If a claim be set up under the sentence of condemnation of a
foreign court, this Court will examine into the jurisdiction of
that court, and if that court cannot, consistently with the law of
nations, exercise the jurisdiction which it has assumed, its
sentence is to be disregarded; but of their own jurisdiction, so
far as it depends upon municipal laws, the courts of every country
are the exclusive judges. Every sentence of condemnation by a
competent court having jurisdiction over the subject matter of its
judgment is conclusive as to the title to the thing claimed under
it.
In every case of a foreign sentence condemning a vessel as prize
of war, the authority of the tribunal to act as a prize court must
be examinable. The question whether the vessel was in a situation
to subject her to the jurisdiction of that court is also
examinable.
It is for governments to decide whether they will consider a
colony which has separated herself from the mother country an
independent nation. Until such decision shall be made or the mother
country shall relinquish her claim, courts of justice must consider
the ancient state of things as remaining.
Of its own jurisdiction, so far as it depends on municipal
rules, the court of a foreign nation must judge, and its decision
must be respected. But if it exercises a jurisdiction which,
according to the law of nations, its sovereign could not confer,
however available its sentences may be within the dominions of the
prince from whom the authority is derived, they are not regarded by
foreign nations.
It is repugnant to every idea of proceeding
in rem to
act against a thing which is not in the power of the sovereign
under whose authority the court proceeds, and no nation will admit
that its property should be absolutely changed, while remaining in
its own possession, by a sentence which is entirely
ex
parte.
A power to seize for the infraction of a law is derived from the
sovereign, and must be exercised within those limits which
circumscribe the sovereign power. The rights of war may be
exercised on the high seas, because war is carried on upon the high
seas, but the pacific right of sovereignty must be exercised within
the territory of the sovereign.
This was an appeal from the sentence of the Circuit Court for
the District of South Carolina, which reversed that of the district
judge, who awarded restitution to Rose, the libellant, of certain
goods, part of the cargo of the American schooner
Sarah.
This vessel, after trading with the brigands or rebels of St.
Domingo at several of their ports, sailed from thence with a cargo
purchased there for the United States, and had proceeded more than
ten leagues from the coast of St. Domingo when she was arrested by
a French privateer on 23 February, 1804, carried into the Spanish
port of Barracoa in the Island of Cuba, and there, with her cargo
sold by the captors, on 18 March, 1804, before condemnation, but
under authority, as it was said, of a person who styled himself
agent of the government of St. Domingo at St. Jago de Cuba. The
greater part of the cargo was purchased by _____ Colt, the master
of an American vessel called the
Example, into which
vessel the goods were clandestinely transferred from the
Sarah in the night time and brought into the port of
Charleston, in South Carolina, where they were followed by Rose,
the supercargo of the
Sarah, who filed a libel against
them in behalf of the former owners, complaining of the unlawful
seizure on the high seas and praying for restoration of the goods,
whereupon process was issued and
Page 8 U. S. 242
the goods were arrested by the marshal on 4 May, 1804. No steps
appear to have been taken by the French captors toward obtaining a
condemnation of the vessel until time enough had elapsed for them
to receive information of the proceedings against the goods in this
country. The forms of adjudication were begun in the tribunal of
the first instance at Santo Domingo in July, 1804, and the
condemnation was had before the middle of that month.
This condemnation purports to be made conformably to the first
article of the
arrete of the captain general (Ferrand) of
1 March, 1804, which was issued six days subsequent to the seizure
of the vessel.
This article was as follows:
"The port of Santo Domingo is the only one of the colony of
Santo Domingo open to French and foreign commerce; consequently
every vessel anchored in the bays, coves, and landing places of the
coast occupied by the revolters, those destined for the ports in
their possession, and coming out with or without cargoes, and
generally every vessel sailing within the territorial extent of the
island (except between Cape Raphael and the Bay of Ocoa) found at a
less distance than two leagues from the coast shall be arrested by
the vessels of the state and by privateers bearing our letters of
marque, who shall conduct them as much as possible into the port of
Santo Domingo, that the confiscation of the said vessels and
cargoes may be pronounced."
On 6 September, 1806, no sentence of condemnation having been
produced in evidence, the judge of the district court decreed
restitution of the property to the libellant, from which sentence
the other party appealed to the circuit court, and there produced
the sentence of condemnation, by the tribunal of the first
instance, at Santo Domingo. The circuit court reversed the sentence
of the district court, and dismissed the libel.
Page 8 U. S. 243
From this sentence the libellant appealed to this Court.
Page 8 U. S. 268
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a claim for a cargo of coffee, &c., which, after
being shipped from a port in Santo Domingo, in possession of the
brigands, was captured by a French privateer and carried into
Barracoa, a small port in the Island of Cuba, where it was sold by
the captor. The cargo, having been brought by the purchaser into
the State of South Carolina, was libeled in the court of admiralty
by the original American owner. The purchaser defends his title by
a sentence of condemnation pronounced by a tribunal sitting in
Santo Domingo, after the property had been libeled in the court of
this country and by an order of sale made by a person styling
himself delegate of the French government of Santo Domingo at St.
Jago de Cuba.
The great question to be decided is was this sentence pronounced
by a court of competent jurisdiction?
At the threshold of this interesting inquiry a difficulty
presents itself which is of no inconsiderable magnitude. It is
this: can this Court examine the jurisdiction of a foreign
tribunal?
The court pronouncing the sentence of necessity decided in favor
of its jurisdiction, and if the decision was erroneous, that error,
it is said, ought to be corrected by the superior tribunals of its
own country, not by those of a foreign country.
This proposition certainly cannot be admitted in its full
extent. A sentence professing on its face to be the sentence of a
judicial tribunal, if rendered by a self-constituted
Page 8 U. S. 269
body or by a body not empowered by its government to take
cognizance of the subject it had decided could have no legal effect
whatever.
