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​CASES
ON
INTERNATIONAL
LAW
SELECTED FROM DECISIONS OF
ENGLISH AND AMERICAN COURTS
EDITED
WITH SYLLABUS AND ANNOTATIONS
BY
JAMES BROWN SCOTT
A. M. (HARVARD), J. V. D. (HEIDELBERG)
SOLICITOR FOR THE DEPARTMENT OF STATE, PROFESSOR OF INTERNATIONAL LAW
IN THE GEORGE WASHINGTON UNIVERSITY.
" War and Peace divide the business of the world'
DR. JOHNSON
ST. PAUL
WEST PUBLISHING CO.
1906
Copyright, 1902
BY THE BOSTON BOOK COMPANY
TO
ANDREW SLOAN DRAPER, LL.D.
PRESIDENT OF THE UNIVERSITY OF ILLINOIS
FORMERLY JUDGE OF THE COURT OF COMMISSIONERS OF ALABAMA CLAIMS
A PRUDENT COUNSELLOR, A LOYAL FRIEND
THE SOUL OF HONOR
PREFACE.
The present book was intended to be a revision of the late Dr.
Snow's Cases and Opinions on International Law, published in
1893. The changes made in the course of revision were, however,
so many and so radical that it seemed advisable to the publisher
to issue it as an independent work, and it so appears. The arrange-
ment closely follows Dr. Snow's; in fact, it is identical with it in
inost respects. His text has been utilized so far as possible; his
notes have generally been retained and enlarged, and the Syllabus
has been thoroughly revised and remade. Much of the meritif
any there be —justly belongs to Dr. Snow, but the present editor
is responsible for the undertaking as a whole.
The idea underlying this volume is that international law is
part of the English common law; that as such it passed with the
English colonists to America; that when, in consequence of a suc-
cessful rebellion, they were admitted to the family of nations, the
new republic recognized international law as completely as inter-
national law recognized the new republic. Municipal law it was in
England; municipal law it remained and is in the United States.
No opinion is expressed on the vexed question whether it is law in
the abstract; our courts, State and Federal, take judicial cognizance
of its existence, and in appropriate cases enforce it, so that for the
American student or practitioner it is domestic or municipal law.
If English and American courts of justice enforce international
law, and have repeatedly done so in the past two centuries, there
must be, and, in fact, there is, a mass of judicial decision on this
subject. There should be the same reason for respecting precedent
in this as in other branches of the law; and beyond doubt in suits
involving a question of international law a case in point is cited
and followed, unless overruled or distinguished from the case under
consideration. Judicial decisions, then, are an important and
indispensable source of authority in international law.
vi
PREFACE.
It is the judgment that is authoritative, although the obiter dictum
of a distinguished judge is entitled to respect. The opinion of a
text-book writer is valuable; but, like the dictum, it is not in itself
law. It is at best a statement of the underlying principle of the
law or a digest or summary of cases on the subject with which the
text-book deals. The opinions of diplomats likewise carry great
weight; but the diplomatist does not and cannot consider the ques-
tion at issue with the impartiality of a judge, for he is influenced
by the interests of his country.
For these reasons the cases here printed have been selected
from the reported decisions of English and American courts; and
opinions of text-book writers and extracts from diplomatic corre-
spondence, though cited in the Syllabus and foot-notes, do not
appear in the text.
The purpose of the Syllabus is to round out the principles devel-
oped and established in the text. It cites the cases and also refers
to the authoritative writers of England, America, and the conti-
nent. In this way not only the international law of the courts, but
even matters of comity and ceremony, are treated. References are
made in well-nigh every section to Bonfils (1901) and to Rivier's
French (1896) and German (1899) treatises ; and very frequently
to Calvo, Heffter, and Liszt.
To Bonfils' treatise, of which the third and last edition, admir-
ably edited by M. Fauchille, appeared in 1901, the references are
to sections, so that they are applicable to any edition. This work,
a masterpiece as to conception and execution, is peculiarly rich in
references to continental literature in book and magazine form.
The same remark applies to Rivier's French and German treatises,
and in a less degree to Liszt's, of which a second edition appeared
in 1902. Rivier, a French Swiss, recognizes the importance of the
German authorities, and is not affected by the prejudice of nation-
ality. Liszt naturally refers to the latest and leading German
authorities, and it is for this reason that German works and treat-
ises--for example, v. Holtzendorff's “ Handbuch des Völkerrechts"
are not specifically referred to in the Syllabus. For the maga-
zine literature of the English-speaking world, citations are given
to Jones' Index to Legal Periodicals, 2 vols. (1887, 1899).
It is hoped, therefore, that the book will serve, not only as a text
for present, but also as a guide for future study.
PREFACE.
vii
In conclusion, the writer wishes to thank Professor Beale, of the
Harvard Law School for his generous permission to use a section
from his “ Cases on the Conflict of Laws ;” and he desires espe-
cially to thank his friend and pupil, Wesley E. King, Esq., of the
Champaign (Ill.) bar, and his colleague, William C. Dennis, Esq.,
for valuable help in the preparation of the Syllabus.
JAMES BROWN SCOTT.
UNIVERSITY OF ILLINOIS,
October 15, 1902.
TABLE OF CONTENTS.
PAGE
xiii
TABLJ OF CASES
SYLLABUS
xxiii
INTRODUCTION.
§ 1. International Law is a Part of the Municipal Law of States
1
PART I.
INTERNATIONAL RELATIONS IN TIME OF PEACE.
CHAPTER I.
STATES
- TERRITORIAL RIGHTS.
23
37
45
70
75
85
§ 2. (a) Definition and Character of Sovereign States
(6) Recognition of the Existence of a State
(c) Kinds of States
§ 3. Acquisition of Territory
§ 4. Boundaries
§ 5. Change of Sovereignty
(a) Effect on Public Rights and Obligations
(6) Effect on Private Rights
(c) Effect on Law
§ 6. Territorial Waters of a State
(a) Rivers.
(6) Straits and Lakes
(c) Bays
(d) Marginal Seas
85
95
101
116
116
132
143
154
CHAPTER II.
TERRITORIAL JURISDICTION.
170
170
$ 7. Rights, Privileges, and Immunities of Foreign Sovereigns
(a) Right of Foreign Sovereign to Sue in Courts of Foreign State
(6) Immunity of Foreign Sovereigns from Suit
$ 8. Immunities of Diplomatic Agents
180
189
X
CONTENTS.
PAGE
208
208
220
225
256
256
$ 9. Immunities of Public Ships .
(a) Ships of War
(6) Other Public Ships .
§ 10. Merchant Vessels
$ 11. Right of Asylum
(a) In Legations
(6) On Board Ships of War
(c) On Board Merchant Ships
$ 12. Extradition - Interstate Rendition
$ 13. Jurisdiction of Offences committed Abroad
§ 14. Extraterritorial Acts by Order of the State .
$ 15. Extraterritorial Acts done by a State, in Self-Defence
§ 16. Injury to Foreigners by Mob Violence
28
.
264
274
294
305
0
308
320
CHAPTER III.
JURISDICTION ON THE HIGH SEAS.
329
§ 17. Merchant Vessels
§ 18. Municipal Seizures beyond the Three-Mile Limit
§ 19. Piracy
343
345
CHAPTER IV.
NATIONALITY.
§ 20. Indelible Allegiance - Expatriation
§ 21. Citizenship — Naturalization
§ 22. Status of American Indians
§ 23. Treaties the Law of the Land
370
376
398
412
PART II.
INTERNATIONAL RELATIONS AS MODIFIED BY WAR.
CHAPTER I.
MEASURES SHORT OF ACTUAL WAR.
§ 24. Reprisals
$ 25. Hostile Embargo
26. War: Purpose and Declaration .
451
460
464
CHAPTER II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
§ 27. Enemy's Property within the Territory and Debts due to the Enemy 481
§ 28. Private Contracts
498
§ 29. Trade with the Enemy
521
§ 30. Duty of Subject or Citizen to come Home on Outbreak of War
556
CONTENTS.
xi
PAGE
§ 31. Ransom Bills and Permissible Trading
§ 32. Commercial Domicile .
§ 33. Ownership of Goods in Transit .
$ 34. Transfers in Transitu
$ 35. Freight and Liens
§ 36. Recapture — Rescue
§ 37. Hostile Occupation, Conquest, and Cession
§ 38. Termination of War
566
585
607
616
629
649
*
655
675
CHAPTER III.
RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS.
.
684
692
721
721
§ 39. Belligerent Capture in Neutral Waters
$ 40. Equipment of Vessels of War in Neutral Territory
$ 41. Aid to Insurgents
(a) Loan of Money
. (b) Ship, Munitions, and other Supplies
§ 42. Contraband of War
§ 43. Despatches and Persons as Contraband
§ 44. Blockade
§ 45. Rule of the War of 1756
§ 46. Continuous Voyages
§ 47. Visit and Search: Neutral Property on the High Seas
§ 48. Prize Courts
731
760
780
796
845
848
858
859
.
INDEX-DIGEST
935
TABLE OF CASES.
Principal cases are in italics.
.
Page
Antoine v. Morshead .
573
Antonia Johanna, The
604
Antonia Johanna, The
632
Apollo, The.
776
Apollon, The
344
Appollon, The
909
Ariel, The
628
Armstrong v. United States
674
Arnold v. United States Ins. Co. 205
Arrogante Barcelones, The
705
Astor v. Hoyt
109
Astrea, The
655
Atalanta, The
780
Atalanta, The
894
Atlas, The
895
Attorney-General v. Weedon &
Shales,
487
Aubrey, In re
239, 437, 451
S.
.
.
0
Page
Abd-ul-Messih v. Farra .
53
Abell v. Penn. Mutual Life Ins. Co. 516
Abo, The
605
(La) Abra Silver Mining Co. v.
United States
449
Acteon, The.
530
Adams v. Akerlund
426
Adela, The
689, 690
Admiral, The
820
Adula, The
826
Advocate-General
u.
Ranee
Dossee.
106
Aertsen v. Ship Aurora .
233
Ah Kee, In re
255
Ah Sing, In re
333
Airhart v. Massieu
97, 105
Alabama Claims and Award, 1872 · 713
Albemarle, The
899
Alerta, The .
705
(Mrs.) Alexander's Cotton . 495, 534, 536,
605, 762
Alfred, The
705
Alire's Case.
475
Alleganean, The
143
Amédie, The
369
American Ins. Co. v. Canter
657
Amiable Isabella, The
427
(La) Amistad de Rues
705
Amory v. McGregor
561
Amy Warwick, The.
62, 480
(L') Anemone
228
Ann Green, The
494
Ann Green, The
620
Anna, The
74
Anna, The
684
Anna Catharina, The
612
Anna Maria, The .
910
Anne, The
688
Antelope, The..
28, 369, 860
Anthon v. Fisher
570
Antoine v. Morshead
536, 541
.
.
.
Baigorry, The
820
Bain v. Speedwell .
675
Baiz, In re
6
Baiz, In re
197
Baldy v. Hunter
61
Baltica, The
605, 628, 629, 802
Barbuit's Case
205
Barclay v. Russell
488
Barnett v. Barnett
97
Barton Co. v. Newell
538
Bas v. Tingy
471, 654
Beaver, The
653
Bedel 2. Loomis
76
Beers v. Arkansas ,
186
Behrensmeyer v. Kreitz
396
Belgenland, The
338
Bell, The
655
Bell v. Chapman
536
Bell v. Reid
604
Bello, The
655
Bello Corrunes, The .
705
Bellona, The
655
.
.
.
0
0
xiy
TABLE OF CASES.
0
.
.
.
+
+
Page
Belnap v. Schild
189
Benito Estenger, The
621
Bentzen v. Boyle
22, 536
Bentzen v. Boyle
598
Bermuda, The.
857
Berne, City of, v. Bank of England 38
Betsey, The
798
Betsey, The.
705, 899
Betsy, The
895, 929
Bigelow v. Nickerson
142
Blair v. Silver Peak Mines
376
Blanford v. The State
282
Blankaril v. Galdy
104
Boedes Lust, The
460
Boedes Lust, The .
553
Booth v. L'Esperanza
652
Botiller v. Dominguez
426
Boussmaker, Ex parte
494
Boussmaker, Ex parte
536
Boyd v. Thayer
395, 401
Bragg v. Tuffts
521
Brandon v. Cushing
553
Brig Joseph, The
536
Brig Juno, The
251
Brig Sea Nymph, The
869
Briggs v. The Light Boats 189, 225
Brothers, The
705
Brown v. Duchesne
186
Brown v. Gardner,
538
Brown v. Hiatts 503, 516, 541, 683
Brown v. United States
486
Brown v. United States . 494, 499, 536
Browning v. Browning .
97
Brunswick, Duke of, v. King of
Ilanover
179, 182
Bryant v. United States
436
Buchanan v. Curry
516, 541
Buena Ventura, The.
465, 499
Burley's Case
293
Denman
305
Buron v. Denman
307
Bush v. Bell .
530
Butternuth v. St. Louis Bridge Co. 121
Byrne v. Herran
192
i
.
0
Page
Carolina, The
584, 585
Caroline, The
317
Caroline, The
319, 787
Caroline Wilmans, The
910
Carr v. United States
189
Carrington v. Merchants’ Ins. Co. 769
Case v. Terrell
189
Castioni, In re
285
Castioni, In re
293
Cazo's Case
293
Chappell v. Jardine
108
Charkieh, The
48
Charkieh, The .
219
Charlotte, The .
152, 901
Charlotte v. Chouteau
97
Charming Betsey, The .
22
Charming Nancy, The
568
Chavasse, Ex parte
779
Chavez v. Chavez de Sanchez
97
Cherokee Nation v. Georgia
37, 53
Cherokee Tobacco, The 420, 426
Cherriot v. Foussat
480
Cheshire, The
820
Chin King, Ex parte .
379
Chinese Exclusion Case
413, 432
Chirac v. Chirac
419
Choctaw Nation v. United States 427
Christie v. Secretan
926
Christina Maria, The
776
Church v. Hubbart
343
Circassian, The
820, 828
Clarke v. Cretico
205
Clarke v. Morey
541, 545
Clayton v. Ship Harmony
654
Cloete, In re
196
Clypso, The .
895
Coffee v. Grover
85
Coleman v. Tennessee
212
Columbia, The
820,
Commercen, The
632
Commercen, The
765
Commonwealth v. Blanding
300, 301
Commonwealth “. Blodgett
308
Commonwealth v. Chapman
106
Commonwealth v. Hawes
282
Commonwealth v. Kosloff.
205
Commonwealth v. Macloon
300
Comte de Wohrougoff, The
524
(La) Conception
705
Conn v. Penn.
516, 541
Constitution, The
218
Constitution, The .
219, 220, 919
Contzen v. United States
396
Cooley v. Golden
129
Coolidge v. Inglee.
536
.
•
.
Buron v.
1
0
.
•
0
Caldwell v. Van Vlissengen
Caldwell's Case
Calvin's Case
Camelo v. Britten
Camille, In re
Capen v. Barrows
Carlisle v. United States
Carlos F. Roses, The .
Carlotta, The
Carneal v. Banks
186
282
381
530
396
536
397
637
650
420
.
.
1
1
TABLE OF CASES.
XY
.
.
Page
Coolidge v. Payson
573
Cooper, In re
76
Coppell v. Hall . 205, 520, 534, 541
Corier Maratimo, The
909
Cornet v. Williams
521
Cornu v. Blackburne
566
Costa Rica Packet, The
462
Craemer v. Washington
436
Crapo v. Kelley
331, 333, 788
Crawford v. The William Penn 575
Crawford & McClean y. The William
Репп
580
Creole, The
252
Creole, The
255
Cross v. Harrison .
105, 658
Cross v. Talbot
191
Curlew, The
901
Cushing, Adm'r, v. United States
.
929
Cutting's Case .
301
.
.
0
.
Page
Dow, Neal, v. Johnson. 212, 666
Downes v. United States
674
Driefontein, etc., Mines, Lim., v.
Janson
553
Dunham v. Lamphere
153
Dupont v. Pichon .
208
Edward, The
765
Eenigheid, The
524
Eenrom, The
895
Elector of Hesse Cassel's Case 675
Eliza Ann, The
689
Eliza Cornish, The
820
Elizabeth, The
524
Elk v. Wilkins
398
Ellis v. Mitchell
234
Elwine Kreplin, The .
237
Emancipation Cases, The .
521
Emanuel, The
847
Embden's Case.
399
Emily St. Pierre, The
655
Emperor of Austria v. Day & Kos-
sutli
178, 179
Emperor of Brazil, The
179
Emulous, The
536
Endraught, The
766
Enterprise, The
255
Estrella, The
690, 705, 901
Etrusco, The
689, 690
Evert, The
776
Exchange, Schooner, v. McFaddon 208
Exchange, Schooner, v. McFaddon 251
263, 318
Exposito v. Bowden
536
Express, The
930
Ezeta, In re
293
+
0
•
O
1
.
C
0
.
Daifjie, The
585
Dainese v. Hale
237
Dainese v. United States
237
Dalgleish v. Hodyson .
926
Danckebaar Africaan, The
604
Daniel v. Hutchinson
63
Durby v. The Brig Erstern
896
Dashing Wave, The .
820
Daubuz r. Morshead .
575
Davis r. The Police Jury
421
De Bode v. Regina
400
Deergaden, The
524
De Haber v. Queen of Portugal 180
De Jurnet v. De Giversville
542
De Lima v. Bidwell
674
Dennison v. Imbrie
516, 541
Derby, Case of Earl .
105
Dewey v. United States
899
Dewing v. Perdicaries
521
De Wutz v. Hendricks
721
Diana, The.
632
Diligentia, The
655, 674, 689
Dillon, In re
192, 481
Dobree v. Napier
309, 480
Doe v. Braden.
427
Dole v. Merchant's Mutual Marine
Ins. Co.
350
Dole v. Merchant's Mutual Marine
Ins Co..
470
Don Pacifico, Case of
328, 461
Donaldson v. Thompson
925
Dooley v. United States
674
Dorothy Foster, The
655
Dos Hermanos, The.
895
Douglas v. United States
541
.
1
.
Fairfax's Devisees v. Hunter's
Lessee
420
Falcon, The.
926
Fama, The
421
Fanny, The
705, 894
Fay v. Montgomery
909
Feather v. The Queen
309
Feise v. Thompson
530
Felicity, The
910
Fifield v. Insurance Co.
44,61, 350
Fifty-two Bales Cotton .
565
Filor's Case . .
541
Fiottv. Commonwealth
432
(Die) Fire Damer .
910
First Nat. Bank v. Kinner
106
Fisher v. Begrez
196
Fisher v. Krutz
541
Flad Oyen, The
919
Flad Oyen, The
925
.
.
.
xvi
TABLE. OF CASES.
659
Page
Gray Jacket, The
565
Grazebrook, In re .
779
Griswold v. Waddington 520,586,541
Griswold v. Waddington
504
Grossmayer's Case
481
Grover v. Carter
541
Guadalupe Co. v. Wilson Co.
76
Guerin, Case of
674
Guidita, The
524
Guiteau's Trial .
196
.
0
.
.
Page
Fleming v. Page
Flindt v. Crockatt
526
Flindt v. Scott
526
Florida, The .
690
Flying Scud, The
605
Folliott v. Ogden
304, 487
Fong Yue Ting v. United States
382
Fong Yue Ting v. United States . 413
Forbes v. Cochrane
258
Ford r. Surget.
61, 62
Fortuna, The 256, 369, 524, 631, 895
Foster & Elam v. Neilson 44, 77, 84, 390,
420
Foster f. Elam v. Neilson
75, 412
Fourteen Diamond Rings v. United
States
667
Fox v. Southack
428, 432
Foxcroft & Galloway v. Nagle 500
Francis & Cargo
621
Franciska, The .
804
Franciska, The
820
Frau Margaretha, The
765
Freedom, The .
524
Freeland v. Walker
531
Frelinghuysen v. Key
435, 449
Freundschaft, The
494, 604
Fretz v. Stover
516
'Friendship, The
787, 788
Furtado v. Rodgers
549
Furtado v. Rodgers
553
.
0
.
0
.
.
.
Haabet, The
776
Hall v. Root
97
Hallet v. Brown
577
Hamilton 2. Dillin
534
Hamilton v. Eaton .
481
Hanauer v. Doane
520, 521
Hanauer v. Woodruff
521
Handly's Lessee v. Anthony
110
Handly v. Anthony
84, 116
Hanger v. Abbott
500
Hanger v. Abbott.
468, 534, 536
Harcourt v. Gaillard .
70
(Le) Hardy v. La Voltigéante 605
Harmony, The .
585
Harrison v. Meyer
666
Harrold v. Arrington
76, 77
Hatch v. Baez
182
Hauenstein v. Lynham
419, 426
Hausding's Case
399
Havelock v. Rockwood .
926
Haver v. Yaker .
420
Haymond.v. Camden
548
Head Money Cases
413, 426
Heathfield v. Chilton
©
Heathfield v. Chilton
189
Heirn v. Bridault
1
Helen, The
665, 779
Helen, The
821
Helena, The
45
Helena, The
2
Henderson's Case .
585
Henrick and Maria, The
820
Henry, The.
655
Herman, The
605
Hermosa, The
255
Hibbs, Ex parte
282
Hickman v. Jones,
521
Hoare v. Allen
498
Hoare v. Allen
541
Holmes, Ex parte
282
Holmes v. Jennison
282
Home Insurance Co.
59
Honduras, Republic of, v. Marco A.
24
.
.
