Talbot v. Commanders and Owners of Three Brigs
HIGH COURT of ERRORS and APPEALS, of Pennʃylvania.
TALBOT qui tam, &c. verʃus The COMMANDERS and OWNERS of three Brigs.[♦]
T
HIS was an appeal from a decree in the Admiralty on the following cafe:—Silas, Talbot, commander of the armed floop Argos, belonging to, and in the fervice of thefe States, duly commiffioned, failed from New-London, in the State of Connecticut, the twenty-ninth of Auguʃt, 1779, on a cruife. On the ʃixth of September, after an engagement of three hours, he took a prize upon the High Seas, an armed Letter of Marque veffel, called the Betʃey, of two hundred tons burthen, with a valuable cargo, belonging to fubjects of Great-Britain, not being inhabitants of Bermuda, and bound for New-York, then in poffeffion of the Britiʃh naval and land forces. He took the commander and eleven of the people out of the prize, leaving three in her, and put on board a Prize-mafter and eleven other hands, with inftructions to proceed to New-London. The firing was heard, and the engagement for more than an hour feen by perfons on board three Letter of Margue Brigs that had lately failed from Philadelphia. During the engagement that Betʃley was perceived from the three Birgs, bearing toward them. Her furrender was alfo feen on board them. The prize-mafter in obedience to this inftructions, proceeded on his voyage in company with Argo for New-London. Some time after the three Brigs 1784.
were difcerned from on board the Betʃey. Towards evening they chafed the Argo. and Betʃey. The next day, early in the morning, the prize being in tow of the Argo, the three Brigs were feen from on board the Prize and the Argo, chafing them. The Brigs approached the falt under Britiʃh colours. Captain Talbot finding it impracticable for the prize to efcape, with a trumpet hauled her, directing the prize-mafter to throw off the rope, and lye too with the prize, until the three Brigs fhould come up with her, adding that he with the Argo would run a little to leeward and lye too alfo—and that if the brigs fhould prove to be American, the prize mafter fhould endeavour to obtain permiffion for the prize to come down by herfelf and inform him of the brigs being friends. In a fhort time the brigs came up, and from one or two of them under Britiʃh colours, the Betʃey was fired at twice, fhe then bearinh Britiʃh colours reverfed, according to the cuftom of prizes, and being in the latitude of 39 degrees 4 minutes, and the longitude of 71 degrees 24 minutes. When firft hailed, the people on board the Betʃey anfwered, fhe was from Montʃerrat. Perfons from two of the brigs, one of which had fired at the Betʃey, boarded her. Among thefe was W.D. from the laft mentioned brig The commander of this brig was informed by the prize-mafter on board the Betʃey, that fhe was a prize to the Argo, commanded by Captain Talbot ; that the veffel then is fight was the Argo ; that he was put on board the Betʃey as prize mafter by Captain Talbot ; he fhewed him his written inftructions as fuch ; but, faid the Betʃey had been take three days before. W.D. from on board the Betʃey told the faid commander, the prize-mafter denied having seen the brigs the day before, or that fhe was then captured ; but from every circumftance, and from the report of one of her Engliʃh failors, he was convinced, fhe was the fame veffel feen engaged the day before. On board the brig, to the commander of which this information was given, were a boatfwain and fail-maker, who had been taken by Captain Talbot about ten days before in a veffel from London, and fent by him prifoners to Philadelphia, and fhipped there. One of the perfons put into the Betfey by Captain Talbot, knowing them, mentioned this fact in converfation on board the faid brig, to W.D. The perfon thus put on board by Captain Talbot alfo faid, that the Betʃey had been taken three days before. The papers on board the Betʃey were examined by W.D. is behalf of the three brigs, and the number of names fpecified in the Engliʃh papers, was found to correfpond with the number of perfons then on board. From thefe papers it appeared, that fhe was a Britiʃh veffel bound from Montʃerrat to New-York. W.D. made feveral other examinations on board the Betʃey on behalf of the three brigs, and in the courfe of them was informed by a feaman who belonged to her while poffeffed by the Britiʃh, that fhe was taken the day before. This failor alfo faid, the failed from Montʃerrat. Before W.D. left Philadelphia, he had heard in the coffee-houfe there, a few days before he failed, that the Argo a New-England privateer had taken
the Drblin cutter, fitted out full of men of war's men. While thefe examinations were made, the two other brigs chafed the Argo, under all fail, upon which Captain Talbot, concluding they muft have been Britiʃh cruifers, made fail before the wind, and foon left them. The commanders of the three brigs took the prize-mafter and hands out of the Betʃey, who were carred to Spain, except one or two of the leaft confiderable, and alfo took out of her two cannon, fmall arms, powder, ball, two coils of cordage, and fome other articles. They then put a perfon on board her as prize-mafter, and men from each of the brigs, with written orders, dated the 7th of September 1779, and figned by them (illegible text), directing him to ‘‘ take charge of her as prize to the brigs (illegible text), Patty and Hibernia; carry her into Delaware, Cheʃapezk, Egg-harbour or Bofton, but to get her if poffible into Delaware, Cheʃapezk, or Egg-Harbour, for tear of the ftoop Argo failing in with her, begging him to ftand to the fouthward that night, and ftrive hard for Philadelphia. Thefe orders were figned on board the brig, the commander of which had directed the examinations before mentioned on board the Beʃtey. The Beʃtey failed off clofe by the wind to the Southward was afterward, was afterwards retaken, carried into New-York, and reftored to the former owners. On the 17th of September,1779 Congrefs refolved, ‘‘ that in confideration of he diftinguifhed merit of Colonel Silas Talbot, a commiffion of Captain in the navy by given him, and that the marine committee be directed to provide a proper veffel for him as foon as poffible.’’ On the firʃt of March, 1780, Congrefs refolved, ‘‘ that any intereft The United States may have in the capture of the Betʃey by the floop Argo, Captain Silas Talbot, be relinquifhed to the faid Captain, and the officers, feamen, and marines, under his command at the time of the capture.’’ On the 13th of March, 1780, Captain Talbot, quitam, &c. filed his bill in the Court of Admiralty for this State, againft the three brigs, their owners and commanders. Procefs (illegible text) accordingly. On the 27th the owners came feverally before the Court, and entered into ftipulations for the performance of the decree. Auguʃt 29th, a Plea to the jurifdiction filed, ‘‘ for that in cafes of damages to be affeffed or recovered to make fatisfaction for a wrong or trefpafs to perfon or property, the profecutions ought to be in Courts of Common Law.’’ Replication, ‘‘ that the caufe of action was within the jurifdiction of the Admiralty.’’ Plea difmiffed, Reʃpondeant Ouʃter awarded, and plea of Not Guilty filed. July 19th, 1783, decree, that the Libellants have and recover of the Refpondents appeal.
The caufe was ably argued of feveral days, and now, at an adjourned feffions, held the 14th of January 1785, the PRESIDENT delivered the refolution of the Court.
dickenson, president:— There are two principal queftions concerning jurifdiction in this caufe.
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Firʃt. Whether the Court of Admiralty for this State had jurifdiction ?
Second. Whether this Court has jurifdiction!
The firft has been fub-divided into thefe ʃecondary queftions:
Firʃt. Could the Court of Admiralty for this State take cognizance as an Inʃtance Court, fupporting this caufe not to be caufe of Prize ?
Second. Did that Court take cognizance as a Prize Court ?
It is acknowledged by the Council for the Appellants, that if this is not a caufe of Prize, the Court of Admiralty might take cognizance as an Inʃtance Court, it being now fettled that damages may be affeffed in the Admiralty—if it was not for an objection arifing from the Act of Affembly for regulating and eftablifhing Admiralty jurifdiction in this State. By that Act the Judge of Admiralty fhall ‘‘ have cognizance of all controverfies, fuits, and pleas of maritime jurifdiction, not congnizable of the common law, and thereupon fhall decree as the maritime law, the law of nations, and the laws of the Commonwealth fhall require.’’ The objection made, is, that the prefent contoverfy is cognizable of common law.
It is manifeft from this Act, that in framing it, the legiflature took into confideration the Engliʃh ftatutes relating to things done upon the High feas, and particularly the ftatutes of the 13th of Richard the ʃecond, ch. 3, and 5, and the 2d of Henry the fourth, ch. 11. by which, ‘‘ Admirals and their deputies are prohibited from medling with any thing done within the realm of England, but only with things (illegible text) upon the feas, according to that which hath been duly ufed in the time of Edward the third, ’’ and it is ‘‘ declared, that the Court of the Admiral hath no manner of conufance, power, or jurifdiction of any contract, plea or quarrel, or of any other thing done or rifing within the bodies of counties except in cafes of death or Mayheme done in great fhips being in the main ftream of rivers beneath the [♦] ponits of the fame. ’’
It is clear even from thefe cautions againft encroachments of the Admiralty upon the Courts of common law, and from the well-known difpute mentioned in Cooke's 4th Inʃt. that the jurifdiction of that court, as to ‘‘ things done upon the fea, ’’ is acknowledged to be proper : and, that as to them the jurifdiction of the common law courts was not-proper, but only acquired by a Fiction in fuppofing them to have been done in the fame country, when they were not. 4 Inʃt. 134 to 143. (illegible text)3 Blackʃt. 43. 106, &c. Forteʃcue de Laudibus 67. et in motis. The common law courts had a great advantage. They ufed it. There was no fuperior Court to prohibit them. They went beyond the ‘‘ Creds quiet impoʃʃible(illegible text): ’’ for they upon certain fuggeftions, without ‘‘ believing them, but knowing them to both ƒalʃe and impoʃʃible, affumed jurifdiction ; and would
not permitted evident truth to be regarded. With fuch laboured ingenuity has the jurifdiction of common law courts, as to acts upon the High Seas, been fuftained, to the great mortification of Sir Thomas Rydlye and other learned Civilians,[♦] the former, with much commendation from the reft, very gravely undertaking to prove that a fhip could not fail in Cheapʃide in the city of London, [†]the place ufually affigned in fuggestions, as the fcene of naval tranfactions.
