1. That the admiralty court of the District of Columbia had
jurisdiction of the libel for the condemnation of the property in
contest, although such property was not brought within its
jurisdiction, and if they found the subject liable to condemnation,
might proceed to condemn although not in fact within the custody or
control of the court.
2. That the admiralty court in the District of Columbia having
jurisdiction of the case, it was its duty to order the captors
Page 59 U. S. 112
to institute proceedings in that court to condemn the property
as prize by a day to be named in the order, and in default thereof
to be proceeded against upon a libel for an unlawful seizure,
because the property of the claimant is not devested by the
capture, but by condemnation in a prize court is not devested until
condemnation, though such condemnation will relate back to the
capture.
3. That the grounds alleged for the seizure of the vessel and
cargo -- namely that the vessel sailed from New Orleans with the
design of trading with the enemy, and did in fact hold illegal
intercourse with them, are sufficient, if supported by testimony,
to subject both vessel and cargo to condemnation.
4. And if they were liable to condemnation, the reasons assigned
in the answer for not bringing the vessel and cargo into a port of
the United States for trial -- namely that it was impossible so to
do consistently with the public interest -- is sufficient, if
supported by proofs, to justify the captors in selling vessel and
cargo in California, and to exempt the captors from damages on that
account.
5. That to a libel for restitution, probable cause for seizure
in no defense, but is so only against a claim for damages in cases
in which the property has been restored or lost after seizure.
Under the authority of the rulings just enumerated and in
obedience to the mandate founded thereupon, the libel in the cause
now before us was filed, and the case made by the parties presents
as the material questions for consideration the inquiries 1.
whether the vessel sailed with the design of trading with the
enemy, and did in fact hold illegal intercourse with them; 2.
admitting that the vessel and cargo were in the first instance
liable to condemnation, whether the reasons assigned for not
bringing them within the United States were so supported by proof
as to justify the captor in not bringing them within the United
States, and in selling them in California, without a forfeiture of
their rights as captors.
As a principle applicable to the first of these inquiries, it
may be averred as a part of the law of nations -- forming a part,
too, of the municipal jurisprudence of every country --
"that in a state of war between two nations declared by the
authority in whom the municipal constitution vests the power of
making war, the two nations and all their citizens or subjects are
enemies to each other."
The consequence of this state of hostility is that all
intercourse and communication between them is unlawful.
Vide Wheaton on Maritime Captures, cap. 7, 209, quoting
from Bynkershoeck this passage:
"
Ex natura belli commercia inter hostes cessare, non est
dubitandum. Quamvis nulla specialis
Page 59 U. S. 113
sit commerciorum prohibitio, ipso tamen jure belli,
commercia inter hostes esse vetita, ipsae indictiones bellorum
satis declarant."
Upon this principle of public law, it has been the established
rule of the High Court of Admiralty in England that a trading with
the enemy, except by a royal license, subjects the property to
confiscation. The decisions of that court show that the rule has
been rigidly enforced, as for instance where the government had
authorized a homeward trade from the enemy's possessions, but had
not specifically protected an outward trade to the same; and again
in instances where cargoes have been laden before the war, but
where the parties had not used all possible diligence to
countermand the voyage after the first notice of hostilities; and
this rule has been enforced not only against subjects of the Crown,
but likewise against those of its allies in the war, upon the
assumption that the rule was founded on the universal principle
which states allied in war had a right to apply to each other's
subjects.
Vide Wheaton on Captures, 212; and 1 C.
Robinson's Adm. 196,
The Hoop.
The same rule has been adopted with equal strictness by this
Court. In the case of
The Rapid, reported in
12 U. S. 8 Cranch
155, the claimant, a citizen of the United States, had purchased
goods in the enemy's country a long time before the declaration of
war, and had deposited them on an island near the boundary line
between the two countries. Upon the breaking out of hostilities,
his agents had hired the vessel to proceed to the place of deposit
and bring away these goods. Upon her return, the vessel was
captured, and, with the cargo, was condemned as prize of war for
trading with the enemy. In applying the law to this state of facts,
this Court said, and said unanimously:
"That the universal sense of nations has acknowledged the
demoralizing effects that would result from the admission of
individual intercourse. The whole nation are embarked in one common
bottom, and must be reconciled to submit to one common fate. Every
individual of the one nation must acknowledge every individual of
the other nation as his own enemy because the enemy of his country.