The power of the court, then, is of necessity examinable to a
certain extent by that tribunal which is compelled to decide
whether its sentence has changed the right of property. The power
under which it acts must be looked into, and its authority to
decide questions which it professes to decide must be
considered.
But although the general power by which a court takes
jurisdiction of causes must be inspected in order to determine
whether it may rightfully do what it professes to do, it is still a
question of serious difficulty whether the situation of the
particular thing on which the sentence has passed may be inquired
into for the purpose of deciding whether that thing was in a state
which subjected it to the jurisdiction of the court passing the
sentence. For example, in every case of a foreign sentence
condemning a vessel as prize of war, the authority of the tribunal
to act as a prize court must be examinable. Is the question whether
the vessel condemned was in a situation to subject her to the
jurisdiction of that court also examinable? This question, in the
opinion of the Court, must be answered in the affirmative.
Upon principle, it would seem that the operation of every
judgment must depend on the power of the court to render that
judgment -- or in other words, on its jurisdiction over the subject
matter which it has determined. In some cases, that jurisdiction
unquestionably depends as well on the state of the thing as on the
constitution of the court. If by any means whatever a prize court
should be induced to condemn, as prize of war, a vessel which was
never captured, it could not be contended that this condemnation
operated a change of property. Upon principle, then, it would seem
that to a certain extent the capacity of the court to act upon the
thing condemned, arising from its being within or without their
jurisdiction as well as the constitution of the court, may be
considered by that tribunal which is to decide on the effect of the
sentence.
Page 8 U. S. 270
Passing from principle to authority, we find that in the courts
of England, whose decisions are particularly mentioned because we
are best acquainted with them and because, as is believed, they
give to foreign sentences as full effect as are given to them in
any part of the civilized world, the position that the sentence of
a foreign court is conclusive with respect to what it professes to
decide is uniformly qualified with the limitation that it has in
the given case jurisdiction of the subject matter.
This general
dictum is explained by particular
cases.
The case of
The Flad Oyen, 1 Rob. 114, was a vessel
condemned by a belligerent court sitting in a neutral territory;
consequently the objection to that sentence turned entirely on the
defect in the constitution of the court.
The Christopher, 2 Rob. 173, was condemned while lying
in the port of an ally. The jurisdiction of the court passing the
sentence was affirmed, but no doubt seems to have been entertained
at the bar or by the judge himself of his right to decide the
question whether a court of admiralty sitting in the country of the
captor could take jurisdiction of a prize lying in the port of an
ally. The decision of the tribunal at Bayonne in favor of its own
jurisdiction was not considered as conclusive on the Court of
Admiralty in England, but that question was considered as being
perfectly open and as depending on the law of nations.
The case of
The Kierlighett, 3 Rob. 82, is of the same
description with that of
The Christopher, and establishes
the same principle.
In the case of
The Henrick and Maria, 4 Rob. 35, Sir W.
Scott determined that a condemnation by the court of the captor of
a vessel lying in a neutral port was conformable to the practice of
nations, and therefore valid, but in that case the right to inquire
whether the situation of the thing, the
locus in quo, did
not take it out of the jurisdiction of the court was considered as
unquestionable.
Page 8 U. S. 271
The case of
The Comet, 5 Rob. 255, stands on the same
principles.
The Helena, 4 Rob. 3, was a British vessel captured by
an Algerian corsair owned by the Dey and transferred to a Spanish
purchaser by a public act in solemn manner before the Spanish
consul. The transfer was guaranteed by the Dey himself. The vessel
was again transferred to a British purchaser under the public
sanction of the judge of the vice-admiralty court of Minorca after
that place had surrendered to the British arms. On a claim in the
court of admiralty by the original British owner, Sir W. Scott
affirmed the title of the purchaser, but expressed no doubt of the
right of the court to investigate the subject.
The manner in which this subject is understood in the courts of
England may then be considered as established on uncontrovertible
authority. Although no case has been found in which the validity of
a foreign sentence has been denied because the thing was not within
the ports of the captor, yet it is apparent that the courts of that
country hold themselves warranted in examining the jurisdiction of
a foreign court by which a sentence of condemnation has passed not
only in relation to the constitutional powers of the court, but
also in relation to the situation of the thing on which those
powers are exercised -- at least so far as the right of the foreign
court to take jurisdiction of the thing is regulated by the law of
nations and by treaties. There is no reason to suppose that the
tribunals of any other country whatever deny themselves the same
power. It is therefore at present considered as the uniform
practice of civilized nations, and is adopted by this Court as the
true principle which ought to govern in this case.
In pursuing the inquiry, then, whether the tribunal erected in
St. Domingo was acting on a case of which it had jurisdiction when
The Sarah was condemned, this Court will examine the
constitutional powers of that tribunal, the character in which it
acted, and the situation of the subject on which it acted.
Page 8 U. S. 272
Admitting that the ordinary tribunal erected in St. Domingo was
capable of acting as a prize court and also of taking cognizance of
offenses against regulations purely municipal, it is material to
inquire in which character it pronounced the sentence of
condemnation in the case now under consideration.
In making this inquiry, the relative situation of St. Domingo
and France must necessarily be considered.
The colony of St. Domingo originally belonging to France, had
broken the bond which connected her with the parent state, had
declared herself independent, and was endeavoring to support that
independence by arms. France still asserted her claim of
sovereignty, and had employed a military force in support of that
claim. A war
de facto then unquestionably existed between
France and St. Domingo. It has been argued that the colony, having
declared itself a sovereign state and having thus far maintained
its sovereignty by arms, must be considered and treated by other
nations as sovereign in fact and as being entitled to maintain the
same intercourse with the world that is maintained by other
belligerent nations. In support of this argument, the doctrines of
Vattel have been particularly referred to. But the language of that
writer is obviously addressed to sovereigns, not to courts. It is
for governments to decide whether they will consider St. Domingo as
an independent nation, and until such decision shall be made or
France shall relinquish her claim, courts of justice must consider
the ancient state of things as remaining unaltered and the
sovereign power of France over that colony as still subsisting.