€
Gage, The
655
Gamba v. Le Mesurier
553
Garcia v. Lee
76, 97
Gardner v. Heartt
109
Garland v. Davis
817
Gates v. Goodloe
565, 666
General Armstrong, The
687
General Pinckney, The
495
Geofroy v. Riggs
413
Georgia, The
629
Gerasimo, The
605
Gerosimo, The
811
Gibbons v. Livingston
429
(La) Gloire
585
Goeile Hoop, The
531
Goodman r. McGehee
520, 521
Goodrich f. De Forest v. Gordon . 571
Graaf Bernstorf, The
895
Gran Para, The
705
Grange, The
690
Grapeshot, The
666
Gray, Administrator, v. United States 452
Gray, Administrator, v. United
States
471
J
+
.
Soto,
TABLE OF CASES.
xvii
.
0
Jones v. United States' :
Jonge Margaretha, The
Jonge Margaretha, The
Jonge Pieter, The
Jonge Tobias, The
Josefa Sequnda, The
Joseph, The Brig
Juffrow Louisa Margaretha, The
Juffrow Maria Schroeder, The
Julia, The
Junge Klassina, The
Juniata, The
Page
74
762,
780
820
766
652
556
524
804
820
605
494
Page
Hoop, The
521
Hoop, The
524, 536, 570
Hooper, Administrator, v. United
States
433, 633
Hooper, Administrator, v. United
States
459, 460, 900, 909
Hopkins v. De Robeck
192
Hopner v. Appleby
652
Horner v. United States
413
Huascar, The ..
352
Hubbard v. Hornden Express Co. 482
Hubbell v. United States
462
Hudson v. Guestier
344, 925
Hughes v. Cornelius
926
Hughes w. Edwards
420
Hullett v. King of Spain
87
Hunt's Heirs v. Hunt
520
Hurtige Hane, The
3
Hutchinson v. Brock.
536
Huus v. New York and Steamship
Co.
674
0
.
.
28
1
.
Kansas Indians
427
Keene v. McDonough
63
Keir v. Andrade
530
Keith v. Clark
Kennett v. Chambers
723
Kensington v. Ingliss
531
Kentucky v. Dennison
285
Kershaw.v. Kelsey
535
Kestor, The
273, 413
Ketcham v. Buckley
61, 113
Ketland v. The Cassius
700
Kierlighett, The
926
King of Greece, The
179
King of Prussia, The, v. Küpper 173
King of Spain, The
179
8
.
Imina, The
776
Immanuel, The
845
Indian Chief, The.
205
Indian Chief, The
588
Ingliss v. Trustees
45
International, The
762, 780
(L') Invincible.
653
Invincible, The.
705, 925, 926
Isaacs, Taylor of Williams v. City of
Richmond
521
Itata, The
344, 740
King of Spain v. Hullet & Widder 178,
1
179
King of Spain v. Macliado
170
King of Spain v. Oliver
179
King of the Two Sicilies v. Willcox
. 87
Kingsbury's Case
285
Kinkead v. United States
97
Kirk r. Lynd
899
Knox v. Lee
521
Kortright v. Cady
109
Koszta's Case
400, 401
.
.
Jackson v. Willard
James G. Swan, The
Jan Frederick, The
Jan Frederick, The
Jecker v. Montgomery
Jecker v. Montgomery
Jenks v. Hallet & Brown
Jennings v. Carson
(La) Jeune Eugénie
Johan Pieter, The
Johanna Emilie, The
Johanna Maria, The
John and Jane, The
Jolin Gilpin, The
Johnson v. Jones
Johnson v. McIntosh
Johnson v. 21 Bales
Jones '..Garcia del Rio.
Jones v. Leonard
Jones v. Mehan
Jones v. United States
109
76
553
618
664
534, 536, 909
577
11
3
531
464, 498
803
655
566
666
71
2
38
285
427
38
O
.
Lady Jane, The
524
Lafayette, The
932
Lagarve's Case
282
Lamar v. Brown
495
Lamb v. Davenport
116
Lamington, The
332, 342
Lane County 1:. Oregon
27, 47
Lascelles v. Georgia
285
Lee Joe v. United States
382
Leevin 1. Cormac
531
Lem Moon Sing 2. U. S.
399
Leitensdorfer v. Webb
97, 665
Lem Moon Sing v. United States 399
Leucade, The
910
Levy v. Stewart
504
1
xviii
TABLE OF CASES. .
.
Page
Lilla, The
62, 494, 655, 689
Lindo v. Rodney
463
Lisette, The
778, 820
Lillell. v. Erie R. R. Co.
378
Little v. Barreme
817
Little v. Watson
97
Lively, The
909
Lockwood v. Dr. Coysgarne
196
Lola, The
19
Lone, The
655
Lord Nelson, The
655
Lottawanna, The
12
(Le) Louis
352
(Le) Louis
860
(La) Louisa
820
Luthier v. Borden.
44
.
.
97
PWO
May v. Specht.
Mechanics & Traders' Bank v. Union
Bank
660
Mentor, The
676
Merritt v. Bartholick
109
Meteor, The
720
Mexico v. De Arrangoiz
37
Mexico v. De Arrangoiz .
170
Mighell 2. Sultan of Jahore
181
Miller, In re
282
Miller v. The Resolution
571
Miller v. The Resolution (1)
899
Miller v. The Resolution (2)
906
Miller v. United States 61, 480, 481, 571
Milligan, Ex parte
666
(La) Minerve
767
Minneapolis v. Reum
390
Minturn v. Brower
Mitchel 2. United States
74, 97
Mitchell v. Harmony
495
Mitchell v. United States
534
Mitchell v. United States
605
(Der) Mohr
9.10
Mohr & Haas v. Hatzfeld
674
Moncan, In re
255, 333
Montezuma, The
351
Montgomery v. Ives
74
Montgomery v. United States, 516, 538
Montijo's Case .
329
More », Steinbach
73
Mortimer v. N. Y. Elevated R: R. Co. 111
Moses, In re
396
Mouseaux v. Urquhart
541
Munden v. Duke of Brunswick 180
Murray v. Charming Betsey 400, 909
Musson v. Fales
536
Musurus Bey v. Gadban
208
Mutual Association Society v. Watts 97
0
0
McCargo v. N. 0. Ins. Co. .
255
Macartney v. Garbutt
196
McCulloch v. Maryland
44
Nardonuld, Case of
370
McDonald v. Mallory
332, 333
Mcllvaine v. Coxe's Lessee:
45
McKee -v. United States
534, 536
Mckennon v. Winn
114
Macleod v. Attorney-General
304
McLeod's Case.
309, 319
V v
500
Marlison, The
785
Madonna del Burso, The
3
Madrazo v. Willes.
369
Magılalena, The
705
Diagellan Pirates, The
351
Mahler v. Transportation Co.
153
Malon v. Justice
285
Maissonnaire v. Keating
571, 766
Manchester v. Massachusetts..
153
Manhasset, The
12
Manhattan Life Ins. Co. v. Buck 482
Manning v. Nicaragua
186
Marguerite, The
655
Maria, The
858
Maria, The
776, 820, 860
Marianna Flora, The
322
Marianna Flora, The .
873
Marias, In re D. F.
666
Marks v. United States
475
Martin v. B. & O. R. R. Co.
604
Martino v. International Life Ins. Co. 604
Mary, The
585
Mary Ford, The
652
Mary. Ford, The
652, 653
Massachusetts v. Green .
304
Mutthews v. McStea
508
Mauran v. Insurance Co.
61
.
•
.
.
0
Nancy, The
705
Nancy, The
817
Nathaniel Hooper, The
633
Neagle, In re
400
Neal Dow v. Johnson
212, 666
Neely. v. Henkel
53, 675
Neptunus, The
796
Neptunus, The
804
Nereide, The
884
Nereide, The 22, 322, 338, 437, 451, 894
Nereyda, The
Neustra Señora de los Dolores, The 681
Neutralitet, The
767
New Chili Gold Mining Co. v. Blanco 207
New Orleans Mob
328
New Orleans Riot
329
705
.
.
.
.
TABLE OF CASES.
xix
1
O
Page
New Orleans V. Abbagnato
320
New Orleans v. Steamship Co. 666, 674
New York Indians v. United States 104,
427
New York Life Ins. Co. v. Davis 516
New York Life Ins. Co. v. Seyms 512
New York Life Ins Co. v. Stathem 512
Newfoundland, The
835
Nicnol v. Goodall .
901
Nicholas v. United States
189
Nigel Gold Mining Co., Lim., v. Hoode 604
(Lu) Ninfu
443
Nitcliencoff's Case
197
Nuestra Señora de Regla
909
Nymph, The
677
.
Page
Perle, The
688
Peru v. Dreyfus
38
Peru v. Peruvian Guano Co.
38
Peterhoff, The
760
Peterhoff, The .
820, 857
Philips v. Hatch
683
Plicebe Ann, The
705
Pious Fund, The
449
Polly, The
655
Polts v. Bell
525
Potts v. Bell
536, 541, 563, 580
Power v. Lester
109
President, The .
566
Pridgeon v. Smith
521
Prins Frederik, The
220
Prioleur v. United States f. Johnson 173
Prischell v. Allnut
530
Prize Cases, The
475
Prize Cases, The
601
Prize Cases, The 62, 480, 481, 534, 536,
820
Protector, The
682
Providence, The
655
Prussian Subject's Case
399
Purissima Conception, The
689
C
.
.
.
•
.
(akes v. United States
Ocean, The
Ocean, The
Oddy v. Bovill
()din, The
Olinde Rodrigues, The
()'Neal v. Boone
Ornelas v. Ruiz
Orozembo, The
Orr u. Hodgson
Ortiz, Ex parte
Osborn v. U. S. Bank
Ostee, The.
Ouachita Cotton, The
61, 899
566
819
924
152
835
504
436
785
420
74
399
681
534, 536
Ruiz
+
.
Queen v. Keyn
Queen v. Keyn
Queen of Portugal, The
19
154
179
.
•
Packet de Bilboa, The :
Page v. Lennox
Page's Case
Palmer v. Lorillard
Panaghia Rhomba, The
Panama, The
Punama, The
Puquetie Habana, The,
Parkinson v. Potter
Parlement Belge, The .
Parlement Belge,, The .
Paton v. Nicholson
Patrixent, The
Paul v. Christie
Peach v. Bath
Pearl, The
Pelican, The
Penhallow v. Doane
Pennsylvania, The
People v. Curtis
People ». Gerke & Clark
People v. McLeod
lequinot v. City of Detroit
Perlins v. Rogers
609
926
487
632
800
474, 475
788
19
192
220
221
536
569
541
6
820
40
11, 26, 36
654
282
420
309
396
554
R. v. Serva & others.
860
Ranger, The
765
Ransom v. Alexander
521
Rapid, The
557
Rapid, The
782
Reform, The
534
Reggel, Ex parte
285
Regina v. Anderson
331
Regina v. Lesley
337
Regina v. Lopez
336
Regina v. Sattler
336
Reliance, The
230
Respublica v. De Longchamps 196
Rex v. Dix
282
Rhode Island v. Massachusetts
74
Ricord v. Bettenham.
536, 568
Ringende Jacob, The 524, 766, 776, 780
Roberts v. Cocke
500
Rodgers v. Bass
541
Rodriguez, In re
396
Rolla, The
309, 804
Rose v. Himely.
344, 480
Rose in Bloom, The .
584
(La) Rosina.
583
Ross, In re
238
.
.
XX
TABLE OF CASES.
Rothschild v. Queen of Portugal
Roussin u. Parks
Rucker's Case
Page
178
97
585
.
.
+
.
.
.
.
.
•
Pac
Siffkin v. Allnut
53:
Siffkin v. Glover
532
Silesian Loan Case
461
Sir William Peel, The
690
Siren, The
648
Sitka, The
218
Slaughter House Cases .
400
Slocum v. Mayberry
909
Sloop Betsey, The
705
Small's Administrators v. Lumpkin's
Executrix.
538
Smith v. Brazelton
482
Society v. Wheeler
604
Society for Propagation of Gospel in
Foreign Parts v. New Haven 428
Society for Propagation of Gospel
in Foreign Parts v. New Haven. 432
Sotela's Case
273
Soult v. L'Africaine
687
South African Republic v. La Com-
pagnie Franco-Belge
181
Sparenburg v. Bannatyne
605
Springbok, The
857
Sprott v. United States
61, 521
Staat Embden, The 765, 766, 776
Stanley v. Schwalby
189
State v. Carter .
State v. Dunwell
76
State v. Knight
300
State v. Patterson
283
State v. Patterson
285.
State v. Vanderpool
282
State v. Wyckoff
296
Steamboat Co. v. Chase
332.
Stephen Hart, The.
852
Steplien Hart, The
857
Stert, The
820
Stetson v. United States
143
Stewart, Case of Commodore
910
Stewart v. Kahn
504
Stockton v. Williams
74
Stovall's Administrators v. United
States
481
Strother v. Lucas
97
Strousberg v. Costa Rico
181
Stupp, In re
430.
Susa, The.
895
Sutton y. Sutton
427
Swan v. United States
899
Swan, The James G.
76
Swineherd, The (le Porcher). 677
St. Alban's Raid
293
St. Lawrence, The
494
St. Lawrence, The .
559
St. Louis, The
524
St. Nicholas, The
895
Saito, In re
386
Sally, The
607
Sally, The
699, 895
Salvador, The
743
San Jose Indiano, The
605
San Jose Inaiano, The
614
San Juan Baptista, The
910
Sanborn 2. Vance.
97
Santa Cruz, The
649
Santissima Trinidad, The
701
Santissima Trinidad, The 263, 480, 720,
779
Sapphire, The
178
Sarah, The
899
Sarah Christina, The 766, 775, 780
Sarah Starr, The
495
Sarah Starr & Cargo .
566
Scholefield & Taylor v. Eichelberger 580
Schooner John, The
677
Schooner Nancy, The .
861
Schooner Sophie, The
682
Schooner Washington, The
153
Schultze v. Schultze
426, 443
Scotia, The
17
Scotia, The
333
Scotland, The
12
Scoville v. Canfield
304
Sea Lion, The
531
Sea Lion, The .
534
Seagrow v. Parks .
333
Secretary of State for India v.
Kamachee Baye Sahiba
307
Sedulous, The
655
Semmes v. Hartford Ins. Co. . 503, 516
Seton v. Low.
778
Seymour v. Bailey
545
Shacklett v. Polk
641
Shanks v. Dupont.
374, 420
Sherlock v. Allen
332
Ship Ainazon, The, v. United States 884
Ship Ann Green, The
620
Ship Rose, The, v. United States.
879
Ship Tom, The
910
Shively v. Bowlby
74, 153
Short Staple, The
655
Siebold, Ex parte .
44
.: 298
.
.
o
.
+
.
Talbot v. Jansen
Talbot v. Quman.
Talbot v. Seeman
705
640
22, 471, 654
TABLE OF CASES.
xxi
.
.
1
.
.
1
.
.
.
3
.
.
Page
Page
Tarbell's Case
44 United States v. Dielcelman
264
Taylor v. Barclay
38 United States v. Diekelman 256, 666,762
Taylor v. Morton
426 United States v. Fernandez
74
Taylor v. Nashville & Chattanooga
United States v. Greathouse
482
R. R. Co...
666 United States v. Grossmayer . 534, 541
Taylor & Marshall v. Beckham 44 United States v. Guilleni
803
Teresita, The
820 United States v. Guinet.
695
Terlinden v. Ames.
436 United States v. Guinet.
700
Teschmacher v. Thompson
97 United States v. Hayward
657
Teutonia, The
471 United States v. Homeyer
494
Texan Star, The
630 United States v. Huckabee 94, 495, 521
Terus v. White .
26 United States v. Jeffers
256
Texas v. White
44, 521 United States v. Jeffers
275
Thetis, The .
675
United States v. Kagama
404
Thomas v. Hunter
500 United States v. Klein
495
Thomas Gibbons, The
901 United States v. Lane
536
Thompson, The
909 United States v. Lee
189
Thompson v. Powles
37 United States v. Liddle
197
Thompson v. Powles.
723 United States v. Lucero
97
Thorington v. Smith & Hartley
53 United States v. McRae
88
Thorington v. Smith & Hartley 62 United States v. 7'he Meteor
,711
Three Friends, The
44 United States v. The Miranda
97
Three Friends, The
748 United States v. Moreno
666
Timm v. Marsh
109
United States v. One Hundred
Titus v. United States
94 Barrels of Cement 534, 545, 757
Tom, The Ship
910 United States v. Ortega
197, 208
Torladé v. Barrozo
208 United States v. Pacific R. R.
666
Tousig's Case
401 United States v. Palmer
44, 480
Trende Sostre, The
778 United States v. Pelican Ins. Co. 304
Trent Case
788 United States v. Percheman
95
Trevino v. Fernandez
63 United States v. Peters
697
Triinble's Case
293 United States v. Peterson
142
Triquet v. Bath .
6 United States v. Prioleau
85
Triquet v. Bath
191 United States v. Quincy
706
Trois Frères, The
615 United States v. Quincy
720
Tucker v. Alexandroff
218, 426 United States y. Rauscher
274
Twee Gebroeders, The . 129, 687, 691 United States v. Rauscher
282, 426
Twee Juffrowen, The
776 United States v. Repentigny
98
Twilling Riget, The
633 United States v. Rice
655
Two Friends, The
655 United States v. Richard Peters 697
Tyler v. Defrees
481 United States v. Rodgers
132
United States v. Smiley
302
Underhill v. Hernandez
62 United States v. Smith
13
Underhill v. Hernandez 70, 182, 309, 319
United States v. Smith
89
United States v. The Active
2 United States v. Smith .
345
United States v. The Active
464 United States v. Stevenson
494
United States v. Ambrose Light 346 United States v. Terus
76
United States v. Ambrose Light 322, 350 United States v. Texas
116
Uniied States v. Arredondo
76 United States v. Trumbull
731
United States v. Baker .
350 United States v. 'Trumbull
751
United States v. Benner
196 United States v. Wagner
175
United States v. Bennett
333, 336
United States v. Wiggins
97
United States v. The Betsey .
899 United States . Winchester
899
United States v. Clarke's Heirs 97 United States 1. Wong Kim Ark 381
United States v. Davis
294 Usparicha v. Noble
529
.
.
+
+
•
.
.
:
xxii
TABLE OF CASES.
.
.
.
0
Van Brokelen, Case of .
Vavasseur v. Krupp
Venus, The
Venus, The
Victoria, The
Villasseque's Case
Virginia v. Tennessee
Virginius, The
Viveash v. Becker
(II) Volante
Vrouw Anna Catharina, The
Vrouw Judith, The
Vrow Anna Catharina, The
Vrow Henrica, The
Vrow Johanna, The
Vrow Margaretha, The
.
Page
462
182
591
494, 585
524
675
74
320
205
767
690
820
632, 690
629
910
616
Page
542
848
565
372
374 ·
661
530
538
654
Suffolk Ins. co.
William, The
William, The
William Bagalay, The
Williams' Case .
Williams' Case .
Williams v. Bruffy
Williams v. Marshall
Williams v. Paine .
Williams v. Suffolk Ins. Co.
Willison v. Chambers
Willison v. Patterson
Wills v. State
Wilson v. Blanco
Wilson v. "McNamee
Wilson v. McNamee
Wilson v. Maryat
Wilson v. Wall.
Windsor, In re
Wolff v. Oxholm
Wolff v. Oxholm
Wong Quan v. United States
Worcester v. Georgia
Wren, The
Wright v. Nutt.
Wunderle y. Wunderle
536
212
206
329
333
605
426
282
30+
496
382
i 427
844
487
414
C
.
Wagner's Case .
400
Wanstead, The
655
War Onskan, The.
654
Ward v. Smithi
516, 541
Ware v. Hylton 419, 420, 485, 494
Ware v. Jones
517
Watt's Case.
282
Wheelright v. Depeyster
926
Whitfield v. United States.
94, 521
Whitis v. Polk.
520
Whitney v. Robertson
413, 426
Whitney v. Robertson
422
Wilcox v. Luco
206
Wildenhus's Case
225
Wilhemina, The
847
Willendson v. The Försöket
233
.
Young, Assignee of Collie
Yrisarri v. Clement
481
23
.
Zee Star, The
Zeiter's Case
Zelden Rust, The.
Zepherina, The
910
377
765
152
SYLLABUS.
INTRODUCTION.
1. Definitions of International Law, or the Law of Nations. Cases,
1-4; 8.
Bluntschli, $ 1; 1 Calvo, $ 1; Creasy, 1; Hall, 1; 1 Halleck,
46; 1 Jones, 262, 2 16., 246 ; 1 Kent, 1; Lawrence, 1-9; Liszt,
1-6; 1 Martens, 21-31; Pillet, Le droit international public,
1 R. D. I. P., 1; Pomeroy, 2–25; 1 Rivier, 3-7; Rivier, L. B.,
1-2; Snow, § 1; Taylor, $ 2; D. Wheaton, 23; L. Wheaton, 26;
Walker, Manual, 1-10; Westlake, 1; Woolsey, 2–3.
2. Origin of the Terms “Law of Nations," and "International Law."
Compare with the terms "Jus Gentium," " Jus Naturale," " Droit
des gens," “ Droit international,” “ Völkerrecht.” Bonfils, $$ 1-4;
Creasy, 3-21; D. Wheaton, 46, 16–21 and note 7; L. Wheaton,
14-21 and potes.
