During the late war between the United States and Great Britain,
a French privateer duly commissioned, was captured by a British
cruiser, afterwards recaptured by a privateer of the United States,
again captured by a squadron of British frigates, and recaptured by
another United States privateer and brought into a port of the
United States for adjudication. Restitution, on payment of salvage,
was, claimed by the French consul. A claim was also interposed by
citizens of the United States, who alleged that their property had
been unlawfully taken by the French vessel before her first capture
on the high seas, and prayed an indemnification from the proceeds.
Restitution to the original French owner was decreed, and it was
held that the courts of this country have no jurisdiction to
redress any supposed torts committed on the high seas upon the
property of our citizens by a cruiser regularly commissioned by a
foreign and friendly power except when such cruiser has been fitted
out in violation of our neutrality.
The French private armed ship
L'Invincible, duly
commissioned as a cruiser, was, in March, 1813, captured by the
British brig of war
La Mutine. In the same month she was
recaptured by the American privateer
Alexander, was again
captured on or about 10 May, 1813, by a British squadron consisting
of the frigates
Shannon and
Tenedos, and
afterwards, in the same month, again recaptured by the American
privateer
Young
Page 14 U. S. 239
Teazer, carried into Portland, and libeled in the
district Court of Maine for adjudication as prize of war. The
proceedings, so far as material to be stated, were as follows:
At a special term of the district court held in June, 1813, a
claim was interposed by the French consul on behalf of the French
owners, alleging the special facts above mentioned and claiming
restitution of the ship and cargo on payment of salvage. A special
claim was also interposed by Mark L. Hill and Thomas McCobb,
citizens of the United States and owners of the ship
Mount
Hope, alleging, among other things, that the said ship, having
on board a cargo on freight belonging to citizens of the United
States and bound on a voyage from Charleston, S.C., to Cadiz, was,
on the high seas, in the latter part of March, 1813, in violation
of the law of nations and of treaties, captured by
L'Invincible before her capture by
La Mutine and
carried to places unknown to the claimants, whereby the said ship
Mount Hope and cargo became wholly lost to the owners, and
thereupon praying, among other things, that after payment of
salvage, the residue of said ship
L'Invincible and cargo
might be condemned and sold for the payment of the damages
sustained by the claimants. At the same term, by consent, an
interlocutory decree of condemnation to the captors passed against
said ship
L'Invincible, and she was ordered to be sold and
one moiety of the proceeds, after deducting expenses, was ordered
to be paid to the captors, as salvage, and the other moiety to be
brought into court to abide the final decision of the respective
claims of
Page 14 U. S. 240
the French consul and Messrs. Hill & McCobb. The cause was
then continued for a further hearing unto September term, 1813,
when Messrs. Maisonarra & Devouet, of Bayonne, owners of
L'Invincible, appeared under protest and in answer to the
libel and claim of Messrs. Hill & McCobb alleged, among other
things, that the ship
Mount Hope was lawfully captured by
L'Invincible on account of having a British license on
board and of other suspicious circumstances, inducing a belief of
British interests, and ordered to Bayonne for adjudication; that
(as the protestants believed) on the voyage to Bayonne, the
Mount Hope was recaptured by a British cruiser, sent into
some port of Great Britain, and there finally restored by the court
of admiralty to the owners, after which she pursued her voyage and
safely arrived with her cargo, at Cadiz, and the protestants
thereupon prayed that the claim of Messrs. Hill & McCobb might
be dismissed. The replication of Messrs. Hill & McCobb denied
the legality of the capture, and the having a British license on
board the
Mount Hope, and alleged embezzlement and
spoliation by the crew of
L'Invincible, upon the capture;
admitted the recapture by a British cruiser and the restitution by
the admiralty upon payment of expenses, and prayed that the
protestants might be directed to appear absolutely and without
protest. Upon these allegations the district court overruled the
objections to the jurisdiction of the court and compelled the
owners of
L'Invincible to appear absolutely and without
protest, and thereupon the
Page 14 U. S. 241
owners appeared absolutely and alleged the same matters in
defense which were stated in their answer under protest, and prayed
the court to assign Messrs. Hill & McCobb to answer
interrogatories touching the premises, which was ordered by the
court. Accordingly, Messrs. Hill & McCobb made answer to the
interrogatories proposed, except an interrogatory which required a
disclosure of the fact whether there was a British license on
board, which McCobb (who was master of the
Mount Hope at
the time of the capture) declined answering upon the ground that he
was not compelled to answer any question the answer to which would
subject him to a penalty, forfeiture, or punishment, and this
refusal, the district court, on application, allowed. Hill, in
answer to the same interrogatory, denied any knowledge of the
existence of a British license. The cause was thereupon heard on
the allegations and evidence of the parties, and the district court
decreed that Messrs. Hill & McCobb should recover against the
owners of
L'Invincible the sum of $9,000 damages and the
costs of suit. From this decree the owners appealed to the circuit
court, and in that court their plea to the jurisdiction was
sustained, and the claim of Messrs. Hill & McCobb dismissed,
with costs. An appeal was thereupon entered by them to this
Court.
