The district courts of the United States (being neutral) have
jurisdiction to restore to the original Spanish owner (in amity
with the United States), his property captured by a French vessel
whose force has been increase in the United States if the prize be
brought
in praesidia.
It is general rule that the trial of captures made on the high
seas
jure belli by a duly commissioned vessel of war,
whether from an enemy or neutral, belongs exclusively to the courts
of the nation of the captors.
To this rule there are exceptions which are as firmly
established as the rule itself.
If the capture be made within the territorial limits of a
neutral country into which the prize is brought or by a privateer
which had been illegally equipped in such neutral country, the
prize courts of such neutral country not only possess the power,
but it is their duty, to restore the property so illegally captured
to the owner.
A neutral nation may, if so disposed, without a breach of her
neutral character, grant permission to both belligerents to equip
their vessels of war within her territories. But without such
permission, the subjects of such belligerent powers have no right
to equip vessels of war or, to augment their force either with arms
or men within the neutral territory.
Such unauthorized acts violate the sovereignty and rights as a
neutral of such nation. All captures made by means of such
equipments are illegal in relation to such nation, and it is
competent for her courts to punish the offenders, and in case the
prizes are brought
infra praesidia to order them to be
restored.
It is immaterial whether the persons taken on board in the
neutral port were native American citizens or foreigners domiciled
in the United States; neither the law of nations nor the act of
Congress recognizes any distinction except in respect to the
subjects of the state in whose service they are so enlisted
transiently within the United Suites.
The facts of the case were stated by WASHINGTON, J. in
delivering the opinion of the Court, as follows:
This is the case of a libel filed in the District Court of New
Orleans, by Blas Moran, a subject of the King of Spain and a native
and resident of the Island of Cuba setting forth that he is the
owner of the bring
Alerta and cargo consisting of 170
slaves which, on a voyage from the coast of Africa to the Havana,
was, sometime in the month of June, 1810, when within a few leagues
of Havana, captured on the high seas by the
L'Epine,
bearing French colors; that a prize master was put on board the
Alerta, and 17 of the slaves taken out, after which the
prize was ordered to steer for the Balize and was finally brought
to the port of New Orleans with the remainder of her cargo,
consisting of 153 slaves. The libel alleges that the
L'Epine was not duly commissioned to capture the property
of Spanish subjects, or, if so commissioned, that she was armed and
equipped for war in the port of New Orleans, and manned by sundry
American citizens and inhabitants of the territory of New Orleans,
contrary to the law of nations. The prayer of the libel is for
restitution and damages.
The claim of the prize master admits the capture of the
Alerta as lawful prize of war, and asserts that the
L'Epine, at the time of the capture, was and still is
legally authorized to capture all vessels and their cargoes
belonging to the subjects of Spain, as enemies of France. He
further states that after the capture he was compelled to enter the
port of New Orleans by stress of weather,
Page 13 U. S. 360
want of provisions, and the inability of the
Alerta to
keep the sea and prays to be dismissed.
The evidence in the cause establishes the following facts. That
sometime in April, 1810, this privateer commanded, by captain
Batigne and bearing a commission from the French government to make
prizes on the high seas, entered the port of New Orleans. The
captain had with him a letter of instructions from his owner
directing him to deposit what money he might take as prize in the
Bank of New Orleans, to put into one of the ports as being in
distress, and, in case he should hear of the capture of Guadeloupe,
he was to renew his crew for the purpose of conveying his prizes to
France. Sometime in the course of the succeeding month, Batigne
presented two petitions to the collector of the port of New
Orleans, stating that the
L'Epine had been compelled by
stress of weather to put into that port, and that he had
necessarily incurred expenses for refitting and victualing the
privateer, and for defending himself against a criminal prosecution
for piracy to an amount exceeding $5,000, and praying for
permission to enter and sell such part of his cargo, as would
enable him to discharge that sum. He also applied to the collector,
about the same time for permission to purchase provisions for his
crew amounting to thirty persons, on his intended voyage to France,
and intimated that he should take with him about ten passengers, if
permitted to do so; but this permission being refused, he professed
to relinquish his intention of taking passengers on board.