It is not intended to say that belligerent rights may not be
superadded to those of sovereignty. But admitting a sovereign who
is endeavoring to reduce his revolted subjects to obedience, to
possess both sovereign and belligerent rights, and to be capable of
acting in either character, the manner in which he acts must
determine the character of the act. If as a legislator he publishes
a law ordaining punishments for certain offenses, which law is to
be applied by courts, the nature of the law, and of the proceedings
under it will
Page 8 U. S. 273
decide whether it is an exercise of belligerent rights or
exclusively of his sovereign power, and whether the court, in
applying this law to particular cases, acts as a prize court or as
a court enforcing municipal regulations.
Let the acts of the French government which relate to this
subject be inspected.
The notification given by Mr. Pichon, the French charge
d'affaires to the American government, which was published in
March, 1802, interdicts all manner of intercourse with the ports of
St. Domingo in possession of the revolted negroes and declares
that
"cruisers will arrest all foreign vessels attempting to enter
any other port and to communicate with any of the revolted negroes
to carry either ammunition or provisions to them. Such vessels [he
adds] shall be confiscated and the commanders severely punished as
violating the rights of the French Republic and the law of
nations."
It might be questioned under this notice whether vessels sailing
on the high seas, having traded with one of the brigand ports,
would be considered as liable to seizure and to confiscation after
passing the territorial jurisdiction of the government of St.
Domingo. A free trade with that colony had been allowed, and the
revocation of that license is made known to the government of the
United States. To its revocation the ordinary rights of sovereignty
alone were sufficient. The notification, however, refers to the
order of the commander in chief of the French Republic in St.
Domingo, and that order would of course be examined as exhibiting
more perfectly the extent and the nature of the rights which the
French Republic purposed to exercise.
The particular order which preceded this notification is in
these words:
"Every vessel, French or foreign, which shall be found by the
vessels of the Republic riding at anchor in the ports of the island
not designated by these presents, or within the bays, creeks, and
landing places on the coast, or under sail at a less distance
Page 8 U. S. 274
than two leagues from the coast, and communicating with the
land, shall be forfeited."
The next decree is dated 22 June, 1802, and the extract which is
supposed to regulate this particular subject is in these words:
"Every vessel, French or foreign, which shall be found by the
vessels of the Republic anchored in one of the ports of the island,
not designated by the present decree, or in the bays, coves, or
landings of the coast, or under sail at a less distance than two
leagues from the coast and communicating with the land, shall be
arrested and confiscated."
Nothing can be more obvious than that these are strictly
territorial regulations, proceeding from the sovereign power of St.
Domingo and intended to enforce sovereign rights. Seizure for a
breach of this law is to be made only within those limits over
which the sovereign claimed a right to legislate, in virtue of that
exclusive dominion which every nation possesses within its own
territory and within such a distance from the land as may be
considered as a part of its territory. This power is the same in
peace and in war, and is exercised according to the discretion of
the sovereign. The prohibition and the penalty are the same on
French and foreign vessels.
This subject was again taken up in October, 1802, in an
arrete which in part regulates the coasting trade of the
island. The 4th, 5th and 6th articles of this decree respect
foreign as well as French vessels, and subject them to confiscation
in the cases which are there enumerated.
These are all of the same description with those stated in the
arrete of 22 June, and no seizure is authorized but of
vessels found within two leagues of the coast.
The last decree is that which was issued by General Ferrand on 1
March, 1804. This deserves the more attention because it is that on
which the courts profess to found their sentence of condemnation in
the particular case under consideration, and because General
Page 8 U. S. 275
Ferrand uses expressions which clearly indicate the point of
view in which all these
arretes were contemplated by the
government of the island.
The title of this
arrete is, "An
arrete
relative to vessels taken in contravention of the dispositions of
the laws and regulations concerning French and foreign commerce in
the colony."
In stating the motives for this ordinance, it is said:
"That some French agents in the neighboring and allied islands
had mistaken the application of the laws and regulations concerning
vessels taken in contravention, upon the coasts of St. Domingo
occupied by the rebels, and had confounded those prizes with those
which were made upon the enemy of the state. . . . Desiring to put
an end to all the abuses which might result from this mistake, and
which would be as injurious to the territorial sovereignty as to
the rights of neutrality,"
the commander in chief, after some further recitals which are
not deemed material, ordains the law under which the tribunals have
proceeded.
The distinction between seizures made in right of war and those
which are made for infractions of the commercial regulations
established by the sovereign power of the state is here taken in
terms, and that legislation, which was directed against vessels
contravening the laws and regulations concerning French and foreign
commerce in the colony is clearly of the latter description.
The first article of this
ordonnance is recited in the
sentence as that on which the condemnation is founded. It is in
these words:
"The port of Santo Domingo is the only one in the colony of St.
Domingo that is open to the French and foreign commerce; in
consequence, all vessels anchored in the bays, harbors, and landing
places on the coast occupied by the rebels, those cleared for the
ports in their possession coming out with or without a cargo, and
generally all vessels sailing in the territorial extent of the
island (except that from Cape Raphael to
Page 8 U. S. 276
Ocoa bay) found at a distance less than two leagues from the
coast shall be detained by the state vessels and privateers having
our letters of marque, who shall conduct them, if possible, into
the port of Santo Domingo, that the confiscation of the said
vessels and cargoes may be pronounced."
As this article authorizes a seizure of those vessels only which
are "sailing within the territorial extent of the island found
within less than two leagues of the coast," it is deemed by the
Court to be sufficiently evident that the seizure and confiscation
are made in consequence of a violation of municipal regulation, and
not in right of war. It is true that the revolt of the colony is
the motive for this exercise of sovereign power. Still it is an
exercise of sovereign power, restricting itself within those limits
which are the province of municipal law, not the exercise of a
belligerent right.