But after deciding what is the duty of the citizen, the question
occurs what is the consequence of a breach of that duty? The law of
prize is a part of the law of nations. In it a hostile character is
attached to trade independently of the character of the trader who
pursues or directs it. Condemnation to the use of the captor is
equally the fate of the property of the belligerent and of the
property engaged in anti-neutral trade. But a citizen or an ally
may be engaged in a hostile trade, and thereby involve his property
in the fate of those in whose cause he embarks."
Again, the Court said:
"If by trading in prize law was meant that signification
Page 59 U. S. 114
of the term which consists in negotiation or contract, this case
would not come under the penalties of the rule. But the object and
spirit of the rule is to cut off all communication or actual
locomotive intercourse between individuals of the belligerent
nations. Negotiation or contract has, therefore, no necessary
connection with the offense. Intercourse inconsistent with actual
hostility is the offense against which the operation of the rule is
directed."
The case of
The Joseph, reported in
12 U. S. 8 Cranch
451, was that of a vessel owned by citizens of the United States
that sailed from thence before the war with a cargo on freight on a
voyage to Liverpool and the north of Europe, and thence back to the
United States. After arriving and discharging her cargo at
Liverpool, she took in another at Hull, and sailed for St.
Petersburg. At St. Petersburg, she received news of the war with
England, and sailed to London with a Russian cargo consigned to
British merchants, delivered her cargo and sailed for the United
States in ballast, under a British license, and was captured. In
the opinion of this Court in this case, delivered by Washington,
Justice, it is said:
"That after the decision in the cases of
The Rapid and
of
The Alexander, it is not to be contended that the
sailing with a cargo on freight from St. Petersburg to London after
a full knowledge of the war did not amount to such a trading with
the enemy as to have subjected both the vessel and cargo to
condemnation as prize of war had she been captured on that voyage.
The alleged necessity of undertaking that voyage to enable the
master out of the freight to discharge his expenses at St.
Petersburg -- countenanced, as the master declares, by the opinion
of our minister at St. Petersburg that by undertaking such a voyage
he would violate no law of the United States -- although these
considerations, if founded in truth, present a case of peculiar
hardship, yet they afford no legal excuse which it is competent to
this Court to admit as the basis of its decision."
The same course of decision which has established that property
of a subject or citizen taken trading with the enemy is forfeited,
has decided also that it is forfeited as prize. The ground of the
forfeiture is that it is taken adhering to the enemy, and therefore
the proprietor is
pro hac vice to be considered as an
enemy.
Vide also Wheaton on Captures 219, and 1 C.
Robinson 219, the case of
The Nelly.
Attempts have been made to evade the rule of public law, by the
interposition of a neutral port between the shipment from the
belligerent port and their ultimate destination in the enemy's
country, but in all such cases the goods have been condemned as
having been taken in a course of commerce rendering them
Page 59 U. S. 115
liable to confiscation, and it has been ruled that without
license from government, no communication, direct or indirect, can
be carried on with the enemy; that the interposition of a prior
port makes no difference; that all trade with the enemy is illegal,
and the circumstance that the goods are to go first to a neutral
port will not make it lawful. 3 C. Robinson 22,
The Indian
Chief, and 4 C. Robinson 79,
The Jonge Pieter.
Having thus stated the law with regard to maritime captures, it
remains to be ascertained how far the case before us upon the
pleadings and proofs falls within the scope or the terms of that
law.