Having obtained permission to purchase provisions and to dispose
of a part of his cargo, it appears that he paid off his crew and
sailed from New Orleans soon afterwards with a crew of from fifty
to sixty men composed partly of persons obtained at New Orleans and
partly of those who had entered that port with him. With this force
on board, he went to sea, and soon afterwards fell in with the
Alerta, bound from Africa to the Havana, which, together
with her cargo consisting of 170 slaves, he captured as prize of
war, put a prize master on board, and ordered her to steer towards
the Balize. On her passage, the
Alerta suffered very
considerably in a gale, and her crew, together with the slaves on
board, were much distressed for want of provisions, when she
was,
Page 13 U. S. 361
at the request of captain Batigne, visited and relieved by
captain Allen and conducted safely to New Orleans, where he libeled
the vessel and cargo for salvage.
The court below, upon the libel of the Spanish owner, decreed
restitution to the libellant of the ship and the 154 slaves left on
board of her by the privateer, subject to all expenses for the
support of the negroes, and such salvage as should be decreed by
the court together, with costs of suit, and such damages as the
court should thereafter decree.
Page 13 U. S. 364
WASHINGTON, J. delivered the opinion of the Court as
follows:
The only question for the consideration of this Court is whether
the court below had jurisdiction of this cause for the purpose of
restoring the property to the libellant? The jurisdiction is
asserted upon the grounds
1. That the force of the privateer, by means whereof this
capture was made, had been increased at New Orleans, contrary to
the laws and in violation of the neutrality of the United
States.
2. That the commission of this privateer had expired before the
capture was made.
As this Court is satisfied with the sentence of the court below
upon the first ground of jurisdiction, the opinion will be confined
to that point. The general rule is undeniable that the trial of
captures made on the high seas,
jure belli, by a duly
commissioned vessel of war, whether from an enemy or a neutral,
belongs exclusively to the courts of that nation to which the
captor belongs. To this rule there are exceptions which are as
firmly established as the rule itself. It the capture be made
within the territorial limits of a neutral country into which the
prize is brought, or by a privateer which had been illegally
equipped in such neutral country, the prize courts of such neutral
country not only possess the power, but it is their duty to restore
the property so illegally captured to the owner. This is necessary
to the vindication of their own neutrality.
Page 13 U. S. 365
A neutral nation may, if so disposed, without a breach of her
neutral character, grant permission to both belligerents to equip
their vessels of war within her territory. But without such
permission, the subjects of such belligerent powers have no right
to equip vessels of war or to increase or augment their force
either with arms or with men, within the territory of such neutral
nation. Such unauthorized acts violate her sovereignty and her
rights as a neutral. All captures made by means of such equipments
are illegal in relation to such nation, and it is competent to her
courts to punish the offenders, and, in case the prizes taken by
her are brought
infra praesidia, to order them to be
restored.
These principles are believed to be fully warranted by the
general law of nations, by the decisions of the courts of this
country, and by the laws of the United States. By the Act of June,
1794, the enlisting, within the territory of the United States,
persons to serve as soldiers and marines on board of any vessel of
war or privateer in the service of any foreign state, with the
exception of the subjects of such foreign state transiently within
the United States, the fitting out and arming any vessel in the
service of a foreign prince or state at war with any other nation
which is at peace with the United States, and the increasing or
augmenting the force of any armed vessel of war in such foreign
service, by adding to the number of her guns, and the like, are
declared to be offenses against the United States, and are
punishable by fine and imprisonment, and the 7th section of the law
provides for the detention of all such vessels as have been so
fitted out, or as have so increased or augmented their force,
together with such prizes as they may have made, in order to the
execution of the prohibitions and penalties prescribed by that act,
and to the restoring of such prizes in cases where restoration
shall have been adjudged.
