to the deed, it was [788 valid, and was sufficient to support an ejectment for the premises. In Robinson v. Nahon, 1 Campb. 245, the defendant was estopped to set up own bigamy as a bar to an action for the use and occupation of certain furnished apartments of the plaintiff by the defendant's wife. And in Allen v. Wood, 1 New Cases, 8, the principle that a defendant shall not avail himself of his own wrong was admitted, but in that case it lay upon the plaintiff to establish the existence of the wrong. The plaintiffs here, stand upon a primâ facie right, and it is for the defendant to excuse the trespass. He may have had conflicting duties to perform, but if so, his duty to his own country must prevail. According to Huber, de conflictu legum, courtesy is only due to the laws of another country where they do not clash with our own: and Hale says, Pl. Cr. 68, "there cannot, or at least, should not be two or co-ordinate absolute lige ances by one person to several independent or absolute princes; for that lawful prince that hath the prior obligation of allegiance from his subject, cannot lose that interest without his own consent by his subject's resigning himself to the subjection of another."

his

Then, as to the fifth plea, it alleges only a forfeiture; not a seizure in consequence; nor any authority from the Crown to the defendant to make the seizure; and the property in the vessel is not divested out of the plaintiffs be

cause they have done an act which may subject them to a forfeiture. Till an inquest of office is holden, the Crown cannot seize. 3 Bl. Com. 259. In Wilkins v. Despard, 5 T. R. 11, it was held that, where a ship had been forfeited by breach of the conditions of an act of parliament, the owner could not maintain trespass against the party seizing it; but it was not contended that a forfeiture without seizure would devest the property. And the plea there,

*789] shewed an authority to *seize; for it alleged that the defendant seized

to the use of his majesty and of himself. Here, the forfeiture belonged to the Crown only.

With reference to the sixth plea, the Court recommending that the plaintiff should amend by joining issue on the plea, Stephen acquiesced.

Crowder for the defendant Napier. This action is of the first impression. The plaintiffs seek damages for an act done by a foreign state, which that state was justified in doing. If this Court has no right to inquire into the law of nations on such a subject, the plaintiffs have applied to the wrong tribunal. [TINDAL, C. J., referred to Le Caux v. Eden, 2 Dougl. 594. But the English courts recognise the law of nations; and in that law there is no clearer principle than the right of a nation interested in such a proceeding to enforce a blockade. Upon the plaintiffs' breaking the blockade, the Queen of Portugal had a right, by herself or her servants, to take his vessel, and condemn it as a lawful prize in a Court of Admiralty. The propriety of the condemnation set out in the fourth plea has not been contested; and but for the Foreign Enlistment Act referred to in the replication, the right to enforce the blockade by capture could be as little disputed. The enactment of that statute seems to admit that, at common law, it would have been no offence in the defendant to enter into a foreign service; and it was common for British subjects to do so, as in the instance of the Irish brigade. The defendant was not acting jure belli on his own account, and the Queen of Portugal was entitled to employ whom she pleased as her servant.

But, under the Foreign Enlistment Act, the offence committed by the defendant was the entering into the *service of the Queen; not the taking

*790] this vessel by her orders; for entering into the service he was liable to

be punished under the act; but an offence committed as between him and the Crown of England cannot give the plaintiffs a claim to damages for an act which, as between the plaintiffs and the defendant's employer, was lawful. Under an old statute, an apprentice who fled into a foreign shire was guilty of a misdemeanor: if, at the command of the owner of a close, such fugitive apprentice had turned out cattle damage feasant, could the owner of the cattle sue the apprentice, where no action lay against the master? The plaintiffs may traverse the command of the Queen of Portugal, and that is sufficient for their protection, if the defendant has violated any law as between himself and the plaintiffs. It is true a man can neither sue nor defend in respect of his own wrong; but the wrong which he is precluded from setting up by way of defence, must be a wrong as between him and the plaintiff,-a wrong which is connected with the transaction which is the subject of dispute; a wrong extraneous to the transaction can be no ground for damages which the transaction itself gives no right to claim. If it were otherwise, a party might recover against a servant for an act which the master was authorized to do. As against the plaintiffs there has been no violation of the law in this transaction, and they cannot claim damages because, as between the defendant and the crown of England, an offence may have been committed. The defendant does not rely on his own wrong, but on the right of the Queen of Portugal; as that right is set forth, the trespass complained of is primâ facie legal, and the offence committed by the defendant does not render it illegal. If the act of the Queen of Portugal be not legal, the defendant has been guilty of piracy; 11 & 12 W. 3, c. 7, s. 8; and then, the plaintiff's right of action is merged in