Yet, notwithftanding thefe ftatutes, marine have in England been allowed to fue for wages in the Admiralty, upon contracts made there within the body of a county, ‘‘ againft the ftatute expreffly, ’’ as was held by the Judges, when that great man, Lord Chief Juftice Holt, prefided in the King's Bench. Salk 33. The reafons were, that the remedy was eaʃier, becaufe they could join in the fuit, and better, becaufe the fhip would be anfwerable.
In the prefent cafe, the owners, mafters and failors of the three brigs could not be jointly fued at common law. If they could not, what a multiplicity of actions muft be brought. Suppofing the owners, commander and men of the Argo could join in a fuit at common law, one of them might deftroy the action by a[‡] releafe. The veffels are not liable in the fame manner at common law, as they are in a Court of Admiralty.
If the Court of Admiralty, for this State cannot take cognizance of things which courts of common law may draw into their cognizance, it feems to have been nugatory in the legiflature to have, given that Court any other jurifdiction than in cafes of Prize ; for even in the cafe of wages, juftly a favorable object of Admiralty jurifdiction, mariners may fuw for them at common law.
It appears to have been the intention of the legiflature, that juftice, fhould be done in the eafieft and beft manner, and that by the words ‘‘ not cognizable at common law, ’’ fhould be underftood, ‘‘ not properly cognizable at common law.’’
The next ʃecondary queftion if fo connected with the definition of a cauʃe oƒ Prize, and the treating of that fubject introduces fo many CONSIDERATIONS CONCERNING RELATIVE CIRCUMSTANCES IN THESE STATES, AND THE LAW OF NATIONS, and thefe again are fo COMBINED WITH ENQUIRIES AS TO THE JURISDICTION OF THIS COURT, that they cannot be conveniently, at leaft, not eafily feparated. We will at prefent therefore pafs to the fecond principal queftion, referving till that fhall be difcuffed, what peculiarly relates to the queftion we now leave.
This State has all the powers of Independent Sovereignty by the Declaration of Independence on the 4th of July, 1776 except what were refigned by the fubfequent Confederation dated the 9th of July, 1778, but not completed by final ratification until the firʃt of March, 1781.
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By the Confederation, The United States are vefted, among other things, with the ‘‘ fole and exclufive power of eftablifhing rules for deciding in all cafes what captures on land and water fhall be legal, and in what manner Prizes taken by Land or Naval Forces in the fervice of The United State fhall be divided or appropriated; of granting Letters of Marque and Reprizal in times of peace, appointing Courts for the trial of Piracies and Felonies committed on the High Seas, and eftablifhing Counts for receiving and determining finally appeals in all cafes of Captures. ’’
Such a Court was eftablifhed by the ftile of ‘‘ The Court of Appeals in cafes of Capture.’’ Acts of Congrefs, May 24, 1780. By the commiffion, the Judges are (illegible text) hear, try and determined all appeals from the Courts of Admiralty in the States refpectively, in cafes of capture, which now are, or hereafter may be duly entered and made in any of the faid States.’’ Acts of Congrefs, February 2d, 1780.
It was refolved by Congrefs, May 24th, 1780, ‘‘ that all matters refpecting appeals in cafes of capture, now depending before Congrefs or the Commiffioners of Appeals, confifting of members of Congrefs, be referred to the newly erected Court of Appeals to be there adjudged and determined according to Law. ’’
It is neceffary to enquire, what is the reafonable and legal meaning of the words of the Confedration, and of Congrefs in their feveral acts relative to this fubject, for that is the true meaning.
Thus we fhall be led into a conftruction, by which the pofitive words may be properly and juftly modified.