The tribunal professing to carry this law into execution, though
capable of sitting either as a prize or an instance court, must be
considered in this case as acting in the character of an instance
court, since it is in that character that it punishes violations of
municipal law.
The Sarah was captured more than ten leagues from the
coast of St. Domingo, was never carried within the jurisdiction of
the tribunal of that colony, was sold at Barracoa, in the Island of
Cuba, and afterwards condemned as prize under the
arrete
of General Ferrand, which has been stated.
If the court of St. Domingo had jurisdiction of the case, its
sentence is conclusive. If it had no jurisdiction, the proceedings
are
coram non judice and must be disregarded.
Of its own jurisdiction, so far as depends on municipal rules,
the court of a foreign nation must judge, and its decision must be
respected. But if it exercises a jurisdiction which, according to
the law of nations, its sovereign could not confer, however
available its sentences may be within the dominions of the prince
from whom the authority is derived, they are not regarded
Page 8 U. S. 277
by foreign courts. This distinction is taken upon this principle
that the law of nations is the law of all tribunals in the society
of nations, and is supposed to be equally understood by all.
Thus the sentence of a court sitting in a neutral territory and
instituted by a belligerent has been declared not to change the
property it professed to condemn, and thus the question whether a
prize court sitting in the country of the captor could condemn
property lying in a neutral port has been fully examined, and
although the jurisdiction of the court in such case was admitted,
yet no doubt appears to have been entertained of the propriety of
examining the question and deciding it according to the practice of
nations.
Since courts, which are required to decide whether the
condemnation of a vessel and cargo by a foreign tribunal has
effected a change of property, may inquire whether the sentence was
pronounced by a court which, according to the principles of
national law, could have jurisdiction over the subject, this Court
must inquire whether, in conformity with that law, the tribunal
sitting at St. Domingo to punish violations of the municipal laws
enacted by its sovereign could take jurisdiction of a vessel seized
on the high seas for infracting those laws and carried into a
foreign port.
In prosecuting this inquiry, the first question which presents
itself to the mind is what act gives an inchoate jurisdiction to a
court?
It cannot be the offense itself. It is repugnant to every idea
of a proceeding
in rem to act against a thing which is not
in the power of the sovereign under whose authority the court
proceeds, and no nation will admit that its property should be
absolutely changed, while remaining in its own possession, by a
sentence which is entirely
ex parte. Those on board a
vessel are supposed to represent all who are interested in it, and
if placed in a situation which requires them to take notice of any
proceedings against a vessel and cargo, and enables them to assert
the rights of the interested, the cause is considered as being
properly heard, and all concerned
Page 8 U. S. 278
are parties to it. But the owners of vessels navigating the high
seas or lying in port cannot take notice of any proceedings which
may be instituted against those vessels in foreign countries, and
consequently such proceedings would be entirely
ex parte,
and a sentence founded on them never would be, and never ought to
be, regarded.
The offense then alleged to have been committed by
The
Sarah could not be cognizable by the court of St. Domingo
until some other act was performed which should make the owners of
the vessel and cargo parties to the proceedings instituted against
them, and should place them within the legitimate power of the
sovereign, for the infraction of whose laws they were to be
confiscated. There must then be a seizure in order to vest the
possession of the thing in the offended sovereign and enable his
Courts to proceed against it. This seizure, if made either by a
civil officer or a cruiser acting under the authority of the
sovereign, vests the possession in him and enables him to inquire,
by his tribunals constituted for the purpose, into the allegations
made against and in favor of the offending vessel. Those interested
in the property which has been seized are considered as parties to
this inquiry, and all nations admit that the sentence, whether
correct or otherwise, is conclusive.
Will a seizure
de facto, made without the territorial
dominion of the sovereign under cover of whose authority it is
made, give a court jurisdiction of a thing never brought within the
dominions of that sovereign?
This is a question upon which considerable difficulty has been
felt, and on which some contrariety of opinion exists. It has been
doubted whether proceedings, denominated judicial, are in such a
case merely irregular or are to be considered as absolutely void,
being
coram non judice. If merely irregular, the courts of
the country pronouncing the sentence were the exclusive judges of
that irregularity, and their decision binds the world; if
coram
non judice, the sentence is as if not pronounced.
Page 8 U. S. 279
It is conceded that the legislation of every country is
territorial; that beyond its own territory it can only affect its
own subjects or citizens. It is not easy to conceive a power to
execute a municipal law or to enforce obedience to that law without
the circle in which that law operates. A power to seize for the
infraction of a law is derived from the sovereign, and must be
exercised, it would seem, within those limits which circumscribe
the sovereign power. The rights of war may be exercised on the high
seas, because war is carried on upon the high seas; but the pacific
rights of sovereignty must be exercised within the territory of the
sovereign.
If these propositions be true, a seizure of a person not a
subject, or of a vessel not belonging to a subject, made on the
high seas for the breach of a municipal regulation is an act which
the sovereign cannot authorize. The person who makes this seizure,
then, makes it on a pretext which, if true, will not justify the
act, and is a marine trespasser. To a majority of the Court it
seems to follow that such a seizure is totally invalid, that the
possession, acquired by this unlawful act is his own possession,
not that of the sovereign, and that such possession confers no
jurisdiction on the court of the country to which the captor
belongs.
This having been the fact in the case of
The Sarah, and
neither the vessel nor the captain, supercargo, nor crew having
ever been brought within the jurisdiction of the court or within
the dominion of the sovereign whose laws were infracted, the
jurisdiction of the court over the subject of its sentence never
attached, the proceedings were entirely
ex parte, and the
sentence is not to be regarded.