the *felony. [TINDAL, C. J. That act is diverso intuitu: it applies to [*791 outrages committed lucri causâ under colour of a commission from some power here, there was a real commission.] If the act of the queen were legal, the defendant would not have been guilty of murder had homicide ensued in the attempt to enforce her rights.

But the statute 59 G. 3, c. 69, s. 7, imposes a penalty on persons fitting out armed vessels to aid in military operations with any foreign powers without license, or issuing commission for ships, and enacts that "every such ship or vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores which may belong to or be on board of any such ship or vessel, shall be forfeited; and it shall be lawful for any officer of his Majesty's customs or excise, or any officer of his Majesty's navy, who is by law empowered to make seizures for any forfeiture incurred under any of the laws of customs or excise, or the laws of trade and navigation, to seize such ships and vessels aforesaid, and in such places and in such manner in which the officers of his majesty's customs or excise, and the officers of his Majesty's navy, are empowered respectively to make seizures under the laws of customs and excise, or under the laws of trade and navigation."

And the plaintiff being engaged in the prosecution of an illegal adventure, had no property in the ship, and therefore is precluded from suing. In Bensley v. Bignold, 5 B. & Ald. 335, it was held, that a printer could not recover for labour or materials used in printing any work, unless he affixed his name to it, pursuant to the 39 G. 3, c. 7, s. 27: so in Stockdale v. Onwhyn, 5 B. & C. 173,-that the first publisher of a libellous or immoral work could not *maintain an action against any person for publishing a pirated edition : [*792 and in Du Bost v. Beresford, 2 Camp. 511, in trespass for destroying a picture, it was held, that the defendant might plead that it was a scandalous libel upon individuals, and that, being publicly exhibited, he cut it to pieces by way of abating a nuisance, and that the owner of such a libel picture so destroyed, was at most only entitled to recover the value of the paint and canvass which formed its component parts. Wilkins v. Despard, 5 T. & R. 112, is in point. There, a ship having been seized as forfeited under the Navigation Act, 12 Car. 2, c. 18, by a governor of a foreign country belonging to Great Britain, it was held that the owner could not maintain trespass against the party seizing, although the latter did not proceed to condemnation; for. by the forfeiture, the property was devested out of the owner. And in this case the subsequent seizure and condemnation have relation to the act of forfeiture.

Stephen, in reply. As to the suggestion of piracy, a felony cannot be set up as a defiance for trespass. This was an outrage by a British subject against a British subject, in time of peace, and therefore all the argument de jure belli is inapplicable. There is no ground for saying that entering into a foreign service was not a misdemeanor at common law. Lord Coke says (3 Inst. 144,) it is not lawful for a subject of this realm to take a pension from any foreign king. Hawkins, b. i. c. 22, s. 3, is an authority to the same effect.

And the terms of the act 59 G. 3, c. 69, exclude the argument that the defendant's offence was the entering into the service of the queen, not, the acting by her command. The language of the second section is, that any person who "shall serve in and on board any *ship or vessel of war, or in and on [*793 board any ship or vessel used or fitted out, or equipped or intended to be used for any warlike purposes, in the service of, or for or under or in aid of any foreign power, &c., shall be deemed guilty of a misdemeanor."