3. International Law is a Branch of True Law. Objections by Austin
and his followers to the term "law" as used in “ international
law," on the ground that there is no superior power to enforce
it: it has no “sanction." Austin's Jurisprudence, abridged ed.,
5–18, 59-63, 74, 85; Holland's Jurisprudence, 9th ed., 125–126;
369-372; 2 Stephen, History of the Criminal Law, 32 et seq. The
opposite view, namely, that International law is law, rather than
international comity or morality, is held by the great majority of
publicists: Bluntschli, 2–11; Bonfils, $§ 26-31; Creasy, 70–76;
Hall, 14–17; Fiore, De la sanction juridique du droit international,
30 R. D. I., 5; Jellinek, Recht des modernen Staates, 302-307,
337–341.; Kebedgy, Contribution à l'étude de la sanction du droit
international, 29 R. D. I., 113 et seq.; Lawrence, Essays on Inter-
national Law (2d ed.), 1-41; Liszt, 6-8; Maine, 26-53; 1 Rivier,
18-26; Walker, Science, 1-40, 45-56; Walker, History, 1-19;
Woolsey, $$ 26-29. Perhaps the aptest description of the legal
hlature of International law, is that for which Sir Frederick Pollock
stands sponsor: "Customs and observances in an imperfectly organ-
ized society which have not fully acquired the character of law, but
xxiv
SYLLABUS.
are on the way to become law" (werdendes Recht). First Book ox
Jurisprudence, 13.
4. The Nature and Sources of International Law. Cases, 19.
Bluntschli, 11-19; Bonfils, S8 5-70; 1 Calvo, $$ 1–40; Creasy, 65–
92; Hall, 1-14; 1 Halleck, ch. II.; Holtzendorff, Introduction
au droit des gens, 1–76; Les sources du droit des gens, 79–147
(1 Handbuch, Fr. ed., 79–147); Jellinek, System der subjektiven
öffentlichen Rechte, 296-314; Kaufmann, Die Rechtskraft des
internationalen Rechtes, 1899; Lawrence, 10-25, 91-110; Liszt,
9-12; Maine, 1-25; Maine, Ancient Law, 70-108; 1 Martens,
1-20, 243-254; Nys, Origines du droit international; 1 Philli-
more, ch. III.; Pomeroy, 25-44; 1 Rivier, 27–42; Rivier, L. B.,
9–16; Snow, § 3; Taylor, $$ 6–23, 30–36, 65–95, 105–115;
1 Twiss, 145–177; Walker, History, 20-29; Westlake, ch. VI.;
Wheaton, ch. I.
5. Historical Sketch of International Law. Bonfils, $$ 71-146; 1 Calvo,
1–137; 1 Halleck, ch. I.; Holtzendorff, Le développement' his-
torique des relations internationales jusqu'à la paix de Westphalie
(1648), (1 Handbuch, Fr. ed., 152-348); Lawrence, 26–54; Liszt,
12-30; 1 Martens, 32-246; Rivier, L. B., 16-73; Rivier, Esquisse
d'une histoire littéraire des systèmes et méthodes du droit des gens
depuis Grotius jusqu'à nos jours (1 Holtzendorff's Handbuch, Fr. ed.,
351-494); Taylor, $$ 37-48; Walker, History, Vol. I., to Peace of
Westphalia ; Westlake, 17-77. Ward's History of the Law of
Nations (to time of Grotius), 1795, is still useful, and Wheaton's
History of the Law of Nations (to 1842), 1845, has not been dis-
placed. The French edition is later and therefore preferable.
6. International Law is a part of the Law of States. Cases, 6-10,
13-22.
Kent, 1, note a ; Liszt, 6; Triepel, Völkerrecht und Landesrecht,
1899; Walker, Science, 41-56; Woolsey, $29.
7. The Leading Writers on International Law. Bonfils, $$ 147-153;
1 Calvo, 27-32, 45–46, 51-55, 61-63, 70–73, 101-120; 1 Halleck,
ch. I.; Liszt, 31-33; Rivier, Esquisse (see $ 5), is still the most
satisfactory enumeration and criticism of the writers, their systems,
relative rank and worth; Woolsey, Appendix 1 (A brief selection
of works and documents bearing on International Law).
8. Private International Law; or, The Conflict of Laws. 1 Calvo, 120
125; Hall, 54; 2 Martens, 391-505; Phillimore, Vol. IV.;
SYLLABUS.
XXV
Woolsey, $$ 73, 74. The following are special treatises on this
subject: Beale, Cases on Conflict of Laws, 3. vols., 1901-1902 (Vol.
3, pp. 501-545, contains an excellent “Summary of Conflict of
Laws”); Minor, Conflict of Laws, 1901; Story, Conflict of Laws,
8th ed., 1883; Westlake, Private International Law, 3d ed., 1890
(4th edition announced); Wharton, Conflict of Laws, 2d ed., 1881.
Leading works in foreign languages are the following: Asser
& Rivier, Éléments de droit international privé, 1884; v. Bar,
Theorie und Praxis des internationalen Privatrechts, 2d ed., 1889
(English translation entitled, Private International Law, by G.
R. Gillespie, 1892); v. Bar, Lehrbuch des internationalen Privat-
und Strafrechts, 1892; Despagnet, Précis de droit international
privé, 3d ed., 1889; Fiore, Droit international privé (French trans-
lation of the Italian original, by Pradier-Fodéré, 1875); Laine's
masterly Introduction au droit international privé, 2 vols., 1888,
1892; Savigny, System des heutigen römischen Rechts, Vol. 8,
1849 (translated by W. Guthrie, as Treatise on the Conflict of Laws,
and the Limits of their Operation in respect of Place and Time,
2d ed., 1880); Vareilles-Sommières, La synthèse du droit inter-
national privé, 2 vols., 1897; Weiss, Manuel de droit international
privé, 2d ed., 1898; Zitelman, Internationales Privatrecht, 2 vols.,
1897, et seq.
PART I.
1
INTERNATIONAL LAW IN TIME OF PEACE.
I. SOVEREIGN STATES
DE FACTO STATES.
(a) Sovereign States.
9. Sovereign States are the Subjects or Persons of International Law.
The Republic of Honduras v. Soto, Cases, 24.
Bluntschli, $S 17-27; Bonfils, $$ 154-159; Hall, $ 1; Heffter, $ 15;
Jellinek, Recht des modernen Staates, 348–349; 1 Jones, 518,
· 2 Ib., 463; Lawrence, 55; Liszt, 34–40; 1 Martens, 307–311;
1 Phillimore, 79; 1 Rivier, 45-54; Snow, $ 4; 1 Twiss, 1-15; D.
Wheaton, $ 16.
10. Definition and Nature of Sovereign States. Yrisarri v. Clement,
Cases, 23; Texas v. White, Ib., 25; Keith v. Clark, It., 28; 1b.,
notes, 36–37
XXVI
SYLLABUS.
Bluntschli, $$ 18-21, 62-70 ; Bonfils, $$ 160-164; 1 Calvo, § 39;
Creasy, 6, 93; Heffter, $$ 15-16; Jellinek, System der subjektiven
öffentlichen Rechte, 12–39; Jellinek, Recht des modernen Staates.
115–161; Lawrence, 56-90; Liszt, 35-38; Maine, 54-68; 1 Phi.
limore, 81-85; Pomeroy, 45-59; Rivier, L. B., 88-92; Stubbs,
Suzerainty: Medieval and Modern, 25 Law Magazine and Review,
5th ser., 413-452; D. Wheaton, 29-31; L. Wheaton, 31-33, 58;
Woolsey, 34-36.
11. Distinction between Internal and External Sovereignty of States.
Bluntschli, $ 64 ; Holland, Jurisprudence, 47-49, 350-351, 373 ;
Liszt, 52-71; Snow, $ 5; D. Wheaton, 31; L. Wheaton, 35.
12. Internal Changes in a State do not affect its standing in Inter-
national Law. Keith v. Clark, Cases, 28.
Creasy, 99-109; Hall, 22-24; Liszt, 40; 1 Phillimore, 202-212;
Pomeroy, 69-78; 1 Rivier, 62-63; Rivier, L. B., 94-95 ; D.
Wheaton, 33-34 ; L. Wheaton, 39; Woolsey, $$ 38-39.
1
13. The Fundamental Rights and Duties of States. Bluntschli, $$ 62-
107, 378, 379; Bonfils, SS 235-332 ; Hall, SS 7-14 ; 1 Halleck,
ch. IV. ; Lawrence, 108-111; Liszt, 52-71, 98–101; Pillet, Re-
cherches sur les droits fondamentaux des états dans l'ordre des
rapports internationals, 1899; Pomeroy, 79–144; 1 Rivier, 255-
266; Rivier, L. B., 174–180; Snow, $ 8; Taylor, $$ 117-119;
D. Wheaton, SS 60-62; L. Wheaton, 115.
14. Classification of States : *** Centralized States," " Personal Union,” ”
"Real Union,” (Bundestaat), " Confederate Union" (Staatenbund),
Protected State, Neutralized State. Cases, 45-53.
Bluntschli, $$ 70–76; Bonfils, $S 165–194, 345–369 ; 1 Calvo,
$$ 44-77; Creasy, 135-142; Hall, $ 4; 1 Halleck, 67-74, 116-
118; Jellinek, Die Lehre von den Staatenverbindungen, 1882 ;
Jellinek, Recht des modernen Staates, 674–719; 1 Jones, 76 ;
Lawrence, 56-84; Liszt, 41-52; 1 Phillimore, 94–101 ; Pomeroy,
60–69 ; 1 Rivier, 75–123; Rivier, L. B., 103–124 ; Snow, § 6;
Taylor, SS 120 et seq.; 1 Twiss, 16–144; Westlake, 211-231 ; D.
Wheaton, 40-41, 73, 78, 82, and note 32; L. Wheaton, 71-76.
15. The Equality of States. The Antelope, Cases, 27 note.
Bluntschli, $ 81 ; Bonfils, $$ 272-278 ; 1 Halleck, ch. V.; Heffter,
SS 27-28; Lawrence, Essays, 208-233; Liszt, 52–54; Pomeroy,
247–263 ; 1 Rivier, 123–131; Rivier, L. B., 124-128; Westlake,
86-109; D. Wheaton, 52; L. Wheaton, 58; Woolsey, $ 52.
SYLLABUS.
xxvii
16. Date of the Commencement of States. Bluntschli, $ 29; Bonfils,
$$ 195–213; Hall, $.26; Heffter, SS 23-25; Jellinek, Recht des
modernen Staates, 239-258; Lawrence, 84-88 ; Liszt, 38; 1 Mar-
tens, $$ 63-66 ; 1 Rivier, 54–57 ; D. Wheaton, 41; L. Wheaton,
46-47.
V 17. Effect of the Recognition of a New State by the Parent State, and
by Third States. Cases, 37-44.
Bluntschli, § 30; Hall, 87–96; 1 Halleck, 79-88; Hart, 208–209;
Liszt, 39-40 ; Penfield, Recognition of a New State, 32 Am. Law
Review, 390-408; 1 Rivier, 57-61; Snow, $ 8; Taylor, $$ 146–
159; 1 Wharton's Digest, 522; D. Wheaton, 32.
18. When is the Recognition by Third States of a New State claiming
Independence, proper ? Cases, 44-45, note.
Bluntschli, $$ 31-35; Creasy, 677-681; Hall, 90-93; Liszt, 40;
2 Phillimore, 20-44; D. Wheaton, 41-46, and note 16; L. Wheaton,
46-47.
1
✓
19. Methods of Recognition. — The Congo State. Cases, 37-44.
Hall, 94-95, and note; 1 Jones, 100, 2 lb., 85; Fauchille, L'An-
nexion du Congo à la Belgique, 2 R. G. D: I., 400-439; Moynier,
La Fondation de l'État Independant du Congo, 1887. Les Fron-
tières de l'État du Congo, 1 R. G., 409-429.
20. The Effect of a Change of Sovereignty upon Public Rights and Obli-
gations. U. S. v. Prioleau, Cases, 85; U. S. v. Smith, Ib., 89;
Case of The Texan Bonds, 16., 94, note ; opinions of Hall and Kent,
Ib., 96, note; Terlinden v. Ames, Ib., 436.
Appleton, Des effets de l'annexion sur les dettes de l'état demembré
ou annexé, 1892; Creasy, 144-146; Huber, Die Staatensuccession,
1898; Larivière, Des conséquences des transformations territoriales
des états sur les traités anterieurs, 1892; Lawrence, 647-651;
Liszt, 172-176; 1 Phillimore, 211; 1 Rivier, 69-75; Rowe, Polit-
ical and Legal Aspects of Change of Sovereignty, 41 Am. Law
Register, N. S., 466-477; Snow, $ 9; D. Wheaton, 42–49; L.
Wheaton, 48-53; Woolsey, $ 38.
21. Effect of a Change of Sovereignty upon Private Rights. U. S.
v. Percheman, Cases, 95; U. S. v. Repentigny, Ib., 98.
1 Jones, 5-18, 2 Ib., 463; Liszt, 89.
22. Effect of a Change of Sovereignty upon Laws. Blankard v. Galdy,
Cases, 104; Com. v. Chapman, Ib., note 106 ; Chappell v. Jardine,
xxviii
SYLLABUS.
16., 108 ; Mortimer v. N. Y. Elevated R. R. Co., Ib., 111 ; Mc-
Kennon v. Winn, 16., 114.
Magoon, Military Occupation, 25–28, 226.
(6) De Facto States.
23. Belligerent Communities. Thorington v. Smith, Cases, 53 ; Home
Insurance Co.'s Case, Ib., 59 ; Legal relation of the de facto to the
parent or de jure State as regards legislation, administration, and
judicial acts of the former, Ib., 61, note; The Lilla, 16., 62, note ;
Underhill v. Hernandez, Ib., 62.
Bluntschli, $$ 47-48; Hall, 31-37; 1 Halleck, 79-86; Liszt, 37,
288; Snow, $ 10; Taylor, $$ 145-147; Woolsey, $ 40.
24. Recognition of Belligerency. Annual Message of President Grant,
Dec. 7, 1875; Cases, 758, note.
Bernard, Neutrality of Great Britain during the American Civil
War, 1870, 106-117, and note; Hall, 35–42; Historicus on Recogni-
tion, 1-37; 1 Jones, 51, 2 Ib., 38; De Olivart, La reconnaissance des .
insurgés comme belligérants, 28 R. D. I., 100–103; 1 Wharton's
Digest, § 69; D. Wheaton, note 15; L. Wheaton, 40, note;
Woolsey, § 41.
25. Have Belligerent Communities any Legal Right to Recognition by
Sovereign States ? Forms of Recognition. Bluntschli, $ 512; Bon-
fils, $$ 1045–1047; Hall, 37–39; Liszt, 157; Pomeroy, 264–312;
Taylor, $$ 148–152; D. Wheaton, 34, note 15, especially, pp. 37–38.
26. Recognition of Confederate States, 1861. Fifield v. Ins. Co., Cases,
44, note.
Bernard, Neutrality, 122–134 (135–150 for documents); Bluntschli
in 2 R. D. I., 452-485; Hall, 39-42; Pomeroy, 289-295; Taylor,
$ 15; D. Wheaton, 37, note; Woolsey, $ 180.
1
27. Succession to the Rights of Belligerent Communities. U. S. v. Pri-
oleau, Cases, 87; U.S. v. Smith, 16.,89; U.S. v. McRae, Ib., 89, 91;
Titus v. U. S., Ib., 94, note.
28. The Relations of a Belligerent Community after acquiring Independ-
ence to the Contract Rights and Duties of the Parent State, on (1)
Treaty Obligations, (2) Property, (3) Debts. Bluntschli, $$ 47-48;
Bonfils, $$ 214–234; Hall, S$ 27–28; Heffter, $ 25; Liszt, 172-176;
Magoon, 177, 194, 529.
•
SYLLABUS.
xxix
29. Alleged Right of the United States in the British-American
Fisheries.
Geffcken, La question des pécheries, 22 R. D. I., 217–233; Hall, 99-
100; Hart, 206–208, 220-221; Isham, The Fishery Question, 1887;
1 Jones, 206, 2 Ib., 183–184; Liszt, 74, 255,258; Pomeroy, 181,
368–371; Schuyler, The Fisheries (Am. Dip., 404–420); Taylor,
$ $ 249–250; 3 Wharton's Digest, $ 302.
II. THE TERRITORIAL PROPERTY OF A STATE.
(a) Ectent and Nature of Territorial Property.
30. In what does the Territorial Property of a State consist? Bonfils,
$$ 482-519; Hall, $ 30; Jellinek, Recht des modernen Staates,
355–366; 1 Jones, 545; Liszt, 71–83; Snow, § 11; D. Wheaton,
$ 162.
31. The Nature of the Proprietary Title of a State in (1) the Land owned
by Individuals, (2) Public Lands, (3) Navy Yards, Arsenals, etc., (4)
Lakes, Rivers, Straits, (5) Marginal Seas. Bluntschli, $$ 276–277,
296-310; Hall, $$ 30-46; 1 Halleck, ch. VI.; Lawrence, 136-160;
Liszt, 71-83; Maine, 69–93; Pomeroy, 145–190; 1 Rivier, 135–
171; Rivier, L. B., 129-141; 1 Twiss, 228-235; Westlake, 129–
133; Wharton's Digest, $$ 1, 2, 310, 311; D. Wheaton, $$ 163–164.
(6) Acquisition of Territory.
32. Modes of acquiring Territory. Jones v. U. S., Cases, pp. 39–40;
U. S. v. Percheman, 16., 95; Am. Ins. Co. v. Canter, 16., 657.
Bluntschli, $$ 276-295; Bonfils, SS 532–571; Hall, $ 31; 1 Hal-
leck, 154; Hart, 194–196; Liszt, 83–90; Pomeroy, 91-93; 1 Rivier,
172–188; Rivier, L. B., 145–146; Walker, Manual, 26–34; D.
Wheaton, $ 161.
33. Title to Territory based on Discovery. Johnson v. McIntosh,
Cases, 71.
Westlake, 134–160.
34. Title to Territory, based on Prior Discovery of the Coast and Mouths
of Rivers, upon Occupation, Exploration, and Contiguity. (1) The
Oregon Territory (Foster's American Diplomacy, 302–313, corrected,
as most American accoứnts must be, by Bourne's, “Legend of Mar-
cus Whitman" in Essays in Historical Criticism, 1901, pp. 1–109);
Hall, 115-117; Hart, 194–195; 1 Moore, Int. Arb. 196-213;
XXX
.
SYLLABUS.
Pomeroy, 98, 102, 111-114; Taylor, SS 99-102; D. Wheaton, 250-
255. (2) Delagoa Bay (Hall, 122; 5 Moore, Int. Arb., 4984–4985).
(3) Texas (Hall, 113-115).
35. Inchoate Title acquired by Discovery. Occupation to give Title pre-
supposes (1) intent to occupy, (2) Continuous Occupation, (3) a
State Act or Subsequent Ratification of the Act by the State. Blunt-
schli, S$ 278-279; Bonfils, $$ 536–563; Hall, 106-113; Jèze, Étude
sur l'occupation, 1896; Liszt, 90-92; 2 Moore, Int. Arb., 1909--
1922; 1 Phillimore, 329; Pomeroy, 94-111; 1 Rivier, 188-197;
Rivier, L. B., 146-150; 1 Twiss, 191-206; Westlake, 160-177.
*****
36. Abandonment of Territory once occupied. Santa Lucia, Hall, 120-
121; 1 Phillimore, 368.
37. Tendency to change the Law of Occupation. — Berlin Conference,
1885. Bonfils, $ $ 557-561; Hall, $ 33*, and notes; Liszt, 92.
38. Prescription gives Valid Title to Territory by the Rules of Interna-
tional Law. Rhode Island v. Massachusetts, 4 How. 591; Virginia
v. Tennessee, 148 U. S. 503, 522-524, and authorities there cited.
Bluntschli, $ 290; Bonfils, $ 534 ; Creasy, 249-255; Hall, $ 36,
and note; 1 Jones, 441; 2 16., 402; 4 Moore, Int. Arb., 4179–
4203; 1 Phillimore, 353–368; 1 Rivier, 182–183; Pomeroy, 119–
131; D. Wheaton, 239, note 101; L. Wheaton, 303.
39. Acquisition of Territory by Accretion. The Anna, Cases, 74, note;
C. Cushing, 8 Op. Atty.-Gen. 175.
Bluntschli, $8 294–295; Bonfils, $ 533; Creasy, 241-249; Hall,
125-127; 1 Phillimore, 342–34); Pomeroy, 114-180; Rivier, 179–
180; Rivier, L. B., 145.
40. Acquisition of Territory by Conquest or Cession : the Loss of Terri-
tory. Harcourt v. Galliard, Cases, 70; U. S. v. Percheman, Ib.,
95; Am. Ins. Co. v. Canter, Ib., 657.
Bluntschli, $$_285–286; Liszt, 67, 151; 1 Phillimore, 369–387 ;
1 Rivier, 181–182, 197–217, 217-220; Rivier, L. B., 150–154,
154-155.
(c) Acquisition of Rights in Foreign Territory.
1
41. Servitudes in International Law. Bluntschli, $$ 353, 359; Bon-
fils, $$ 338–344 (note for literature); Creasy, 255-259; Hall, 166;
Liszt, 67, 151; 1 Phillimore, 388-392; 1 Rivier, 258, 296-303.
SYLLABUS.
xxxi
42. The Navigation of Rivers. (1) The Mississippi, Cases, 132, note;
(2). The St. Lawrence, Ib., 132, note; (3) European Rivers, Ib.,
132, note; (4) South American Rivers, Ib., 132, note; (5) African
Rivers, Ib., 132, note.
Bluntschli, $$ 311-315; Bonfils, 264-270; Hall, 136–146; 1 Hal-
l'eck, 171-179; Hart, 201; Heffter, § 77; 1 Jones, 392, 2 16., 359;
Lawrence, 186-189; Liszt, 206-213; 2 Martens, 345–361; 1 Philli-
more, 223-247; Pomeroy, 147-164; 1 Rivier, 221-229; Rivier, L.
B., 155–162; Schuyler, The Free Navigation of Rivers and Seas
(Am. Dip., 265–366); Taylor, $$ 233–241; D. Wheaton, 274-288;
Woolsey, 79-83.