Thus, if there were any doubt as to the rule of the law of
nations upon this subject, the illegality of equipping a foreign
vessel of war within the territory of the United States, is
declared by the above law, and the power and duty of the proper
courts of the United States, to restore the prizes made in
violation of that law, is clearly recognized.
Page 13 U. S. 366
But it is insisted for the claimant in this case that the
persons taken on board at New Orleans by the captain of the
privateer formed no part of the crew at the time the privateer left
that port, but that they were received merely as passengers, that
they were emigrants from other nations, and not citizens of the
United States, and that their subsequent change of character from
passengers to crew, cannot attach any crime to the captain of the
privateer under the laws of the United States or affect his right
to the prizes which he might afterwards make on the high seas.
This argument is unsupported by the facts proved in the cause.
It appears that Captain Batigne proposed in the first instance to
the collector of the port of New Orleans to take on board ten
passengers for France, provided he should be permitted to do so,
and that he afterwards stated to the collector that as there was
some difficulty in obtaining such permission he should decline
taking them. But what places this subject beyond all doubt is that
it appears from some of the ship's papers of the privateer that
advances were made to these alleged passengers with a deduction of
3 percent for the marine invalids agreeably to the ordinances of
France, and the
role d'equipage contains the number of
prize shares opposite to their names. These facts, being
unexplained by any testimony in the cause which deserves to be
respected, leave no doubt that the persons taken on board at New
Orleans were engaged originally as an addition to the crew of the
privateer. Some of the persons so enlisted are proved to be native
citizens; others were residents domiciled in New Orleans, some with
and others without families; and others again were slaves belonging
to the citizens of that place, who appear to have been seduced from
the service of their masters. It is quite immaterial whether the
persons so enlisted were native American citizens or foreigners
domiciled within the United States; since neither the law of
nations nor the act of Congress recognizes any distinction except
in respect to subjects of the state in whose service they are so
enlisted transiently within the United States, and it may well be
doubted whether this exception in the act of Congress was not
virtually repealed by the nonintercourse law. But it appears that
some of these persons
Page 13 U. S. 367
were emigrants from Cuba, and were at that time residing and
domiciled in New Orleans.
It is next contended on behalf of the claimant that, in case the
court should affirm the decree directing restitution, it ought to
be done upon the condition of the libellant paying salvage, not to
the captain of the gunboat who furnished the
Alerta with
provisions and conducted her to New Orleans, but to the
privateer.
This claim is entirely inadmissible. Salvage is allowed as a
reward for the meritorious conduct of the salvor, and in
consideration of a benefit conferred on the person whose property
he has saved. What are the pretensions of captain Batigne to the
reward he claims? He fits out his vessel at New Orleans in
contravention of the law of nations and of the United States, and
finding on the high seas a vessel and cargo belonging to the
subjects of a nation at peace with the United States within a short
distance of Havana, her port of destination, he employs the force
thus illegally taken on board to make prize of both vessel and
cargo, and taking her out of her course, he conducts her towards
the Balize, near to which she is found by captain Allen in distress
in consequence of a severe gale, to which she had been exposed, and
of the want of provisions. Her wants being relieved by that
officer, he conducted her in safety to New Orleans. Nothing could
be more remote from the intentions of the captain of the privateer
than to render a service to this ship and her cargo. So far from
it, he committed an unwarrantable spoliation of the cargo by
selling fourteen of the slaves, part thereof, to an American whom
he met at sea, and he most certainly intended to have smuggled the
residue of the slaves into Grand Terre or some other part of the
coast, and there to have disposed of them. It would ill become any
court of justice, and much less an American court, to bestow a
reward on a person who had thus violated the laws of the United
States in one instance, and meditated a violation of them in
another, and it would be still worse to give such reward at the
expense of the injured Spaniard.
Upon the whole, it is the opinion of this Court that the
sentence appealed from ought to be
Affirmed with costs.
