The owner of a privateer capturing neutral property is not
liable to a decree of restitution unless the property or its
proceeds came to his hands.
The district courts of the United States are courts of prize,
and have power to carry into effect the sentences of the old
continental courts of appeals in prize causes.
In all proceedings
in rem, the court has a right to
order the thing to be taken into custody of the law, and it is to
be presumed to be in custody of the law unless the contrary
appears.
The thing does not follow the appeal into the superior court,
but remains in the court below, which has a right to order it to be
sold, if perishable, notwithstanding the appeal.
By the Judicial Act, the district courts of the United States
are also courts of admiralty, and no law has regulated their
practice. Yet they proceed according to the general rules of the
admiralty.
It must be supposed that a court of admiralty having prize
jurisdiction, and consequently proceeding
in rem, and not
having its practice precisely regulated by law, would conform to
those principles which especially govern those courts proceeding
in rem and which seem necessarily to belong to the proper
exercise of their functions.
A sentence of reversal and restoration, by which property
captured on the high seas is again restored to the owners, is not
conclusive evidence that the captors were wrongdoers.
A belligerent cruiser which, with probable cause, seizes a
neutral and takes her into port for adjudication and proceeds
regularly is not a wrongdoer -- the act is not tortious. The order
of restoration proves that the property was neutral, not that it
was taken without probable cause.
This was an appeal from the sentence of the Circuit Court for
the District of Pennsylvania in a cause civil and maritime in which
Jennings was the libellant and Carson the respondent, the former
claiming to be owner of the sloop
George and cargo,
captured in the year 1778 by the American privateer
Addition, commanded by Moses Griffin, of which the
respondent Carson was part owner and which was libeled and
condemned on 31 October, 1778, as lawful prize by the Court of
admiralty for the State of New Jersey, from which sentence of
condemnation there was an appeal to the continental court of
appeals, established under authority of the old Congress, where the
sentence of condemnation was, on 23 December, 1780, reversed and
restitution ordered, but never obtained. In the meantime, however,
the vessel and cargo had been sold by the marshal of the state
court of admiralty for paper money under an order of the court
contained in the sentence of condemnation, and it did not appear
what had been done with that money. No measures were taken to
enforce the decree of restitution during the old confederation.
On 19 May, 1790, after the adoption of the present Constitution
of the United States, Jennings filed his libel in the district
court for the District of Pennsylvania alleging that he was a
subject of the States
Page 8 U. S. 3
General of the United Provinces, an inhabitant and domiciled at
the island of St. Eustatius, and owner of the sloop
George
and her cargo, at the time of capture bound to the port of Egg
Harbor in the United States, and consigned to A. and G. Caldwell,
in the prosecution of which voyage she was illegally captured by
the privateer
Addition, owned in part by the respondent,
Carson, and praying process for arresting Carson to answer, &c.
A supplemental libel was filed setting forth the proceedings
against the vessel in the Court of Admiralty of New Jersey; the
sentence of condemnation, the appeal, the reversal of that
sentence, and the order of restitution.
Neither the original nor supplemental libel prayed any specific
or general relief other than process for arresting Carson, so that
he should appear to answer the libellant
"in his said complaint of the wrongs and injuries aforesaid
according to the resolutions of the continental Congress, the laws
of the United States, and of the Commonwealth of Pennsylvania, and
the laws and usages of nations in this behalf practiced, used, and
established."
Carson, being taken upon the writ of arrest, appeared and filed
his plea and answer, averring the sloop
George to have
been the property of a subject of the King of Great Britain at the
time of capture and employed in carrying goods to the British army
and navy; that the goods were imported directly or indirectly from
Great Britain or Ireland, contrary to the regulations of Congress
and the law of nations, the King of Great Britain then being at war
with the United States.
It admits that Carson was the owner of one-third of the
privateer. It admits the capture, the condemnation, and sale, the
appeal and reversal, and the order of restitution, but denies that
any part of the proceeds of the sale ever came to the hands of the
owners of the privateer or either of them, but remained in the
hands of the marshal of the Court of Admiralty of New Jersey, who
alone is answerable for the same. It avers that Griffin, the
commander of the privateer, had probable cause for
Page 8 U. S. 4
making the capture, and therefore the owners are not liable.