43. Protectorates over Semi-civilized Peoples. "Spheres of Influence."
Bonfils, $$ 182–187, 558-562, 176 (note for literature generally on
the subject of protectorates); Hall, $$ 38*, 38**; Hall, Foreign
Powers and Jurisdiction of the British Crown, 1894, pp. 204-238;
Hill, The Growth and Development of International Law in Africa,
16 Law Quarterly Review, 249–268; Liszt, 73–74; Westlake,
174-189.
(d) Boundaries.
44. In the United States, the Political Department of the Government
determines what are the Boundaries under Treaties.
Foster v.
Neilson, Cases, 75; U.S. v. Texas, Ib., 76, note 1; in re Cooper,
IV., 76, aote 1; James G. Swan, II., 76, note 1.
45. The Determination of River-Boundaries. Handly v. Anthony,
Cases, 116; Buttenuth v. St. Louis Bridge Co., Ib., 121; Cooley v.
Golden, Ib., 129; The Twee Gebroeders, Ib., 129, note; Opinion of
C. Cushing, 1856, 8 Op. Atty.-Gen., 175.
Bluntschli, $$ 298–300; Bonfils, $ 487; Liszt, 71; 1 Martens, 454–
456; 1 Rivier, 165-171; D. Wheaton, 274.
46. Determination of Boundaries in the cases of Lakes and Mountains.
Bluntschli, ss 297, 301-303; Bonfils, $ 487; Hall, $ 38; 1 Mar-
tens, 457-458.
(e) Territorial Waters of a State.
47. The History of Attempts to appropriate the Seas, or Portions of them;
the contest between mare clausum and mare liberum. Bluntschli,
SS 304–309; Bonfils, $$ 572-576; 1 Calvo, $$ 348–352; 2 Cauchy,
Le droit maritime international, 1862, 92-124; Creasy, 226-231;
Hall, $ 40; Liszt, 196-197 ; 1 Martens, 491-496; 1 Phillimore,
xxxii
SYLLABUS.
1
247-256; Pomeroy, 182–190; 1 Rivier, 234-239; Rivier, H. B.,
166–168; Snow, § 12; Taylor, $$ 242—246; 1 Twiss, 284–291;
Walker, Science, 163-171; D. Wheaton, note 113.
48. The Origin of the Rule limiting the Territorial Right of a State in the
Sea to a Marine League from the Shore: “ Terrae dominium finitur
ubi finitur armorum vis." The Queen v. Keyn, Cases, 154.
Bonfils, $$ 490-494; 1 Calvo, $$ 354-356; Creasy, 233-240; Hall,
$ 41; 1 Halleck, 157; 1 Phillimore, 274 et seq.; Pomeroy, 176–
180; Walker, Science, 171–175; Wharton's Digest, $ 32; Woolsey,
68–70.
49. Bodies of Water more than Six Miles wide:
(a) Straits and Lakes, more than six miles wide. --U. S. v.
Rodgers, Cases, 132; The Sound Dues, D. Wheaton, 264–267;
Snow's Am. Dip., 124–127; Schuyler, Am. Dip., 306–316; The
Bosphorus and Dardanelles, D. Wheaton, 263-264, 273-274, note
111; Schuyler's Am. Dip., 317-318
(6) Bays and Gulfs. — The Alleganean, Cases, 143; Dunham v.
Lamphere, Ib., 153, note; The Schooner Washington, Ib., 153,
note; Mahler v. Transportation Co., Ib., 153, note; Manchester v.
Massachusetts, Ib., 153, note; Shirely v. Bowlby, Ib., 153, note.
Bluntschli, $ 309; Bonfils, $$ 495-505, 516; 1 Calvo, $$ 357–374;
Hall, 161-164; 1 Halleck, 165–172; Liszt, 76–197; Perels, Manuel
du droit maritime international, 1884, 42-46; Pomeroy, 164–176;
1 Rivier, 143–159; Rivier, H. B., 133–137; Taylor, $$ 229,231;
Wharton's Digest, $$ 28–29; Woolsey, 76-79.
50. Interoceanic Canals. - Suez Canal, 1869 (neutralized, 1888);
Corinth, 1893; Kiel, 1896; Panama, Bonfils, $ 506-515;
1 Calvo, $$ 376-380; De Bustamante, Le canal de Panama, et le
droit international, 27 R. D. I., 112, 223; Hart, 219–220; Holland,
Studies, 270-293; 1 Jones, 410, 530, 2 16., 476; Lawrence, The
Suez Canal in International Law (Studies, 41-88), The Panama
Canal and the Clayton-Bulwer Treaty (Ib., 89_162); Liszt, 75,
213–215 (authorities cited, 213, note); 1 Rivier, 231, 2 Ib., 395;
Rivier, H. B., 163-166; B. Wheaton), $ 205 (c. d. e.).
III. TERRITORIAL JURISDICTION.
$
(a) Doctrine of Exterritoriality. - Exception to the Rule of Exclusive
Territorial Jurisdiction.
51. Sovereigns may sue in Courts of Foreign State. Republic of
Mexico v. Arrangoiz, Cases, 170; Prioleau v. U. S., Ib., 173;
U. S. v. Wagner, Ib., 175; The Sapphire, Ib., 178.
SYLLABUS.
Xxxiii
52. Sovereigns are exempt in (1) their persons, (2) in their Official
Representatives, and (3) in their Property from the Jurisdiction of
Foreign Courts of Law. De Haber v. Queen of Portugal, Cases, 180;
Strousberg v. Costa Rica, IV., 181, note; Mighell v. Sultan of
Jahore, Ib., 181, note; So. African Rep. v. Co. Fr.-Belge, 16., 181,
note; Underhill v. Hernandez, Ib., 62; Vavasseur v. Krupp, Ib.,
182; Beers v. Arkansas, Ib., 186; for other cases, see Ib., 189,
note.
Bluntschli, $$ 129-134; Bonfils, 632–647; 3 Calvo, SS 1451-
1479; Hall, $$ 47-49; Heffter, $$ 48-57; 2 Jones, 12, 463; Liszt,
105-109; 2 Phillimore, 133-155; 1 Rivier, 411-425; Rivier,
L. B., 249–256; Snow, § 20; Taylor, $ 184.
53. The Right of Legation : Rights, Privileges, and Duties of Diplo-
matic Representatives. Bluntschli, $$ 159–240; Bonfils, $$ 652–
702, 722-732; 3 Calvo, 165-215, 295-307, 323–336; Hübler, Die
Magistrâturen des völkerrechtlichen Verkehrs, 1900; Lisboa, Ex-
territorialité et immunités des agents diplomatiques, 1 R. D. I. (2d
ser.), 354–367; Liszt, 109–118; 2 Phillimore, 176–201, 246–264;
Pomeroy, 396-454; 1 Rivier, 429-488; Rivier, H. B., 257-280;
Schuyler, Diplomatic Officials (Am. Dip., pp. 105–190); Snow,
§ 21; Taylor, $$ 273-300, 303-304, 305-306, 313–324; 1 Twiss,
333-381; Woolsey, SS 86-98.
54. Immunities of Diplomatic Agents :
(a) From Criminal Jurisdiction. — (1) Case of Bishop of Ross,
1571, Cases, 191, note; (2) Case of Mendoza, 1584, Ib., 191, note;
(3) Case of Da Sa, 1653, Ib., 191, note; (4) Case of Gyllenborg,
1717, 16., 192, note; (5) Case of Prince Cellamare, 1718, Ib., 192,
note.
Bluntschli, $$ 136, 141, 142; Bonfils, $$ 703–711 ; 3 Calvo, $ $ 1511-
1520; Hall, 178–180; 1 Halleck, 332-339; 2 Phillimore, 199-218;
1 Rivier, 488-493; Rivier, L. B., 280.
55. Immunities of Diplomatic Agents :
(6) Exemption from Civil Jurisdiction. —— (1) Case of - Peter the
Great's Ambassador, 1708, Cases, 4, 6, 192, note; (2) Case of Baron
de Wrech, 1772, Ib., 192, note; (3) Case of Wheaton, 1839, 16.,
192, note; (4) Case of Dillon, 1854, 16., 192, note; (5) Case of
Dubois, 1856, Ib., 192, note; Heathfield v. Chilton, Ib., 189;
Parkinson v. Potter, IV., 192; in re Baiz, Ib., 197; Wilson v. Blanco,
Ib., 206; New Chile Mining Co. v. Blanco, Ib., 207, note; Dupont
v. Pichon, Ib., 208, note.
xxxiv.
SYLLABUS.
Bluntschli, $$ 135-153; Bonfils, $$ 712-721; 3 Calvo, $$ 1506-
1510; Hall, 180-188; 2 Phillimore, 219-240; 1 Rivier, 439-518;
Rivier, H. B., 283–292; D. Wheaton, 299-320 (especially Dana's
notes, nos. 125-131); L. Wheaton, 392-416.
56. Armed Forces and Ships of War in Foreign Territory are exempt
from Local Jurisdiction. The Schooner Exchange v. M'Faddon,
Cases, 208; The Constitution, 16., 218; Coleman v. Tennessee, Ib.,
212, note; Neal Dow v. Johnson, 16., 212, note.
Bluntschli, § 321; Bonfils, $$ 614–623; 3 Calvo, $$ 1550–1560;
Ferber, Internationale Rechtsverhältnisse der Kriegs- und Handels-
schiffe, im Krieg und Frieden, 1895; Hall, $$ 54–57; 1 Halleck,
215-230; Lawrence, 222-226; Liszt, 78, 82, 194–196; Morse,
Status of Public Vessel in Foreign Waters, 22 Wash. L. Rep. 707;
1 Phillimore, 476-483; Pomeroy, 209–220; 1 Rivier, 156, 330-
335; Snow, § 23; Taylor, $$ 253–261; Twiss, Exterritoriality of
Public Ships of War (Law Magazine and Review, 1876); Whar-
ton's Digest, § 36; D. Wheaton, $ 100, notes, nos. 61 and 63. i
57. Public Ships other than Men-of-war are likewise exempt from
Process in Foreign Ports. The Parlement Belge, Cases, 220, and
note; Vavasseur v. Krupp, Ib., 182, and note 1, 186.
Bonfils, $ 629; Hall, $$ 44, 57 *; Liszt, 82.
58. Merchant Vessels do not, as a Rule, enjoy Exemption from Local Juris-
diction in Foreign Ports: The exemption, if it exist, is the result of
a special custom based upon a tacit or express renunciation of terri-
torial sovereignty. Wildenhus Case, Cases, 227; The Newton and
The Sally (1 Ortolan, Diplomatie de la Mer, 450), 16., 227; Case
of Jally (1 Ortolan, Ib., 455), Ib., 229; The Anemone, Ib., 228,
note; Ellis v. Mitchell, Ib., 234; in re Ross, Ib., 238; The Creole,
Ib., 252, 255, note; Other Cases, 16., 233, note.
Bluntschli, $S 317–320, 322; Bonfils, $$ 595–606, 624-629; 1
Calvo, § 474; Hall, $$ 58–60; 1 Halleck, 230-232; Liszt, 75, 78–
81; A. P. Morse, Compétence de la jurisdiction locale à l'égard des
pavires de commerce étrangers, 18 J. I. P., 751, 1088; 1 Philli-
more, 483-487; Pomeroy, 220-224; Snow, $ 26; Taylor, SS 263-271.
59. The Fiction of Exterritoriality, -its Origin and Purpose explained
and criticised. Hall, § 57; Historicus, 201-212; Liszt, 70–71,
114-115; Pietri, Étude critique sur la fiction d'exterritorialité,
1895; Piggott, Exterritoriality, 1892.
SYLLABUS.
XXXV
!
(6) Right of Asylumi
60. Legations should not and do not, as a Rule, grant Asylum either to
Political Refugees or to Fugitives from Justice. Exception in the
Case of Spanish-American States. Duke of Ripperda, 1726, Cases,
257, note; Springer's Case, 1747, 16., 258, note; United States
v. Jeffers, Ib., 256.
Bluntschli, $$ 151, 200, 201; Bonfils, $$ 696–698; Gilbert in 15
Harvard Law Rev., 118-140; Hall, 186, § 52; Liszt, 116; J. B.
Moore, Asylum in Legations and Consulates and in Vessels, 7 Pol.
Sc. Quart., 1, 197, 397; A. P. Morse, So-called Right of Asylum
in Legations, 45 Alb. L. J., 311 ; 1 Rivier, 499-502;. Snow, $ 27;
Taylor, SS 311-312.
61. Sound Principle, if not Practice, would seem to deny to Ships of
War the Right to grant Asylum to Political Refugees. It is, how-
ever, Common Practice in Spanish-American Waters. (2) Forbes v.
Cochrane, Cases, 258; (1) Lord Stowell's Opinion in the Case of
John Brown, 1820, Ib., 264, note; Admiral de Gama's Case, 1894,
1 R. D. J. P., 273 et seq.; Martens-Ferrao in 26 R. D. I., 378;
Fugitive Slaves and Other Cases, Cases, 255, note.
Bonfils, § 622; Hall, 203-204; 1 Halleck, 228-230; Lawrence,
226-229; Maine, 86-88; Taylor, $$ 259, 260.
62. Merchant Ships, not being exempt by International Law from the
Jurisdiction of the Foreign Port, cannot properly grant Asylum to
Political or other Refugees. United States v. Diekelman, Cases,
264; Sotelo's Case, 16., 273, note; Lord Aberdeen's Opinion, Ib.,
273, note; Gomez' Case, Ib., 274, note; Barrundia's Case, Ib., 275,
note; Bonfils, 328-330; Coudert, Le droit de refuge à bord d'un
navire étranger, 23 Journal de Droit, Int. Privé, 780; Lawrence,
227–228; J. B. Moore, in Political Science Quarterly, 1892; Taylor,
§ 271.
(c) Other Questions of Territorial Jurisdiction.
63. Jurisdiction over Passing Vessels. The Queen v. Keyn, Cases,
154.
1 Jones, 284; Foster in 11 Am. Law R., 625; Hall, $ 59, and
notes; Liszt, 76–81; 1 Rivier, 150; Schücking, Das Küstenmeer
im internationalen Rechte, 1897.
Xxxvi
SYLLABUS.
64. Are Aliens exempt from Military Duty? Bluntschli, § 391; Bonfils,
§ 445; Hall, § 61, and note 2; Liszt, 69; 1 Rivier, 304-306;
6 Richardson's Messages and Papers, 168, 180; Roche, 15 J. I. P.,
731; Taylor, $ 467 ; Wharton's Digest, $ 202.
65. Are Offences committed by Citizens or Foreigners, beyond the
Limits of a State, subject to the Jurisdiction of its Courts?
U. S. v. Davis, Cases, 294; State v. Wyckoff, Ib., 296; State v.
Carter, Ib., 298, note; State v. Knight, Ib., 300, note; Common-
wealth v. Macloon, Ib., 300, note; Commonwealth v. Blanding,
10., 300, note; Cutting's Case, Ib., 301; United States v. Smiley,
Ib., 302; Other Cases and Opinions, Ib., 304, note.
Bonfils, $$ 436-438; Diena, Des conflits de législation à l'égard des
délits commis à l'étranger, 20 J. I. P., 24; Fiore, Délits commis
à l'étranger, 11 R. D. I., 302; Fusinato, Des délits commis à
l'étranger, 19 J. I. P., 56; Gamboa, L'Affaire Cutting (Mexican
view), 22 R. D. I., 234–250; Hall, 221-223; Heffter, $ 36;
2 Jones, 262; 1 Martens, $8 85-86; Moore, Report on the Cutting
Case, 1887; 1 Rivier, 271, 867; Rolin, L'Affaire Cutting, 20. R.
D. I., 557–577; Taylor, SS 194–197; Wharton, Conflict of Laws,
2d ed., $8 809–813; Philosophy of Criminal Law, 309 et seq.
66. Criminal Jurisdiction of State Courts in the United States. U. S. v.
Bevans, 1818, 3 Wheat. 336.(at p. 386).
67. Extradition of Fugitives from Justice: (1) is, in International Law,
a Conventional not a Moral Duty; it does not exist in the Absence
of Treaty Stipulations; (2) it is, in the United States, strictly and
exclusively a Federal Question; (3) the Person extradited is triable
for the Offence for which he was extradited, but for no other,
U. S. v. Rauscher, Cases, 274; Case of Arguelles (1 Moore on
Extradition, 33), Cases, 282, note ; Ex parte Holmes (1 Moore.
55-58), 16., 282, note ; Winslow's Case (1 Moore, 196, 212), Ib.,
282, note.
68. As a Person is extradited for the Commission of a Conventional.
Crime, the Nationality of the Criminal is clearly immaterial; how-
ever, to prevent misunderstandings, it is customary to exclude
citizens of the contracting States from the operation of the provi-
sion of the treaty. Case of Trimble (1 Moore, 166, 152–193),
Cases, 293, note.
$
69. States do not, as a Rule, surrender Persons charged with Political
or Military Offences. In re Castioni, Cases, 285 ; in re Ezeta,
SYLLABUS.
Xxxvii
Ib., 293, note ; Burley's Case (1 Moore, 319), 16., 293, note ; St.
Alban's Raid (1 Moore, 322), Ib., 293, note ; Cazo's Case (1 Moore,
324), Ib., 293, note.
De Hart, The Extradition of Political Offenders, 1 Law Quarterly
Review, 177-187.
70. Extradition, termed “Inter-state Rendition," obtains between the
Members of the American Union ; it is, however, a "moral" as
distinguished from a "legal" duty. It differs from the extradition
of the Law of Nations in that the person rendered or delivered
up may properly be tried for and convicted of a crime other than
that for which he was surrendered. State v. Patterson, Cases,
283, and note p. 285 for other cases.
71. Leading Authorities and References on Extradition: v. Bar, Lehr-
buch des internationalen Privat- und Straf-rechts, 1892; Bernard,
Traite théorique et pratique de l'extradition, 2d ed., 1890;
Bellot, Traité de l'extradition, 1874 ; Bluntschli, $$ 394–401 ;
Bonfils, $$ 455-481 ; 2 Calvo, $$ 949-1071 ; Clarke, Treatise on
the Law of Extradition, 3d ed., 1888; Hall, 60-61 ; 1 Halleck,
235-239, 257-268; Heffter, $ 63; 1 Jones, 199–202, 2 16., 176–
177; Lammasch, Auslieferungspflicht und Asylrecht, 1887; Lam-
masch, Rechtshilfe und Auslieferungsverträge (3 Holzendorff, H.
B., 345–579.); Lawrence, 233–240; Liszt, 242—246; 3 Martens,
2–116 ; Martitz, Internationale Rechts hilfe in Strafsachen, 1887,
1897; Moore, Treatise on Extradition and Interstate Rendition,
1891 ; 1 Phillimore, 515–552; Pomeroy, 235–242; 1 Rivier, 348–
357 ; A. Rolin, Du principe de la non-extradition en matière de
délits politiques, 24 R. D. I., 17–38; La répression des attentats
anarchistes, 26 Ib., 125–152 ; and articles in 15 Ib., 147–166, 254–
282, 19 16., 545-580 ; Spear, The Law of Extradition, 2d ed.,
1884 ; De Stieglitz, Étude sur l'extradition des criminels, 1883;
Taylor, $$ 205–212 ; 1 Twiss, 405-417; D. Wheaton, 180-191,
and notes; Woolsey, 111-117.
72. Extraterritorial Acts of Persons by Order of their Government.
Buron v. Denman, Cases, 305, and note 307; The Rolla, 16.,
309, note ; Case of McLeod, Ib., 319, note.
Hall, $ 65; Liszt, 177-180; Snow, § 21; Taylor, § 131; L.
Wheaton, 189, note.
73. Extraterritorial Acts of a State in Self-defence. Commonwealth v.
Blodgett, Cases, 308; The Caroline, Ib., 67, 319, note ; (1 Jones,
xxxviii
SYLLABUS.
263); Seizure of St. Marks, Ib., 320, note; The Virginius, Ib.,
320, note.
Case of The Virginius, 3 L. Mag. and Rev. N. S., Ib., 78, 609;
1 Jones, 262; Int. Law of The Virginius, Ib., 56; L. T., 69, 263;
8 Am. Law. Rev., 470 ; Bonfils, § 242; Hall, $$ 83–87 ; Liszt,
182–184; Taylor, $$ 401-409; Wharton's Digest, § 50 ; Woolsey,
366-370.
74. Responsibility for Injury to Foreigners by Civil Commotions and
Mob-violence. New Orleans v. Abbagnato, Cases, 320; New
Orleans Riot, 1851 (2 Wharton's Digest, 600), New Orleans Mob,
1891, Cases, 329, note; L'Affaire d'Aigues-Mortes (1 R. D. I. P.,
171-178).
Bar in R. D. I., 2d s., Vol. 1, 464-481; Bluntschli, $$ 379-380, bis;
Bonfils, $$ 324–332; Bryce in New Review, 1891; 3 Calvo, 142–
156; Despagnet, Les difficultés internationales venant de la consti-
tution de certains états, 2 R. D. I. P., 184–199; Hall, 226-231;
Huffcut, International Liability for Mob Injuries, 2 Am. Acad.
Pol. & Soc. Sci., 69; 2 Jones, 342, 1 Jones, National Responsi-
bility for Injuries to Foreigners, 49 L. T., 84 ; Liszt, 180-182;
Mitchell, International Liability for Mob Injuries, 34 Am. Law
Rev., 709-721; Snow, $ 22; Taylor, $$ 129-130, 215-216.
75. Is the Jurisdiction of a State over its Citizens and Property on the
High Seas exclusive ? Bluntschli, $$ 317–319; Bonfils, 88 607–613;
Hall, 8 77; 2 Jones, 211; Lawrence, 205–208 ; Liszt, 82; 1 Mar-
tens, 496 497; Snow, $ 23; Taylor, $ 262; D. Wheaton, $$ 108–
109.
