This was an appeal from a decree in the Admiralty on the
following case: Silas Talbot, commander of the armed sloop Argo,
belonging to, and in the service of these States, duly
commissioned, sailed from New London, in the State of Connecticut,
the twenty-ninth of August, 1779, on a cruise. On the sixth of
September, after an engagement of three hours, he took as prize
upon the High Seas, an armed Letter of Marque vessel, called the
Betsey, of two hundred tons burthen, with a valuable cargo,
belonging to subjects of Great Britain, not being inhabitants of
Bermuda, and bound for New York, then in possession of the British
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 master and eleven other hands, with instructions to proceed
to New London. The firing was heard, and the engagement for more
than an hour seen by persons on board three Letter of Marque Brigs
that had lately sailed from Philadelphia. During the engagement the
Betsey was perceived from the three Brigs, bearing towards them.
Her surrender was also seen from on board them. The prize-master in
obedience to his instructions, proceeded on his voyage in company
with the Argo for New London. Some time after the three Brigs
a For the decree in the Admiralty in this case, and the evidence
upon which it was principally founded, I beg leave to refer the
Reader to a small volume of Reports of Cases in the Admiralty of
Pennsylvania, published by the Honorable Francis Hopkinson,
Esquire, the Judge of that Court; and printed by Dobson in
Philadelphia. In this book will, likewise, be found several
important decisions upon questions of Hypothecation. [ Talbot v.
Commanders & Owners of Three Brigs
1 U.S.
95 (1784)
were discerned from on board the Betsey. Towards evening they
chated the Argo and Betsey. The next day, early in the morning, the
prize being in tow of the Argo, the three Brigs were seen from on
board the Prize and the Argo, chasing them. The Brigs approached
fast under British colours. Captain Talbot finding it impracticable
for the prize to escape, with a trumpet hailed her, directing the
prize-master to throw off the rope, and lye too with the prize,
until the three Brigs should come up with her, adding, that he with
the Argo would run a little to leeward and lye too also and that if
the brigs should prove to be American, the prize-master should
endeavour to obtain permission for the prize to come down by
herself and inform him of the brigs being friends. In a short time
the brigs came up, and from one or two of them under British
colours, the Betsey was fired at twice, she then bearing British
colours reversed, according to the custom of prizes, and being in
the latitude of 39 degrees 4 minutes, and the longitude of 71
degrees 24 minutes. When first hailed, the people on board the
Betsey answered, she was from Montserrat. Persons from two of the
brigs, one of which had fired at the Betsey, boarded her. Among
these was W. D. from the last mentioned brig. The commander of this
brig was informed by the prize-master on board the Betsey, that she
was a prize to the Argo, commanded by Captain Talbot; that the
vessel then in sight was the Argo; that he was put on board the
Betsey as prize master by Captain Talbot; he shewed him his written
instructions as such; but, said the Betsey had been taken three
days before. W. D. from on board the Betsey told the said
commander, that the prize-master denied having seen the brigs the
day before, or that she was then captured; but from every
circumstance, and from the report of one of her English sailors, he
was convinced, she was the same vessel seen engaged the day before.
On board the brig, to the commander of which this information was
given, were a boatswain and sail-maker, who had been taken by
Captain Talbot about ten days before in a vessel from London, and
sent by him prisoners to Philadelphia, and shipped there. One of
the persons put into the Betsey by Captain Talbot, knowing them,
mentioned this fact in conversation on board the said brig, to W.
