L'Invincible

APPEAL from the circuit court for the district of Massachusetts. The French private armed ship L'Invincible, duly commissioned as a cruiser, was, in March, 1813, captured by the British brig of war La Mutine. In the same month she was recaptured by the American privateer Alexander; was again captured, on or about the 10th of May, 1813, by a British squadron, consisting of the frigates Shannon and Tenedos; and, afterwards, in the same month, again recaptured by the American privateer Young Teazer, carried into Portland, and libelled in the district court of Maine for adjudication, as prize of war. The proceedings, so far as material to be stated, were as follows: At a special term of the district court, held in June, 1813, a claim was interposed by the French consul on behalf of the French owners, alleging the special facts above mentioned, and claiming restitution of the ship and cargo, on payment of salvage. A special claim was also interposed by Mark L. Hill, and Thomas M'Cobb, citizens of the United States, and owners of the ship Mount Hope, alleging, among other things, that the said ship, having on board a cargo on freight, belonging to citizens of the United States, and bound on a voyage from Charleston, S.C.. to Cadiz, was, on the high seas, in the latter part of March, 1813, in violation of the law of nations, and of treaties, captured by L'Invincible, before her capture by La Mutine, and carried to places unknown to the claimants, whereby the said ship Mount Hope, and cargo, became wholly lost to the owners, and thereupon praying, among other things, that after payment of salvage, the residue of said ship L'Invincible, and cargo, might be condemned and sold for the payment of the damages sustained by the claimants. At the same term, by consent, an interlocutory decree of condemnation to the captors passed against said ship L'Invincible, and she was ordered to be sold, and one moiety of the proceeds, after deducting expenses, was ordered to be paid to the captors, as salvage, and the other moiety to be brought into court, to abide the final decision of the respective claims of the French consul and Messrs. Hill & M'Cobb. The cause was then continued for a further hearing unto September term, 1813, when Messrs. Maisonarra & Devouet, of Bayonne, owners of L'Invincible, appeared under protest, and in answer to the libel and claim of Messrs. Hill & M'Cobb alleged, among other things, that the ship Mount Hope was lawfully captured by L'Invincible, on account of having a British license on board, and of other suspicious circumstances, inducing a belief of British interests, and ordered to Bayonne for adjudication; that (as the protestants believed) on the voyage to Bayonne the Mount Hope was recaptured, by a British cruiser, sent into some port of Great Britain, and there finally restored by the court of admiralty to the owners, after which she pursued her voyage, and safely arrived, with her cargo, at Cadiz, and the protestants thereupon prayed that the claim of Messrs. Hill & M'Cobb might be dismissed. The replication of Messrs. Hill and M'Cobb denied the legality of the capture, and the having a British license on board the Mount Hope, and alleged embezzlement and spoliation by the crew of L'Invincible, upon the capture; admitted the recapture by a British cruiser, and the restitution by the admiralty upon payment of expenses, and prayed that the protestants might be directed to appear absolutely and without protest. Upon these allegations the district court overruled the objections to the jurisdiction of the court, and compelled the owners of L'Invincible to appear absolutely, and without protest, and thereupon the owners appeared absolutely, and alleged the same matters in defence which were stated in their answer under protest, and prayed the court to assign Messrs. Hill & M'Cobb to answer interrogatories touching the premises, which was ordered by the court. Accordingly, Messrs. Hill & M'Cobb made answer to the interrogatories proposed, except an interrogatory which required a disclosure of the fact, whether there was a British license on board, which M'Cobb (who was master of the Mount Hope at the time of the capture) declined answering, upon the ground that he was not compelled to answer any question, the answer to which would subject him to a penalty, forfeiture, or punishment; and this refusal, the district court, on application, allowed. Hill, in answer to the same interrogatory, denied any knowledge of the existence of a British license. The cause was, thereupon, heard on the allegations and evidence of the parties, and the district court decreed that Messrs. Hill & M'Cobb should recover against the owners of L'Invincible the sum of 9,000 dollars damages, and the costs of suit. From this decree the owners appealed to the circuit court, and in that court their plea to the jurisdiction was sustained, and the claim of Messrs. Hill & M'Cobb dismissed, with costs. An appeal was, thereupon, entered by them to this court. Dexter, for the appellants. The sole question is, whether the district court of Maine had jurisdiction. It is a case where a citizen, against whose property a tort has been committed on the high seas, appears in his own natural forum, and the res, which was the instrument of the wrong done, is within the territorial jurisdiction of his own country, and in possession of the court for other (lawful) purposes when he applies for justice. 