The libel propounds that the libellant, as the commander of the
United States ship
Portsmouth, did, on the 7th of April,
1847, at the port of San Jose in lower California, in the Republic
of Mexico, seize and take possession of as lawful prize a certain
ship or vessel called
The Admittance one Peter Peterson
being the master -- with her cargo, provisions, tackle, and all
other appurtenances to the said ship belonging. That the said ship
is a merchant vessel belonging to citizens of the United States,
and that the cargo of said ship is believed by the libellant to
have belonged to certain merchants resident in Mexico. That about
the month of October, 1846, the said ship with her cargo left the
port of New Orleans for a port in the Republic of Mexico, into
which port the captain intended to discharge the cargo. That for
some time prior to the sailing of this ship, and upon the day of
her seizure, open and public war existed between the United States
and the Republic of Mexico and its dependencies. That in
consequence of said State of war and in discharge of his duty, the
ship
Admittance, with her cargo, was seized by the
libellant as prize of war.
The libellant further propounds that Peterson, as master of the
said ship, did sail from the United States with the intention of
trading, and in fact did trade and otherwise hold illegal
intercourse with the enemies of the United States whereby the said
ship, her cargo, tackle, and appurtenances, became subjects of
lawful prize. All which illegal intention and acts of the master
more fully appear by the papers of the said ship, and by other
papers received from the master by the libellant, numbered from one
to fifteen inclusive; from the deposition of William Bell, the
first mate of
The Admittance, and from the log book -- all
of which it is prayed may be made parts of the libel, which
concludes with a prayer for condemnation of ship and cargo and for
the dismission of the libel previously filed by Torre, Jecker, and
Co., praying restitution of a portion of the cargo.
To the libel of Captain Montgomery were filed an answer on
Page 59 U. S. 116
behalf of Fessenden and Fay, who intervened as owners of the
ship, and separate answers on behalf of Jecker, Torre, and Co., and
of Manuel Quintana, as owners of the cargo.
These answers, so far as they are made up merely of general
denials of the charges propounded in the libel, require no special
animadversion. So far, however, as the specific facts alleged in
them by way of exculpation, the compatibility of those facts with
the established law of prize, or with the proofs adduced in the
case, become a question, the statements in these answers are
matters of essential importance requiring particular
examination.
The respondents Fessenden and Fay have in their answers observed
and entire silence with respect to a knowledge on their part as to
the destination of the ship or cargo, whilst they are very explicit
in the assertion of their belief that the cargo was put on board by
the charterer and that the ship sailed under a full persuasion that
a treaty of peace would speedily terminate the then existing war
between the United States and Mexico, and that they never were
informed, nor do they believe, that the cargo was to be landed or
disposed of in Mexico until after the termination of the war.
Personally they say that they know nothing of what occurred in
relation to the ship and cargo in the Pacific, but from what they
have learned they believe, and therefore aver, that there was no
trading with the enemy at any time during the voyage. This
statement, which implies knowledge in the respondents of the
existence of war between the United States and Mexico at the time
of chartering of their ship and knowledge likewise that the cargo
put on board was destined for the port of a nation, at the time of
the shipment at any rate, in open hostility with the United States,
will, as to its verity, be further tested by a comparison with the
testimony furnished by the papers found in the captured vessel and
by the examination of witnesses. And in this connection it may be
observed that the bare permission by the owners of the use of their
vessel in hostile or piratical enterprises renders such vessel
liable to capture and condemnation equally with her employment in
similar offenses under the immediate command of such owners
themselves.
Vide the case of
United
States v. Brig Maleck Adel, 2 How. 234;
United
States v. Schooner Little Charles, 1 Brok. 347;
The Palmyra,
12 Wheat. 14; 1 C. Rob. 127;
The Vrow Judith.
Comparing this answer with the papers found on board the
captured vessel, we see it expressly stipulated in the charter
party, the very contract by which the ship was hired and which was
signed by these respondents, that the ship shall proceed to New
Orleans, and there take from the charters Wylie and
Page 59 U. S. 117
Ygana 1,100 bales of cotton, to be delivered at the port of San
Blas to the order of the shipper, the consignee paying freight for
the room occupied in the ship by the cotton, eleven hundred
dollars, payable on delivery of the cargo, the cargo to be received
at New Orleans and discharged at San Blas with dispatch. The
charter party further provides that if on the arrival of the ship
off San Blas the port is blockaded or other obstructions prevent
the discharge of the ship, she shall proceed to the Sandwich
Islands, and there remain until the port is open, the said Wylie
and Ygana paying in addition to the charter the further sum of one
thousand dollars per month during such detention. We will hereafter
state what is conceived by this Court to be the proper construction
of this phrase "if the port is blockaded, or other obstructions
prevent the discharge of the ship." Independently of this phrase,
however, we have, on the face of this contract, the declaration
that the shipment was made to an enemy's port, that the delivery
was to take place at that port, that the interposition of the
neutral island of Honolulu was not for the purpose of trade with,
or transshipment at that island, but solely for the purpose of
affording an opportunity to enter into and discharge at a port
known to be an enemy's port, in which the consignees of the cargo
resided, and the delivery at which port was made a precedent and
necessary condition to the payment of freight.