The right of seizing a vessel for breach of blockade has never been carried beyond the subjects of the belligerent power. Vattel, b. 3, c. 7, s. 117, says, "If I lay siege to a place, or even simply blockade it, I have a right to hinder any one from entering, and to treat as an enemy whoever attempts to enter the place, or carry any thing to the beseiged without my leave, for he opposes my

undertaking, and may contribute to the miscarriage of it, and thus involve me in all the misfortunes of an unsuccessful war." Here, the seizure was by the defendant, not by the blockading power; for he is precluded from identifying himself with the blockading power, by the Foreign Enlistment Act. And by the same act he is estopped to say that he was the servant of the queen.

With respect to the condemnation of the vessel as lawful prize, it is true that a court of law will not enter the question of prize or no prize,-Le Caux v. Eden, 2 Dougl. 594, Faith v. Pearson, 6 Taunt. 439, Michell v. Rodney, 2 Bro. P. C. 423,-because it would be inconvenient for the ordinary tribunals to deal with such questions, arising out of the law of nations; but that reason does not apply to the present case, which turns on the municipal law of this country. The Courts have no power to decide on the privileges of parliament; but they may determine whether a particular case falls within the privilege or not: Jay v. Topham, cited in Burdett v. Abbott, 14 East, 1.

Then, the allegation that the plaintiffs were themselves violating the provisions of the Foreign Enlistment Act, *is a mere tu quoque, and no jus

*794] tification of the defendant's trespass: the wrong of the plaintiffs cannot

sanction the wrong of the defendant; and the plaintiffs' property in the vessel could not be devested till office found. In Dubost v. Beresford, Lord Ellenborough did not decide that the destruction of the picture was legal, but merely that the article had no value as a picture, and that the plaintiff was only entitled to recover for the loss of the canvass. In Stockdale v. Onwhyn, the plaintiff claimed a right in what was itself a nuisance-the immoral publication. The ship, in respect of which the plaintiffs here claim, was a lawful object of - property, of which the owner could not be devested by the bare commission of a misdemeanor.

Cur. adv. vult.

TINDAL, C. J. The plaintiffs declare in this action against the two defendants for seizing and taking a steam vessel of the plaintiffs, and converting the same to their use.

The defendants sever in their pleading, but each puts upon the record substantially the same justification, to which the answers given by the replication are the same, and the same questions of law are raised thereon.

It will be sufficient therefore, to consider the case as it is raised upon the pleadings with respect to the first named defendant, Charles Napier.

The third special plea of the defendant Charles Napier alleges, that as a servant of the Queen of Portugal, and by her command, he seized and took the steam vessel of the plaintiffs as lawful prize, and that such proceedings were thereupon had, according to the laws of Portugal, in a court of law in the kingdom of Portugal of competent jurisdiction in that behalf, that afterwards, in and by the said court, the said steam vessel was adjudged to have been justly and lawfully taken, and was then in due course and form of law con

*795] demned as lawful prize, and as forfeited to the Queen of Portugal. In answer to this plea, the plaintiff in his replication alleges certain facts, which bring the service of the defendant Charles Napier under the Queen of Portugal, upon the occasion in question, within the restrictions of the statute 59 G. 3, c. 69, s. 2, generally known by the name of the Foreign Enlistment Act; and to this replication the defendant demurred.

We think it is perfectly clear, that, except for the facts introduced by the replication, the plea, standing alone and unanswered, would be a conclusive bar to the plaintiff's right of action. The sentence of a foreign court of competent jurisdiction, condemning a neutral vessel taken in war, as prize, is binding and conclusive on all the world; and no English court of law can call in question the propriety, or the grounds, of such condemnation. It is sufficient to refer to the case of Hughes v. Cornelius and others, Sir T. Raym. 473, as a decisive authority on that point. It follows that after the sentence of the Court of Lisbon, it cannot be contraverted in this, or any other English court, that the steam vessel was rightly taken by the Queen of Portugal as prize, and that