1. An injury of this nature is either to be redressed by a process in rem or in personam, and in either case, application must be made where the thing, or person, is found. The action is transitory in both cases; where the party proceeds in rem, the possession of the thing gives jurisdiction to the tribunal having that possession. It is said, that in prize proceedings, the forum of the captor is the only one having jurisdiction. But what is the extent of the principle, and what are the exceptions to the rule? The rule is not of a nature peculiar to prize proceedings, but is rather a corollary from the general principles of admiralty jurisdiction. The locality of the question of prize or no prize must have been originally determined by the fact of the property being carried infra proesidia of the captor's country, and in possession of its courts. I agree that the possession of the thing does not give jurisdiction to a neutral country, and the reason is, because the county is neutral. But this has only been recently settled; and in the reign of Charles II. the question was referred to the crown lawyers in England, (then neutral,) whether the property of English subjects, unjustly taken by foreign cruisers, should not be restored to them by the English court. It is, however, now determined, that unless there has been a breech of neutrality in the capture, the courts of a neutral state cannot restore, much less condemn. But this concession does not shake the position, that local jurisdiction is founded upon the possession of the res, which in this case having escaped from the former captor, the action becomes transitory, and follows the thing. There are several decisions of this court, all confirming, either directly or by analogy, the position now taken. In the famous report of Sir George Lee, & co., on the memorial of the king of Prussia's minister, relative to the non-payment of the Silesian loan, which was intended to maintain the strongest maritime pretensions of Great Britian, the only passage that even glances at the doctrine of the exclusive jurisdiction of the courts of the captor's country is, that all captors are bound to submit their seizures to adjudication, and that the regular and proper court is that of their own country. But this principle is sustained rather by the authority of usage and treaties, than by elementary writers; and yet, all the other incidental questions are illustrated by multifarious citations of elementary books, equally respected in Prussia as in England. The reporters do not fairly meet the menace of the Prussian monarch, to set up courts of prize in his own dominions; but content themselves with asserting that it would be irregular, absurd, and impracticable. Ibid 133, The Mary Ford. Had it been at that time settled by European jurists of authority, the question would not have been made; or if made, would have been satisfactorily answered. The general principle has been rather assumed, than proved: And the practice of one nation, at least, contradicts it; for the ordinance of Louis XIV. restores the property of French subjects brought into the ports of France.a 2. Suppose the

a Ordonnance de la Marine, liv. 3. tit. 9., Des Prises, art. 15. The same provision is contained in the 16th article of the Spanish ordinance of 1718; and Valin considers the restitution of the effects as a just recompense for the benefit rendered to the captor, in granting him an asylum in the ports of the neutral country to whose subjects those effects belong. But, Azuni contests this opinion, and maintains that the obligation to restore in this case is founded on the universal law of nations. Part 2, c. 4. art. 3. s. 18. And it must be confessed, that the reasons on which Valin rests his opinion are by no means satisfactory; so that the French and Spanish ordinances are evidently mere municipal regulations, which have not been incorporated into the code of public law, and cannot be justified upon sound principles. It is an observation, somewhere made by M. Portalis, that such regulations are not, properly speaking, to be considered laws, but are essentially variable in their nature, pro temporibus et causis, and are to be tempered and modified by judicial wisdom and equity. These ordinances are indeed supported by the practice of the Italian states, and the theory of certain Italian writers. Among the latter are Galliani and Azuni, both of whom maintain, each upon different grounds, the right of the neutral power, within whose territorial jurisdiction a prize is brought, to adjudicate upon the question of prize or no prize, so far as the property of its own subjects are concerned. They are, however, opposed by their own countryman, Lampredi, who, after assigning the reasons for his dissent, concludes thus,-Egli (the neutral) dunque dovr a rispettare questo possesso (that of the captor) ''lasciando che i giudici costituiti dal Sovrano del predatore lo dichiarino o legittimo, o illegittimo, e cosi o liberino la preda, o la fucciano passare in dominio del predatore, purche questo giudizio si faccia fuori del suo territorio, ove nessuno usurpar pu o i dirriti spettanti al sommo impero. Efalso adunque in dirrito quello, che asserisce il Galiani, ed il progetto, ch'egli propone sul giudizio delle prede non si portrebbe eseguire senza lesione dei diritti sovrani. Lampredi'', p. 228. Since the decision of the case to which this note is appended, the following may be considered as the only exceptions to the general rule, that the question of prize or no prize, with all its incidents, is only to be determined in the courts of the captor's nation established in his country, or in that of an ally or co-belligerant. 1st. The case of a capture made by the cruisers of the belligerants within the jurisdiction of a neutral power; and 2d, That of a capture made by armed vessels fitted out in violation of its neutrality, and where the captured property, or the capturing vessel, is brought into its ports. The obvious foundation of these exceptions is to be discovered in the right and the duty of every neutral state to maintain its neutrality impartially, and neither to do nor suffer any act which might tend to involve it in the war. question of prize or no prize to be exclusively within the jurisdiction of the courts of the capturing power, yet that question does not arise in the present case. This is a question of probable cause. If the commander of L'Invincible took without probable cause, he had no right; if he took with probable cause, then the claimants have sustained no injury, and ought not to recover damages; consequently, no injury can result from the court taking cognizance of the suit. As to the spoliation after the capture, that is still less a question of prize. 3. But be the general principles as they may, the jurisdiction having attached for other purposes on recapture, the former owner of a vessel unlawfully taken and despoiled by the prize, comes in and claims damages under the law of nations.