It denies the jurisdiction of the district Court of Pennsylvania
to take cognizance of the question, the same belonging exclusively
to the Court of Admiralty of the State of New Jersey and to the
court of appeals established by the continental Congress. It denies
the jurisdiction of the court as a prize court in any case, and
especially in cases of capture made during the British war, and
avers that it has no authority to carry into effect a decree of
either of those courts established under the old government.
After filing his plea and answer, Carson died and Jennings filed
a petition suggesting the death of Carson and charging his
executors with assets, and praying that the suit may stand revived
against them, upon which a citation issued and the executors
appeared and answered generally by a reference to the answer and
plea of their testator, and further pleaded that by the law
maritime, the law of the land, and the laws and ordinances of the
United States, they, as executors, are not liable to be proceeded
against in that court for the several matters set forth in the
libel, for that they are not answerable for the wrongs and
offenses, or the pretended wrongs and offenses of their testator,
and also for that courts maritime have not authority to intermeddle
with the estates and effects, real or personal, of deceased
persons, or to give relief against the same, or to seize or take
the same effects or estates in execution, or to imprison the bodies
of executors for the default of the testator.
To these pleas and answers there were general replications.
On 30 March, 1792, the judge of the district court gave an
opinion in favor of its jurisdiction in general cases as a prize
court; but on 21 September, 1793, he dismissed the libel on the
ground that the district court was not competent to compel the
execution of a decree of the late continental court of
Page 8 U. S. 5
appeals. This sentence was affirmed in the circuit court on 11f
April, 1798, but was reversed by this Court at February term, 1799,
so far as the same
Page 8 U. S. 6
decreed that the district court had not jurisdiction to carry
into effect the decree of the court of appeals, and the cause was
remanded to the district court for further
Page 8 U. S. 7
proceedings, the respondent being at liberty to contend before
that court, as matter of defense to the merits or to the form of
proceedings, that the libel should first
Page 8 U. S. 8
have been filed in the District Court of New Jersey, but not to
make the decision of the judge on that point a ground of excepting
to the jurisdiction of the District Court of Pennsylvania, and that
costs should await the event of the cause.
Page 8 U. S. 9
Upon the second hearing of the cause, on 2 April, 1802, the
judge decreed in favor of the libellant for the amount of sales of
the sloop and cargo, reduced by the scale of depreciation with
interest until two months after the order of restitution by the
court of appeals and from the time of the institution of the
present suit until the day of final decree, which decree was, on 10
May, 1804, reversed by the circuit court, and the libel dismissed
with costs. From which sentence, the libellant appealed to this
Court.
Page 8 U. S. 20
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The privateer
Addition, cruising under a commission
granted by the Congress of these United States during the war
between this country and Great Britain, captured the sloop
George, brought her into port, and libeled her in the
Court of Admiralty for the State of New Jersey, where she was
condemned as lawful prize by a sentence rendered on 31 October,
1778, and ordered to be sold by the marshal. From this sentence
Richard D. Jennings, the owner, prayed an appeal, which, on 23
December, 1780, came on to be heard before the court of appeals
constituted by Congress, when the sentence of the court of New
Jersey was reversed and restitution of the vessel and cargo was
awarded. Pending the appeal, on 13f November, 1778, the order of
sale
Page 8 U. S. 21
was executed, and the proceeds of sale remained in possession of
the marshal. It does not appear that any application was ever made
to the court of New Jersey to have execution of the decree of the
court of appeals, and this suit is brought to carry it into
execution, or on some other principle to recover from the estate of
Joseph Carson, who was part owner of the privateer
Addition, the value of the
George and her
cargo.
So far as this bill seeks to carry into effect the decree of 23
December, 1780, there is no doubt of the jurisdiction of the Court;
but the relief granted can only be commensurate with that decree.
It is therefore all essential to the merits of this cause to
inquire how far Joseph Carson, the testator of the defendants, was
bound by the sentence which this Court is asked to carry into
effect.