The case of
The Helena, already cited, may at first
view be thought a case which would give validity to any seizure
wherever made, and would refer the legality of that seizure solely
to the sovereign of the captor. But on a deliberate consideration
of that case, the majority of the Courts is of opinion that this
inference is not warranted by it. Several circumstances concurred
in producing
Page 8 U. S. 280
the decision which was made, and those circumstances vary that
case materially from this. The captured vessel was carried into
port, and while in the power of the sovereign, was transferred by
his particular authority in solemn form.
In such a case, Sir W. Scott conceived that a sentence of
confiscation conformably with the laws of Algiers was to be
presumed. But his decision did not turn singly on this point. The
vessel, after passing in this formal manner to a Spanish purchaser,
had with equal solemnity been again transferred to a British
purchaser, and the judge considered this second purchaser -- with
how much reason may perhaps be doubted -- as in a better situation
than the original purchaser. This case is badly reported, the
points made by counsel on one side are totally omitted, and the
opinion of the judge is not given with that clearness which usually
characterizes the opinions of Sir William Scott. But the seizure
was presumed to be made by way of reprisals for some breach of the
treaty between the two powers, so that the possession of the captor
was considered as legitimately the possession of his sovereign, and
from the subsequent conduct of the Dey himself a condemnation
according to the usages of Algiers was presumed.
But in presuming a condemnation this case does not, it is
thought, dispense with the necessity of one, nor is it supposed, in
presuming a legitimate cause of seizure, to declare that a seizure
made without authority by a commissioned cruiser would vest the
possession in the sovereign of the captor and give jurisdiction to
his courts.
If this case is to be considered as if no sentence of
condemnation was ever pronounced, the property is not changed, and
this Court, having no right to enforce the penal laws of a foreign
country, cannot inquire into any infraction of those laws. The
property in this particular case was purchased under circumstances
which exclude any doubt respecting its identity and respecting the
full knowledge of the purchaser of the nature of the title he
acquired.
Page 8 U. S. 281
The sentence of condemnation being considered as null and
invalid, the property is unchanged, and therefore ought to be
recovered by the libellants in the court below. But those
libellants ought to account with the defendants for the freight,
insurance, and duties on importation, and for such other expenses
as would have been properly chargeable on themselves as importers,
and each party is to bear his own costs.
The sentence of the circuit court is to be reversed, and
also the sentence of the district court, so far as it contravenes
this opinion, and the cause is to be remanded to the circuit court
for the District of South Carolina for a final decision
thereon.
LIVINGSTON, J.
Without expressing an opinion on the invalidity of a seizure on
the high seas under a municipal regulation if the property be
immediately carried into a port of the country to which the
capturing vessel belongs, and there regularly proceeded against, I
concur in the judgment just delivered, because
The Sarah
and her cargo were condemned by a French tribunal sitting at St.
Domingo, without having been carried into that or any other French
port and while lying in the port of Charleston, South Carolina,
whither they had been carried by and with the consent of the
captor.
CUSHING and CHASE, Justices, concurred in opinion with judge
Livingston.
JOHNSON, J.
This cause comes up on appeal from the Circuit Court of South
Carolina, acting in the capacity of an instance court of admiralty.
The doctrines which regulated the decision of the circuit court are
not overruled by a majority of the bench, but the decree of that
court is rescinded, because to three of the five judges who concur
in sustaining the appeal, it appears that the property could not be
condemned in the court of St. Domingo while lying in a neutral
port, and to the other two that the capture on the high seas for a
breach of municipal regulation was contrary to the law of nations,
and therefore vested no jurisdiction in the court of St. Domingo.
On the former doctrine it is not
Page 8 U. S. 282
necessary to make any observations, because in the case of
The Sea Flower, argued together with this as one cause and
decided on the same day, that doctrine is expressly overruled. But
on the latter point I think it proper briefly to state the reasons
upon which I found my disapprobation both of the doctrine and of
its application to this case.
It would have been some relief to us in determining this
question had it been made a point by counsel either in their
argument in this Court or in the court below, but it appears to
have been wholly unnoticed by them.
Most of the difficulties which have occurred in the
investigation of this case appear to have resulted from an
indistinct view of the nature, origin, and object of prize courts.
Conducted by the same forms and very generally blended in the same
persons, it is not easy to trace upon the mind the discriminating
line between the instance and prize courts; yet the object of the
institution of the latter court, when considered, strongly marks
the distinguishing point between them. In its ordinary
jurisdiction, the admiralty takes cognizance of mere questions of
meum and
tuum arising between individuals; its
extraordinary or prize jurisdiction is vested in it for the purpose
of revising the acts of the sovereign himself performed through the
agency of his officers or subjects. A seizure on the high seas by
an unauthorized individual is a mere trespass, and produces no
change of right, but such a seizure made by sovereign authority
vests the thing seized in the sovereign, for the fact of possession
must have all the beneficial effects of the right of possession, as
the justice or propriety of it cannot be inquired into by the
courts of other nations. But as this principle might leave the
unoffending individual a prey to the rapacity of cruisers or a
victim to the errors of those who even mean well, and as every
civilized nation pretends to the character of justice and
moderation and to have an interest in preserving the peace of the
world, they constitute courts with powers to inquire into the
correctness of captures made under color of their own authority,
and to give redress to those who have been unmeritedly attacked or
injured. These are denominated prize courts, and the primary
Page 8 U. S. 283
object of their institution is to inquire whether a taking as
prize is sanctioned by the authority of their sovereign or the
unauthorized act of an individual. From this it would seem to
follow that the decision of such a court is the only legal organ of
communication through which the sanction of a sovereign can be
ascertained, and that no other court is at liberty to deny the
existence of sovereign authority for a seizure which a prize court
has declared to be the act of its sovereign.