d 2 Rutherforth's Institutes 594. thing be within the possession of the court, then it exerts a jurisdiction in rem, by restitution, or condemnation, as the case may be. But if not, then it exerts it on the person, and inquires into the manner in which the captor has used his commission, and whether any wrong has been done to friends, under colour of its authority. It is a gratuitous assumption, that prize jurisdiction is always in rem, as that of the ordinary court of admiralty usually is. The commissioned captor cannot be responsible to any but his own sovereign; from him he receives the law which forms his rule of conduct. Sir William Scott expressly admits that his king can give him the law, and the judges of other European countries practically admit the same thing. A fortiori, can the sovereign give it to his delegated cruisers; he being answerable over, in the first instance, diplomatically, and finally by war, to the injured nation. The captor is responsible only through the courts of his own country. 2. Is this case an exception to the general rule? The reasons of the allowed exceptions do not apply to this case. Thus the cases are, of violation of neutral territory; or where a commission is issued to subjects of the neutral country; or, lastly, of a prize brought into its territorial limits with neutral property on board. In the case of Talbot v. Jansen the commission was null, and captures under it were void; it was equivalent to no commission at all. Here is no pretence that the commission was null; that she had been fitted out here; or that the thing captured had been brought within the grasp of our municipal law; or that the capture was made within our limits. In Del Col v. Arnold the ground of the decision was, that the thing was brought voluntarily into our limits, and the wrong done within those limits. The judgment must be supported on that ground, or it cannot be supported at all. As to the Betsey, its authority is doubtful, and it cannot be referred to any intelligible principle, unless it be that the belligerant captor submits to the neutral jurisdiction, by bringing the property within it. The Cassius,e is directly in point for the captors in the case now before the court. Why was the libellant's application refused in that case? Because the thing captured was not brought in; thereby showing that, in the present case, the prize not having been brought in, damages cannot be awarded against the captor. As to the ordinance of Louis XIV., it goes no further than this court did in the case of the Betsey. The same authority has been practically assumed among the Italian states; but further no nation, ancient or modern, has gone. The natural, customary, and conventional law of nations, are all equally adverse to it. The claimants have a remedy, correspondent to the extent of their injury, in the courts of France. The prize jurisdiction is as effectually exerted when the property is not, as when it is, within its control. The cases are multiplied where the thing is even lost, of an application compelling the captor to proceed to adjudication; if he fails to show that the capture was lawful, he is mulcted in costs and damages.f The cruisers of

e 3 Dall. 121.

f 1 Bob. 93. The Betsey every nation are bound to obey the instructions of the sovereign power, whether lawful or not. The condemnations under the British orders in council of November, 1793, were reversed by the lords of appeal, and mere dry restitution decreed, without damages, because the cruisers were justified by the instructions. But the commissioners under the 7th article of the British treaty of 1794, gave damages for what the lords of appeal were obliged judicially to refuse them, upon the authority of Rutherforth, and upon the ground that the British government was answerable over to the injured power. In the present case, if justice should be refused in the courts of France, the French government would be answerable over to this country. The process is here, in effect, in personam, and it is as if the captor were here. You go beyond retaining your own property merely, and lay your hand on his; which is his by the municipal code only: by the law of nations it is the property of the state. It is certain he was not originally responsible personally, and the capture and recapture can have made no difference. The acts exerted over him by the enemy could not have changed his responsibility; nor can the captor's having failed to proceed to adjudication in France, for the claimants may compel him; nor the bringing in of his vessel, for, as to him, it was involuntary. 3. Probable cause is emphatically a question of prize or no prize; but it is not always the same by the law of different countries. The law of France must, therefore, be looked into, and applied to the case, which the French courts only are competent to expound. If their exposition does injustice to the party, his remedy is by application to his own government. So, also, is the question of spoliation a question of prize; and the prize court, having jurisdiction of the principal matter, has jurisdiction of all its incidents.