Page 14 U. S. 252
JOHNSON, J., delivered the opinion of the Court.
It would be difficult to distinguish this case in principle from
those of the
Cassius and the
Exchange, decided in
this Court. The only circumstance, in fact, in which they differ is
that in those cases, the vessels were the property of the nation;
in this, it belongs to private adventurers. But the commission
under which they acted was the same, the same sovereign power which
could claim immunities in those cases equally demands them in this,
and although the privateer may be considered a volunteer in the
war, it is not less a part of the efficient national force set in
action for the purpose of subduing an enemy. There may be, indeed,
one shade of difference between them and it --
Page 14 U. S. 253
that which is suggested by Rutherforth in the passage quoted in
the argument. The hull, or the owners of the privateer, may
perhaps, under some circumstances, be subject to damages in a
neutral court after the courts of the captor have decided that the
capture was not sanctioned by his sovereign. But until such a
decision, the seizure by a private armed vessel is as much the act
of the sovereign, and entitled to the same exemption from scrutiny,
as the seizure by a national vessel. In the case of the
Cassius, which belonged to the French republic, the vessel
was finally prosecuted and condemned on an information
qui
tam under the act of Congress for an illegal outfit, and thus
had applied to her, under the statute, the principle which dictated
the decision in the case of
Talbot v. Jansen with relation
to a private armed vessel. As to the restitution of prizes made in
violation of neutrality, there could be no reason suggested for
creating a distinction between the national and the private armed
vessels of a belligerent. Whilst a neutral yields to other nations
the unobstructed exercise of their sovereign or belligerent rights,
her own dignity and security require of her the vindication of her
own neutrality and of her sovereign right to remain the peaceable
and impartial spectator of the war. As to her it is immaterial in
whom the property of the offending vessel is vested. The commission
under which the captors act is the same, and that alone
communicates the right of capture even to a vessel which is
national property.
Page 14 U. S. 254
But it is contended that, admitting the general principle that
the exclusive cognizance of prize questions belongs to the
capturing power, still the peculiar circumstances of this case
constitute an exception inasmuch as the recapture of the
Mount
Hope puts it out of the power of the French courts to exercise
jurisdiction over the case. This leads us to inquire into the real
ground upon which the exclusive cognizance of prize questions is
yielded to the courts of the capturing power. For the appellants it
is contended that it rests upon the possession of the subject
matter of that jurisdiction, and as the loss of possession carries
with it the loss of capacity to sit in judgment on the question of
prize or no prize, it follows that the rights of judging reverts to
the state whose citizen has been divested of his property. On the
other hand, I presume, by the reference to Rutherforth, we are to
understand it to be contended that it is a right conceded by the
customary law of nations, because the captor is responsible to his
sovereign and the sovereign to other nations.
But we are of opinion that it rests upon other grounds, and that
the views of Vattel on the subject are the most reconcilable to
reason, and the nature of things, and furnish the easiest solution
of all the questions which arise under this head. That it is a
consequence of the equality and absolute independence of sovereign
states, on the one hand, and of the duty to observe uniform
impartial neutrality, on the other.