The propriety of such an act may correctly become the subject of
executive or diplomatic discussion, but the equality of nations
forbids that the conduct of one sovereign or the correctness of the
principles upon which he acts should be submitted to the
jurisdiction of the courts of another. From these considerations I
infer that the capture and continued possession of
The
Sarah and her cargo, confirmed by the approbatory sentence of
a court of the capturing power, vested a title in the claimant,
which this Court cannot, consistently with the law of nations,
interpose its authority to defeat.
Having briefly stated the grounds upon which I originally formed
and now adhere to an opinion in favor of the claimants, I will
consider the objections stated to the jurisdiction of the court on
the ground that the seizure was contrary to the law of nations.
It is admitted, if the court of St. Domingo had jurisdiction of
the subject matter, that the condemnation completed the divestiture
of property. But it is contended that the subject, in this case,
was not within their jurisdiction because it was seized for a cause
not sanctioned by the law of nations. I am unfortunate enough to
think that neither the premises nor the conclusion of this
argument, are maintainable. The conclusion is subject to this very
obvious objection, that it defeats the very end for which such
courts were created.
To contend that a violation of the law of nations will take away
the jurisdiction of a court, which sits and judges according to the
law of nations, appears to approach very near to a solecism. The
occurrence which gives it jurisdiction takes it away.
Page 8 U. S. 284
If the object and end of constituting a prize court be to give
redress against unlawful capture, and, as the books say, in such
case to restore
velis levatis, how can it make reparation
to the injured individual if it loses its jurisdiction; because
there has been an injury done to him, the court can give him no
redress. The argument admits that a capture consistent with the law
of nations would give jurisdiction, but how is the legality or
illegality of a capture to be determined unless a court can take
jurisdiction of the case? The legality of the capture is the very
point to which a court is to direct its inquiries, and yet that
inquiry is arrested in its inception. The cause or circumstances of
a capture can never be known to a court without exercising
jurisdiction on the subject. To maintain, therefore, that prize
courts can only exercise jurisdiction over captures made
consistently with the law of nations is in effect to deprive them
of all jurisdiction, since it leaves no means of deciding the
question on which their jurisdiction rests.
But the premises which lead to this conclusion will be found no
less exceptionable than the conclusion itself and the propriety of
taking into consideration the questions which form those premises
very questionable. The opinion of those of my brethren who maintain
this doctrine is founded upon two propositions.
1. That a nation cannot capture on the high seas a vessel which
has within her territories committed a breach of a municipal
law.
2. That the condemnation in this case was grounded on an offense
against a municipal law.
To me it appears wholly immaterial on what grounds the decision
be founded if the case be within their jurisdiction. Indeed, this
is fully admitted by those of the court who maintain the doctrine
that I am considering; but under the idea of examining the
jurisdiction of the court, they appear to me to me to go further
and examine into the correctness of its decision. I do not deny
that there are circumstances material to the effect of sentences of
foreign prize courts into which other courts may
Page 8 U. S. 285
inquire. The authorities quoted on this point relate exclusively
to two,
viz.,
1. Whether the court is held in the territory of the sovereign
who constitutes it.
2. Whether the subject was
sub potestate of the
sovereign whose courts condemned it.
These circumstances have an immediate relation to the existence
of the court and of its power of acting upon the subject, but
within its legitimate scope of action, the correctness of its
proceedings or of the rules of decision by which it is governed
cannot, in the nature of things and consistently with the idea of
perfect equality and independence, be subjected to the review of
other courts.
The decisions of such courts do not derive their effect from
their abstract justice; they are in this respect analogous to the
acts of sovereignty. They are universally conclusive because
nowhere subject to revision. Among nations they are considered as
entitled to the same validity as the decisions of municipal courts
within their respective territories, and preclude the rights of
parties, although contrary to every idea of law, reason and
evidence.
The court of St. Domingo, being a court of coordinate authority
with this, was equally competent to decide a question of
jurisdiction arising under the law of nations. Had the question
whether a seizure under municipal law upon the high seas was
contrary to the law of nations -- or, if contrary to the law of
nations, whether the court could not therefore exercise
jurisdiction upon it, been brought to the notice of that court --
it is presumed that their decree would not have been void, because
they maintained the negative of the proposition. Had it been made a
question before that court whether the laws of France authorized
the capture of
The Sarah at ten leagues distance from the
coast, or whether in fact the vessel was not seized within two
leagues of the coast, it is presumed that their decision upon these
points would have been conclusive whatever may be the
impression
Page 8 U. S. 286
of this Court from the evidence now before us. It is impossible
for this Court to pretend to a knowledge of all the facts by which
the decree of that court may have been regulated. The decree itself
shows that the whole evidence is not before us, but if it were,
that court is sole arbiter both of the effect of testimony and the
credibility of witnesses. A similar observation may be made with
regard to the laws of France, which much pains has been taken to
prove did not authorize this capture. How can this Court be
supposed to know all the laws, sovereign orders, or received
principles which regulate the decisions of foreign courts? Such
courts are best acquainted with the laws of their own government,
and their decision upon the existence or effect of those laws must,
in the nature of things, be conclusive in the eyes of other
nations. Suppose that other courts were so far at liberty as to
review the grounds upon which such decrees profess to proceed, the
insufficiency of those grounds would not be conclusive against the
correctness of such decisions, because they may be maintainable
upon other grounds, not noticed or even not known to the judge who
pronounces them.
But if we are to look into the grounds upon which a decree is
professedly founded, extravagant as that upon the case of
The
Sarah is said to be, there is one view in which it may admit
of justification. General Ferrand in his preamble declares it to be
his leading object to remove the contrariety of opinion which
existed among the officers of government relative to existing laws,
respecting captures of vessels taken upon the coasts of St.
Domingo. If their judges thought proper to consider this
arrete as only declaratory of preexisting laws, and that
the words in the first article,
"ceux expedie pour les portes
en leur possession en sortant avec ou sans chargement,"
authorized the capture of vessels outward bound, I know no reason
that we can have to declare it a misconstruction or incorrect
opinion, or, if incorrect, to nullify their decree on that account.