The words under which the plaintiffs claim are those which
direct the restoration of the
George and her cargo. As the
captors are not ordered by name to effect this restoration, and as
the order bound those in possession of the subject on which it must
be construed to operate, it must be considered as affecting those
who could obey it, not those who were not in possession of the
thing to be restored, had no power over it, and were consequently
unable to redeliver it. Had Richard D. Jennings appeared before the
court of New Jersey with this decree in his hand, and demanded its
execution, the process of that court would have been directed to
those who possessed the thing to be restored, not to those who held
no power over it, either in point of fact or law.
This position appears too plain to require the aid of precedent,
but if such aid should be looked for, the case of
Doane v.
Penhallow unquestionably affords it. In that case, a decree of
reversal and restitution was satisfied by directing the proceeds of
the sales to be paid, and even the judge who tried the cause at the
circuit concurred with his brethren in reversing his own judgment
so far as it had decreed joint damages and had thereby rendered the
defendant liable for more than he had received. The case of
Doane v. Penhallow, therefore, which must be considered as
expounding the decree
Page 8 U. S. 22
of the court of appeals now under consideration, has decided
that Joseph Carson was bound to effect restitution by that decree
so far only as he was, either in law or in fact, possessed of the
George and her cargo, or of the proceeds.
To this point, therefore, the inquiries of the court will be
directed.
In prosecuting them, it will be necessary to ascertain
whether
1st. The
George and her cargo were, previous to the
sentence, in the custody of the law, or of the captors.
2d. Whether the court of admiralty, after an appeal from its
sentence, possessed the power to sell the vessel and cargo, and to
hold the proceeds for the benefit of those having the right.
It appears that the court of New Jersey, which condemned the
George and her cargo as prize, was established in
pursuance of the recommendation of Congress, and that no
legislative act had prescribed its practice or defined its powers.
The act produced in court was passed at a subsequent period, and
consequently cannot govern the case. But the Court cannot admit the
correctness of the argument drawn from this act by the counsel for
the plaintiffs in error. It cannot be admitted that an act defining
the powers and regulating the practice of a preexisting court,
contains provisions altogether new. The reverse of this proposition
is generally true. Such an act may rather be expected to be
confirmatory of the practice and of the powers really
exercised.
Since we find a court instituted and proceeding to act as a
court without a law defining its practice or its powers, we must
suppose it to have exercised its powers in such mode as is employed
by other courts instituted for the object and as is consonant to
the general principles on which it must act.
That by the practice of courts of admiralty, a vessel when
libeled is placed under the absolute control of the
Page 8 U. S. 23
court is not controverted, but the plaintiffs contend that this
power over the subject is not inherent in a court of admiralty, but
is given by statute, and in support of this opinion the prize acts
of Great Britain have been referred to, which unquestionably
contain regulations on this point. But the Court is not of opinion
that those acts confer entirely new powers on the courts whose
practice they regulate. In Browne's Civil and admiralty Law, in his
chapter on the jurisdiction of the prize courts, it is expressly
stated that those courts exercised their jurisdiction anterior to
the prize acts, and the same opinion is expressed by Lord Mansfield
in the case of
Lindo v. Rodney, which is cited by Browne.
The prize acts therefore most probably regulated preexisting powers
in the manner best adapted to the actual circumstances of the
time.
It is conceived that the Constitution and character of a court
of admiralty, and the object it is to effect, will throw much light
on this subject.
The proceedings of that court are
in rem, and their
sentences act on the thing itself. They decide who has the right,
and they order its delivery to the party having the right. The
libellant and the claimant are both actors. They both demand from
the court the thing in contest. It would be repugnant to the
principles of justice and to the practice of courts to leave the
thing in possession of either of the parties without security while
the contest is depending. If the practice of a court of admiralty
should not place the thing in the custody of its officers, it would
be essential to justice that security should be demanded of the
libellant to have it forthcoming to answer the order of the
court.
If the captor should fail to libel the captured vessel, it has
been truly stated in argument that the owner may claim her in the
court of admiralty. How excessively defective would be the practice
of that court if, on receiving such a claim, it neither took
possession of the vessel nor required security that its sentence
should be performed. Between the rights of a claimant where a libel
is filed and where it is not filed no distinction is perceived,
Page 8 U. S. 24
and the
Court conceives the necessary result of proceedings
in
rem to be that the thing in litigation must be placed in the
custody of the law, and cannot be delivered to either party but on
sufficient security.