76. Theory of the Territoriality of Merchant Vessels. Hall, 258–267;
Heffter, $ 78; Historicus, 199-212; Liszt, 82 ; 2 Martens, 336;
Pomeroy, 220-222; 1 Rivier, 140, 240; Taylor, $ 263; Walker,
Manual, 53–55; Woolsey, $ 58.
77. Impressment of Seamen. Foster, Century Am. Dip., 235–238;
Hart, 203-204 ; Schurz, Clay, Vol. I., pp. 70-96; Walker, Manual,
54–55; 3 Wharton's Digest, § 331; D. Wheaton, $$ 108–109, and
note 67.
78. Jurisdiction over Merchant Vessels on the High Seas. Wilson v.
McNamee, Cases,' 329; Crapo v. Kelly, 1b., 331, note; Regina v.
Anderson, 16., 331, and note, 336; Regina y. Lesley, 16., 337; The
Belgenland, Ib., 338. See also Cassidy v. U. S., 1883 (Second Court
SYLLABUS.
XXXIX
of Commissioners of Alabama Claims, no. 144), 5 Moore, Int. Arb.,
4672; The Costa Rica Packet, 1897, 5 Moore, Int. Arb., 4948–4953.
Snow, $ 24.
79. Municipal Seisures beyond the Three-mile Limit. Church v.
Hubbart, Cases, 343, note; The Itata, Ib., 344, note; Other Cases,
16., 344, note 1; Act of Congress, March 2, 1797, $ 27; Phelp's
Argument before Behring Sea Tribunal (Am. Case, 150).
Liszt, 200; 1 Rivier, 151; Snow, $ 26; Wharton's Digest, 105,
106, 109–112; B. Wheaton, § 179 a; D. Wheaton, 258, note, 108.
80. Piracy. - Definition and Character of Piracy jure gentium. Opinion
of Sir L. Jenkins, Cases, 345; United States v. Smith, Ib., 13;
The Magellan Pirates, Ib., 351; The Cases of The Anna, 1895,
The Prosper-Corlin, 1896 (4 R. D. I. P., 425-427).
Bluntschli, $$ 343-352; Bonfils, $$ 594–595; 1 Calvo, $$ 485-495;
Hall, § 81 ; 1 Jones, 429, 2 16., 392; Liszt, 201-203; 1 Philli-
more, 489 et seq.; Pomeroy, 224–229; 1 Rivier, 248–251; Rivier,
L. B., 173; Schuyler, The Piratical Barbary Powers (Am. Dip.,
193–232); Snow, § 27; Taylor, § 188; Walker, Manual, 55–60 ;
L. Wheaton, 246, note, no. 79; Woolsey, § 144.
81. May Rebels and Insurgents be regarded as Pirates? Piracy by
Municipal Law. United States v. The Ambrose Light, Cases, 346;
United States v. Baker, Ib., 350, note 1; Golden Rocket Cases,
Ib., 350, note 1; Fifield v. Insurance Co., Ib., 350, note 1 ; Other
Cases, Ib., 351, note.
1 Calvo, $$ 496-512 ; Hall, § 82; 1 Halleck, 79–84 ; Holland,
Studies in Int. Law, 159-160 ; Insurgents not Pirates, 32 Alb.
L. J., 65; Lawrence, 209–219; Penfield, International Piracy in
Time of War, North Am. Review (July), 1898; Taylor, § 189;
3 Wharton's Digest, 469; Wharton in 33 Alb. L. J., 125; D.
Wheaton, 196, note; Woolsey, § 145; Wright, Recognition of
Insurgents as Belligerents and Status of Insurgent Cruisers, 1 Pa.
Law Ser., 491.
82. The Slave Trade is not Piracy jure gentium. Le Louis, Cases,
352; Other Cases, Ib., 369, note 1.
Bluntschli, $$ 351–352 ; Bonfils, 88 398–409; Creasy, 259–277;
5 Calvo, $ $ 2996-3003 ; 1 Jones, 512; 2 Ib., 456 ; Lawrence, 214–
219; Liszt, 266-271; De Montardy, La traîte et le droit interna-
tional, 1899; 1 Phillimore, 402–442; Pomeroy, 229-230; 1 Rivier,
374–379; Taylor, § 190; Walker, Manual, 60–65; D. Wheaton,
$$ 125–133 and notes, 85–89; Woolsey, $ 146.
--
x
SYLLABUS.
V. INTERVENTION.
83. Character and Conditions of Intervention. Bluntschli, $$ 68–69,
431-441; 474–480; Bonfils, $8 295–323; Bourgeois, Le Principe
de non-intervention, 4 R. D. I. P., 745; Creasy, 278-296; de
Floeckher, De l'intervention en droit international, 1896; Gover,
Public Intervention, 20 L. Mag. & Rev., 4th s., 259; Hall, 297–
299; Heffter, $$ 44-46; Lawrence, 115-117; 1 Martens, $ 76;
1 Phillimore, 553-638; Historicus, 14, 41; 1 Jones, 266; Liszt, 56–
59, 277–279; 3 Moore, Int. Arb., 2313–2447; Payn, Intervention
among States, 26 Law Magazine and Review, 5th ser. 176-201 ;
Pomeroy, 242—245; 1 Rivier, 389-404; Rivier, L. B., 243-247;
Snow, $ 28; Taylor, $S 81-90; 1 Wharton's Digest, $ 45; D.
Wheaton, $ 63.
84. Intervention on the Ground of Self-preservation for the Protection
of (1) Institutions, (2) Good Order, (3) the External Safety of the
Intervening State. Creasy, 297–308; Hall, 299-301; Lawrence,
117–135, 652–666; Pomeroy, 245–246; Taylor, SS 410-430.
85. Intervention against Illegal or Immoral Acts. Case of Greece,
1826; Bulgaria, 1876; Cuba, 1898 ; China, 1900. Hall, 302–306;
Hart, Century of Cuban Diplomacy (Foundations of American
Foreign Policy, 108–133); Liszt, 58, 283; Taylor, $$ 416-419
(See the Spanish side of the question by De Olivart, 4 R. D. I. P.,
577; 5 Ib., 358, 449; 7 Ib., 541; 9 Ib., 161); China and Inter-
national Questions, 192 Edinburgh Rev., 450 ; Jellinek, China and
International Law, 35 Am. Law Rev., 56–62; Lapradelle, La ques-
tion chinoise, 8 R. D. I. P., 272–340 ; 9 Ib., 49–115 et seq.
86. Intervention under a Treaty of Guarantee on Invitation of one of
the Parties to a Civil War,- under Collective Authority of the Body
of States. The Case of the Allies in 1821 in Spain and Italy; Bel-
gium, 1830; U. S. in Peru, 1881; the constant intervention of the
Powers in the affairs of Turkey, and the not infrequent inter-
meddling with Greece.
Foster, Century American Diplomacy, 358–382; Hall, 305-309;
Holland, Studies in International Law, 201-269; Holland, Euro-
pean Concert in the Eastern Question, 1885; Rolin-Jacquemyns,
Le droit international et la question d'Orient, 8 R. D. I., 293,
811; Les événements d'Orient, 10 Ib., 5; Du droit d'intervention,
8 Ib., 673; 9 16., 103; La question d'Orient en 1885, 18 Ib., 373,
504, 591 ; 19 16., 37; Streit, La question cretoise, 4 R. D. I. P.,
SYLLABUS.
xli
61, 446; Hart, 163–165, 209–210; Hart, Foundations of American
Foreign Policy, 1901, pp. 211-240; Intervention and the Monroe
Doctrine, 1 Jones, 379, 2 16., 344–345; Gilman's Life of Monroe,
pp. 159–179, 277–294 (bibliography of the doctrine, classification,
and enumeration of its various applications); Holls, Peace Confer-
ence at The Hague, pp. 270-271; Pellaway, The Monroe Doctrine,
1898.
87. Nationality: The Doctrines of Indelible Allegiance and Expatria-
tion. Case of Æneas Macdonald; Cases, 370; Williams' Case, IV.,
372, and note 374; Act of Congress, July 27, 1868, Ib., 375; Act
concerning ,Aliens and British Subjects, Ib., 377, note; French
Practice, Ib., 347, note.
2 Calvo, S8 539 et seq.; Cockburn, Nationality ; Creasy, 357; Hall,
233-239; 1 Halleck, 401-403, 424-427; Hart, 216–218, 244–245;
Heffter, $ 59 a; 1 Jones, 391, 2 10., 358,359; Jellinek, Recht des
modernen Staates, 366–386; Lawrence, 190–193; Liszt, 62, 86;
3 Muore, Intr. Arb., 2449–2655; 1 Rivier, 268,271, 303–306; Rivier,
L. B., 194–196; Snow, $ 29; Taylor, $ $ 172–180; Walker, Science,
204-218; Wharton's Digest, § 171; L. Wheaton, 891 et seq.
88. Citizenship. — Naturalization. Blair v. Silver Peak Mines, Cases,
376; Littell v. Erie R. Co., Ib., 378; City of Minneapolis v. Reum,
Ib., 390; in re Moses, Ib., 396; Hausding's Case, Ib., 399, note;
Embden's Case, Ib., 399, note; Slaughter House Case, Ib., 400,
note; De Bode v. Regina, Ib., 400, note. On the question of citi-
zen and alien, and the protection accorded to them in general,
Cassidy v. U. S., 1883 (Second Court of Commissioners of Alabama
Claims, no. 144), 5 Moore, Int. Arb., 4672; The Pacific Mills v.
U. S., 1883 (Second Court of Alabama Claims, no. 793), 5 Moore,
Int. Arb., 4673.
Bluntschli, $$ 364–374; Bonfils, SS 417-432; Hall, 239-256;
1 Halleck, ch. 12; Hart, 146–149, 225-226; 1 Jones, 85, 2 IV., 71
(Citizenship), 1 Ib., 391–392, 2 Ib., 359 (Naturalization); Law-
rence, 193–202; Liszt, 95–101 ; 2 Martens, 247-287; De la qualité
de citoyen d'un état au point de vue des rélations internationales,
2 R. D. I., 107; 1 Phillimore, 443-459; 1 Rivier, 204-213, 307–
309; Salmond, Citizenship and Allegiance, 17 Law Quart. Rev.,
270-282, 18 I)., 49-63; Snow, $ 30; Stoerk, Les changements de
nationalité et le droit des gens, 2 R. D. I. P., 273; Westlake, De la
naturalization et de l'expatriation, on de changement de nationalité,
1 R. D. I., 102.; Woodworth, Who are citizens of the United
States, 32 Am. Law Review, 554-555.
xlii
SYLLABUS.
89. The Condition of a Naturalized Citizen who subsequently returns
to his Native Land. A Prussian Subject's Case, Cases, 399, note;
Wagner's Case, Ib., 400, note; Zeiter's Case, Ib., 401, note.
Liszt, 97; Pomeroy, 251–258; Snow, § 31; 2 Wharton's Digest,
$$ 181-182.
90. Nationality of Children born abroad; of Illegitimate Children ; of
Married Women. Hall, $$ 67–70; 1 Jones, 82 (and ante, $ 87);
Wharton's Digest, $$ 185, 186.
91. The Effect of Domicile, and Declaration of Intention to become a
Citizen, upon the Nationality of a Foreigner. His Relations to the
Adopting State, when abroad, and the Protection it may accord him.
City of Minneapolis v. Reum, Cases, 390; in re Moses, Ib., 396;
Koszta's Case, Ib., 400, note; Tousig's Case, Ib., 401.
2 Calvo, 45; Hall, $ 72; 1 Halleck, 109-111; Pomeroy, 252-260;
Taylor, SS 202-203; Walker, Manual, 66–68; Wharton's Digest,
$$ 175, 198; D. Wheaton, note, no. 49 (especially at p. 146); Wool-
sey, Appendix III.
92. Persons Destitute of Nationality: "Heimatlosen." Bluntschli,
$ 369; Hall, $ 74; Liszt, 96; 1 Rivier, 304–306.
93. Status of Chinese in the United States. Treaty of 1880, and Acts
of Congress of May 6, 1882, July 5, 1984; Geary Act of 1892, Act
of 1902. Under the Fourteenth Amendment to the Constitution.
Chinese children, born in the United States, are citizens thereof,
Ex parte Chin King, Cases, 379; Fong Yue Ting, Ib., 332; United
States v. Wong Kim Ark, Ib., 381, note; Fok Yung Yo v. U. S.,
1901, 185 U. S. 296.
2 Butler, Treaty-Making Power, 87–123, and notes (an elaborate
and critical consideration of the status of the Chinese citizen and
alien); Hart, 179-180; 1 Jones, 82; 2 Ib., 68.
94. Status of Indians in the United States. Indian tribes designated
by Marshall, C. J., in 1831, as “ Domestic Dependent Nations"
(The Cherokee Nation v. Georgia, 5 Peter's Rep., 1). Since 1871
no formal treaties have been made with tribes, and they have
been subjected to the authority of Congress. In 1884, the Supreme
Court held that an Indian born in a tribe, though having left
it, was not a citizen, and that the Fourteenth Amendment did not
apply to him. Compare provisions of acts of March 3, 1885, and
February 8, 1887 (allotment of lands to Indians in severalty).
Elk v. Wilkins, Cases, 398; U. S. v. Kagama, Ib., 404; and see
the case of Crow Dog, 109 U. S. 556.
SYLLABUS.
xliii
1 Rawle's Bouvier, 1015-1016, 328; 2 Butler's Treaty-Making
Power, ch. XIV.; Hart, 179–180, 196-197, 226; 1 Jones, 244, 2
Ib., 229; 1 Thayer, Cases on Constitutional Law, p. 598, note; 2
Wharton's Digest, ch. VIII.
V
VII. INTERNATIONAL AGENTS OF A STATE.
95. Persons designated by the Constitution of a State to manage its
Foreign Affairs. — Department of Foreign Affairs. — State Depart-
ment, in the United States. Diplomatic Agents. 1. Ambassa-
dors, Legates, Nuncios. 2. Envoys and Ministers Plenipotentiary.
3. Ministers -resident. 4. Chargés d'Affaires. The first three
classes are accredited to the Sovereign, the fourth to the Minister
of Foreign Affairs. Bonfils, $$ 648–651; Foster, Organization of
the Department of State (Century of Am. Dip., pp. 103–135);
Hall, 310–315; 2 Jones, 144; Liszt, 102–105; 1 Rivier, 426-428;
Rivier, L. B., 256-257; Schuyler, The Department of State (Am.
Dip., pp. 1-40); Snow, $ 32; Taylor, $$ 276–288; 1 Twiss, 339-
352.
96. Rights of Diplomatic Agents. -- Refusal to receive a Minister. —
Must be a persona grata. - Credentials; Letters of Credence, Let-
ters Patent; Full Powers; Instructions; Passport. Bluntschli,
$$ 159–190; Bonfils, $$ 663–680; 3 Calvo, § 312, et seq.; Hall,
§ 98; 1 Halleck, 325-329, 358-362; Heffter, $S 201-204, 208–
213; 218-221; Lawrence, 258-272; Liszt, 109–118, 111-112; 2
Phillimore, 156–198, 246-264; 1 Rivier, 453–475; Rivier, L. B.,
269–274; Taylor, $8 289-300; 1 Twiss, 336–339, 353-365; 1
Wharton's Digest, $$ 82–83; Woolsey, 126-135.
97. Termination of Mission. — Recall and Dismissal. Dupont v. Pichon,
Cases, 208, note; Torladé v. Barrozo, 16., 208, note; Musurus Bey
v. Gadban, 16., 208, note ; The Dè Lome Incident, 32 Am. Law
Review, 265–268.
Bluntschli, &$ 227–240; Bonfils, $$ 730–732; Hall, $$ 98–99 ; 1
Halleck, 363–366; Heffter, $$ 223–226, 227–240 (L'art diploma-
tique); Liszt, 112; 1 Rivier, 512–518; Taylor, $$ 320-323; Whar-
ton's Digest, § 84; D. Wheaton, 250.
98. The Rights and Immunities of Diplomatic Agents in Friendly States
on the Way to or from their posts. Wilson v. Blanco, Cases, 206;
New Chili Gold Mining Co. v. Blanco, Ib., 207, note; see also
Holbrook v. Henderson, 4 Sanford (N. Y.), 631.
xliv
SYLLABUS.
Hall, $$ 99-101; 1 Halleck, 362; Heffter, $ 207; Liszt, 1:12; 2
Phillimore, 215-218; Pomeroy, 421-423; Rivier, 508-512; Taylor,
$$ 293–294; Twiss, 373–378.
99. Consuls: Origin of Office. — Function. — Appointment. — Dismissal.
Privileges. - Consuls diplomatically accredited. — "Lettres de
Provision." - Exequatur. In re Baiz, Cases, 197; Other Cases,
10., 205, note.
Bluntschli, $$ 244–275; Bonfils, $$ 733-775 (literature on subject,
376-378); 3 Calvo, $$ 1368_1431; Hall, $$ 105-106; 1 Halleck, 369–
386; Hart, 245-246; Heffter, $$ 244-248; 1 Jones, 107, 2 16., 93;
Lawrence, 230-233, 272-274; Liszt, 119-125; 2 Martens, 95-121;
2 Phillimore, 265–336; Pomeroy, 443–451; 1 Rivier, 519-542,
Ib., 238; Rivier, L. B., 292-303; Snow, 58-60; Schuyler, Our Con-
sular System (Am. Dip., 41-104); Taylor, SS 325-330; 1 Twiss,
378–382; Wharton's Digest, 38 113-124; D. Wheaton, $ 120.
100. Judicial Functions of Consuls in Semi-civilized Lands. Ellis v.
Mitchell, Cases, 234; Dainese v. U. S., 15 Ct. Cl. 64, Cases, 237,
note; in re Ross, 16., 238; U. S. Rev. Stat., $$ 4083-4086, 4087-
4089; Cases, 237, note.
Bonfils, SS 776–791; 3 Calvo, $$ 1431 et seq. ; Dunwell, Our Con-
sular Courts in China, 34 Am. Law Review, 826-840; 1 Halleck,
386-400; 1 Jones, 107, 2 Ib., 93; Liszt, 125–133; 2 Martens,
121-144; 2 Phillimore, 337–342; Pomeroy, 451-453; 1 Rivier,
543-558; Rivier, L. B., 303-308; Snow, 62; Taylor, § 333;
Wharton's Digest, $ 125.
VIII. TREATIES.
101. Nature and Kinds of Treaties. Conditions necessary to the Valid-
ity of Treaties. — Authority of Persons contracting. - Freedom of
Consent. — Intimidation. — Fraud, etc. Foster & Elam v. Neilson,
Cases, 412; Geofroy v. Riggs, Ib., 413, and note; Hauenstein v.
Lynham, 16., 419, note; Extradition Treaty, see Extradition, $ 67,
et seq., ante, and Terlinden v. Ames, Cases, 436; Arbitration Treaty,
La Ninfa, Cases, 443.
Bluntschli, $$ 402-424, 442; Bonfils, SS 816-823, 861-929; 3 Calvo,
$$ 1567 et seq.; Hall, $$ 108-109; 1 Halleck, 276-295; Heffter,
$$ 83–88; Jellinek, Die rechtliche Natur der Staatsverträge, 1880;
Die Lehre von den Staaten verbindungen, 1882, 100-113; Gesetz
und Verordnung, 1887, 341-336; 1 Jones, 352-353, 2 Ib., 500-501;
SYLLABUS.
xlv
Liszt, 159–169; 1 Martens, 510–561 ; 2 Phillimore, 68-83; Pome-
roy, 23 et seq. ; 2 Rivier, 33–71, 106-118; Rivier, L. B., 320–331,
342–346; Schuyler, Commercial Treaties (Am. Dip., 421-457);
Snow, $ 33; Taylor, $$ 331-348, 374–376; 1 Twiss, 382-402; D.
Wheaton, $$ 252-262; Woolsey, 159-164.
102. Some Agreements in the Form of Treaties are not Subjects of Inter-
national Law. Bluntschli, § 443; Hall, $ 107, and note.
103. Forms. Tacit and Express Ratification. -Refusal of Ratification.
--- Completion of Ratification. Boufils, $$ 824–831; Hall, 110;
Hart, 211; Pomeroy, 332; 2 Rivier, 71–86; Rivier, L. B., 332–336;
Taylor, $$ 361–367; 1 Twiss, 438–442; D. Wheaton, $$ 256–264.
104. Interpretation of Treaties. Convention of 1818 between England
and the United States (Fisheries), the Clayton-Bulwer Treaty (1850).
Adams v. Akerlund, Cases, 426, note; Tucker v. Alexandroff, Ib.,
426, note; Other Cases, Ib., 426-427, note.
Adler, Interpretation of Treaties, 26 Law Magazine Review, 5th ser.,
62–91, 164-171; Bonfils, $S 835–844; Hall, $$ 111-112; 1 Halleck,
296-305; Heffter, $ 95; Lawrence, Essays, 89–162; 2 Phillimore,
94–125; Pomeroy, 384-395; 2 Rivier, 122-125; Rivier, L. B.,
346-348; Schuyler, The Fisheries (Am. Dip., 404–420); Taylor,
$$ 377–390; D. Wheaton, $ 287; Woolsey, 173–174.
105. Conflict between Different Treaties ; between Different Parts of the
same Treaty; between Law and Treaty. Sutton v. Sutton, Cases,
427; People v. Gerke, 5 Cal. 381, Cases, 420, note; Wunderle v.
Wunderle, Ib., 414; Whitney v. Robertson, Ib., 422; Botiller v.
Dominguez, Ib., 426, note; compare U.S. v. Lee Yen Tai, 1901, 185
U. S. 213.
Bluutschli, $ 414; 2 Calvo, $$ 720-723; Hall, $ 112; 2 Phillimore,
126-132; Taylor, $$ 391-393.