What are the foundations of fuch a conftruction here ? Firʃt—The Council for the Refpondent, are themfelves compelled to qualify the generality of the expreffion, ‘‘ eftablifhing Courts for receiving and determining finally, appeals in all cafes of captures,’’ by adding, as prize. The addition is indifpenfably neceffary ; for without it, the words would comprehend every kind of taking, on land and water, in peace and water, in peace and war. Having been obliged to go fo far, in qualifying the extent of the original expreffion, we are under the fame neceffity of explaining the terms oƒ qualification themʃelve ; and certainly we have the fame right, founded on reafon and law, explain them, that we had to introduce them. In doing this we fhall find, ʃecondly—That ‘‘ captures, as prize, by citizens of The United States, may be carried into foreign countries, and be legally proceeded againft in the Courts of Admiralty there ; and therefore it is to be inferred that the Confederation intended only fuch captures,’’ brought inƒra prafiia of The United States. That this was the intention thereof, further appears, as Thirdly—Congrefs, in the commiffion and refolution before mentioned, have fhewn their fenfe of the words ‘‘ Cafes of Captures,’’ by ufing them in reference to appeals ‘‘ in ‘‘ cafes of capture, which then were duly entered and depending,’’ as well as to (illegible text) cafes ; but none were ‘‘ then entered and depending,’’ except where the ‘‘ Captures’’ were brought infra prafidia of The United States. This fenfe of Congrefs, will
appear ftill more plain from their feveral following refolutions, prior to the Confederation ; which were in force at the time of the capture made by Captain Talbot, and which were the ground-work of the ninth fection of the Confederation, ‘‘ November 25, 1775—That it be recommended to the feveral Legiflatures, as foon as poffible to erect Courts of Juftice, or give Jurifdiction to the Courts now in being, to determine concerning captures to be made—If the capture be made on open fea, the profecution fhall be in the Court of fuch colony as the captor may find moft convenient ; provided, that nothing in this refolution, fhall be conftrued fo as to enable the captor to remove his prize from any colony competent to determine concerning the feizure, after he fhall have carried the veffel fo feized, within any harbour of the fame. That in all cafes an appeal fhall be allowed to Congrefs, or perfons appointed by them.—That when veffels are fitted out by private perfons, the captures made, fhall be to the ufe of the owners. December 5. That in cafes of re-captures, the re-captors fhall retain for falvage, according to the time, &c. March 23, 1776. That all veffels and goods belonging to inhabitants of Great Britain taken on the high feas, by armed veffels of private perfons, and commiffioned, being libelled and profecuted in any Court erected for trial of maritime affairs in any of the colonies, fhall be deemed and adjudged to be lawful prize.—Veffels and goods taken near the fhores of a colony, by the people, or a detachment of the army, fhall be deemed lawful prize, and condemned in the Court of Admiralty of that colony.—Commiffions to be obtained, and bonds to be given for obfervance of inftructions from Congrefs. Inftructions to the Commanders of private veffels of war : You fhall bring fuch veffels, &c. as you fhall take, to fome convenient port of the United Colonies, that proceedings may thereupon be had in due form, before the Courts which are or fhall be there appointed to hear and determine caufes civil and maritime.—You fhall bring one or two of the principal perfons of the veffel, as foon as may be, to the Judge of fuch Court to be examined, and deliver to the faid Judge all papers, &c.—You fhall keep and preferve every veffel, &c. by you taken, until they fhall, by fentence of a Court properly authorized, by adjudged lawful prizes, not breaking bulk nor fuffering fuch a thing to be done.’’ Fourthly—By the maritime law of nations, the appropriation of jurifdiction to a particular Court of Admiralty, depends upon the capture being infra prœfidia, 3 Blackʃtone, 108. that law regarding proceedings in rem, the acquittal Britiʃh Court, to the memorial delivered by order of the King of Pruʃʃia Expoʃition des motiʃs. 11. 12. Mod. 143. It would be injurious to nations if it was otherwife ; for it would caufe competition of jurifdiction, and would occafion frauds. The ufual method is fimple and fair. Fiƒthly—The articles in the treaties of The United States with France, the United Netherlands and Swedem, with relation to prizes, refer to the cafes of prizes conducted into the ports of the contracting powers,
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relying on cautions againft malverfations and contraventions to be given by commanders of private veffels or war, rules and regulations for deciding the legality of prizes, and trials in Courts of Admiralty generally. Sixthly—An authority to ‘‘ eftablifh rules for deciding in all cafes, what captures on land or water fhall be legal, and Courts for receiving and determining finally, appeals in all cafes captures,’’ as prize, brought infra prœʃidia of The United States, altogether with the other powers vefted in Congrefs, will fufficiently obviate the mifchiefs apprehended from thee irregularities of citizens of Confederated America upon the high feas.