In conformity with this opinion is the practice of the court of
admiralty, not only when sitting for the trial of prizes and acting
in conformity with the directions of positive law, but when sitting
as an instance court and conforming to the original principles of a
court of admiralty. In his chapter "on the practice of the instance
court," under the title of "proceedings
in rem," p. 397,
Browne states explicitly that when the proceeding is against a
ship, the process commences with a warrant directing the arrest of
the ship. In Browne, p. 405, the course of proceedings against a
ship not for a debt but to obtain possession is stated at length,
and in that case too the court takes possession of the ship.
It must be supposed that a court of admiralty, having prize
jurisdiction, and consequently proceeding
in rem, and not
having its practice precisely regulated by law, would conform to
those principles which usually govern courts proceeding
in
rem, and which seem necessarily to belong to the proper
exercise of their functions. If in proceeding against a ship to
subject her to the payment of a debt or to acquire the possession
of her on account of title, the regular course is that the court
takes the vessel into custody and holds her for the party having
right, the conclusion seems irresistible that in proceeding against
a ship to condemn her as prize to the captor or to restore her to
the owner who has been ousted of his possession, the court will
also take the vessel into custody and hold her for the party having
the right.
This reasoning is illustrated, and its correctness in a great
measure confirmed, by the legislation of the United States and the
judicial proceedings of our own country. By the Judicial Act, the
district courts are also courts of admiralty, and no law has
regulated their practice. Yet they proceed according to the general
rules of the admiralty, and a vessel libeled is always in
possession of the law.
Page 8 U. S. 25
An objection, however, to the application of this reasoning to
the case before the Court is drawn from the defectiveness of the
record in the original cause, which does not exhibit a warrant to
the officer to arrest the
George. The first step which
appears to have been taken by the court is an order to the marshal
to summon a jury for the trial of the case.
The carelessness with which the papers of a court created for
the purposes of the war and which ceased to exist before the
institution of this suit have been kept may perhaps account for
this circumstance. At any rate, the court of admiralty must be
presumed to have done its duty and to have been in possession of
the thing in contest if its duty required that possession. The
proceedings furnish reasons for considering this as the fact.
The libel does not state the
George to have remained in
possession of the captors, that the sale was made for them or by
their means, nor that the proceeds came to their hands. The answer
of the defendants avers that on bringing the
George into
port, she was delivered up with all her papers to the court of
admiralty, and although the answer is not testimony in this
respect, yet the nature of the transaction furnishes ample reason
to believe that this was the fact, and it is the duty of the
plaintiff to show that the defendants are in a situation to be
liable to his claim. If the process of the court of admiralty does
not appear regular, this Court, not sitting to reverse or affirm
their judgment but to carry a decree reversal and restoration into
effect, must suppose the property to be in the hands of those in
whom the law places it unless the contrary appears. The
George and her cargo therefore must be considered as being
in custody of the law unless the contrary appears.
If this conclusion be right, it follows that the regularity of
the sale is a question of no importance to the defendants, since
that sale was the act of a court having legal possession of the
thing and acting on its own authority.
Page 8 U. S. 26
If the reasoning be incorrect, it then becomes necessary to
inquire
2d. Whether the court of New Jersey, after an appeal from its
sentence, possessed the power of selling the
George and
her cargo and holding the proceeds for the party having the
right.
That the British courts possess this power is admitted, but the
plaintiffs contend that it is conferred by statute, and is not
incident to a prize court.
That the power exists while the cause is depending in court
seems not to be denied, and indeed may be proved by the same
authority and the same train of reasoning which has already been
used to show the right to take possession of the thing whenever
proceedings are
in rem. Browne, in his chapter on the
practice of the instance court, shows its regular course to be to
decree a sale where the goods are in a perishable condition.
The plaintiffs allege that this power to decree a sale is
founded on the possession of the cause, but the Court can perceive
no ground for such an opinion. It is supported by no principle of
analogy, and is repugnant to the reason and nature of the
thing.