106. Treaties of Guarantee. Bluntschli, $$ 437-440; Bonfils, SS 870–
912; Hall, $ 113; Heffter, $ 97; 2 Phillimore, 84–93; 2 Rivier,
94–105; Rivier, 338–341; Taylor, $$ 347–353; Woolsey, 166–170.
107. Legislation necessary to carry Treaties into Effect. In the United
States a Treaty is by Constitutional Provision the Law of the Land.
Is the House of Representatives in the United States under Obliga-
tions to pass Acts necessary to carry Treaties into Effect? The Jay
Treaty, 1794, the Alaska Treaty, 1867. 1 Butler's Treaty-Making
Power, ch. 10, 12; compare also ch. 11.
XIyi
SYLLABOS.
108. A Treaty dates from Signing: in its Operation on Individual
Rights, from the Date of Ratification. Haver v. Yaker, Cases, 420;
Davis v. Police Jury, Ib., 421, note.
109. The Obligation of Treaties. — Difference between a Void and a
Voidable Treaty. - Test of Voidability. Bernard, Lectures on
Diplomacy (1868), 168; Bluntschli, $$ 415, 456–461; Creasy, 40-
44; Hall, 364–375, Heffter, § 98; 1 Halleck, 324; Maine, Ancient
Law, 23; 2 Phillimore, 76; Pomeroy, 347; Taylor, $$ 363, 394–
398; Wharton's Digest, § 137 a.
110. Most Favored Nation Clause in Commercial Treaties. Whitney v.
Robertson, Cases, 422; Herod, Favored Nation Treatment, an Analy-
sis of the Most Favored Nation Clause, 1901; Kasson, Reciprocity,
1901; Liszt, 164–166; Wbarton's Digest, § 134.
111. Extinction and Renewal of Treaties. Sutton v. Sutton, Cases,
427; Society for Propagation of Gospel v. Wheeler, Ib.,
Hooper v. U. S., Ib., 433; Terlinden v. Ames, Ib., 436.
Bonfils, SS 851-860; Hall, $ 117; Liszt, 166-169; Pomeroy, 356
et seq.; 2 Rivier, 126-146; Rivier, L. B., 349-356; Taylor, $$ 399–
400.
428;
IX. AMICABLE SETTLEMENT OF DISPUTES AND ATTEMPTS TO MITIGATE
THE HARSHNESS AND HARDSHIPS OF WAR.
112. Arbitration. La Ninfa, Cases, 443; Pious Fund Case, Ib., 449,
note.
Amos, Political and Legal Remedies for War; Bluntschli, $$ 488–
498; Bonfils, $$ 944-970 (literature, especially articles in foreign
periodicals); 3 Calvo, $$ 1706 et seq.; Rouard de Card, L'Arbitrage
international, 1876; Creasy, 394–399; Hall, 378-380 (literature,
note on 380); 1 Halleck, 102, 467-468, 485-487; Holls, The Peace
Conference at The Hague, 1900; 1 Jones, 21, 2 Ib., 19-20; Lapar-
delle, La conférence de la paix, 1900; Lawrence, Evolution of
Peace (Essays, 234–277); Lawrence, 672–677; Liszt, 148, 279–
283; Maine, 207-228; 3 Martens, 138-155; Mérignhac, Traité
théroique et pratique de l'arbitrage, 1895; Moore, International
Arbitration, 1898 (especially Vol. 5, “ Treaties Relating to Arbitra-
tions to which the United States has been a Party; “ Historical
Notes," – a history of arbitration to date of publication); 3
Phillimore, 1-17; Revon, L'arbitrage international, 1892; 2 Rivier,
166-188; Rivier, L. B., 366-372; Snow, $ 38; Taylor, $$ 33, 356-
383.
SYLLABUS.
xlvii
113. Mediation. Bluntschli, Introduction, p. 30, $$ 108-114, 481-487;
Bonfils, $$ 931–943; 3 Calvo, $$ 1682, et seq. ; Heffter, $$ 106-108;
Holls, 176-203; Liszt, 276-279; 1 Martens, 534-538; 3 16., 132–
138; Rivier, L. B., 363–366; Snow, § 34; Taylor, $8 359-360;
2 Twiss, 12–16.
114. International Acts and Movements with a view to mitigate the
Rigors of War. 1. The Declaration of Paris, 1856, 2 Twiss, 512-
524; 2. The Geneva Convention, 1864, 2 Twiss, 524-557; Conven-
tion of 1868; 3. The Declaration of St. Petersburg, 1868, 2 Twiss,
557-561; 4. The Brussels Congress, 1874, 7 R. D. I., 87, 438; 5. The
Hague Conference, 1899; Holland, Studies, 59-78; Holls, Hague
Conference; 93, 134; Maine, 123–142; 2 Rivier, 260-273; Taylor,
$$ 35-36.
PART II.
INTERNATIONAL RELATIONS AS MODIFIED BY WAR.
I. MEANS SHORT OF WAR — DEFINITION OF WAR — DECLARATION
OF WAR.
115. Reprisals. - Retorsion.
- Retorsion. -Pacific Blockade. The Nereide, Cases, ,
451; Gray v. U. S., Ib., 452; Case of Don Pacifico, 1850, Ib., 461,
note; Other Cases, Ib.; Retorsion, Cases, notes, 459-463; Pacific
Blockade, 16., 463 note.
Barclay, Les blocus pacifiques, 29 R. D. I., 474; Bluntschli,
$$ 499–508; Bonfils, $$ 972–994; 3 Calvo, $$ 1809 et seq.;
Creasy, 400-404; Hall, 381-390; 1 Halleck, 470_474, 2 Ib., 109;
Heffter, $$ 110-112; Holland, Studies, 130-150; 1 Jones, 429,
2 Ib., 378-427; Lawrence, 293–295, 297-298; Liszt, 283-286;
3 Phillimore, 18–43; 2 Rivier, 189-199; Rivier, L. B., 372-376;
Snow, $$ 35-37; Taylor, $$ 435–437, 444-446; 2 Twiss, 18-38;
Walker, Science, 154-158; D. Wheaton, $$ 290-292, and note no.
151; L. Wheaton, 501-510, and note no. 168; Woolsey, 181-187.
116. Hostile Embargo. Boedes Lust, Cases, 460 and 463 note.
3 Calvo, $$ 1824 et seq.; Creasy, 435; Hall, $ 120; 1 Halleck, 481;
Heffter, § 111; Lawrence, 295–297 ; 3 Phillimore, 44–49; Taylor,
$$ 431-434; D. Wheaton, $ 293, and note no. 152; L. Wheaton,
510, and note no. 169; Woolsey, 180.
117. Declaration of War. War without a Declaration. Civil War.
Date of the Beginning of a War. Dole v. Merchants Mutual Marine
Ins. Co., Cases, 470; The Panama, 16., 474, note; The Prize Cases,
.
xlviii
SYLLABUS.
Ib., 475; Matthews v. McStea, Ib., 508; Other Cases in note, 10.,
480-482.
Bluntschli, § 529; Bonfils, $$ 1027-1065; 4 Calvo, $$ 1899 et seq.;
Creasy, 405-407; Hall, 390-399; 1 Halleck, 521-526, 540-542;
Heffter, $ 121; 1 Jones, 571, 2 16., 519–520;. Lawrence, 299-301;
Liszt, 287-297; Maurice, Hostilities without Declaration of War',
1883; Owen, Declaration of War, 1889; 3 Phillimore, 85-113;
de Saint Croix, De la déclaration de guerre et ses effets immé.
diâts, 1892; Taylor, $$ 24, 455, 456; 2 Twiss, 65-66; Wiesle.
Le droit international appliqué aux guerres civiles, 1898; Woolsey,
187–193.
118. Definition of War. — Its Object. -- Causes of War. - Kinds of War.
U. S. v. The Active, Cases, 464; The Teutonia, 16., 471.
Baty, Conditional War, 24 Law Magazine and Review, 5th ser.,
336-440; Bluntschli, SS 510-528; Bonfils, $$ 995–1026; 4 Calvo,
1-40 (résumé of opinions of writers); Creasy, 360–392; 1 Hal-
leck, 488-520; Lawrence, 290-293; Maine, 131, 132; 3 Martens,
SS 106-109; 3 Phillimore, 77-84; Pillet, Les lois actuelles de la
guerre, 1898; 2 Rivier, 200–235; Rivier, L. B., 377-389; Snow,
$$ 39–41; Taylor, $$ 448–454; 2 Twiss, 43-45; D. Wheaton,
§ 296; Woolsey, 210.
II. EFFECTS OF WAR AS BETWEEN ENEMIES.
1
(a) Lau's and Usages of War. -- Conduct of Hostilities.
119. Who are Enemies in a War? One Theory is that all Citizens or
Subjects of one Belligerent State are the Enemies of all the Citi-
zens or Subjects of the other. Another Theory is that War is a
Contest between States, and that Private Individuals of the Bel-
ligerent States are not Enemies at all. The First is the Old View,
and is still supported by the Better Authority.
Bluntschli, $$ 529–530; Bonfils, $$ 1050–1056; Calvo, $$ 2035–
2036; Creasy, 376-338; Hall, $ 18; 1 Halleck, 526-527; Holland,
Studies, 41-58, 78-96; Holls, 141; 1 Jones, 571, 2 Ib., 519–520;
Lawrence, 314-322; Liszt, 287-288; Maine, 143-160; Taylor, $ 451;
Walker, Science, 237; Woolsey, 550.
120. All Peaceful Relations between Belligerent States and their Citi-
zens cease on the Outbreak of War. — Modern Usage permits Alien
1 For the Regulations proposed by The Hague Conference, now adopted as law by
the United States, see Holls, pp. 139–161; also Butler's Treaty-making Power, II.,
pp. 528–531.
SYLLABUS.
xlix
Enemies to remain in the Territory Unmolested unless their Pres-
ence becomes Dangerous to the State. Clarke v. Morey, Cases, 541,
note, and 545, note.
Bonfils, $$ 1045–1055; Calvo, SS 1912-1914; Hall, $$ 121-123;
1 Halleck, 527-532; Heffter, 289, and note 9; Legal Effect of
a Declaration of War, 32 Am. Law Review, 574-577; Liszt, 293–
294; 3 Phillimore, 128-130; 2 Rivier, 235-238; Rivier, L. B.,
389-391; Taylor, $ 463; 2 Twiss, 86-87; Woolsey, 194–198.
121. Who are Non-Combatants ? Bluntschli, $$ 578, 595; Bonfils,
$$ 1141-1154; Hall, 412-413; 1 Halleck, 554-555, 561; Liszt,
300;. 2 Rivier, 248-251 ; D. Wheaton, 431, and note no. 168;
Woolsey, 216-221.
122. Who are Lawful Combatants ? - Conditions. - Authority. -- Organ-
ization — Dress. Bluntschli, $$ 569-573; Bonfils, $$ 1088-1140 ;
4 Calvo, 131-140; 1 Halleck, 553-562; Liszt, 301-302 ; 2 Rivier,
251-253; Rivier, L. B., 395-396; Taylor, $$ 471-478; Walker,
Science, 249; Woolsey, 214–215.
123. Maritime War. - Privateers. - Letters of Marque and Reprisal. -
Volunteer Navy. Cases, notes, 459-463; 16., 899-901, note.
Bluntschli, SS 664-673; Bonfils, $$ 1268–1440; 4 Calvo, SS 2297
et seq.; Creasy, 536–549; Dupuis, Le droit de la guerre maritime
d'après les doctrines anglaises contemporaine, 1899; Hall, $$ 180-
184; 2 Halleck, 108-123; Heffter, $ 124; 1 Jones, 358, 446, 2 II.,
324, 407; Liszt, 317–318; Maine, 93-109; Phillimore, 502-514; 2
Rivier, 253-259; Snow, SS 41-42; Taylor, $$ 438-439, 494-507,
545-567; 2 Twiss, 25-27, 138–189, 374-424; Wharton, Digest,
y$ 383–385; D. Wheaton, § 358, and note 173; L. Wheaton, 626–
649; Woolsey, 201-208..
124. Prisoners of War. Who may be taken Prisoners ? - Treatment. —
Parole. - Exchange. - Ransom. Bluntschli, $$ 593–626; Bonfils,
$$ 1117–1141; 4 Calvo, 189-204 ; Creasy, 452-458; Davis, 233–
237; Hall, $$ 131-135; 2 Halleck, 14-39, 326-333; Holls, 145;
1 Jones, 445, 2 Ib., 380, 520; Lawrence, 333–337; Liszt, 307–309;
Maine, 160–175; 3 Martens, 236-239; 2 Rivier, 273-279; Rivier,
L. B., 404–406; Romberg, Des belligérants et des prisonniers de
guerre, 1874; Taylor, $8 520-528; 2 Twiss, 350-352; D. Wheaton,
426-431; L. Wheaton, 586-593.
125. Care of the Sick and Wounded. — Geneva Convention. -- Red-Cross
Society. - The Hague Conference. Bluntschli, SS 586-592; Bon-
d
SYLLABUS.
fils, $8 1108-1119; Boyland, Six Months under the Red Cross;
(1873); 4 Calvo, $$ 2034 et seq.; Cauwès, L'extension des prin-
cipes de la convention de Genève aux guerres maritimes, 1899;
Hall, $$ 130–131; 2 Halleck, 36–39; Holland, Studies, 59-79;
Holls, 127; Lawrence, 337–339; Liszt, 309–312; Maine, 123–143;
3 Martens, 239-248; Moynier, Le croix-rouge, 1882; Müller, Ent-
stehungsgeschichte des roten Kreutzes und der Genfer Konvention,
1897; 3 Phillimore, 157-160; 2 Rivier, 268-273; Rivier, L. B.,
402-403.
126. Instruments of War. — Means of Destruction. Bluntschli, SS 557–
560; Bonfils, $$ 1066-1077; 4 Calvo, 147-149; Hall, SS 182–186;
1 Halleck, 553–566; Heffter, $ 125; 2 Jones, 519; Liszt, 304–305;
3 Martens, 207 et seq.; 3 Phillimore, 160-163; 2 Rivier, 260-268;
Rivier, L. B., 399–401; Snow, § 44; Taylor, 479–482; Woolsey,
211-213.
127. Devastation.- Is it ever Lawful? Bonfils, $$ 1227-1230; 4 Calvo,
244-253; Hall, $$ 186-187; Lawrence, 440, 444; 2 Rivier, 265,
318, 335; Taylor, 483-486.
128. Bombardment of Towns. — Fortified. - Open. Bluntschli, $$ 552–
554, bis ; Bonfils, $$ 1078–1087; Calvo, $8 2067-2095; Davis,
219-222; Hall, $$ 186-187; Holland, Studies, 96-111; Liszt,
306; Holls, 152; Taylor, $$ 484-487; Woolsey, 223-224. The
important cases will be found in Calvo.
129. Deceit. — Spies. – Balloons. Bluntschli, $8 627-636; Bonfils,
S$ 1072-1075, 1099-1107; 4 Calvo, 2106-2126; Davis, 241-244;
G. Friedmann, Die Lage der Kriegskundschafter und Kriegspione,
1892; Hall, $$ 187–188; 1 Halleck, 566-574; Liszt, 303–304; Holls,
95, and 153; 3 Martens, 249; 2 Rivier, 249; 261, 280–284; Rivier,
L. B., 407; Taylor, 490_494.
(6) Effect of War upon Property, and Commercial Relations with
the Enemy.
130. When War breaks out between two States, the Movable or Per-
sonal Property of Citizens of either, found in the Territory of the
other, on Land, is by the Old and Strict Rule of War confiscable.
Debts due to Citizens of the Enemy State shared the Same Fate. In
modern Practice; however, this Rule has become nearly obsolete.
Hamilton v. Eaton, Cases, 481; Ware v. Hylton, 16., 485, note;
SYLLABUS.
li
Brown v. U. S., IV., 486, and note, 494; Ex parte Boussmaker, Ib.,
494; Wolff v. Oxholm, Ib., 496, and note, 497.
Bonfils, $$ 1204–1206; 4 Calvo, $ $ 1915–1925; Hall, $$ 141-147;
1 Halleck, 532–539; Heffter, $ 140; Liszt, 314; 3 Martens, 197–
206; 3 Phillimore, 128–148; 2 Rivier, 306, 318 et seq.; Rivier,
L. B., 422-423; Snow, $ 45; Taylor, $$ 539-557; 2 Twiss, 122-
125; D. Wheaton, $$ 298–308, and notes no. 156–157; Woolsey,
194–198.
131. Property of the Enemy found afloat in Ports, on the breaking out
of War was generally Confiscable as Prize until a very Recent
Time. But here, too, later Practice would seem to have discarded
the Harsher Rule. Compare with Embargo, - Case of Boedes Lust,
Cases, 460; Brown v. U.S., Ib., 486; The Johanna Emilia, Cases,
498, note.
Hall, $$ 141-144; Lawrence, 282-416; Maine, 105, 117; 3 Philli-
more, 132; Taylor, 560-561; D. Wheaton, 389, note; L. Wheaton,
531, and note no. 173.
132. Debts of a State due to the Enemy and the Interest thereon are
not Confiscable. Case of the Silesian Loan, 1752 (2 Martens, Causes
Célèbres, 97), Cases, 461, note.
Bonfils, $$ 1056–1059; Calvo, $$ 1924–1925; Hall, $ 141; 1 Hal-
leck, $ 533–537; 3 Phillimore, 148; Taylor, § 552; D. Wheaton,
388-391, and see note no. 157.
133. Immovable Property – Lands and Houses - of the Enemy within
the Limits of the Other Belligerents are never confiscated. Calvo,
$$ 1922, 2193-2293; Hall, § 144; 2 Halleck, 58–79; Liszt, 814;
Maine, 192-206; 3 Martens, 148, 260-266; Taylor, $$ 539-557.
134. Property of the Enemy found on the Sea or in the Ports of the
Enemy, is Confiscable as Prize of War. -Modified by Declaration
of Paris, 1856. (Cases, 898, note.)
Bluntschli, $$ 42-47, and $8 664-673; Bonfils, $$ 1281-1361; 4
Calvo, S$ 2379–2410; Dupuis, Le droit de la guerre maritime
d'après les doctrines anglaises contemporaines, 1899; Hall, $$ 143,
146; 2 Halleck, 80-123; Liszt, 323–325; 3 Martens, 291–296; 3
Phillimore, 560; 2 Rivier, 330-313; Rivier, L. B., 426-428; Tay-
lor, $$ 558 et seq.; D. Wheaton, 382-383; Woolsey, 200.
135. The Effect of War upon Contracts between Enemies made be-
fore the War: Executed Contracts; Executory Contracts; Statutes
of Limitation ; Interest on Debts. Hoare v. Allen, Cases, 498;
SYLLABUS,
Hanger v. Abbott, Ib., 500; Matthews v. McStea, Ib., 508; Gris-
wold v. Waddington, Ib., 504; N. Y. Life Ins. Co. v. Stathem, Ib.,
512, and note, 516; Ware v. Jones, II., 517, and note, 520; Perkins
v. Rogers, Ib., 554. See also Gamba v. Le Mesurier, 4 East, 407.
Bonfils, $$ 1064-1065; Calvo, $$ 1926, 2316; Hall, $ 126; 1 Hal-
leck, 527; 3 Martens, 201-202; 1 Kent, 68; 3 Phillimore, 179, 798,
866; 2 Rivier, 231, 235; Snow, $ 46; Taylor, 459–460; D. Wheaton,
403; L. Wheaton, 556.
136. Effect of War upon Treaties between the Belligerent States. Sut-
ton v. Sutton, Cases, 427; Society for the Propagation of the Gospel
v. New Haven, Ib., 428, and note; Hooper, Adm'r, v. U.S., 16., 433.
Bluntschli, $ 538; Bonfils, $ 1049; Hall, $S 124–126; 1 Halleck,
294-543; Heffter, § 122 ; Liszt, 168; 3 Phillimore, 792–811; 2
Rivier, 137-141; Rivier, L. B., 354–355; Taylor, 368–369, 460-
461; D. Wheaton, 352, and note; L. Wheaton, 460-477.
(c) Trade with the Enemy.
137. Trade or Intercourse is wholly interdicted, and is in all Cases
Illegal, unless under a License of the State. The Hoop, Cases,
521; Potts v. Bell, Ib., 525; Flindt v. Scott, Ib., 526, and note,
499; Williams v. Marshall, 16., 530; De Jarnett v. De Giversville,
IV., 542, and note, 545.
Bonfils, $$ 1059–1065; Calvo, $$ 1926–1929; Hall, $ 126; 2 Halleck,
124-140; Heffter, $123; 1 Kent, 66-69; 3 Phillimore, 116-120;
2 Rivier, 231; Snow, $ 47; Taylor, SS 463-464; D. Wheaton,
$$ 309-317, and note no. 158; White, Trading with the Enemy, 16
Law Quarterly Review, 397-413; Woolsey, 255.
138. License to trade must, as a Rule, be granted by the Supreme
Authority of the State, and must be granted or assented to by both
Belligerents. The Sea Lion, Cases, 531; Coppell v. Hall, Ib., 534,
note; Hamilton v. Dillin, 16., 534, note.
Bonfils, $$ 1061-1065; 4 Calvo, $ 1930, and notes; Hall, 88 195–196;
2 Halleck, 344–349; Magoon, Military Occupation, 210–255; Tay-
lor, $$ 509-515; D. Wheaton, 502-504, and note no. 198; Woolsey,
256.
139. After the Outbreak of War, a Citizen may neither go in Person
nor send an Agent to the Enemy's Country to bring away his Prop-
erty. The Rapid, Cases, 557; The St. Lawrence, 16., 559; Amory
v. McGregor, Ib., 561.
2 Halleck, 126–127.
:
SYLLABUS.
liii
140. Citizens residing within the Enemy's Country should return Home
on the Outbreak of the War, and should be granted a Reason-
able Time to withdraw their Property and return.