"Foreigners" are protected by the confederation, from the irregularities mentioned ; for, Congrefs, can, ‘‘ exclufively, appoint Courts for the trial of piracies and felonies committed on the high feas,’’ and can fend out a naval force to cruize for and feize the offenders. If the Refpondent was a Frenchman, and the decree goes againft him, he could not juftly complain ; for he inftituted his fuit in an American Court. If the appellants were Frenchmen, and the decree goes againft them, they could not juftly complain, for they took, without battle, by force and violence, from a friend and ally, that which in their fight, according to their own allegations and proofs, he had before fought for and captured, and afterwards voluntarily put themfelves within the jurifdiction, precinct and power of an American Court. What are the fentiments of learned authors, treating of the law of nations, upon fuch an occafion ? ‘‘ Quæ ab hoftibus capiuntur, "ʃtatim" capientium fiunt ; which is to be underftood, when the battle is over. Vœl, and many writers he refers to, maintain with great ftrength, per folam occupationem dominium prædæ hoftibus acquiri. One argument ufed to prove it is, that the inʃtant the captor has got a poʃʃeʃʃion, no friend, fellowfolider, or ally, can take it from him, becaufe it would be a violation of his property. ’’ Lord Mansƒield, delivering the refolutions of the Court, in the cafe of Goƒs and another, againft Withers. In either cafe, and in the frongeft light in which the affair can be viewed, it is no more than a matter to be treated of between their Sovereign and The United States. 2 Shower, 232. Raym. 473. If it be faid that Congrefs fhould have a legal mode of making compenfation, by rectifying improper decifions againft foreigners, thereby to prevent difagreeable confequences, it is a doctrine that cannot be univerfally admitted, for reafons too plain to be infifted on. If it be confined to acts on the high feas, proviʃion has been made by the Confederation, in the cafes where it was judged neceʃʃary. What the Rulers of nations deʃire and ftipulate for in treaties, as to tranfactions on the high feas, is to fecure their people from being plundered by the citizens or fubjects of thofe with whom they treat. That great point being guarded, and it is guarded here, the danger of confequences from cafes that rarely occur, complicated with a variety of circumftances, and decided upon in open Courts, are not to be apprehended. When Sovereigns are determined to quarrel, they will never want pretences; but while (illegible text)the
facred obligations for juftice and humanity, or the precious fentiments of the good and wife in their own and fucceeding ages, they will not difturb the repofe of the world, by violating the law of nations, upon flight claims of their fubjects, or ‘‘ in reminine du bia. ’’ Anfwer of the Britiʃh Court. 23 Vattel, bo. II, ch.4. 5. 7. Neither can one oƒ theʃe States prey upon another, without violating the Confederation, for by that, ‘‘ No veffel of war fhall be kept up in time of of peace by any State, except fuch number only, as fhall be deemed neceffary by The United States in Congrefs affembled, for the defence of fuch State, or its trade ; nor fhall any State engage in any war without their confent, unlefs invaded by enemies ; or certainly advifed of an intended invafion by Indians : Nor grant commiffions to any fhips or veffels of war, nor letters of marque, or reprifal, except it be after a declaration of war by The United States in Congrefs affembled, fhall determine otherwife. ’’ Befides, ‘‘ difputes and differences concerning any cauʃe whatever, are determinable by Courts to be eftablifhed under the authority of Congrefs. ’’
Let us now enquire whether the prefent cafe is fuch a cuaʃe oƒ prize as is mentioned in the many cafes quoted by the Council for the Refpondent.
In what circumftances is any of thofe cafes like this ? Does it appear from an of them, that the Prize Court in England, would decide fuch a caʃe at this is ? Does it appear that the Courts of Weʃt-miniʃter-Hall, in any action for ʃuch a treʃpaʃs at this, would refufe to take cognizance, becaufe the original taking was a capture as prize? Does it appear that they would refufe to take cognizance, under colour that the fecond taking was a capture as prize ? If they fhould, ought any fuch decifion to have weight with us in this cafe? What are the cafes quoted? A juftification by perfons of ORIGINAL captures made by themʃelves, becaufe made as prize. What is this cafe? A juftification by perfons of their conduct, after a capture made in battle, by others in their fight, under pretention of right, founded on that circumʃtances. If they fay, the fecond taking was an original capture as prize, their affertion is ʃalfiʃied by their own proofs, that they ʃaw the captive made by others, the day before. It they fay, their proceedings were united with the original capture aʃ prize, by being in ƒight at the time, let them take care that their pretenʃion of right is well founded. Comb 367. If it is not, their proceedings are diʃtinct from the original capture, and they are plainly Trefpaffers, and muft abide by the confequences. We are clearly of opinion, that their pretenʃion of right is utterly unfounded, and that the whole conduct of the Commanders and Crews of the Brigs, was cruel, unprovoked, warton, and mala ʃide. In this very fingular and extraordinary cafe, they have exerted themfelves to difable the (illegible text) proving the capture to be prize;
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and is the fole queftion afterwards, to be, prize or not ? What neceffity is there for determining whether the Betʃey was prize or not? Is it not evident from the cafe of Combs, againft the Hundred of Bradley, in Salkeld's Reports and of Goʃs and another, againft Withers, in Burrow, and many other cafes, that an action will Iye on poʃʃeʃʃion by the plaintiff? and with what peculiar force does the reafon apply in this cafe, for the action being maintained merely on the poffeffion? This Court,, and the Court of Admiralty are competent, not only to direct proceedings, but to afcertain facts, judge of them, and the law upon them, and affefs damages, as juftice may require. As to the notion of miʃtakes excufing, it is a petitio principii. The miʃtake doesnot appear—the crime does. So far from behaving as partners in the capture, with the Argo, the Commanders of the three Brigs, who faw the furrender to her, chafe her off ; fend the Betʃy as prize to themʃelves only, for a port diʃtant from the home of the captors, and in the eye of the wind, though in a part of the fea where fhe was particularly expoʃed to dangers from the enemy, with orders to avoid certain ports, ƒor ƒear oƒ the Argo's ƒalling in with her. In fact, it was not a real but a pretended capture, as prize, by them. Are we then bound, in ʃuch a caʃe, to call it a cauʃe oƒ prize becaufe the original taking was a capture, as prize ? Or are we to refufe to call it a treʃpaʃs though the fecond taking was not a capture, as prize ?