The conclusiveness of a foreign sentence appears to be at an end
the moment other courts undertake to look into the cause for which
a capture was made. If the possession of the captor is the
possession of his sovereign, and his Courts has a right therefore
to adjudicate property captured
Page 8 U. S. 287
or carried into a foreign port, it appears to me to be
immaterial on what ground the capture is made. The fact of
dispossession by sovereign authority, judicially ascertained,
deprives all other courts of the right to act upon the case.
Upon these considerations I have adopted the opinion that we are
not at liberty to enter into the inquiry whether the capture of
The Sarah was made in pursuance of belligerent or
municipal rights. But if we are to enter into the inquiry, I am of
opinion that the evidence before us plainly makes out a case of
belligerent capture, and, though not so, that the capture may be
justified, although for the breach of a municipal law.
In support of my latter position, both principle and the
practice of Great Britain and our own government may be appealed
to.
The ocean is the common jurisdiction of all sovereign powers,
from which it does not result that their powers upon the ocean
exist in a state of suspension or equipoise, but that every power
is at liberty upon the ocean to exercise its sovereign right,
provided it does no act inconsistent with that general equality of
nations which exists upon the ocean. The seizure of a ship upon the
high seas after she has committed an act of forfeiture within a
territory is not inconsistent with the sovereign rights of the
nation to which she belongs, because it is the law of reason and
the general understanding of nations that the offending individual
forfeits his claim to protection, and every nation is the legal
avenger of its own wrongs. Within their jurisdictional limits, the
rights of sovereignty are exclusive; upon the ocean they are
concurrent. Whatever the great principle of self-defense in its
reasonable and necessary exercise will sanction in an individual in
a state of nature nations may lawful perform upon the ocean. This
principle as well as most others may be carried to an unreasonable
extent; it may be made the pretense instead of the real ground of
aggression, and then it will become a just cause of war. I contend
only for its reasonable exercise. The act of Great Britain of 24
Geo. III, c. 47, is predicated upon these principles. It subjects
vessels to
Page 8 U. S. 288
seizure which approach with certain cargoes on board within the
distance of four leagues of her coast, because it would be
difficult it not impossible to execute her trade laws if they were
suffered to approach nearer in the prosecution of an illicit
design. But if they have been within that distance, they are
afterwards subject to be seized on the high seas. They have then
violated her laws and have forfeited the protection of their
sovereign. The laws of the United States upon the subject of trade
appear to have been framed in some measure after the model of the
English statutes, and the 29th section of the act of 1799 expressly
authorizes the seizure of a vessel that has within the jurisdiction
of the United States committed an act of forfeiture wherever she
may be met with by a revenue cutter, without limiting the distance
from the coast. So also the act of 1806 for prohibiting the
importation of slaves authorizes a seizure beyond our
jurisdictional limits if the vessel be found with slaves on board
hovering on the coast, a latitude of expression that can only be
limited by circumstances and the discretion of a court, and in case
of fresh pursuit would be actually without limitation. Indeed,
after passing the jurisdictional limits of a state a vessel is as
much on the high seas as if in the middle of the ocean, and if
France could authorize a seizure at the distance of two leagues,
she could at the distance of twenty.
But the capture of
The Sarah may fairly be considered
as an exercise of belligerent right, and strictly analogous to
seizure for breach of blockade. The right of one nation to exclude
all others from trading with her territories exists equally in war
and in peace. Had the exclusion in this case been merely calculated
for the interests of trade, it may have been considered as purely
municipal. But there existed a war between the parent state and her
colony. It was not only a fact of the most universal notoriety, but
officially notified in the gazettes of the United States by the
proclamation of the French resident M. Pichon, who at the same time
publishes the prohibition to trade with the revolters, with a
declaration that seizure and confiscation should be the consequence
of disobedience to this prohibition. Here, then, was notice of the
existence of war and an assertion
Page 8 U. S. 289
of the rights consequent upon it. The object of the measure was
not the promotion of any particular branch of agriculture,
manufacture, or commerce, but solely the reduction of an enemy. It
was therefore not merely municipal, but belligerent in its nature
and object. If France had a right to subdue the revolted colony,
she had an undoubted right to preclude all nations from supplying
them with the means of protracting the war. To confine her to her
own jurisdictional limits, in the exercise of those acts of force
which were necessary to carry into effect her right of excluding
neutrals, would be a mere mockery when by the very state of things
she was herself shut out from those limits. Seizure on the high
seas for a breach of the right of blockade, during the whole return
voyage, is universally acquiesced in as a reasonable exercise of
sovereign power. The principle of blockade has indeed in modern
times been pushed to such an extravagant extent as to become a very
justifiable cause of war, but still it is admitted to be consistent
with the law of nations when confined within the limits of reason
and necessity. The right to subdue an enemy carries with it the
right to make use of the necessary means for that purpose, and the
individual who does an act inconsistent with the rights of a
belligerent exposes himself to the liability to be treated as an
enemy. The belligerent nation can exercise the same acts of
violence against him that she can against an individual of her
enemy. Nor can his sovereign protect an individual who has
committed an aggression upon belligerent rights without becoming a
party to the contest.
The argument drawn from the decree of Ferrand to prove that
France had not asserted her belligerent rights is evidently founded
upon a mistranslation. The sentence which authorizes the seizure of
vessels when outward bound, after having entered the ports of St.
Domingo, is substantive, and totally unaffected by the subsequent
sentence which authorizes a seizure of vessels sailing within two
leagues of the coast. The former authorizes capture for the offense
of having entered those ports; the latter for being found in a
situation from which an intention to commit that offense shall be
inferred. Nor, if the fact were so that she had limited the right
of capture to two leagues from her coast, would
Page 8 U. S. 290
it follow that this was an exercise of municipal right, because
a nation may restrict her subjects in the exercise of belligerent
rights to a certain distance from the coast, or even to her
jurisdictional limits, and yet the character of the seizure would
be in no wise changed. If the object of the seizure is to promote
the reduction of an enemy, it is an exercise of the rights of
war.