D. The person thus put on board by Captain Talbot also said, that
the Betsey had been taken three days before. The papers on board
the Betsey were examined by W. D. in behalf of the three brigs, and
the number of names specified in the English papers, was found to
correspond with the number of persons then on board. From these
papers it appeared; that she was a British vessel bound from
Montserrat to New York. W. D. made several other examinations on
board the Betsey on behalf of the three brigs, and in the course of
them was informed by a seaman who belonged to her while possessed
by the British, that she was taken the day before. This sailor also
said, she sailed from Montserrat. Before W. D. left Philadelphia,
he had heard in the coffee-house there, a few days before he
sailed, that the Argo a New England privateer had taken
Page 1 U.S. 95,
97
the Dublin cutter, fitted out full of men of war's men. While
these examinations were made, the two other brigs chased the Argo,
under all sail, upon which Captain Talbot, concluding they must
have been British cruisers, made sail before the wind, and soon
left them. The commanders of the three brigs took the prize-master
and hands out of the Betsey, who were carried to Spain, except one
or two of the least considerable, and also took out of her two
cannon, small arms, powder, ball, two coils of cordage, and some
other articles. They then put a person on board her as
prize-master, and men from each of the brigs, with written orders,
dated the 7th of September 1779, and signed by them all, directing
him to 'take charge of her as prize to the brigs Achilles, Patty
and Hibernia; carry her into Delaware, Chesapeak, Egg Harbour or
Boston, but to get her if possible into Delaware, Chesapeak, or Egg
Harbour, for fear of the sloop Argo's falling in with her, begging
him to stand to the southward that night, and strive hard for
Philadelphia.' These orders were signed on board the brig, the
commander of which had directed the examinations before mentioned
on board the Betsey. The Betsey sailed off close by the wind to the
southward, was afterwards retaken, carried into New York, and
restored to the former owners. On the 17th of September, 1779,
Congress resolved, 'that in consideration of the distinguished
merit of Colonel Silas Talbot, a commission of Captain in the navy
be given him, and that the marine committee be directed to provide
a proper vessel for him as soon as possible.' On the first of
March, 1780, Congress resolved, 'that any interest. The United
States may have in the capture of the Betsey by the sloop Argo,
Captain Silas Talbot, be relinquished to the said Captain, and the
officers, seamen, 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,
against the three brigs, their owners and commanders. Process
issued accordingly. On the 27th the owners came severally before
the Court, and entered into stipulations for the performance of the
decree. August 29th, a Plea to the jurisdiction filed, 'for that in
cases of damages to be assessed or recovered to make satisfaction
for a wrong or trespass to person or property, the prosecutions
ought to be in Courts of Common Law.' Replication, 'that the cause
of action was within the jurisdiction of the Admiralty.' Plea
dismissed, Respondeant Ouster awarded, and plea of Not Guilty
filed. July 19th, 1783, decree, that the Libellants have and
recover of the Respondents L 12,791. 5. 0. with Costs, and on the
22nd the Respondents appeal.
The cause was ably argued on several days, and now, at an
adjourned sessions, held the 14th of January 1785, the President
delivered the resolution of the Court.
Dickenson, President:
There are two principal questions concerning jurisdiction in
this cause.
Page 1 U.S. 95,
98
First. Whether the Court of Admiralty for this State had
jurisdiction?
Second. Whether this Court has jurisdiction?
The first has been sub-divided into these secondary
questions:
First. Could the Court of Admiralty for this State take
cognizance as a Instance Court, supposing this cause not to be a
cause 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 cause of Prize, the Court of Admiralty might take
cognizance as an Instance Court, it being now settled that damages
may be assessed in the Admiralty if it was not for an objection
arising from the Act of Assembly for regulating and establishing
Admiralty jurisdiction in this State. By that Act the Judge of the
Admiralty shall 'have cognizance of all controversies, suits, and
pleas of maritime jurisdiction, not cognizable at the common law,
and thereupon shall decree as the maritime law, the law of nations,
and the laws of this Commonwealth shall require.' The objection
made, is, that the present controversy is cognizable at common
law.
It is manifest from this Act, that in framing it, the
legislature took into consideration the English statues relating to
things done upon the High seas, and particularly the statues of the
13th of Richard the second, ch. 3, and 5, and the 2nd of Henry the
fourth, ch. 11. by which, [98-Continued.]
'Admirals and their deputies are prohibited from medling with
any thing done within the realm of England, but only with things
done upon the seas, according to that which hath been duly used in
the time of Edward the third,' and it is 'declared, that the Court
of the Admiral hath no manner of conusance, power, or jurisdiction
of any contract, plea or quarrel, or of any other thing done or
rising within the bodies of counties except in cases of death or
Mayheme done in great ships being in the main stream of rivers
beneath the pointsa of the same.'
It is clear even from these cautions against encroachments of
the Admiralty upon the Courts of common law, and from the
well-known dispute mentioned in Cooke's 4th inst. that the
jurisdiction of that court, as to 'things done upon the sea,' is
acknowledged to be proper: and, that as to them the jurisdiction of
the common law courts was not proper, but only acquired by a
Fiction in supposing them to have been done in the same county,
when they were not. 4 Inst. 134 to 143. 3 Blackst. 43, 106, &c.