Under the former, every sovereign becomes the acknowledged
arbiter of his own justice, and cannot,
Page 14 U. S. 255
consistently with his dignity, stoop to appear at the bar of
other nations to defend the acts of his commissioned agents, much
less the justice and legality of those rules of conduct which he
prescribes to them. Under the latter, neutrals are bound to
withhold their interference between the captor and the captured; to
consider the fact of possession as conclusive evidence of the
right. Under this it is also that it becomes unlawful to divest a
captor of possession even of the ship of a citizen, when seized
under a charge of having trespassed upon belligerent rights.
In this case, the capture is not made as of a vessel of the
neutral power, but as of one who, quitting his neutrality,
voluntarily arranges himself under the banners of the enemy. On
this subject there appears to be a tacit convention between the
neutral and belligerent that, on the one hand, the neutral state
shall not be implicated in the misconduct of the individual, and on
the other that the offender shall be subjected to the exercise of
belligerent right. In this view, the situation of a captured ship
of a citizen is precisely the same as that of any other captured
neutral -- or rather the obligation to abstain from interference
between the captor and captured becomes greater, inasmuch as it is
purchased by a concession from the belligerent, of no little
importance to the peace of the world and particularly of the nation
of the offending individual. The belligerent contents himself with
cutting up the unneutral commerce, and makes no complaint to the
neutral power, not even
Page 14 U. S. 256
where the individual rescues his vessel and escapes into his own
port after capture.
Testing this case by these principles, it will be found that to
have sustained the claim of the appellants, the court below would
have violated the hospitality which nations have a right to claim
from each other and the immunity which a sovereign commission
confers on the vessel which acts under it, that it would have
detracted from the dignity and equality of sovereign states by
reducing one to the condition of a suitor in the courts of another,
and from the acknowledged right of every belligerent to judge for
himself when his own rights on the ocean have been violated or
evaded, and finally that it would have been a deviation from that
strict line of neutrality which it is the universal duty of
neutrals to observe -- a duty of the most delicate nature with
regard to her own citizens, inasmuch as through their misconduct
she may draw upon herself the imputation of secretly supporting one
of the contending parties. Under this view of the law of nations on
this subject, it is evident that it becomes immaterial whether the
corpus continue
sub potestate of the capturing
power or not. Yet if the recapture of the prize necessarily draws
after it consequences so fatal to the rights of an unoffending
individual as have been supposed in the argument, it may well be
asked shall he be referred for redress to courts which, by the
state of facts, are rendered incompetent to afford redress?
The answer is that this consequence does not follow from the
recapture. The courts of the captor
Page 14 U. S. 257
are still open for redress. The injured neutral, it is to be
presumed, will there receive indemnity for a wanton or illicit
capture, and if justice be refused him, his own nation is bound to
vindicate or indemnify him.
Some confusion of idea appears to hang over this doctrine,
resulting chiefly from a doubt as to the mode in which the
principle of exclusive cognizance is to be applied in neutral
courts to cases as they arise, and this obscurity is increased by
the apparent bearing of certain cases decided in this Court in the
years 1794 and 1795.
The material questions necessary to be considered in order to
dissipate these doubts are 1st, does this principle properly
furnish a plea to the jurisdiction of the admiralty courts? 2d, if
not, then does not jurisdiction over the subject matter draw after
it every incidental or resulting question relative to the disposal
of the proceeds of the
res subjecta?
The first of these questions was the only one settled in the
case of
Glass v. Betsey, and the case was sent back with a
view that the district court should exercise jurisdiction, subject,
however, to the law of nations on this subject as the rule to
govern its decision.
And this is certainly the correct course. Every violent
dispossession of property on the ocean is
prima facie a
maritime tort; as such, it belongs to the admiralty jurisdiction.
But sitting and judging, as such courts do, by the law of nations,
the moment it is ascertained to be a seizure by a commissioned
cruiser, made in the legitimate exercise of the rights
Page 14 U. S. 258
of war, their progress is arrested, for this circumstance is in
those courts a sufficient evidence of right.