The Brig
Joseph, Cases, 556; The St. Lawrence, Ib., 559; Amory V.
McGregor, Ib., 561; The William Bagalay, Ib., 565, and note.
2 Halleck, 129.
141. Contracts entered into with Enemies during War by Citizens re-
siding in the Enemy's Country. Kershaw v. Kelsey, Cases, 535.
4 Calvo, SS 1930 et seq., and notes; 3 Phillimore, 120-121; D.
Wheaton, 403.
142. Bills of Exchange drawn by a Citizen, while a Prisoner in the
Enemy's Country, upon a Person in his own Country, and sold to
an Enemy are not regarded as Trading with the Enemy, - at least
they may be enforced. Antoine v. Morshead, Cases, 573; Daubuz
v. Morshead, Ib., 575, note.
1 Halleck, 529; 1 Kent, 67; D. Wheaton, $ 317.
143. Agents may represent and bind their Principals in the Enemy's
Country, if appointed before the Outbreak of War; if appointed
during the War, their contracts are void. Small v. Lumpkin,
Cases, 538; U.S. v. Grossmayer, 16., 541, note.
144. Insurance on Ships or Property of the Enemy. Furtado v. Rodgers,
Cases, 549; Other Cases in note, 553.
2 Halleck, 140; Pennant, Insurance of Enemies' Property, 18 Law
Quarterly Review, 289-296.
145. Ransom Contracts, Ransom Bill, Safe Conduct constitute Excep-
tions to the Rule against Trading with the Enemy. Cornu v.
Blackburn, Cases, 566; The Charming Nancy, Ib., 568; The Pa-
trixent, Ib., 569, and note;. Goodrich & De Forrest v. Gordon, 16.,
571. See also Anthon v. Fisher, Ib., 570, note.
Bonfils, $8 1237-1258; 4 Calvo, $$ 2422–2429; Hall, $$ 151-152 ;
2 Halleck, 330-333; Lawrence, 446-449; Maisonnare v. Keating,
2 Gall. 337; 3 Phillimore, 177-179, 644–647; Taylor, 506-522;
D. Wheaton, $ 411, and note no. 199; Woolsey, 245–247.
146. Pacific Intercourse of Belligerents. - Commercia Belli: Flags of
Trice — Truces. - Passports. - Armistices. -- Cartels. — Capitula-
tions. License to Trade. Ransoms. Crawford . The William
.
Penn, Cases, 575; Crawford & McLean v. The William Penn, Ib.,
IV
SYLLABUS.
580; Scholefield & Taylor v. Eichelberger, Ib., 580, note. Other
Cases in note, 584-585.
Bluntschli, $$ 674-699; Calvo, $$ 2411-2452; Hall, $$ 189–
196; 2 Halleck, 310–334; Lawrence, 450–456; Liszt, 303, 315–316;
Maine, 83–191; 2 Rivier, 360-368; Rivier, L. B., 433-436; 3
Phillimore, 179–188; Taylor, $$ 506-522; D. Wheaton, $$ 399–
408; Woolsey, 225, 255–260.
(d) Commercial Domicile. — National Character of Property.
147. The National Character of Property in Time of War, depends
upon the Domicile of the Owner. French Rule. The Indian
Chief, Cases, 588; The Prize Cases, 16., 601, and 604, note; The
Venus, Ib., 591; Le Hardy, Ib., 605, note.
Calvo, $$ 656, 679, 1933, 2 Halleck, 414, 424; 1 Jones, 168-
169; Liszt, 325; 2 Rivier, 342; Snow, $ 48; Taylor, $$ 209, 523,
554; L. Wheaton, 557–571; Woolsey, 296.
148. What constitutes Domicile. How determined. Animus ma-
nendi. — Time. The Harmony, Cases, 585; Mitchell v. U. S., Ib., ,
605.
4 Calvo, $$ 1936-1945; Hall, $ 168; 1 Halleck, 415-422; 1 Jones,
168-169; 3 Phillimore, 725-734; D. Wheaton, $8 318-332; L.
Wheaton, 558-560.
149. House of Trade takes the National Character of the Country in
which it is Established. - Exception: House of Trade in a Neu-
tral State, and the Partners, or some of them, Reside in an Enemy
Country. The Antonia Johanna, Cases, 604, note; The Freund-
schaft, Ib., 604, note.
Calvo, $$ 695, 1936; Hall, $ 168; D. Wheaton, $ 334; L. Wheaton,
557 et seq., and note no. 180.
150. The Product of the Enemy's Soil takes the National Character of
the Country where it is Produced. Bentzen v. Boyle, Cases, 598.
Bonfils, $ 1359; Hall, $$ 168–169; Liszt, 325; 2 Rivier, 344–345;
D. Wheaton, $$ 336–339; L. Wheaton, 576-580.
(e) Ownership of Goods in transitri, on the Ocean, in Time of War.
151. In Time of War, or in Contemplation thereof, Goods shipped on
Contract are at the Risk of the Consignee during Transit. The
French Rule permits the Shipper to take the Risk by Agreement.
SYLLABUS.
ly
The Sally, Cases, 607; The Packet De Bilboa, 16., 609; The Anna
Catharina, Ib., 612; The San Jose Indiano, Ib., 614; Les Trois
Frères, 16., 615, note.
Bonfils, $ 1355; 4 Calvo, $S 2315–2320; Hall, SS 172–173; 2 Hal-
leck, 84-88; 1 Jones, 489, 490; 2 16., 443; 1 Kent, 87; 3 Philli-
more, 740-745; Snow, $ 495; Taylor, $ 553.
152. Transfer in Transitu.- Stoppage in Transitu. - According to
the Rule of the English and American Prize Courts, Property, if
Hostile at the Time of Shipment, cannot change its Character dur-
ing Transitu by Sale to a Neutral. The Vrow Margaretha, Cases,
616; The Jan Frederick, Ib., 618; The Ann Green, Ib., 620; The
Francis and Cargo, Ib., 621, note; The Benito Estenger, Ib., 621,
and note, 628.
Bonfils, $$ 1356-1360; 4 Calvo, $$ 2321, 2322 (dissents from the
English and American view); 1 Duer, "On Insurance," 441-444;
Hall, 171-172; 2 Halleck, 90-92; 1 Jones, 527, 2 16., 472; 3 Phil-
limore, 739-740; Taylor, 568.
153. National Character of Merchant Ships, and their Transfer during
War from a Belligerent to a Neutral. Bonfils, $$ 1344_1349;
4 Calvo, $ $ 2327-2338; Hall, § 171; 2 Halleck, 92–95; 1 Jones,
265, 489; Liszt, 324; 3 Phillimore, 734-739; Snow, $ 50; Taylor,
§ 696.
154. Proofs of the National Character of Merchant Ships. Bonfils,
S$ 597-606; 4 Calvo, $$ 2339-2366; Hall, 756, note (3d ed., 753-
758); 2 Halleck, 98-105; Taylor, SS 308, 309, 408, 568; 3 Whar-
ton, Digest, $$ 409-410.
155. Fishing Boats are generally exempt from Seizure, but the Exemp-
tion does not extend to Vessels employed in the Great Fisheries.
The Paquette Habana, Cases, 19.
Bonfils, $ 1350; Calvo, $$ 2368-2373; Hall, $ 148; 2 Halleck, 106;
Liszt, 325; Taylor, $$ 558-559; D. Wheaton, 431, and note no.168;
L. Wheaton, 596, note no. 187; Woolsey, 303.
156. Freight in the Case of Captured Vessels. The Vrow Henrica,
Cases, 629; The Fortuna, Ib., 631; The Antonia Johanna, 15., 632;
Hooper, Adm'r, v. U. S., Ib., 633; The Carlos F. Roses, 16., 637 ;
The Siren, 16., 648, note.
1 Jones, 342, 508; Taylor, $$ 629 n, 707, 565, 568, 578, 702, 703,
744, 745, 746.
IVI
SYLLABUS.
(f) Recapture. — Salvage. Postliminium. — Rescue.
157. Recapture. - Salvage. – When does Title to recaptured Property
vest in the Captor? The Santa Cruz, Cases, 649; The Carlotta,
Ib., 650; The Beaver, Ib., 653, and 654, note.
Bonfils, $$ 1416-1421; Creasy, 564; Hall, $ 166; 2 Halleck, 500-
527; 1 Kent, 108-109; Liszt, 327; 3 Phillimore, 613-643; 2
Rivier, 357; Rivier, L. B., 433; Taylor, § 576; D. Wheaton,
456-475; L. Wheaton, 524, 638–668; Woolsey, 247–252.
158. Rescue by Neutrals. The Mary Ford, Cases, 652, and note; The
Emily St. Pierre, 16., 655, note; The Lone, Ib., 655, note.
Bonfils, 1485-1487; Taylor, $ 575; D. Wheaton, 475, note, 476-
477, and note; L. Wheaton, 668; Woolsey, 359.
.
(9) Enemy Property on Land. Military Occupation.
159. Public Property of the Enemy, — Lands, Buildings, Archives,
Work of Art, — Movable or Personal Property. Mohr and Haas v.
Hatzfield, Cases, 674, note.
Bluntschli, $8 652-662; 4 Calvo, $$ 2201-2214; Creasy, 513 et
sep.; Hall, $$ 136,138; 2 Halleck, 58-66; Liszt, 314; Magoon,
Military Occupation, 264-281; Taylor, $$ 485, 539, 543, 545–
546; D. Wheaton, 438, note; Woolsey, 194–197.
160. Private Property, Real and Personal, as a Rule, is not confiscable,
at least not by Way of Booty, though Personal Property may be
taken by Way of Contributions and Requisitions. — Comparison in
respect to the Different Rule applied to Enemy's Property at
Sea and on Land. Kirk v. Lynd, Cases, 899, note; U. S. v. Win-
chester, IV., 899, note; Oakes v. U. S., IV., 899, note; see also
Commodore Stewart's Case, 16., 910; Titus•v. U. S., Ib., 94, note;
Whitfield v. U. S., 92 U. S., 165.
Barclay, Proposed Immunity of Private Property at Sea from
Capture by Enemy, 16 Law Quarterly Review, 16-23; Bluntschli,
$ 665; Bonfils, $$ 1195 et seq. ; 4 Calvo, $$ 2294 et seq. ; Creasy,
536-556; Hall, $$ 139 et seq. ; 2 Halleck, 66–75; Heffter, $ 133;
1 Jones, 447; T. J. Lawrence, Essays, No. 1; Liszt, 312-314;
Magoon, 264-280; 2 Rivier, 306, 318-324; Rivier, L. B., 422–
423 ; Snow, $ 51; Taylor, 547, 551 et seq., 462; D. Wheaton, $ 335,
and note no. 171; L. Wheaton, 884.
161. Requisitions and Contributions in Land Wars. - Will they be
resorted to in Maritime Wars? Bluntschli, SS 653-686; Bonfils,
SYLLABUS.
·lvii
$$ 1207-1226; Calvo, $$ 2231-2235; Creasy, 530-554; Edwards,
"The Germans in France," p. 59; Hall, $S 140-143; 2 Halleck,
56, 69, 310; Heffter, 301; Lawrence, 374–376, 458; Magoon,
Military Occupation, 217, 345–350; Maine, 200; Sherman, “Me-
moirs," II., 175, 181-184, 207, 227; Taylor, $$ 548–550, 558;
Twiss, 124; Woolsey, 220.
162. The Bombardment of Towns. Bluntschli, $$ 554-556; Bonfils,
98 1081-1086; Calvo, $8 2085, 2092; Hall, $ 186; Heffter, 281;
Holland, Studies, 96-111; Holls, 152; Liszt, 306; 2 Rivier, 284–
288; Rivier, L. B., 408-409; Taylor, $$ 484-485; Woolsey, 224.
163. Military Occupation. — The General Character of the Right and
Jurisdiction of an Invader over the Territory occupied by his Armies.
Old Theories. Modern View. Bluntschli, $$ 539-541; Bon-
fils, SS 1155-1176; Calvo, S$ 2166-2198; Creasy, 502-512; Hall,
$S 153-155; 2 Halleck, 432–466; Heffter, 298, 304-308; Lawrence,
350 et seq.; Liszt, 312; Magoon, Military Occupation, 1902 (prac-
tice of United States); Maine, 177; Martens, 250-266; 2 Rivier,
299–318; Rivier, L. B., 413-419; Snow, $ 52; Taylor, 127 et seq.,
584 et seq.; Woolsey, 252.
164. Relation of the Territory occupied to the Government of the In-
vader. To that of the State Invaded. U. S. v. Rice, Cases, 655;
Cross v. Harrison, IV., 658, note; Fleming v. Page, Ib., 659; Jecker
v. Montgomery, Ib., 664; Leitensdorfer v. Webb, 16., 665, note;
Other Cases in note, 665-666; Viljasseque's Case, Ib., 675, note.
Bonfils, $$ 1156-1162; Creasy, 496;. Hall, $ 167; 2 Halleck, 450;
Liszt, 313.
165. De Facto and Constructive Occupation. Creasy, 503; Hall, $ 161 ;
Walker, Science, 344-346.
166. Rights of the Occupier over the Persons of the Territory Occupied.
—“War Rebel." 4 Calvo, $S 2166 et seq.; Creasy, 516; Hall,
S$ 155-158; 2 Halleck, 451–455; Lawrence, 344-345; Liszt, 313.
167. Right of the Invader over Incorporeal Things, as Debts, etc. Bon-
fils, $ $ 1191-1193; 4 Calvo, $$ 2286, 2288; Hall, § 138; 2 Halleck,
460; 3 Phillimore, 832-840; 2 Rivier, 307–310; 2 Twiss, 62 et seq.
(R) Termination of War.
Conquest. — Cession.
168. What marks the Date of the End of a War? Treaties of Peace.
- Proclamations in Civil Wars. Bain v. Speedwell, Cases, 675;
The Thétis, 11., 675, note; The Protector, IV., 682.
Tviii
SYLLABUS.
Bonfils, $$ 1692 et seq.; Calvo, $$ 3153-3154; Hall, 8. 197; Heffert,
$ 176; Liszt, 295; 3 Phillimore, 770; 2 Rivier, 443 et seq.; Rivier,
L. B., 463, 464; Snow, § 54; Taylor, § 580 ; D. Wheaton, $8 507,
546; Woolsey, 158.
169. Effect of Treaties of Peace in settling General Rights and Obliga-
tions of the Parties. Effect upon Acts done before the War.
Upon Acts done during the War. — Upon Acts done subsequently
to the Treaty of Peace. Neustra Señora De Los Dolores, Cases,
681; The Mentor, Ib., 676; The John, Ib., 677; The Nymph, Ib.,
676, note; The Swineherd, Ib., 677, note.
Bluntschli, $$ 709–712; Calvo, $$ 3155–3159; Hall, $$ 197-202;
Heffter, $$ 179-183; 2 Halleck, 306–324; Liszt, 296–297; 3
Phillimore, 770–784; 2 Rivier, 454, 458; Rivier, L. B., 465-468;
Taylor, $ 581; Woolsey, 263-266.
170. Postliminium. - Uti possidetis. -How do they apply to Territory?
Bonfils $8 3167 et seq.; Creasy, 564; Hall, $$ 162–166; 1 Halleck,
321, 2 16., 602; Heffter, $$ 188-190; Lawrence, $ 209; Liszt, 296;
3 Phillimore, 615; 2 Rivier, 459; Rivier, L. B., 468; Snow, $ 55;
Taylor, 574–576; D. Wheaton, $ 398; Woolsey, $ 151.
171. Conquest. — Cession. Elector of Hesse Cassel's Case, Cases, 675,
note; Am. Ins. Co. v. Canter, ib., 657; U. S. v. Moreno, Ib., 666;
Fourteen Diamond Rings v. U. S., Ib., 667; “Insular Cases," Ib.,
674, note; Bonfils, $ 535; 4 Calvo, $$ 2452-2490; Hall, $$ 204–205;
2 Halleck, 466-499; Heffter, § 133; Liszt, 295; Magoon, Mili-
tary Occupation, 262–264; A. P. Morse, Status of Territory ac-
quired by the United States, 39 Am. Law Register (N. S.), 332–
339; 2 Rivier, 435-442; Rivier, L. B., 458-462; Westlake, The
Nature and Extent of the Title by Conquest, 17 Law Quarterly
Review, 392–401; D. Wheaton, note 169; Woolsey, $ 153.
III. RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS.
(a) A General View of the Relations between Belligerents and Neutrals.
172. Historical Sketch of the Subject. Bonfils, $$ 1494-1521, 1442;
4 Calvo, $ $ 2491-2553; Hall, $8 208–213; Heffter, $ 152; 1 Jones,
398, 2 16., 365 ; Kleen, Lois et usages de la neutralité d'après le
droit international conventionel et coutumiers des états civilisés,
1898, 1899; Lawrence, 472–499; Liszt, 329–330; 3 Martens, 315..
SYLLABUS.
lix
325; 3 Phillimore, 300-369; 2 Rivier, 369–379; Taylor, $$ 596–
613; D. Wheaton, $$ 412–425, note 215; L. Wheaton, 696 et seq.;
Woolsey, $ 163.
() Neutral Duties.
173. Neutrals should not permit their Territory to be used for Hostile
Purposes by either Belligerent. — Transit of Troops. — Fitting out
Hostile Expeditions. - Capture of Vessels in Neutral Waters. The
Anna, Cases, 684; The Twee Gebroeders, Ib., 687, note; The Eliza
Ann, Ib., 689, note; The Anne, Ib., 688; The General Armstrong,
Ib., 687, note; Commodore Stewart's Case, Ib., 910; The Adela, 16.,
689, note; The Florida, 16., 690; see also The Perle, Ib., 688, note,
and The Grange, Ib., 690, note.
Bluntschli, $$ 749–782 ; Bonfils, 8 & 1449 et seq. ; 4. Calvo, $ $ 2592–
2642; Creasy, 570-681; Hall, SS 214-223; 2 Halleck, 141 et
seq.; Historicus, 147-162; 1 Jones, 398, 2 16., 365; Liszt, 331-
332; 3 Martens, 326 et seq.; A. P. Morse, Rights of Belligerents
and Neutrals from the American Point of View, 37 Am. Law Regis-
ter (N. S.), 657-687; 1 Phillimore, 223-236; 2 Rivier, 380-406;
Rivier, L. B., 440-447; Snow, $ 57; Taylor, $$ 617-621 ; 2 Twiss,
440-459; D. Wheaton, SS 425-435; L. Wheaton, 713-727; Woolsey,
$$ 164 et seq.
174. Equipment of Vessels of War in Neutral Territory.
U. S. v.
Guinet, Cases, 695; U. S. v. Peters, 11., 697; The Santissima Trin-
idad, 16., 701, and 705 note; U. S. v. Quincy, Ib., 706; U. S. v.
The Meteor, Ib., 711; The Alabama Claims and Award, Ib., 713.
C. F. Adams, The Treaty of Washington (Lee at Appomattox, 31
et seq.); Bernard, Neutrality of Great Britain, 360 et seq., 412 et
seq. ; Bluntschli, $ 763; Bonfils, $$ 1464 et seq. ; Bullock, Secret
Service of Confederate States in Europe (1884); Calvo, $S 2553,
2590, 2623; Hall, $ $ 223 et seq. ; 2 Halleck, 153–163; Historicus,
163–171; Lawrence, 535-556; Liszt, 332; 3 Phillimore, 236 et seg.;
2 Rivier, 406; Rivier, L. B., 447-449 ; Snow, $ 58; Taylor, $$ 614-
617; D. Wheaton, p. 535, note 215; L. Wheaton, 728; Woolsey,
$ 170.
175. Loans of Money to Belligerents. Bluntschli, § 768; Bonfils,
§ 1471; 4 Calvo, § 2628; Hall, $ 216 ; 2 Halleck, 163; Lawrence,
520 ; Liszt, 332; 3 Phillimore, 247; Snow, $ 59, Taylor, $ 622.
176. Sale of Munitions of War by a Neutral State. Sale of Arms to
France, Cases, 747, note.
SYLLABUS.
Hall, $ 217; 1 Jones, 51; Lawrence, 520; Liszt, 333; 2 Rivier,
408-415; Snow, $ 59; Taylor, $ 624.
177. Aid to Insurgents. -- Loans. - Munitions of War. Thompson v.
Powles, Cases, 37; De Wutz v. Hendricks, 16., 721 ; Kennett v.
Chambers, 16., 723; U. S. v. Trumbull, 16., 731; The Salvador,
Ib., 743; The Three Friends, Ib., 748.
Hall, $ 5; Historicus, 41-51; 2 Jones, 51; 3 Phillimore, 247-250;
Snow, $ 60; D. Wheaton, $ 23, note 15.
©) Contraband of War.
178. General Law of Contraband. Bluntschli, 465 et seq.; Bonfils,
$$ 15–35 et seq. ; 5 Calvo, $$ 2708 et seq.; Hall, $$ 236 et seq. ; 2 Hal-
leck, 214 et seq.; Historicus, 129–137; Heffter, $$ 158–159 ; 1 Jones,
108; Lawrence, $ 277; Liszt, 334; 3 Martens, 347–355; Payn,
State Interference in Contraband trade and Blockade-Running, 24
Law Magazine and Review, 5th ser., 203-218, 329–341, 448-457;
2 Rivier, $ 217; Rivier, L. B., 451; 3 Phillimore, 387 et seq.;
Snow, $ 61; Taylor, $$ 653 et seq.; 2 Twiss, 232–298; D. Wheaton,
$$ 476 et seq., note 226; L. Wheaton, $S 767 et seq.; Woolsey
$ 193.
i
179. Classification of Contraband. - Res ancipitis usus. Occasional
Contraband. The Peterhoff, Cases, 760; The Jonge Margaretha,
16., 762 ; The Commercen, Ib., 765; Other Cases, Ib., 766, note.