Fortescue de Laudibus 67. et in notis. The common law courts had a
great advantage. They used it. There was no Superior Court to
prohibit them. They went beyond the 'Credo quia impossible est;'
for they upon certain suggestions, without 'believing' them, but
knowing them to be both false and impossible, assumed jurisdiction;
and would
a Doctor Zouch, in his 'Jurisdiction of the Admiralty,' p. 85,
urges strong reasons against this construction; and in Owen
Reports, p. 122 it is said by the Court, that the statute of the
15th of Richard the 2nd, is misprinted. For the translator mistook
bridges for points, that is to say the Lands-End
Page 1 U.S. 95,
99
not permit evident truth to be regarded. With such laboured
ingenuity has the jurisdiction of common law courts, as to acts
upon the High Seas, been sustained, to the great mortification of
Sir Thomas Rydlye and other learned Civilians,b the former, with
much commendation from the rest, very gravely undertaking to prove,
that a ship could not sail in Cheapside in the city of London,a the
place usually assigned in suggestions, as the scene of naval
transactions. Yet, notwithstanding these statues, mariners have in
England been allowed to sue for wages in the Admiralty, upon
contracts made there within the body of a county, 'against the
statute expressly,' as was held by the Judges, when that great man,
Lord Chief Justice Holt, presided in the King's Bench. Salk 33. The
reasons were, that the remedy was easier, because they could join
in the suit, and better, because the ship would be answerable. In
the present case, the owners, masters' and sailors of the three
brigs could not be jointly sued at common law. If they could not,
what a multiplicity of actions must be brought. Supposing the
owners, commander and men of the Argo could join in a suit at
common law, one of them might destroy the action by a release.b The
vessels are not liable in the same 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 seems to have been nugatory in
the legislature to have given that Court any other jurisdiction
than in cases of Prize; for even in the case of wages, justly a
favourite object of Admiralty jurisdiction, mariners may sue for
them at common law. It appears to have been the intention of the
legislature, that justice should be done in the easiest and best
manner, and that by the words 'not cognizable at common law,'
should be understood, 'not property cognizable at common law.' The
next secondary question is so connected with the definition of a
cause of Prize, and the treating of that subject introduces so many
Considerations concering relative Circumstances in these States,
and the Law of Nations, and these again are so combined with
Enquiries as to the Jurisdiction of this Court, that they cannot be
conveniently, at least, not easily separated. We will at present
therefore pass so the second principal question, reserving till
that shall be discussed, what peculiarly relates to the question 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 resigned by the subsequent Confederation dated the 9th of
July, 1778, but not completed by final ratification until the first
of March, 1781.
b Fictio, est in recerta, ejus qucd elb possibile, adversus
veritarem, pro veritate a jure facta assumptio. Doctor Godolpbin's
view of Admiralty Jurisdiction, p. 84. a Zouch, p. 131, God p. 105.
3, Blackstone, 107. b Lev. 355.
Page 1 U.S. 95,
100
By the Confederation, The United States are vested, among other
things, with the 'sole and exclusive power of establishing rules
for deciding in all cases what captures on land and water shall be
legal, and in what manner Prizes taken by Land or Naval Forces in
the service of The United States shall 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 establishing Courts for receiving and
determining finally appeals in all cases of Captures.' Such a Court
was established by the stile of 'The Court of Appeals in cases of
Capture.' Acts of Congress, May 24, 1780. By the commission, the
Judges are 'to hear, try and determine all appeals from the Courts
of Admiralty in the States respectively, in cases of capture, which
now are, or hereafter may be duly entered and made in any of the
said States.' Acts of Congress, February 2nd, 1780. It was resolved
by Congress, May 24th, 1780, 'that all matters respecting appeals
in cases of capture, now depending before Congres or the
Commissioners of Appeals, consisting of members of Congress be
referred to the newly erected Court of Appeals to be there adjudged
and determined according to Law.' It is necessary to enquire, what
is the reasonable and legal meaning of the words of the
Confederation, and of Congress in their several acts relative to
this subject, for that is the true meaning. Thus we shall be led
into a construction, by which the positive words may be properly
and justly modified. What are the foundations of such a
construction here? First The Council for the Respondent, are
themselves compelled to qualify the generality of the expression,
'establishing Courts for receiving and determining finally, appeals