That the mere fact of seizure as prize does not, of itself, oust
the neutral admiralty court of its jurisdiction is evident from
this fact, that there are acknowledged cases in which the courts of
a neutral may interfere to divest possessions -- to-wit, those in
which her own right to stand neutral is invaded -- and there is no
case in which the court of a neutral may not claim the right of
determining whether the capturing vessel be in fact the
commissioned cruiser of a belligerent power. Without the exercise
of jurisdiction thus far, in all cases, the power of the admiralty
would be inadequate to afford protection from piratical capture.
The case of
Talbot v. Jansen, as well in the reasoning of
the judges as in the final decision of the case, is fully up to the
support of this doctrine. But it is supposed that the case of the
Mary Ford supports the idea that as the court had
acknowledged jurisdiction over the question of salvage, its
jurisdiction extended over the whole subject matter, and authorized
it to proceed finally to dispose of the residue between the parties
litigant.
That case certainly will not support the doctrine to the extent
contended for in this case. It is true that the court there lay
down a principle which in its general application is unquestionably
correct, and which, considered in the abstract, might be supposed
applicable to the present case. But this presents only one of
innumerable cases which occur in
Page 14 U. S. 259
our books to prove how apt we are to misconceive and misapply
the decisions of a court by detaching those decisions from the case
which the court propose to decide. The decision of the Supreme
Court in that case is in strict conformity with that of the circuit
court in the present case. For when the court come to apply their
principle, it does not enter into the question of prize between the
belligerents, but decree the residue to the last possessor, thus
making the fact of possession, as between the parties litigant, the
criterion of right, and this is unquestionably consistent with the
law of nations. Those points, which can be disposed of without any
reference to the legal exercise of the rights of war, the court
proceeds to decide, but those which necessarily involve the
question of prize or no prize it remits to another tribunal.
It would afford us much satisfaction could we with equal
facility vindicate the consistency of this Court in the case of
Del. Col v. Arnold. To say the least of that case, it
certainly requires an apology. We are, however, induced to believe
from several circumstances that we have transmitted to us but an
imperfect sketch of the decision in that case. The brevity with
which the case is reported, which we are informed had been argued
successively at two terms by men of the first legal talents,
necessarily suggests this opinion, and when we refer to the case of
the
Cassius, decided but the term preceding, and observe
the correctness with which the law applicable to this case in
principle is laid down in
Page 14 U. S. 260
the recital to the prohibitions, we are confirmed in that
opinion.
But the case itself furnishes additional confirmation. There is
one view of it in which it is reconcilable to every legal
principle. It appears that when pursued by the
Terpsicore,
the
Grand Sachem was wholly abandoned by the prize crew
and left in possession of one of the original American crew and a
passenger; that, in their possession, she was driven within our
territorial limits and was actually on shore when the prize crew
resumed their possession and plundered and scuttled her. Supposing
this to have been a case of total dereliction (an opinion which, if
incorrect, was only so on a point of fact, and one in support of
which much might to said, as the prize crew had no proprietary
interest, but only a right founded on the fact of possession), it
would follow that the subsequent resumption of possession was
tortious, and subjected the parties to damages. On the propriety of
the seizure of the
Industry to satisfy those damages the
court give no opinion, but place the application of the proceeds of
the sale of this vessel on the ground of consent -- a principle on
the correctness of the application of which to that case the report
affords no ground to decide.
But admitting that the case of the
Grand Sachem was
decided under the idea that the courts of the neutral can take
cognizance of the legality of belligerent seizure, it is glaringly
inconsistent with the acknowledged doctrine in the case of the
Cassius and of
Talbot v. Jansen, decided the term
next
Page 14 U. S. 261
preceding, and in the
Mary Ford, decided at the same
term with that of the
Grand Sachem. The subject has
frequently, since that term, been submitted to the consideration of
this Court, and the decision has uniformly been that it is a
question exclusively proper for the courts of the capturing
power.
Sentence affirmed.