Pinkney, contra. If there by any rule of public law better established than another, it is, that the question of prize is solely to be determined in the courts of the captor's country. The report on the memorial of the king of Prussia's minister, refers to it as the customary law of the whole civilized world. The English courts of prize have recorded it; the French courts have recorded it; this court has recorded it. It pervades all the adjudications on the law of prize, and it lays, as an elementary principle, at the very foundation of that law. The whole question, then, is, whether this case be an exception to the general rule. The positive law of nations has ordained the rule; the natural law of nations has assigned the reasons on which it is founded; and Rutherforth, in his Institutes,d explains those reasons, which arise from the amenability of governments to each other. A cruiser is amenable only to the government by whom he is commissioned; that government is amenable to the power whose subjects are injured by him; and after the ordinary prize judicature is exhausted, they are to apply to their own sovereign for redress. The principal object of that judicature is the examination into the conduct of the captors. The question of property is merely incidental. But, whatever the question may be, it is to be judged exclusively by the courts of the capturing power. It is contended, on the other side, that this jurisdiction must be exerted in rem; but the jurisdiction to which Rutherforth refers is much more extensive, not confining it to the question whether the property be translated. If the Dexter, in reply. 1. There is only one authority produced to show that the prize jurisdiction is exclusively in the courts of the capturing power. Rutherforth speaks only of cases where the proceeding is to condemn, or restore, the captured property. When he, or any other writer, gives the reasons for his opinion, the latter is worth just as much as the former, and no more. What is the reason? He says it cannot be known before trial that forcible possession was lawful; and if unlawful, it could not give jurisdiction. It may be answered, in every case where jurisdiction is gained by possession, it is unknown before trial whether it was obtained lawfully, or by force, or fraud. All right of jurisdiction from possession is thus equally denied. The other party cannot be injured by submitting to the jurisdiction while that uncertainty remains. If it shall appear that the possession was unlawfully acquired, he will be restored to his right by the exercise of jurisdiction. Rutherforth asserts, that the true ground of prize jurisdiction is, that the state of the captor is responsible to other states for his misconduct. It may be answered, that when the state has only granted a lawful commission, and has not assented to any unlawful act done by colour of it, such state is not responsible, though the act be unlawful. For the naked unauthorized act, then, the state is not accountable. The unjust judgment of a neutral state, condemning the property, might make the latter state answerable, but not the former. The reasoning goes on the supposition that the state of the captor might relieve itself from responsibility by doing justice, in restoring the property. This can only be done where the property can be reached by it. Holding jurisdiction would rather relieve the state of the captor from responsibility; for either the injury of the complaining party would be repaired, or the courts of his own country would determine that he had not suffered any. There is no distinction between the property being lawfully brought in, as in this case, or voluntarily, as in the case of the Betsey. The injured party has an election to proceed in personam against the owners, or in rem against the inanimate instrument of the wrong. 2. There may be a jurisdiction to restore, without invading the exclusive prize jurisdiction of the captor's country. Let the court take jurisdiction, and if it turns out to be a question of prize or no prize, then dismiss the suit. Suppose the question to be, whether the captor had a commission, must we not proceed further, and see what is the extent of that commission? And if the act done exceed its limits, has not the neutral state a right to adjudge costs and damages to its citizens injured, without any authority from the captor's sovereign? 3. The vessel is in judicature, rightfully and lawfully. The party now protesting against the jurisdiction, had submitted to it for another purpose. He claims his property upon the payment of salvage. The obvious answer to his demand is, When you have discharged all liens, you shall have it. The court of admiralty, having jurisdiction for another purpose, like a court of chancery in the case of a mortgage, has a right to do complete equity. Why is restitution decreed in the case of violated territory? Because the courts of the neutral state, having jurisdiction for the principal purpose of avenging its violated sovereignty, also takes jurisdiction of all the incidents. March 11th. JOHNSON, J., delivered the opinion of the court.