in all cases of captures,' by adding, as prize. The addition is
indispensably necessary; for without it, the words would comprehend
every kind of taking, on land and water, in peace and war. Having
been obliged to go so far, in qualifying the extent of the original
expression, we are under the same necessity of explaining the terms
of qualification themselves; and certainly we have the same right,
founded on reason and law, to explain them, that we had to
introduce them. In doing this we shall find, Secondly That
'captures, as prize, by citizens of The United States, may be
carried into foreign countries, and be legally proceeded against in
the Courts of Admiralty there; and therefore it is to be inferred
that the Confederation intended only such captures,' brought infra
prasidia of The United States. That this was the intention thereof,
further appears, as Thirdly Congress, in the commission and
resolution before mentioned, have shewn their sense of the words
'Cases of Captures,' by using them in reference to appeals 'in
cases of capture, which then were duly entered and depending,' as
well as to future cases: but none were 'then entered and
depending,' except where the 'Captures' were brought infra prasidia
of The United States. This sense of Congress, will
Page 1 U.S. 95,
101
appear still more plain from their several following
resolutions, 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 section of the Confederation, 'November
25, 1775. That it be recommended to the several Legislatures, as
soon as possible to erect Courts of Justice, or give Jurisdiction
to the Courts now in being, to determine concerning captures to be
made. If the capture be made on open sea, the prosecution shall be
in the Court of such colony as the captor may find most convenient;
provided, that nothing in this resolution, shall be construed so as
to enable the captor to remove his prize from any colony competent
to determine concerning the seizure, after he shall have carried
the vessel so seized, within any harbour of the same. That in all
cases an appeal shall be allowed to Congress, or persons appointed
by them. That when vessels are fitted out by private persons, the
captures made, shall be to the use of the owners. December 5. That
in cases of re-captures, the re- captors shall retain for salvage,
according to the time, &c. March 23, 1776. That all vessels and
goods belonging to inhabitants of Great Britain, taken on the high
seas, by armed vessels of private persons, and commissioned, being
libelled and prosecuted in any Court erected for trial of maritime
affairs in any of the colonies, shall be deemed and adjudged to be
lawful prize. Vessels and goods taken near the shores of a colony,
by the people, or a detachment of the army, shall be deemed lawful
prize, and condemned in the Court of Admiralty of that colony.
Commissions to be obtained, and bonds to be given for observance of
instructions from Congress. Instructions to the Commanders of
private vessels of war: You shall bring such vessels, &c. as
you shall take, to some convenient port of the United Colonies,
that proceedings may thereupon be had in due form, before the
Courts which are or shall be there appointed to hear and determine
causes civil and maritime. You shall bring one or two of the
principal persons of the vessel, as soon as may be, to the Judge of
such Court to be examined, and deliver to the said Judge all
papers, &c. You shall keep and preserve every vessel, &c.
by you taken, until they shall, by sentence of a Court properly
authorized, be adjudged lawful prizes, not breaking bulk, nor
suffering such a thing to be done.' Fourthly By the maritime law of
nations, the appropriation of jurisdiction to a particular Court of
Admiralty, depends upon the capture being infra prasidia, 3
Blackstone, 108. that law regarding proceedings in rem, the
acquittal or condemnation of the ship or goods. Answer of the
British Court, to the memorial delivered by order of the King of
Prussia, Exposition des motifs. 11. 12. Mod. 143. It would be
injurious to nations if it was otherwise; for it would cause
competition of jurisdictions, and would occasion frauds. The usual
method is simple and fair. Fifthly The articles in the treaties of
The United States with France, the United Netherlands and Sweden,
with relation to prizes, refer to the cases of prizes conducted
into the ports of the contracting powers,
Page 1 U.S. 95,
102
relying on cautions against malverfations and contraventions to
be given by commanders of private vessels of war, rules and
regulations for deciding the legality of prizes, and trials in
Courts of Admiralty generally. Sixthly An authority to 'establish
rules for deciding in all cases, what captures on land or water
shall be legal, and Courts for receiving and determining finally,
appeals in all cases of captures,' as prize, brought infra prasidia
of The United States, together with the other powers vested in
Congress, will sufficiently obviate the mischiefs apprehended from
the irregularities of citizens of Confederated America upon the
high seas.