Upon a comparison of the bill of lading with the charter party,
the terminus of the voyage and the destination of the cargo are
more clearly shown. The language of the bill of lading runs
thus:
"Shipped in good order and well conditioned by Wylie and Ygana,
on board the good ship
Admittance, whereof is master for
the present voyage Peterson, and now lying at New Orleans, and
bound for Honolulu, two thousand seven hundred and seven small
bales of cotton, being marked and numbered as in the margin, and
are to be delivered."
Where? Not at Honolulu, where there was no consignee, apparent
or mentioned -- not at San Blas as an incidental point in the track
of the voyage to Honolulu, but at "the aforesaid port of San Blas,"
the predetermined limit of the voyage, and to Don Lewis Rivas
Gongora, resident at San Blas, the correspondent and consignee of
the shipper.
Taking, in connection with the charter party and the bill of
lading, the instructions from the respondent, Fessenden, to the
master of the ship before sailing from New Orleans, it seems almost
incredible that the owners should have been ignorant of the
character of the voyage and of the hazards incurred by their vessel
resulting from that character. How, upon any other view, can be
accounted for the extreme caution enjoined upon the
Page 59 U. S. 118
master with respect to the danger of entering a Mexican port --
danger expressly distinguished from that arising from the
probability of capture by vessels of the United States; such as it
is said might arise from the disposition of the Mexican government,
under the plea of the right of war to confiscate the vessel,
notwithstanding the consignees might have obtained permission to
land the cargo? It is absurd to suppose that this caution could
have had any possible reference to a state of reestablished amity
between Mexico and the United States, as the vessel of a friendly
nation could incur no risk of confiscation by entering the port of
a friend. We think that it was to dangers and hazards which might
proceed from the Mexican authorities -- hazards and dangers
incident to an existing and known state of war, which were in the
contemplation of the owners when, in the charter party, they speak
of "other obstructions," beyond that of blockades, "which might
prevent the discharge of the ship at San Blas," an enemy's port.
This interpretation of the conduct and purposes of the owners and
charterers is strongly corroborated by, and explains that portion
of the instructions to the master which tells him,
"you will perceive from this that you must be very cautious
about going into a Mexican port, for although the consignees may
have authority to land the cotton, yet they might seize the vessel
after being discharged unless the vessel as well as the cargo had
permission from the Mexican government."
This language would be unintelligible unless it had reference to
a known belligerent attitude of the two nations forbidding
intercourse or traffic between their respective citizens and to a
contemplated dispensation from the existing prohibitions by one of
the belligerents. We are therefore, upon a just construction of the
answer of the claimants of the vessel, of the charter party signed
by them, of the bill of lading, and of the instructions to the
master, impelled to the conclusion that these claimants of the
vessel were aware of the character of the voyage for which they had
hired her, and were willing nevertheless to incur the hazards of
the enterprise in consideration of the profits it promised
them.
