On the night of Oct. 7, 1864, the rebel steamer
Florida
was captured in the port of Bahia, Brazil, by the United States
Steamer
Wachusett and brought thence to Hampton Roads,
where, by a collision, she was sunk. The United States disavowed
the act of the captain of the
Wachuaett in making the
capture. He libeled the
Florida as a prize of war.
Held that the libel was properly dismissed.
On the night of the 7th of October, 1864, the United States
steamer
Wachusett, under the command of Commander Collins,
captured the rebel steamer
Florida in the port of Bahia,
in the Empire of Brazil. The
Florida had gone there to
supply herself with provisions and for the repair of her
Page 101 U. S. 38
engine. She was anchored under cover of a Brazilian vessel of
war, on the side next to the shore, and Commander Collins was
notified that if he attacked her he would be fired upon by a
neighboring fort and by the war vessels of the empire then present.
The commander, availing himself of the darkness of the night,
approached and fired upon the
Florida, received her
surrender, attached a hawser to her extending from his vessel and
towed her out to sea. He was pursued by a Brazilian war vessel, but
escaped with his prize by superior speed. The steamers reached the
United States at Hampton Roads. There the
Florida was sunk
by a collision, and lies where she went down. The American consul
at Bahia was on board of the
Wachusett at the time of the
attack and incited it and participated in the seizure. He returned
to the United States with Commander Collins.
The Brazilian government demanded the return of the vessel and
other reparation by the United States. The latter disavowed the
capture, and the matter was amicably adjusted.
The commander libeled the
Florida as prize of war. The
court below dismissed the case, and he appealed to this Court.
Page 101 U. S. 41
MR. JUSTICE SWAYNE, after stating the facts, delivered the
opinion of the Court.
The legal principles applicable to the facts disclosed in
the
Page 101 U. S. 42
record are well settled in the law of nations and in English and
American jurisprudence. Extended remarks upon the subject are
therefore unnecessary.
See Grotius, De Jure Belli, b. 3,
c. 4, sec. 8; Bynkershoek, 61, c. 8; Burlamaqui, vol. ii. pt. 4, c.
5, sec. 19; Vattel, b. 3, c. 7, sec. 132; Dana's Wheaton, sec. 429
and note 208; 3 Rob.Ad.Rep. 373; 5
id. 21;
The Anne, 3
Wheat. 435;
La Amistad de
Rues, 5 Wheat. 385;
The
Santissima Trinidad, 7 Wheat. 283,
20 U. S. 496;
The Sir William
Peel, 5 Wall. 517;
The
Adela, 6 Wall. 266; 1 Kent, Com. (last ed.), pp.
112, 117, 121.
Grotius, speaking of enemies in war, says:
"But that we may not kill or hurt them in a neutral country
proceeds not from any privileges attached to their persons, but
from the right of the prince in whose dominions they are."
A capture in neutral waters is valid as between belligerents.
Neither a belligerent owner nor an individual enemy owner can be
heard to complain. But the neutral sovereign whose territory has
been violated may interpose and demand reparation, and is entitled
to have the captured property restored.
The latter was not done in this case because the captured vessel
had been sunk and lost. It was therefore impossible.
The libellant was not entitled to a decree in his favor, for
several reasons.
The title to captured property always vests primarily in the
government of the captors. The rights of individuals, where such
rights exist, are the results of local law or regulations. Here,
the capture was promptly disavowed by the United States. They
therefore never had any title.
The case is one in which the judicial is bound to follow the
action of the political department of the government, and is
concluded by it.
Phillips v. Payne, 92 U. S.
130.
These things must necessarily be so, otherwise the anomaly would
be possible that while the government was apologizing and making
reparation to avoid a foreign war, the offending officer might,
through the action of its courts, fill his pockets with the fruits
of the offense out of which the controversy arose. When the capture
was disavowed by our government, it became for all the purposes of
this case as if it had not occurred.
Page 101 U. S. 43
Lastly, the maxim
ex turpi causa non oritur actio
applies with full force. No court will lend its aid to a party who
founds his claim for redress upon an illegal act.
The Brazilian government was justified by the law of nations in
demanding the return of the captured vessel and proper redress
otherwise. It was due to its own character, and to the neutral
position it had assumed between the belligerents in the war then in
progress, to take prompt and vigorous measures in the case, as was
done. The commander was condemned by the law of nations, public
policy, and the ethics involved in his conduct.
Decree affirmed.