Foreigners are protected by the confederation, from the
irregularities mentioned; for, Congress can, 'exclusively, appoint
Courts for the trial of piracies and felonies committed on the high
seas,' and can send out a naval force to cruize for and seize the
offenders. If the Respondent was a Frenchman, and the decree goes
against him, he could not justly complain; for he instituted his
suit in an American Court. If the appellants were Frenchmen, and
the decree goes against them, they could not justly 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 themselves within the jurisdiction, precinct and
power of an American Court. What are the sentiments of learned
authors, treating of the law of nations, upon such an occasion
'Quae ab hostibus capiuntur, statim capientium siunt; which is to
be understood, when the battle is over. Voel, and many writers he
refers to, maintain with great strength, per solam occupationem
dominium praedae hostibus acquiri. One argument used to prove it,
is, that the instant the captor has got possession, no friend,
fellow soldier, or ally, can take it from him, because it would be
a violation of his property.' Lord Mansfield, delivering the
resolutions of the Court, in the case of Goss and another, against
Withers. In either case, and in the strongest 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 said that Congress should have a legal mode of
making compensation, by rectifying improper decisions against
foreigners, thereby to prevent disagreeable consequences, it is a
doctrine that cannot be universally admitted, for reasons too plain
to be insisted on. If it be confined to acts on the high seas,
provision has been made by the Confederation, in the cases where it
was judged necessary. What the Rulers of nations desire and
stipulate for in treaties, as to transactions on the high seas, is
to secure their people from being plundered by the citizens or
subjects of those with whom they treat. That great point being
guarded, and it is guarded here, the danger of consequences from
cases that rarely occur, complicated with a variety of
circumstances, and decided upon in open Courts, are not to be
apprehended. When Sovereigns are determined to quarrel, they will
never want pretences; but while they revere the
Page 1 U.S. 95,
103
sacred obligations of justice and humanity, or the precious
sentiments of the good and wise in their own and succeeding ages,
they will not disturb the repose of the world, by violating the law
of nations, upon slight claims of their subjects, or 'in re minime
dubia.' Answer of the British Court. 23. Vattel, bo. 11, ch. 4, 5,
7. Neither can one of these States prey upon another, without
violating the Confederation, for by that, 'No vessel of war shall
be kept up in time of peace by any State, except such number only,
as shall be deemed necessary by The United States in Congress
assembled, for the defence of such State, or its trade; nor shall
any State engage in any war without their consent, unless invaded
by enemies, or certainly advised of an intended invasion by
Indians: Nor grant commissions to any ships or vessels of war, nor
letters of marque, or reprisal, except it be after a declaration of
war by The United States in Congress assembled, and then only
against the kingdom or state, and the subjects thereof, against
which war has been so declared, unless infested by pirates, and
then only until The United States in Congress assembled, shall
determine otherwise.' Besides, 'All disputes and differences
concerning any cause whatever, are determinable by Courts to be
established under the authority of Congress.'
Let us now enquire whether the present case is such a cause of
prize as is mentioned in the many cases quoted by the Council for
the Respondent.
In what circumstances is any of those cases like this? Does it
appear from any of them, that the Prize Court in England, would
decide such a case as this is? Does it appear that the Courts of
Westminster Hall, in any action for such a trespass as this, would
refuse to take cognizance, because the original taking was a
capture as prize? Does it appear that they would refuse to take
cognizance, under colour that the second taking was a capture as
prize? If they should, ought any such decision to have weight with
us in this case? What are the cases quoted? A justification by
persons of original captures made by themselves, because made as
prize. What is this case? A justification by persons of their
conduct, after a capture made in battle, by others in their sight,
under pretension of right, founded on that circumstance. If they
say, the second taking was an original capture as prize, their
assertion is falsified by their own proofs, that they saw the
capture made by others, the day before. If they say, their
proceedings were united with the original capture as prize, by
being in sight at the time, let them take care that their
pretension of right is well founded. Comb 367. If it is not, their
proceedings are distinct from the original capture, and they are
plainly trespassers, and must abide by the consequences. We are
clearly of opinion, that their pretension of right is utterly
unfounded, and that the whole conduct of the Commanders and Crews
of the Brigs, was cruel, unprovoked, wanton, and mala fide. In this
very singular and extraordinary case, they have exerted themselves
to disable the Respondent from proving the capture to be prize;
Page 1 U.S. 95,
104
and is the sole question afterwards, to be, prize or not? What
necessity is there for determining whether the Betsey was prize or
not? Is it not evident from the case of Combs, against the Hundred
of Bradley, in Salkeld's Reports, and of Goss and another, against