Looking next beyond the evidence of intention and knowledge as
deducible from the ship's papers proper, to the acts of the master
in execution of the objects and purposes of the voyage, the
following facts are shown by the testimony of the witnesses Bell,
Martin and Graves, all of them belonging to the crew of
The
Admittance, and the first-named being the mate of the ship:
that she sailed directly to San Blas; that upon her arrival off
this port, then being an enemy's port and in the possession of the
enemy, she remained before it three days and nights, during which
time the master opened an intercourse with the port,
Page 59 U. S. 119
receiving at different times communications therefrom, to which
he replied; that whilst off San Blas, the captain showed no
American ensign, but after receiving the communications from the
shore, he ordered the chief mate not to head the log book, and also
directed the concealment of the ship's name by covering her stern
with painted canvas, and proceeded along the coast as far as 188�
north, looking for some bay or inlet on the coast of Mexico where
the cargo might be delivered, but finding no suitable place, the
ship was headed for San Jose, California. It is further proved by
the witnesses Mesroon and Bell that
The Admittance entered
the port of San Jose before it was captured by the forces of the
United States, and when it was still a Mexican port in the
possession of the enemies of the United States, and the witnesses,
Bell and Graves, both of the crew of
The Admittance, swear
that the captain, before the seizure, landed goods at this hostile
port. Upon every correct view, then, of the facts of this case and
of the law of prize as applicable to these facts, it is clear that
the ship
Admittance was properly subject to seizure and
condemnation as prize of war.
We have seen by the authorities cited that intercourse with the
enemy is sufficient cause for personal punishment and for the
confiscation of property, that it is a cause originating in, and
inflexibly enforced by necessity for guarding the public safety. In
this cause are established against the claimants of this vessel not
only intercourse, but trading in its common acceptation. Moreover
it is a settled principle that if the owners had not anticipated a
violation of the public law, the fate of their vessel, with respect
to an infraction of that law, must depend upon the conduct of the
agent with whom they have entrusted its management.
With respect to the respondents, Jecker, Torre, and Co., and
Quintana, claimants of the cargo, the written documents found on
board the captured vessel and surrendered to the libellant by the
master fasten upon these claimants not only a knowledge of the
design, under the pretext of a voyage to the Sandwich Islands, of
trading with citizens of the United States, a belligerent nation,
but they fix upon those parties strenuous and active efforts to
possess themselves of the fruits of that traffic -- the cargo of
the ship -- and to obtain them not even by the circuitous voyage to
Honolulu, but by direct transit to and within the territory of the
enemy's nation. It is a circumstance of much significance disclosed
by these papers that there appears to have existed a perfect
understanding and preconcert between these claimants, the
charterers of the vessel, and the master. The arrival of the master
is anticipated and waited for, and no
Page 59 U. S. 120
sooner does his vessel appear on the Mexican coast, the war
still continuing, than she is boarded from the shore by the agents
of the claimants, bringing assurances of arrangements made for the
violation of the law of war and of the safety with which that
violation might be accomplished.
Thus, on the 12th of February, 1847, a letter, from which the
following extracts are taken, was addressed by the agent of the
claimants, Jecker, Torre, and Co., Louis Rivas Gongora, to the
master of
The Admittance:
"CAPT. P. PETERSON, Ship
Admittance, off San Blas."
"SIR: I have been informed of your sailing from New Orleans with
a cargo of cotton to my consignment, and have also received a copy
of Messrs. Wylie and Ygana's instructions for your guidance; also a
copy of your charter party. But as it will be more for the
convenience of all parties concerned that in case of your not being
allowed by the blockading vessels to enter San Blas or Manzanilla,
you should not proceed to the Sandwich Islands, which are very
distant, but in the first place to San Jose near Cape San Lucas,
which is in possession of the Americans, I have to request that if
you find the port of San Blas blockaded and should be warned off,
you will, as is directed in your instructions, proceed to
Manzanilla, where, if you are allowed to enter, you will find an
agent meeting you there who will receive your cargo. If San Blas is
open when you arrive, you will come into the bay immediately and
anchor, putting yourself under the orders of Don Eustaquio Pasiere,
who will proceed to discharge your cargo; and as it is of much
importance that the cotton should be on shore as soon as possible,
I hope you will do everything on your part to commence and to
finish discharging with the least possible delay. If you are
permitted to enter San Blas or Manzanilla, you must come in under
British colors, the name of the vessel and your own remaining
without alteration, still reporting yourself from New Orleans; but
you will be careful not to deliver any of the papers of the ship or
cargo to anyone except to Don Eustaquio Pasiere."