In cases only where the subject itself is in possession of the
court is the order of sale made. If it be delivered on security to
either party, an order of sale pending the cause is unheard of in
admiralty proceedings. The motive assigned for the order never is
that the court is in possession of the cause, but that the property
in possession of the court is in a perishable state. A right to
order a sale is for the benefit of all parties, not because the
case is depending in that particular court, but because the thing
may perish while in its custody, and while neither party can enjoy
its use.
If then the principle on which the power of the court to order a
sale depends, is not that the cause is depending in court, but that
perishable property is in its possession, this principle exists in
as much force after as before an appeal. The property does not
follow the appeal into the superior
Page 8 U. S. 27
court. It still remains in custody of the officer of that court
in which it was libeled. The case of its preservation is not
altered by the appeal. The duty to preserve it is still the same,
and it would seem reasonable that the power consequent on that duty
would be also retained.
On the principles of reason, therefore, the Court is satisfied
that the tribunal whose officer retains possession of the thing
retains the power of selling it when in a perishing condition,
although the cause may be carried by appeal to a superior court.
This opinion is not unsupported by authority.
In his chapter on the practice of the instance court, page 405,
Browne says
"If the ship or goods are in a state of decay, or of a
perishable nature, the court is used, during the pendency of a suit
or sometimes after sentence, notwithstanding an appeal, to issue a
commission of appraisement and sale, the money to be lodged with
the registrar of the court,
in usum jus habentis."
This practice does not appear to be established by statute, but
to be incident to the jurisdiction of the court, and to grow out of
the principles which form its law. A prize court not regulated by
particular statute would proceed on the same principles -- at least
there is the same reason for it.
But there is in this case no distinct order of sale. The order
is a part of the sentence from which an appeal was prayed, and is
therefore said to be suspended with the residue of that
sentence.
The proceedings of the court of admiralty, if they are all
before this Court, were certainly very irregular, and much of the
difficulty of this case arises from that cause, but as this case
stands, it would seem entirely unjust to decree the defendant to
pay a heavy sum of money, because the court of admiralty has done
irregularly that which it had an unquestionable right to do.
Since the court of admiralty possessed the power of making a
distinct order of sale immediately after the appeal was entered,
and this, but for the depreciation, would
Page 8 U. S. 28
have been desirable by all, it is not unreasonable to suppose
the practice to have been to consider the appeal as made from the
condemnation, and not from the order of sale. The manner in which
this appeal was entered affords some countenance to this opinion.
In the recital of the matter appealed from, the condemnation alone,
not the order of sale, is stated.
The Court will not consider this irregularity of the admiralty,
in ordering what was within its power, as charging the owners of
the privateer, under the decree of 23 December, 1780, with the
amount of the sales of the
George and her cargo, which in
point of fact never came to their hands, and over which they never
possessed a legal control, for the marshal states himself to hold
the net proceeds to the credit of the former owners.
It is therefore the unanimous opinion of this Court that the
decree of 23 December, 1780, does not require that the restoration
and redelivery which it orders should be effected by the captors,
but by those who in point of law and fact were in possession either
of the
George and her cargo, or of the money for which
they were sold. As the officer of the court of New Jersey, not the
captors, held this possession, the decree operates upon him, not
upon them.
On that part of the libel in this case which may be considered
as supplemental and as asking relief in addition to that which was
given by the decree of 23 December, 1780, the Court deems it
necessary to make but a very few observations.
The whole argument in favor of this part of the claim is founded
on the idea that the captors were wrongdoers, and are responsible
for all the loss which has been produced by their tortious act. The
sentence of reversal and restoration is considered by the
plaintiffs as conclusive evidence that they were wrongdoers.
But the Court can by no means assent to this principle. A
belligerent cruiser who with probable cause seizes a neutral and
takes her into port for adjudication
Page 8 U. S. 29
and proceeds regularly is not a wrongdoer. The act is not
tortious. The order of restoration proves that the property was
neutral, not that it was taken without probable cause. Indeed, the
decree of the court of appeals is in this respect in favor of the
captors, since it does not award damages for the capture and
detention nor give costs in the suit below.
If we pass by the decree, and examine the testimony on which it
was founded, we cannot hesitate to admit that there was justifiable
cause to seize and libel the vessel.
Upon the whole case then, the Court is unanimously of opinion
that the decree of the circuit court ought to be affirmed.
Sentence affirmed.