Withers, in Burrow, and many other cases, that an action will lye
on possession by the plaintiff? and with what peculiar force does
the reason apply in this case, for the action being maintained
merely on the possession? This Court, and the Court of Admiralty
are competent, not only to direct proceedings, but to ascertain
facts, judge of them, and the law upon them, and assess damages, as
justice may require. As to the notion of mistake excusing, it is a
petitio principii. The mistake does not appear-the crime does. So
far from behaving as partners in the capture, with the Argo, the
Commanders of the three Brigs, who saw the surrender to her, chase
her off; fend the Betsey as prize to themselves only, for a port
distant from the home of the captors, and in the eye of the wind,
though in a part of the sea where she was particularly exposed to
dangers from the enemy, with orders to avoid certain ports, for
fear of the Argo's falling in with her. In fact, it was not a real
but a pretended capture, as prize, by them. Are we then bound, in
such a case, to call it a cause of prize because the original
taking was a capture, as prize? Or are we to refuse to call it a
trespass though the second taking was not a capture, as prize? How
far soever, the learned Judges in England, have carried the
justification of captures, from the circumstance of their being
made as prize, yet they never have carried it as far as this case
extends. That they have gone a great way is evident. In the cited
case of Vanderwoodst and others against Thompson, the defendant, in
an action of trespass, having a letter of Marque, took a vessel
that made some resistance, and carried her to Newcastle, where she
was seized by the Custom House Officers, for having smuggled goods
on board; and she was afterwards condemned in the Exchequer. It was
contended for the plaintiff, that the capture was unlawful, because
the defendant did not belong to the Custom House, and he could not
justify the seizure under the hovering act of 6 Geo. 1. ch. 11. as
King's ships only can seize under such circumstances. It was held,
'As there was reason to suppose that the ship was a pirate, though
the Fury should be satisfied she was not really so, yet the action
would not lye.' Afterwards, 'there was a motion for a new trial,
which upon consideration, was denied by the Court.' If that cause
was cognizable in the Prize Court, and if that Court determines
solely by the law of nations and treaties, as is laid down by the
Judges, how were other nations interested in the principle of such
a decision? If it was not cognizable in the Prize Court, how can it
be applied to the present case, in favor of the Respondent? To
proceed. If the Courts of Westminster Hall, in an action for such a
trespass as this, should refuse to take cognizance because the
criminal taking was a capture as prize, or under colour that
the
Page 1 U.S. 95,
105
second taking was a capture as prize, ought any such decision to
have weight with us in this case? It ought not.
Such a decision must turn entirely upon the municipal law of
England. It must be founded upon this principle governing in the
cases cited by the council for the respondent; 'that, of a seizure
as prize, the Common Law does not take notice as a trespass.' Le
Caux and Eden. Admit the principle. It applies not. This is not a
Common Law Court. The Act of Assembly establishing this Court,
makes it a 'a Court of Appeals from definitive sentences or decrees
of the Admiralty.' We are therefore a Court of Admiralty. 'If the
sentence of the Court of Admiralty is thought to be erroneous,
there is, in every maritime country, a Superior Court of Review ,
&c. to which the parties who think themselves aggrieved, may
appeal; and this Superior Court judges by the same rule which
governs the Court of Admiralty, viz. the law of nations and
treaties. This manner of trial and adjudication is supported,
alluded to, and enforced by many treaties.,' Answer of the British
Court, &c. We are a Court of Admiralty, competent to judge by
that rule. The act of Assembly establishing Admiralty Jurisdiction
in this state, declares, that the Court shall be governed by 'the
law of nations.' Whatever in the law of nations relates to a Court
of Admiralty, relates to this Court, because no treaty has diverted
the application. Answer of the British Court, &c. Vattel. b. 2,
ch. 7. 3 Blackft. 69.
Much has been said of a distinction in England, between the
Instance Court and the Prize Court, though the powers of both are
exercised by the same person; 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 of Admiralty, than it is to any Court of
Westminster Hall; that the manner of proceeding is totally
different; that the appeal is different to Delegates from the
Admiralty to Commissioners consisting of Privy Councellors, from
the Court of Prize. That to constitute the authority of the Prize
Court, or to call it forth in every war, a commission under the
Great Seal issues , &c.'a Such a distinction may prevail in
England, but is it known or regarded in other nations? The words
'to call it forth,' are material. It seems only a solemn, 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 does not make the war
in the one case; nor, perhaps, does the commission constitute the
authority in the other. It is confessed, 'that the most antient
instrument shews a Prize Jurisdiction either inherent or by
commission in the Admiral. It is a letter from Edward the Third to
the King of Portugal.' And, 'that since the reign of Queen
Elizabeth, the Judge of the Admiralty, either by virtue of an
inherent power, or the King's commission,
a Lord Mansfield delivering the resolution of the court, in the
case of Lindo against Rodney and another.