Again, on the 27th of the same month, this person thus addresses
the master from Tepic:
"CAPT. P. PETERSON, Ship
Admittance, off San Blas."
"SIR: I had the pleasure to write to you on the 12th of this
month, which will be delivered to you along with this. But as at
present certain circumstances have taken place which, I think, make
it too dangerous for you to come into San Blas, I have to request
that you will proceed immediately to Manzanilla and
Page 59 U. S. 121
put yourself under the orders of Don Manuel de la Quintana, who
has gone to meet you there, and who will deliver to you a letter
authorizing him to act as your consignee. He will discharge your
vessel, pay your freight, and transact all the business of your
vessel the same as if I was present. You will please enter
Manzanilla under English colors, and, as the war continues, you
will take care that it shall not be known that your vessel is
American."
In proof of the agency of Rivas, as the representative of
Jecker, Torre, and Co., and as affecting them by his acts,
reference may be made to a communication from that firm, dated
Mazatlan, April 1, 1847, addressed to the master of
The
Admittance, which communication was doubtless prepared on
entire ignorance of the seizure of that vessel, which had occurred
only three days previously at San Jose. In this communication it is
said:
"Should this find you at San Jose, we have to request you to
proceed at once to San Blas, referring you at the same time to the
accompanying letter for you from Don Luis Rivas de Gongora, of
Tepic. Mr. Rivas has furnished us with copies of your letters to
him, of the dates of the 3d and 4th of March, by which it appears
you entertain fears of being seized by an English or American
cruiser should you follow his recommendation to discharge under
English colors."
They then refer the master to Mr. Mott and Mr. Bloton for
assurances that his apprehensions are groundless, and state,
"that in less than a month previously, an American vessel
discharged at San Blas without let or hindrance; that the
difficulty with regard to the vessel in a Mexican port had been
overcome by an order of the supreme government by which vessels of
any nation were permitted to enter, provided that the captain would
make a declaration to the effect that he belonged to a friendly or
neutral nation, no papers confirming that assertion being required
of him."
We think, then, that by the evidence found in the possession of
the master of
The Admittance, there is shown a complicity
in all the respondents in premeditating, and as far as they had
power in executing, a scheme for effecting intercourse and trade
with the open enemies of the United States -- an offense such as
rendered all the means and instruments for the accomplishment of
such a scheme lawful prize of war.
But it has been insisted that should it be conceded that there
existed originally sufficient grounds for capture and condemnation,
still the captor had forfeited all right of prize by omitting to
send the vessel and cargo to the United States for adjudication,
and by selling them without the justification of necessity in a
foreign country. The libellant has alleged, in justification
Page 59 U. S. 122
of the disposition of the vessel and cargo,
"that he was at the time of the capture of
The
Admittance at a great distance from the United States, and,
without weakening inconveniently the force under his command in his
own ship, he could not have spared a sufficient prize crew and
officers to command the captured ship and to bring her into the
United States."
The exception here taken brings up the inquiry as to the duty
and power of a captor to send in his prize for adjudication and as
to the discretion vested in him in deciding upon the extent of that
duty, and the feasibility of that power under existing
circumstances. This inquiry has been treated with so much force and
perspicuity by MR. JUSTICE CURTIS in a case adjudged by him between
a portion of these respondents as claimants of the ship and the
libellants that it cannot be more clearly and at the same time more
succinctly elucidated than it will be by reference to the opinion
of that judge in the case alluded to,
vide Fay v.
Montgomery, 1 Curtis 266. In that case, the judge remarks:
"The grounds on which restitution is claimed are thus stated in
the libel,"
"that the seizure and detention were without any legal,
justifiable, reasonable, or probable cause, and even if there had
been probable cause for the seizure of the said vessel, the said
Montgomery was legally bound to send the same to the United States
for trial, which might easily have been done, but which the said
Montgomery illegally and unjustifiably omitted to do, and thereby
illegally converted the same to his own use."
"Here says the judge are two distinct grounds, the first being
that the seizure was an act of illegal violence, and the second
that by not sending the vessel to the United States for trial, the
respondent had illegally converted it to his own use."