How far foever,, the learned Judges in England have carried the juftification of captures, from the circumftance of their being made as prize, yet they never have carried it as far as this cafe extends. That they have gone a great way is evident. In the cited cafe of Vanderwoodʃt and others, againft Thompʃon, the defendant, is an action of trefpafs, having a letter of Marque; took a veffel that made fome refiftance, and carried her to Newcaʃtle, where fhe was feized by the Cuftom-Houfe Officers ƒor having ʃmuggled goods on board; and fhe was afterwards condemned in the Exchequer. It was contended for the plaintiff, that the capture was unlawful, becaufe the defendant did not belong to the Cuʃtom-Houʃe, and he could not juftify the feizure under the hovering act of 6 Geo. I ch. 11 as King's ʃhips only can seize under ʃuch circumʃtances. It was held, ‘‘ As there was reafon to ʃuppoʃe that the fhip was a pirate, though the Jury ʃhould be ʃatisƒied ʃhe was not really ʃo, yet the action would not lye. ’’ Afterwards, ‘‘ there was a notion for a new trial, which upon confideration, was denied by the Court.’’
If that caufe was cognizable in the Prize Court, and it that Court determines folely by the law of nations and treaties, as is laid down by the Judges, how were other nations interefted in the principle of fuch a decifion ? If it was not congnizable in the Prize Court, how can it be applied to the prefent cafe, in favor of the Refpondent ?
To proceed—If the Courts of Weʃtminiʃter Hall, in an action for fuch a trefpafs as this, ʃhould refufe to take cognizance becaufe the original taking was a capture as prize, or under colour that the
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fecond taking was a capture as prize, ought any fuch decifion to have weight with us in this cafe?—It ought not.
Such a decifion muft turn entirely upon the municipal law of England. It muft be founded upon this principle governing in the cafes cited by the council for the refpondent ; ‘‘ that, of a feizure as prize, the Common Law does not take notice as a trefpafs.’’ Le Caux and Eden. Admit the principle. It applies not. This is not a Common Law Court. The Act of Affembly eftablifhing this Court, makes it a ‘‘ a Court of Appeals from definitive fentences of decrees of the Admiralty.’’ We are therefore a Court of Admiralty. ‘‘ If the fentence of the Court of Admiralty is thought to be erroneous, there is, in ever maritime country, a Superior Court of Review,&c. to which the parties who think themfelves aggrieved, may appeal ; and this Superior Court judges by the fame rule which governs the Court of Admiralty, viz. the law of nations and treaties. This manner of trial and a judication is fupported, alluded to, and enforced by many treaties.’’ Anfwer of the Britiʃh Court, &c. We are a Court of Admiralty, competent to judge by that rule. The act of Affembly eftablifhing Admiralty Jurifdiction in this ftate, declares, that the Court fhall be governed by ‘‘ the law of nations.’’ Whatever in the law of nations relates to a Court of Admiralty, relates to this Court of Admiralty, relates to this Court, becauʃe no treaty has diverted the application. Anfwer of the Britiʃh Court, &c. Vattel. b.2., ch. 7.3. Blackʃt. 69.