Page 1 U.S. 95,
106
or both, has solely exercised the jurisdiction of Prize and that
as far back as particular cases 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 sea.' Lord Mansfield,
delivering the resolution of the Court, in the case of Lindo
against Rodney and another.a What do treaties, antient and modern,
stipulate for, in order to guard against violences on the seas? A
trial in the Court of Admiralty, as soon as possible, before the
effects taken are in any manner to be disposed of. Why? because, 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 Mansfield, in their report, which
forms the principal part of the answer of the British Court, and is
so celebrated by Messrs Montesquieu and Vattel,b say, 'By the
maritime law of nations, universally and immemorially received,
there is an established method of determination, whether the
capture be, or be not, Lawful Prize. Before the ship or goods can
be disposed of by the captor, there must be a regular judicial
proceeding, wherein both parties may be heard, and condemnation
thereupon, as prize, in a Court of Admiralty, judging by the law of
nations and treaties. The proper and regular Court for these
condemnations, is the Court of that state to whom the captor
belongs.' Are we then, because in England they call the Admiralty
Court a Prize Court when it acts in a cause of prize, and it then
proceeds in a different manner, with an appeal to Commissioners of
the Privy Council, to reject the 'universal and immemorial' compact
of mankind? There was a time when we listened to the language of
her Senates and her Courts, with a partiality of veneration, as to
oracles. It is past we have assumed our station among the powers of
the earth, and must attend to the voice of nations the sentiments
of the society into which we have entered. Lord Mansfield, in the
cause of Lindo against Rodney and another, said, 'The end of a
Prize Court is to suspend the property till condemnation; to punish
every sort of misbehaviour in the captors; to restore instantly,
velis levatis, if upon the most summary examination, there does not
appear a sufficient ground; to condemn finally (if the goods really
are prize) against every body, giving every body a fair opportunity
of being heard: A captor may, and must force every person
interested, to defend; and every person interested, may force him
to proceed to condemn without delay. These views cannot be answered
in any Court of Westminster Hall, and therefore
a The very great antiquity of the Court of Admiralty in England,
an d the extent of its jurisdiction, may be known from the learned
Selden's notes on Fortescue de Laudibus p. 67. Zouch 44, &c.
Godolph. p. 22, &c. Tho' the authority of this Court, with
respect to matters in which foreign nations may be concerned, and
particularly to captures jure belli, is treated of, yet no
distinction is made by these authors, as to the Court of Admiralty
and the Court of Prize. b Montesquieu's Letters, 5 March, 1753.
Vattel, bo. 2, ch. 7. S. 84. 3. Blackft 70.
Page 1 U.S. 95,
107
the Courts of Westminster Hall never have attempted to take
cognizance of the question Prize or no Prize; not from the locality
of being done at sea, but from their incompetence to embrace the
whole of the subject.' 'These views are answered' here in the Court
of Admiralty, and with as good cautions as in England; and as far
as a Court of Appeals is concerned, they can be answered in this
Court as fully as in a Court of Appeals to Commissioners there. It
seems proper here, to take notice of the objection against the
authority of this Court, founded on the words of the law by which
it was established, prior to the completion and final ratification
of the confederation. It is constituted 'a Court of Appeals for
reviewing, re- considering, and correcting, the definitive
sentences and decrees of the Court of Admiralty, other than in
cases of capture upon the water in time of war, from the enemies of
the United States &c.' The construction of these words depends
upon the resolutions of Congress, the Confederation, and the law by
which the Admiralty Jurisdiction is established, taken together. If
the principles of our preceeding construction are right, they apply
as aptly here, and the appeal is regular. If it is not, there will
be a defect of justice. The Legislature intended to give this Court
an authority to receive all Appeals from the Judge of Admiralty,
where they were not resigned to a Continental Court of Appeals.
This was not resigned. It therefore belongs to this Court. We will
endeavour to promote justice, according to the intentions of the
Commonwealth, conveyed in the laws; and not demit any part of her
sovereignty, unless we are convinced beyond a doubt, that it is our
duty to do so. We now return to the last of the secondary
questions. Did the Court of Admiralty take cognizance as a Prize
Court? In considering this question, a very strict attention must
be had to the proceedings of the Court of Admiralty in this case.