After commenting upon the evidence which led his mind to the
conclusion that there was properly a question of prize to be tried,
the judge remarks:
"And this brings me to consider the other ground stated in the
libel, that by his omission to send the vessel to the United States
for trial, the respondent illegally converted the vessel to his own
use. That captors may so act towards prize property as to forfeit
their rights as captors, and render themselves liable to make
restitution, with or without damages, is clear. But before the
court can so declare, a case of forfeiture of rights, free from all
reasonable doubt, must be made out. In considering this part of the
case, the question is whether the allegation that the respondent
omitted to send the vessel to the United States for trial when he
could safely and properly have done so, and thereby illegally
converted the property to his own use, is made out in proof."
The answer of the respondent to this part of the libel
states:
"That it was impossible for him, consistently with the public
interests committed to his direction,
Page 59 U. S. 123
to have sent the ship
Admittance to any port of the
United States."
The judge proceeds to say:
"Before considering the facts upon which the forfeiture is
asserted, one principle should be stated which is entitled to an
important effect on this part of the case. It is that an honest
exercise of discretion necessarily arising out of his command
cannot be treated as such misconduct in the commander of a public
ship of war as will forfeit his fair title and render him liable to
be treated as a trespasser. This principle is too obviously just to
require the support of authority, but it will be found to have been
laid down and applied in the case of
Dinsman v.
Wilkes, in 12 How. 390."
"Now it must be admitted that the question whether the
necessities of the public service will allow the commander of a
ship of war, in time of war, upon a remote station on the other
side of the globe, to spare one of his officers to go home in
command of a prize, is one depending on his discretion, necessarily
arising out of his command. In the first instance, he alone has the
power to decide the question -- he alone has the needful knowledge
of facts, and he is bound to exercise his judgment upon them.
Certainly his judgment is not conclusive -- good faith and
reasonable discretion are requisite; but it would not only be a
hardship but injustice to impose on the commander the duty of
determining such a question and, when he has determined it, to
attribute to him as an act of misconduct that he did not come to a
different conclusion. It is true that it is a clear duty of a
commander to send in his prize for adjudication, but this is not an
absolute obligation. It depends on his ability to perform it; and
of this, as already said, he must judge in the first instance; and
if he decides with reasonable discretion and an honest purpose to
do his duty, I cannot consider him as guilty of misconduct which
works a forfeiture."
The judge then, after an examination of the proofs in the case
and of the law as above expounded by him, comes to the following
conclusion:
"Keeping these principles in view, I am not satisfied that, in
omitting to send the vessel to the United States, Captain
Montgomery violated any known duty or acted with so little
discretion as to render him liable as a trespasser."
And he closes his review of the evidence with this very forcible
view of its just import and character:
"One of the lieutenants of
The Portsmouth was serving
on shore -- two only remained; and it does not appear that a single
passed-midshipman was on board. Lieutenant Revere [one of the
remaining lieutenants on board] has given an opinion -- no doubt an
honest one -- that he might have been spared, but it is an opinion
formed under no responsibility of command, and I am not prepared to
say that a sloop of war on that coast, at that time, officered by
only
Page 59 U. S. 124
two lieutenants, ought to have been left with only one in order
to send home a prize -- and still less that the commander erred so
grossly in not detaching this officer on such service as to forfeit
his legal rights thereby."
The facts which are applicable to this part of the case now
before us are essentially, if not literally, those adduced in the
trial before the judge whose opinion has been just quoted, and the
very clear exposition of those facts, with the legal deductions
from them, as set forth in that opinion command our entire
approbation and are regarded as conclusive against the appellants
upon the question of forfeiture by the appellee of his right of
prize.
Another exception urged in the argument as fatal to the decree
of the circuit court demands our notice, and it is this: that the
proceedings instituted in the district court for the condemnation
of the vessel and cargo as prize of war were in the name of the
libellant, the captor, whereas they should have been commenced and
prosecuted in the name of the United States. This irregularity, for
such it must be admitted to be, may have proceeded from a
misapprehension of the opinion of this Court in the case of
Jecker, Torre & Co. v.