Much has been faid of a diftinction in England, between the Inʃtance Court and the Prize Court, though the powers of both are excerifed by the fame perfon ; and it is urged that only the latter judges by the law of nations and treaties. We are told, ‘‘ it is no more like a Court oƒ Admiralty, than it is to any Court of Weʃtminʃter-Hall ; that the manner of proceeding is totally different ; that the appeal is different—to Delegates from the Admiralty—to Commiffioners confifting of Privy Councellors, from the Court of Prize.—That to conftitute the authority of the Prize Court, or to call it forth in every war, a commiffion under the Great Seal iffues, &c.’’ [♦] Such a diftinction may prevail in England, but it known or regarded in other nations ? The words ‘‘ to call it forth, ’’ are material. It feems only a folemn, official, notification to the Admiralty, that there is a war, and that it may proceed accordingly, as a declaration of war is a notification to the people in general. But this declaration dos not make the war in the one cafe ; nor, perhaps, does the commiffion conftitute the authority in the other. It is confeffed, ‘‘ that the moʃt antient inʃtrument fhews a Prize Juriʃdiction either inherent or by commiffion in the Admiral. It is a letter from Edward the Third to the King of Portugal. And, ‘‘that fince the reign of Queen Elizabeth, the Judge oƒ the Admiralty, either by virtue of an inherent power, or the King's commiffion,
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or both, has ʃolely exercifed the juriʃdiction oƒ Prize —and that as far back as particular cafes can be traced, which is for a century, the Admiralty has judged of and condemned goods taken on land, as prize, as well as goods taken on fea, ’’ Lord Mansƒield, delivering the refolution of the Court, in the cafe of Lindo againft Rodney and another.[♦]
What do treaties, antient and modern, ftipulate for, in order to guard againft violence on the feas ? A trail in the Court oƒ Admiralty, as foon as poffible, before the effects taken are in any manner to be difpofed of. Why ? becaufe, by the maritime law of nations, that court judges by the law of nations and treaties. Sir George Lee, Doctor Paul, Sir Dudley Ryder, and Mr. Murray, now Lord Mansƒield, in their report, which forms the principal part of the anfwer of the Britiʃh Court, and if fo celebrated by Meffrs Monteʃquieu and Vattel, [†] fay, ‘‘ By the maritime law of nations, univerfally and immemorially received, there is an eftabliʃhed method oƒ determination, whether the capture BE, OR BE NOT, LAWFUL PRIZE. Before the fhip or goods can be DISPOSED OF, by the captor, there muft be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon, as prize, in a Court oƒ Admiralty, judging by the law of nations and treaties. The proper and regular Court for thefe condemnations, is the Court of that ftate to whom the captor belongs. ’’
Are we then, becaufe in England, they call the Admiralty Court a Prize Court when it acts in a caufe of prize, and it then proceeds in a different manner, with an appeal to Commiffioners of the Privy Council, to reject the ‘‘ univerfal and immeorial’’ compact of mankind ? There was a time——when we liftened to the language of her Senates and her Courts, with a partiality of veneration, as to oracles. It is paft—we have informed our ftation among the powers of the earth, and muft attend to the voice of nations—the fentiments of the fociety into which we have entered.
Lord Mansƒield, in the caufe of Lindo againft Rodney and another, faid, ‘‘ The end of a Prize Court is to fulpend the property till condemnation ; to punifh every forth of mifbehaviour in the captors ; to reftore inftantly, velis levatis, if upon the moft fummary examination, there does not appear a fufficient ground ; to condemn finally (if the goods really are prize) againft every body, giving every body a fair opportunity of being heard :— A captor may, and muft force every perfon interefted, to defend ; and every perfon interefted, may force him to proceed to condemn without delay. Theʃe views cannot be anfwered in any Court of Weʃtminʃte-Hall, and therefore
the Courts of Weʃtminʃter-Hall never have attempted too take cognizance of the queftion—Prize or no Prize ; not from the locality of being done at fea, but from their incompetence to embrace the whole of the fubject. ’’
‘‘Theʃe views are anfwered ’’ here in the Court Admiralty, and with as good cautions as in England ; and as far as a Court of Appeals is concerned, they can be anfwered in this Court as fully as in a Court of Appeals to Commiffioners there.
It feems proper here, to take notice of the objection againft the authority of this Court, founded on the words of the law by which it was eftablifhed, prior to the completion and final ratification of the confederation. It is conftituted “ a Court of Appeals for reviewing, re-confidering, and correcting, the definitive fentences and decrees of the Court of Admiralty, other than in caʃes oƒ capture upon the water in time oƒ war, ƒrom the enemis oƒ the United States &c. ”
The conftruction of thefe words depends upon the refolutions of Congrefs, the Confederation, and the law by which the Admiralty Jurifdiction is eftablifhed, taken together. If the principles of our preceeding conftruction are right, they apply as aptly here, and the appeal is regular. If it is not, there will be a defect of juftice. The Legiflature intended to give this Court an authority to refigned to a Continental Court of Appeals. This was not refigned. It therefore belongs to this Court. We will endeavour to promote juftice, according to the intentions of the Commonwealth, conveyed in the laws ; and not demit any part of her fovereignty, unlefs we are convinced beyond a doubt, that it is our duty to do fo.