From these considerations I conclude that the capture of
The
Sarah was justifiable upon principles not at all dependent
upon municipal regulation; that it may fairly be considered as
having been made in conformity with the law of nations, and
therefore, without acceding to the doctrine that a seizure contrary
to the law of nations was a void seizure and that we have a right
to declare that a mere marine trespass which a court of France has
declared to be the act of its sovereign, I conclude that the court
of St. Domingo had jurisdiction in this case, and if it had
jurisdiction, it is admitted that the property was altered, and the
libellant ought not to recover.
Let it be observed that this is not an application on behalf of
the vendee of the captor for the aid of this Court to secure to him
the benefit of his purchase. We find him in possession, and the
application is for our aid to divest that possession and restore it
to the original owner. This owner was clearly an offender against
the rights of France, and his only claim upon the interference of
this Court is that he had escaped, with the property thus acquired,
beyond two leagues from the shore of the nation that he had
offended. In such a case, it would be enough for all the purposes
of the defendant if this Court would imitate the State of our
nation and remain neutral between the parties.
Let it not be supposed that the opinion which I am giving
devotes the commerce of our country to lawless depredation. My
observations are applied to a case in which an evident aggression
has been committed by entering at least two of the interdicted
ports of St. Domingo. The individual who will knowingly violate the
rights of war or laws of trade of another nation is well apprised
that he forfeits all claim to the protection of his country or the
interference of its courts. The peace of
Page 8 U. S. 291
the nation and the interests of the fair trader imperiously
require that the smuggler or the violator of neutrality should be
left to his fate.
If I had no other reason to satisfy my mind of the correctness
of the doctrines that I have been contending for, a conviction of
their importance to the peace and security of the mercantile world
would alone induce me to maintain them. The purchase of these goods
was made in a Spanish port under sanction of an agent of the French
government apparently countenanced by the government of the country
in which he acted, and is sanctioned by a condemnation. If in the
purchase of articles of merchandise in a foreign port, under the
sanction of sovereign authority, it is nevertheless necessary, in
order to acquire a good property, that a merchant should know
whether they were captured by law or without law, under the law of
nations or under municipal law, the office of a lawyer will be as
necessary to his education as the counting house. Articles of
commerce passing from hand to hand by mere delivery, often
remaining for years in the same packages, distinguished by the same
marks, may admit of identification after any length of time, in the
remotest countries, and in the hands of the most innocent
purchasers. But if a seizure by a sovereign, upon a ground which
any court may adjudge unsanctioned by the law of nations, is
tantamount to no seizure, and nothing done in pursuance of it can
transfer a good property, where is the uncertainty to end? With
regard to ships, the inconvenience may not be so great. Every
merchant knows that a vessel must be accompanied with her document
papers, so that the purchaser may come to the knowledge of her
having passed through a capture and condemnation and be put on his
guard against so precarious a title. He will know that he is liable
to be dispossessed according to the varying constructions of the
law of nations that may prevail in different countries; yet he
knows the full value of a property thus embarrassed. But in the
purchase of merchandise he has no security, unless indeed he
purchases them immediately from the manufacturer or the planter. It
is a subject of curious speculation how far the pursuit or research
after merchandise thus situated may be carried; whether the same
principle may not extend it into the
Page 8 U. S. 292
hands of the retailer or even the consumer. In one of the cases
arising out of the capture of
The Sarah -- I mean that
against Groning -- the property is libeled in the hands of a
purchaser without notice after it was landed in this country. If we
can go so far, I see not where we are to stop. Every subsequent
purchaser, even the remotest, as far as the article will admit of
identification, is in no better situation than the defendant
Groning, and liable, upon the same principle to be dispossessed.
After going beyond the fact of seizure by sovereign authority
within his own territory (where he is supreme), or upon the ocean
(where he is equal to all others), unaffected by escape, recapture
or release (by which property is restored to its state before
seizure), the approbatory sentence of his own court, by which alone
it can be judicially known to be the act of the sovereign. Beyond
these limits, every step that a court takes can only be productive
of doubt, litigation, and uncertainty, and involve the commercial
world in endless embarrassment at the same time that it compromits
the peace of nations, among whom it is a received and correct
opinion, that a want of due deference to the jurisdiction of their
maritime courts is a just cause of war.
Sentence of the Court, March 2, 1808.
This cause came on to be heard on the transcript of the record
and on sundry exhibits introduced into the case in this Court, and
was argued by counsel, on consideration whereof it appearing that
The Sarah with her cargo were seized without the
territorial jurisdiction claimed by the French government of St.
Domingo for the breach of a municipal regulation, and having never
been carried within that jurisdiction, were sold by the captor in a
foreign port and afterwards condemned by the court of St. Domingo
as having violated the laws for regulating the commerce of French
and foreign vessels with that colony, which laws authorize a
seizure of vessels found within two leagues of the cost; it is the
opinion of the Court that the seizure of
The Sarah and her
cargo is to be considered as a maritime trespass, not vesting the
possession in the sovereign of the captor or
Page 8 U. S. 293
giving jurisdiction to the court which passed the sentence of
condemnation, and therefore that the said sentence did not change
the property in
The Sarah and her cargo, which ought to be
restored to the plaintiffs, the original owners, subject to those
charges of freight, insurance, and other expenses which would have
been incurred by the owners in bringing the cargo into the United
States, which equitable deductions the defendants are at liberty to
show in the circuit court. This Court is therefore of opinion that
the sentence of the circuit Court of South Carolina ought to be
Reversed and the cause be remanded to that court in order
that a final decree may be made therein conformably to this
opinion.