Montgomery, 13 How. 498, in which opinion it is
stated to be the duty of the district court to order the captor to
institute proceedings in that court for the condemnation of the
property as prize of war by a certain day to be named by the court.
The exception thus urged is not raised in the answers or in any
other form of pleading in the court below. The parties have gone to
trial upon allegations connected with the merits, and upon such
testimony as they have chosen to introduce. It would seem to be a
sufficient answer to this exception to say that after its waiver or
after an omission to urge it in the court below, and after going
into an extended range of testimony as applicable to the merits of
the case, to permit an exception entirely distinct from the merits
in the appellate court would be extending an improper license to
the party starting such exception, and might be productive of
injustice to his opponent. The exception is unquestionably
technical or formal. It embraces neither the question of power of
the captor to seize nor that of the character of the subjects of
capture as lawful prize of war. Moreover, this exception, if
allowable, would seem to have no other object or purpose but that
of securing the ends which the proceedings and decree of the court
have in fact accomplished, for it is seen that the libel, though
filed in the name of the captor, was founded upon the public
authority of the United States, and the decree pronounced in the
case is in favor and in the name of the government, by whom it is
shown the proceeds of the condemned
Page 59 U. S. 125
subject have been actually received. It is plain, therefore,
that every purpose which the most formal proceeding could have
effected, and nothing beyond this, has been accomplished by the
decree in this case, and the proposal now pressed upon the Court is
that in virtue of a formal exception, which either has been waived
or omitted in the proper time and place, the merits of this
controversy voluntarily submitted, and fully examined, should be
entirely lost sight of, and that the party who alone, within the
purview of the exception itself, could regularly claim the subject
of the controversy should, for the mere form, be required to
surrender that subject. Such a proposal should be regarded as
neither equitable nor reasonable, and should be especially
discountenanced by a tribunal which acts upon principles of an
enlarged public policy -- less fettered perhaps than any other by
narrow technical rules.
This case bears a strong resemblance to that of
Benton v.
Woolsey, 12 Pet. 27, in which the district attorney
of the United States filed an information in his own name in behalf
of the United States in the District Court for the Northern
District of New York to enforce a mortgage given to the United
States by Woolsey, one of the defendants. This Court in that case
held this doctrine:
"Some doubts were at first entertained by the court whether this
proceeding could be sustained in the form adopted by the district
court. It is a bill of information and complaint in the name of the
district attorney in behalf of the United States. But on carefully
examining the bill, it appears to be in substance a proceeding by
the United States, although in form it is in the name of the
officer, and we find that this form of proceeding in such cases has
been for a long time used without objection in the courts of the
United States held in New York, and was doubtless borrowed from
analogous cases in the courts of the state where the state was
plaintiff in the suit. No objection has been made to it either in
the court below or in this Court, and we think that the United
States may be considered as the real party, although in its form it
is the complaint of the district attorney."
The objection which has been made to the deposit in the Treasury
of the money arising from the sale of the captured property in this
case appears to be without weight. Since the Act of Congress of the
3d of March, 1849, it appears to be the intention and the positive
mandate of Congress that all prize money arising from captures by
vessels of the Navy of the United States, whether received by
marshals for the sale of prizes or in the hands of prize agents,
should be deposited in the Treasury of the United States.
Vide § 8 of the act, 9 Stat.
Page 59 U. S. 126
378. It does not clearly appear in whose hands the proceeds of
the sale of
The Admittance and her cargo were at the date
of the above statute. But if they were in the possession of Captain
Montgomery at or after that time, either as captor or prize master,
or whether they were in the hands of any other person, it was
within the scope and objects of the law to place the proceeds of
the prize sale in the Treasury of the United States, and
accordingly it is shown by the certificate of the Treasurer of the
United States, that the sum of sixty-seven thousand dollars, as the
proceeds of the sale of
The Admittance, were on the 26th
of December, 1849, by William Speiden, purser of the Navy of the
United States, deposited in the Treasury of the United States.
Upon a consideration of the facts and the law of this case, we
are of the opinion that the decree of the circuit court be
Affirmed.