We now return to the leƒt of the ʃecondary queftions. Did the Court of Admiralty take cognizance as a Prize Court ? In confidering this queftion, a very ftrict attention muft be had to the proceedings of the Court of Admiralty in this cafe.—That Court was alfo erected by an act of Affembly, prior to the completion and final ratification of the Confederation. It is, to be fure, a Court of Prize, and an Inftance Court, if that mode of expreffion be preferred ; or in other words, the Judge who has but one commiffion, may try caufes of Prize, and other matters of Admiralty Jurifdiction. There is a difference in his proceedings for condemnation in caufes of prize, and thofe in other cafes. His ftile by law is, “ That in cafes of prize, capture or re-capture upon the water, from enemies, or by way of reprifal, or from pirates, the fame fhall be tried, adjudged, and determined, as well as to the queftion whether prize or not, as to the claims oƒ the parties intereʃted or pretending to be intereʃted in the ƒame, by the law of nations and the acts and ordinances of
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Congrefs before the faid Judge, by witneffes, according to the courfe of the civil law ;’’ and —“ That the Captain or Commander of any fhip or veffel of war, or Prize-Mafter, or other perfon, having charge of any capture or re-capture, or other properly feized upon the water as aforefaid, who fhall conduct or bring the ʃame into port, fhall immediately deliver the fame, without (illegible text), to the Marfhall of the faid Court of Admiralty. ’’
The law then goes on to direct the mode of proceeding to the condemnation, ordering, ‘‘ That the Judge fhall caufe notice to be publifhed immediately in fome news-paper of the day appointed for the trial of ʃuch prize, inferting therein the name, fize or burthen, and other defcription of the faid veffel, ʃo taken and brought into part, the name and fur-name of the mafter, the place the laft failed from, the port for which deftined, and in cafe of re-capture, by what fhip or veffel taken, to the end that all perfons concerned may appear and fhew caufe, if any there be, wherefore ʃuch capture, or re-capture, goods, merchandize, or other property, fhould not be condemned and adjudged to the Libellants. ’’
Does the prefent cafe in any manner refemble the ‘‘ caʃes oƒ prize ’’ deʃcribed in this law ? Whare are ‘‘ Claimants intereʃted or pretending to be intereʃted ? ’’ Claimants are voluntary Applicants for Juftice. Shall trefpaffers, compelled to anfwer for their wrong, cover themfelves with that character ? Can there be ‘‘ Claimants, ’’ but in a proceeding in rem ? How would the publication before mentioned fuit ʃuch Claimants as the appellants ? Were the proceedings of the Judge in this cafe, ʃuch as he conʃtantly has obʃerved in cafes of prize ? They were not. Application was made to him for damages. He proceeded in that line. Here is neither libel nor procefs againft the capture.—no mention—, ‘‘ no notice’’ under the act of Affembly.
What could give the Judge of Admiralty for this ʃtate, jurifdiction to proceed as a Court of Prize upon a capture contefted between citizens oƒ different ʃtates, which is the cafe here, rather than any Court of Admiralty in any other ftate, when the property captured was not within the power of his Jurifdiction ? Becaufe, it is faid, some of the offending Captains and their veffels came into this port. Does the jurifdiction of a Court of Prize depend on certain offenders, with refpect to a capture coming into a port ? Where are the authorities of law to fhew that this circuʃtance can give fuch jurifdiction, or, that there can be an inftitution of a cauʃe oƒ prize, according to the maritime law oƒ nations, ƒor damages only? The authorities cited, that there were thought moft Refpondent, were thofe of Brown and Burton againft Franklin, the King's Proctor ; and of the King againft Broom. But they are not in any manner applicable. In the firft, the Plaintiffs, Mafters of two veffels, but having no regular Letters of Marque, took a French fhip, cargo and money, upon land, in the Eaʃt Indies—they being Engliʃh fubjects, it was held, that they acquired no right by this capture, but that it was a
prequiʃite ʃite oƒ the Adniralty. The King's Proctor, upon the ufual monition, got a fentence of condemnation for the whole, in order to make them account. In brief, they had eƒƒects in their hands, which by the maritime law of England, belonged to the King or his Admiralty, and they were obliged to account for them according to that law, 12 Mod . 13c. Lord Mansƒield calls it a proceeding in rem. Le Caux and Eden, in the notes. The fecond cafe was of the fame kind, and was decided on the fame principles. It was further faid by the Council for the Refpondents, that the Court of Admiralty that firʃt proceeds in fuch a cafe as the prefent, acquires an exclufive right of deciding upon it, in the fame manner as the nation that firft commences a judicial procefs againft pirates, may pronounce fentence againft them. To fay no more on this comparifon, it is fuficient to obferve, that fuch a right may be attributed to the attrocity of the guilt, as the offenders are hoʃtes humani generis.
If the coming of Trefpaffers, or of the veffels in which they trefpaffed upon the high Seas, within the power of a Judge's jurifdiction, authorifes him to proceed againft them, to what confufion may it lead ? A capture is made from an enemy ; afterwards friends trefpafs againft the prize, and arrive in (illegible text), ports the fate of the prize being unknown. They are profecuted in one or more Courts of Admiralty. The prize at length arrives in a different port, and is libelled in a different Court of Admiralty, for condemnation is the ufual manner. What contefts for jurifdiction muft enfue ? ‘‘ ₢uod inconveniens eʃt non licitum eʃt. ’’
We are unanimoufly of opinion,, that the Judge of the Admiralty for this ftate, had jurifdiction in this caufe, and that the appeal to us in regular. We decree, that the Refpondent recover and have of the Appellants, 1. 141(illegible text)5s.4d . with cofts, except thofe in this Court, of which each party is to pay a moiety. [♦]