That Court was also erected by an act of Assembly, prior to the
completion and final ratification of the Confederation. It is, to
be sure, a Court of Prize, and an Instance Court, if that mode of
expression be preferred; or in other words, the Judge who has but
one commission, may try causes of Prize, and other matters of
Admiralty Jurisdiction. There is a difference in his proceedings
for condemnation in causes of prize, and those in other cases. His
title by law is, 'Judge of the Admiralty.' The reasonable and legal
meaning of the 3rd, 4th and 6th sections of the law under which he
acts, is, that in trying a cause of prize, the vessel or goods
taken, must be within his jurisdiction, precinct and power. They
are these, 'That in cases of prize, capture or re-capture upon the
water, from enemies, or by way of reprisal, or from pirates, the
same shall be tried, adjudged, and determined, as well as to the
question whether prize or not, as to the claims of the parties
interested or pretending to be interested in the same, by the law
of nations and the acts and ordinances of Congress,
Page 1 U.S. 95,
108
before the said Judge, by witnesses, according to the course of
the civil law;' and 'That the Captain or Commander of any ship or
vessel of war, or Prize-Master, or other person, having charge of
any capture or re-capture, or other property seized upon the water
as aforesaid, who shall conduct or bring the same into port, shall
immediately deliver the same, without diminution, to the Marshall
of the said Court of Admiralty.' The law then goes on to direct the
mode of proceeding to the condemnation, ordering, 'That the Judge
shall cause notice to be published immediately in some news-paper
of the day appointed for the trail of such prize, inserting therein
the name, size or burthen, and other description of the said
vessel, so taken and brought into port, the name and sur-name of
the master, the place she last sailed from, the port for which
destined, and in case of a re-capture, by what ship or vessel
taken, to the end that all persons concerned may appear and show
cause, if any there be, wherefore such capture, or recapture,
goods, merchandize, or other property, should not be condemned and
adjudged to the Libellants.' Does the present case in any manner
resemble the 'cases of prize' described in this law? Where are
'Claimants interested or pretending to be interested?' Claimants
are voluntary Applicants for Justice. Shall trespassers, compelled
to answer for their wrong, cover themselves with that character?
Can there be 'Claimants,' but in a proceeding in rem? How would the
publication before mentioned suit such Claimants as the appellants?
Were the proceedings of the Judge in this case, such as he
constantly has observed in cases of prize? They were not.
Application was made to him for damages. He proceeded in that line.
Here is neither libel nor process against the capture. no monition,
'no notice' under the act of Assembly. What could give the Judge
the Admiraly for this state, jurisdiction to proceed as a Court of
Prize upon a capture contested between citizens of different
states, which is the case here, rather than any Court of Admiralty
in any other state, when the property captured was not within the
power of his Jurisdiction? Because, it is said, some of the
offending Captains and their vessels came into this port. Does the
jurisdiction of a Court of Prize depend on certain offenders, with
respect to the capture coming into a port? Where are the
authorities of law to show that this circumstance can give such
jurisdiction, or, that there can be an institution of a cause of
prize, according to the maritime law of nations, for damages only?
The authorities cited, that were thought most apposite, and were
most relied on by the Counsel for the Respondent, were those of
Brown and Burton against Franklin, the King's Proctor; and of the
King against Broom. But they are not in any manner applicable. In
the first, the Plaintiffs, Masters of two vessels, but having no
regular Letters of Marque, took a French ship, cargo and money,
upon land, in the East Indies they being English subjects, it was
held, that they acquired no right by this capture, but that it was
a perquisite
Page 1 U.S. 95,
109
of the Admiralty. The King's Proctor, upon the usual monition,
got a sentence of condemnation for the whole, in order to make them
account. In brief, they had effects 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. 135. Lord Mansfield calls it a proceeding in rem. Le Caux and
Eden, in the notes. The second case was of the same kind, and was
decided on the same principles. It was further said by the Council
for the Respondent, that the Court of Admiralty that first proceeds
in such a case as the present, acquires an exclusive right of
deciding upon it, in the same manner as the nation that first
commences a judicial process against pirates, may pronounce
sentence against them. To say no more on this comparison, it is
sufcient to observe, that such a right may be attributed to the
attrocity of the guilt, as the offenders are hostes humani
generis.
If the coming of Trespassers, or of the vessels in which they
trespassed upon the high Seas, within the power of a Judge's
jurisdiction, authorises him to proceed against them, to what
confusion may it lead? A capture is made from an enemy; afterwards
friends trespass against the prize, and arrive in different ports,
the fate of the prize being unknown. They are prosecuted 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 in the usual manner. What contests for
jurisdiction must ensue? 'Quod inconveniens est non licitum
est.'
We are unanimously of opinion, that the Judge of the Admiralty
for this state, had jurisdiction in this cause, and that the appeal
to us is regular. We decree, that the Respondent recover and have
of the Appellants, 1,1411. 5s.4d. with costs, except those in this
Court, of which each party is to pay a moiety.a
a See Post. spurviance vs Angus.
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