Bluntschli, 466 ; Bonfils, 1538-1565; 5 Calvo, SS 2708-2754; Creasy,
609 et seq.; Hall, SS 236 et seq.; 2 Halleck, 222 et seq.; Heffter,
§ 160 ; 1 Jones, 108, 2 Ib., 94; Lawrence, $$ 278–279; Liszt, 335;
Maxey, Are Food-Stuffs Contraband, 34 Am. Law Review, 205-213;
2 Rivier, $ 217; Snow, 136; 3 Phillimore, 403-459 ; Taylor, $ $ 655–
663; D. Wheaton, SS. 477-502; L. Wheaton, 769 et seq.; Woolsey,
$ $ 194 et seq.
180. Penalty for Carrying Contraband. — Time when Penalty attaches.
Rule of English and American Courts. — French Rule. The
Neutralitet, Cases, 767; Carrington v. Merchants Ins. Co., 16., 769;
The Imina, IV., 776 ; Seton v. Low, Ib., 778; Ex parte Chavasse,
Ib., 779, note; see also The Sarah Christiana, Ib., 775, note; The
Haabet, Ib., 776, note.
Bluntschli, 471; Bonfils, $ 1571 ; 5 Calvo, $$ 2755 et seq.; Creasy,
626; Hall, $ 247; 2 Halleck, 217 ; Heffter, § 161; 1 Jones, 264 ;
Lawrence, $ 280; Liszt, 337; 2 Rivier, $ 218; Snow, 140; 3 Philli-
SYLLABUS.
lxi
more, 460; Taylor, $ 666; D. Wheaton, $ 505, note 230; L.
Wheaton, 806 et seq. ; Woolsey, § 198.
181. Despatches and Persons as Contraband. The Atalanta, Cases, 780;
The Madison, Ib., 785; The Orozembo, Ib., 785; The Rapid, Ib.,
782; The Trent, 16., 788, note; The Panama, 16., 788.
Bernard, 186-225; Bluntschli, 475; Calvo, $$ 2796-2826; Creasy,
627-632; Hall, $$ 248–253; Harris, Trent Affair, p. 239; Historicus,
185–198; Liszt, 338; Phillimore, 459; Snow, $ 62; Taylor, $ 669;
D. Wheaton, 502-504, note 228; L. Wheaton, 797 et seq.; Woolsey,
§ 199.
(d) Blockade.
182. The Purpose of Blockade. --Must be Effective. — Notification. —
De facto Blockade. The Neptunus, Cases, 796; The Betscy, Ib.,
798; The Panaghia Rhomba, Ib., 800, and note, 803; The Johanna
Maria, Ib., 803; The Franciska, Ib., 804; The Gerasimo, Ib., 811;
The Nancy, Ib., 817; The Ocean, Ib., 819; The Olinde Rodrigues,
16., 835.
Bernard, 226 et seq., 283; Bluntschli, $$ 827-839; Bonfils, $ $ 1079
et seq.; 5 Calvo, SS 2827 et seq., SS 2909 et seq.; Creasy, SS 597
et seq.; Fauchille, Du Blocus Maritime, 1882; Hall, $$ 257 et seq.;
2 Halleck, 182 et seq.; Heffter, $$ 154 et seq.; Historicus, 87-118;
1.Jones, 60, 2 Ib., 46; Lawrence, $$ 269 et seq.; Liszt, $$ 320-
321; 4 Phillimore, 473 et seq.; 2 Rivier, 288 et seq.; Rivier,
L. B., 409-412; Soley, Blockade and Cruisers; Taylor, $8 674
et seq. ; 2 Twiss, $$ 98 et seq. ; D. Wheaton, 88 509-523; L.
Wheaton, 819 et seq. ; Woolsey, $$ 202–204.
183. Penalty for Breach of Blockade. -- When does the Penalty attach?
- French Rule. The Helen, Cases, 821 ; The Adula, Ib., 826.
5 Calvo, $$ 2897 et seq.; Creasy, 620; Hall, § 264; 3 Halleck, 208,
et seq.; Lawrence, § 275; Liszt, 322; 3 Phillimore, 506; Snow,
$ 63; Taylor, $ 779; 2 Twiss, 100; Walker, 525; Woolsey, $ 205.
(e) Rule of the War of 1756.
184. Neutrals may not Engage in a Trade during War, from which
they were excluded in Time of Peace. The Immanuel, Cases, 845;
The Emanuel, Ib., 847.
Bluntschli, $$ 799–800; Bonfils, $ 1534; Creasy, § 621; Hall,
Ixii
SYLLABUS.
:
$ 234 ; 2 Halleck, 301; 3 Phillimore, 370-379; 2 Rivier, 411;
Snow, $ 65; 2 Twiss, $ 100; D. Wheaton, 508; L. Wheaton, 814;
Woolsey, $ 200.
(f) Continuous Voyages.
185. Colonial Trade, and Coasting Trade. — Extension in 1793. The
William, Cases, 848.
Bernard, Neutrality, 310; Bonfils, $$ 1666–1667; Hall, 694; 1
Jones, 108; Liszt, 322 ; 3 Phillimore, 383; & Rivier, 432–434;
Snow, § 65; Taylor, § 683; Twiss in 3 Law Mag. and Rev. (4th
ser.), 1; Walker, 512:
i
186. Applied to the Carriage of Contraband, and the Breach of Block
ade by the American Courts. The Stephen Hart, Cases, 852; The
Bermuda, 1865, 6 Wall. 514; The Springbok, 1866, 5 Wall. 1;
The Peterhoff, 1866, Cases, 760; Hobbs v. Henning, 1864 (Ber-
nard, 316, note); L'Affaire du Doelwijk, 1896 (24 Journal de Droit
Int. Privé, 268-298).
Bernard, 310; Bluntschli, $$ 827-840; 5 Calvo, $$ 2762-2765,
2861-2864; Hall, 695; 1 Jones, 265; Lawrence, 594-598, 678-681;
Liszt, 336; 3 Phillimore, 391-403; Taylor, § 683; Walker, Sci-
ence, 514-515, 525; Westlake, Continuous Voyages in Relation to
Contraband of War, 15 Law Quarterly Review, 24–32; White,
The Seizure of The Bundesrath, 17 Law Quarterly Review, 12-25.
(9) Right of Search and Capture.
187. The Right of Visit and Search is a Belligerent Right, to which
Neutrals are subject. Resistance in any Manner to this Right
entails Condemnation. The Maria, Cases, 858; The Schooner
Nancy, Ib., 861; The Brig Sea Nymph, Ib., 869; The Ship Rose,
Ib., 879.
Bluntschli, $S 819-826; Bonfils, $$ 586-590; 5 Calvo, SS 2939–
2951; Creasy, 88 636-637; Fauchille, La théorie du voyage continu
en matière de contrabande de guerre, 4 R. G. D. I., 297 et seq.
Hall, $8 270-272; 2 Halleck, 239 et seq.; Heffter, $$ 167–170; Liszt,
200-201; 3 Martens, 355-357; 3 Phillimore, 522–544, 550; 2
Rivier, 423-428; Rivier, L. B., 454_455; Snow, § 66; Taylor,
$$ 685 et seq.; D. Wheaton, 524-528; Woolsey, $$ 208–209.
!
188. Formalities of the Exercise of the Right of Search. - Grounds of
Capture, — False Documents. - Spoliation Papers. 5 Calvo, $$ 2952
SYLLABUS.
lxiii
et seq. ; Hall, $$ 273-277; 2 Halleck, 258, 271; 3 Phillimore, 536;
2 Rivier, 348–352.
189. The Right of Visit and Search in Time of Peace.--Impressment
of Seamen. Slave Trade. — Protection of Seals. — Piracy. Le
Louis, Cases, 352; The Marianna Flora, Ib., 873; Behring Sea
Award (La Ninfa), Ib., 443.
Bluntschli, $$ 343–346'; Bonfils, $$ 591-593; 5 Calvo, $$ 2992–3003;
2 Halleck, 240-246, 272; 1 Jones, 264, 569; Liszt, 200; 3 Philli-
more, 525-529; Schuyler, Am. Dip., 233-264; D. Wheaton, § 125,
note 85, $$ 108–109, note 67; Woolsey, $$ 212–221.
190. The Right to Capture Enemy's Goods in Neutral Vessels, and
Neutral Goods in Enemy's Vessels. — “Free Ships, Free Goods."
Declaration of Paris. The Nereide, Cases, 884; The Atlas, IV.,
895; Darby v. The Brig Erstern, Ib., 896; Declaration of Paris,
Ib., 898, note.
Bonfils, $$ 1497–1526; 4 Calvo, $$ 2688-2707; Creasy, $$ 626-636 ;
Hall, $ $ 254-256, 267–269; 2 Halleck, 282–287; Heffter, $ $ 163-
164; 1 Jones, 262, 265; Lawrence, $$ 190–192; Liszt, 223-224;
2 Rivier, 428-330; Rivier, L. B., 455-457; Snow, $$ 67-68; 2
Twiss, 519–523; D. Wheaton, $$ 442–446; L. Wheaton, 736-767.
(h) Prize Courts.
191. The Constitution of Prize Courts in Different countries. 5 Calvo,
$S 3035 et seq.; 2 Halleck, 378-399; Liszt, 326; 3 Phillimore,
658–668; 2 Rivier, 353 et seq.; Snow, 69; Taylor, $ 563; L.
Wheaton, § 960–976.
:
192. The Principles and Practice of Prize Courts.' Miller y. The
Resolution (1), Cases, 899; Miller v. The Resolution (2), Ib., 906,
and note, 909; Commodore Stewart's Case, Ib., 910.
5 Calvo, $$ 3066 et seq.; 2 Halleck, 412, 421-431; 1 Jones, 447;
Liszt, 326–327; 3 Phillimore, 666–679; Taylor, $$ 464-566; D.
Wheaton, § 385, note 186.
193. They are Courts of the Captor's Country. - Effect of their De-
cisions. The Flad Oyen, Cases, 919; Oddy v. Bovill, Ib., 924, and
note, 925; Dalgleish v. Hodgson, Ib., 926; The Betsey, 1797
(3 Moore, Int. Arb., 3180-3206); Cushing, Adm'r, v. U.S., Cases,
929.
5 Calvo, $$ 3036 et seq.; 2 Halleck 378; Taylor, $ 566; 2 Twiss,
$ 166; D. Wheaton, $ 390.
Txiy
SYLLABUS.
194. Prize Courts of the Confederacy: On Land and on board Ships.
The Lillo (1862), Cases, 62; The Ike Davis (1864, reported as no.
1086 in Court of Alabama Claims, 1883); Practice of Captain
Semmes, Cases, 932, note.
Bluntschli, $ 672; 5 Calvo, $ 3030; Hall, $ 150; Semmes, Service
Afloat, 1869.
PRINCIPAL AUTHORITIES CITED IN THE
SYLLABUS.)
Austin, John, Jurisprudence (student's edition), 1874.
Bernard, Montague, Four Lectures on Diplomacy, 1868.
Bernard, Montague, Historical Account of the Neutrality of Great
Britain during the American Civil War, 1870.
Bluntschli, Das moderne Völkerrecht der civilisirten Staaten, 3d edition,
1878.
(References are to the French translation by Lardy, 3d edition, 1881.)
Bonfils-Fauchille, Manuel de droit international public (Droit des gens),
1894, 3d edition, 1901.
Butler, Charles H., The Treaty-making Power of the United States,
2 vols., 1902.
Calvo, Charles, Le droit international théorique et pratique, 6 vols.,
5th edition, 1896.
(Vols. 1-5 are reprint of 4th edition, 1887–1888; vol. 6 is a supplement.)
Cauchy, E., Droit maritime international, 2 vols., 1862.
Creasy, Sir Edward, First Platform of International Law, 1876. .
Davis, G. B., Outlines of International Law, 1887.
Dicey, A. V., Conflict of Laws, 1896.
Duer, John, Maritime Insurance, 2 vols., 1845.
Foster, J. W., Century of American Diplomacy, 1900.
Hall, W. E., International Law, 4th edition, 1895.
Halleck, H. W., International Law, 2 vols., 3d edition, by Sir Sherston
Baker, 1893.
Hart, A. B., Handbook of History, Diplomacy, Government, 1901.
Heffter, A. W., Das europäische Völkerrecht der Gegenwart, 4th French
edition, by Geffcken, 1883.
Holland, T. E., Elements of Jurisprudence, 9th edition, 1900.
;
i For abbreviations in the citation of cases, see Charles C. Soule, Lawyer's Refer-
ence Manual, 1883; Charles C. Soule, Abbreviations Used in Law Books, 1897 ;
Rawle's Bouvier's Law Dictionary (article, abbreviations), 2 vols., 1897. The cases in
this collection are cited as Cases."
P.
lxvi
PRINCIPAL AUTHORITIES CITED IN THE SYLLABUS.
Holland, T. E., European Concert in the Eastern Question, 1885.
Holland, T. E., Studies in International Law, 1898.
Holls, F. W., The Peace Conference at The Hague, and its bearings on
International Law and Policy, 1900.
Holtzendorff, F. von., Handbuch des Völkerrechts, 4 vols., 1885–1889.
(Reference is to the French translation of vol. 1, 1888.)
Jellinek, G., Das Recht des modernen Staates, Vol. 1, 1900.
Jellinek, G., Die Lehre von den Staatenverbindungen, 1882.
Jellinek, G., Die rechtliche Natur der Staatsverträge, 1880.
Jellinek, G., System der subjektiven öffentlichen Rechte, 1892.
Jenkyns, H., British Rule and Jurisdiction beyond the Seas, 1902.
Jones, L., Index to Legal Periodicals, 2 vols., 1887–1899.
Kent, James, Commentaries on American Law, 4 vols., 14th edition,
1896.
(Part I., Of the Law of Nations, vol. 1, pp. 1-200.)
Lawrence, T. J., Essays on Some Disputed Questions in Modern Inter-
national Law, 2d edition, 1885.
Lawrence, T. J., Principles of International Law, 3d edition, 1900.
Liszt, F. von, Das Völkerrecht systematisch dargestellt, 1898, 2d edi-
tion, 1902.
Magoon, W. E., Law of Civil Government under Military Occupation,
2d edition, 1902.
Maine, Sir Henry, Ancient Law, 5th edition, 1873.
Maine, Sir Henry, International Law, 1888.
Martens, F. de, Traité de droit international (Translated from the Rus-
sian by A. Léo), 3 vols., 1883–1887.
Maurice, Col. J. F., Hostilities without Declaration of War, 1883.
Moore, J. B., Extradition and Interstate Rendition, 2 vols., 1891.
Moore, J. B., International Arbitrations, 6 vols., 1898.
Ortolan, L. F. T., Règles internationales et diplomatie de la mer, 2 vols.,
4th edition, 1864.
Owen, Douglas, Declaration of War, 1889.
Perels, F., Das internationale öffentliche Seerecht der Gegenwart, 1882,
(Cited in French translation by Arendt, Manuel de droit maritime, 1884.)
Phillimore, Sir Robt., Commentaries upon International Law, 4 vols.,
3d edition, 1879-1889.
Piggott, F. T., Exterritoriality, 1892. .
Pistoye et Duverdy, Traité des prises maritimes, 2 vols., 1859.
Pomeroy, J. N., Lectures on International Law, 1886.
Rivier, A., Principes du droit des gens, 2 vols., 1896.
(Cited as 1 and 2 Rivier.)
PRINCIPAL AUTHORITIES CITED IN THE SYLLABUS.
lxvii
Rivier, A., Lehrbuch des Völkerrechts, 2 edition, 1899.
(Cited Rivier, L. B.)
Schuyler, E., American Diplomacy, 1886.
Snow, Freeman, International Law, 2d edition, 1898.
Snow, Freeman, Treaties and Topics in American Diplomacy, 1894.
Taylor, Hannis, International Public Law, 1901.
Twiss, Sir Travers, The Law of Nations, Vol. 1, 2d edition, 1884.
Vol. 2, 2d edition, 1875.
Walker, T. A., History of the Law of Nations, Vol. 1, 1899.
Walker, T. A., Manual of Public International Law, 1895.
Walker, T. A., Science of International Law, 1893.
Westlake, John, Principles of International Law, 1894.
Wharton, Francis, International Law Digest, 3 vols., 2d edition, 1887.
Wheaton, Henry, Elements of International Law, edited by A. C. Boyd,
3d edition, 1889; edited by R. H. Dana, 1866; edited by W. B.
Lawrence, 2d edition, 1863.
Woolsey, T. D., International Law, 6th edition, 1894.
PERIODICALS.
Journal du droit international privé, 1874 et seq.
(Cited as J. D. I. P.)
Revue de droit international, 1869 et seq.
(Cited as R. D. I.)
Revue générale de droit international public, 1894 et seq.
(Cited as R. D. I. P.)
Note. The following works are announced, but unfortunately not yet published:
Foster, J. W., American Diplomacy in the Orient, 1903.
Moore, J. B., International Law Digest (Treaties as well as Digest), 1903.
Moore, J. B., American Foreign Policy, 1903 or 1904.
CASES
ON
INTERNATIONAL LAW.
INTRODUCTION.
SECTION 1.-INTERNATIONAL LAW IS A PART OF THE MUNICIPAL LAW
OF STATES.
HARRIS, J., IN HEIRN V. BRIDAULT AND WIFE, 1859.
(37 Mississippi, 209, 229.
It is only by virtue of the municipal law of each state or nation,
or by the law of civilized nations, which is regarded as a part of the
municipal law of each, that aliens have any rights at all; and neither
the municipal law, nor the law of nations, has any extraterritorial
operation. As the municipal law is limited in its operation to the
territory of the nation by which it is established, and whose citizens
have agreed to be governed by its rules, and does not extend to any
other nation or people who have not thus consented to its obligations;
so the law of nations, having its origin in the necessities growing out
of commercial, social, and diplomatic intercourse of civilized nations,
and being founded upon the express or implied assent of such nations,
cannot be extended to embrace those nations or people who neither
respect nor acknowledge the laws of God or man, and are wholly
incapable, from their nature and constitution, of civilized inter-
“The law of nations is a system of rules, which reason,
morality, and custom have established among civilized nations as
their public law." 1 Kent, Com. 1; 1 Black. Com. 43.
Mr. Wheaton, in his work on International Law, after examin-
ing the definition and sources of international law, as discussed by
Grotius, Hobbes, Puffendorf, Rutherforth, Bynkershoek, Heffter,
Vattel, Montesquieu, and others, and the character of its obliga-
course.
1
2
INTRODUCTION.
tions, and upon what nations it operates, thus defines it: "Interna-
tional law, as understood among civilized nations, may be defined as
consisting of those rules of conduct which reason deduces as conso-
nant to justice, from the nature of the society, existing among inde-
pendent nations; with such definitions and modifications as may be
established by general consent," and for this he cites Mr. Madison.
See International Law, 46.
"There is, then," he says in another place, "according to these
writers, no universal, immutable law of nations, binding upon the
whole human race, which mankind, in all ages and countries, ancient
and modern, savage and civilized, Christian and Pagan, have recog-
nized in theory or in practice, have professed to obey, or in fact have
obeyed. *** The obligation of the ordinary, jus gentium depends upon
the persuasion that other nations will observe the same rules in their
intercourse with us, which we observe towards them.; or if they fail to
observe these rules, that they will incur the general hostility of nations.
But this persuasion cannot exist, as to those races of men who do not
recognize one law of nations.”. Wheaton, International Law, 40; 1
Burlamaqui, 137–8.1
1 In U.S. v. The Active, 1814, 24 Fed. Cases, 755, TOULMAN, J., says: “What, indeed,
is the law of nations? It is that rule of conduct which regulates the intercourse of
nations with one another; or in the words of the author last cited, 'The law of nations
is the science of the law subsisting between nations or states, and of the obligations
that flow from it.' Vatt. Law Nat. 49. It is a law for the government of national com-
munities as to their mutual relations, and not for the government of individuals of
those communities in their relation towards one another nor can it control the con-
duct of nations towards their own citizens, except in cases involving the rights of
other nations."
VAN Ness, J., says (in Johnson et als. v. 21 Bales, 28 Cases of Merchandise, etc., 2
Paine, 601, 604): “In examining the points which have been stated, it will be nec-
essary to advert to some general principles of the law of nations. In doing this, it will
not be requisite to notice particularly its divisions into necessary, voluntary, conventional or
positive. The law of nations, without defining or developing its divisions more minutely,
may be stated to be the law of nature, rendered applicable to political societies, and modi-
fiel, in process of time, by the tacit or express consent, by the long established usages
and written compacts of nations: usages and compacts become so general that every
civilized people ought to recognize and adopt their principles.”
In considering the application of this law of nations to non-christian communities.
(the Mahometan states of Africa), Lord Stowell, then Sir William Scott, says: “It is
loy the law of treaty only that these nations hold themselves bound, conceiving (as
some other people have foolishly imagined) that there is no other law of nations but
that which is derived from positive compact and conventions (The Helena, 1801,
4 C. Rob., 4, 7). In another case, the same eminent authority says: “Independent of
such engagements (treaties), it is well known that this court is in the habit of show-
ing something of a peculiar indulgence to persons of that part of the world (Ottoman
Porte]. The inhabitants of those countries are not professors of exactly the same
law of nations with ourselves. In consideration of the peculiarities of their situation
INTRODUCTION.
3
STORY, J., IN "LA JEUNE EUGENIE,” 1822.
(2 Mason, 409.)
Now the law of nations may be deduced, first, from the general prin-
ciples of right and justice, applied to the concerns of individuals, and
thence to the relations and duties of nations; or, secondly, in things
indifferent or questionable, from the customary observances and rec-
ognitions of civilized nations; or, lastly, from the conventional or
positive law, that regulates the intercourse between states. What,
therefore, the law of nations is, does not rest upon mere theory,
but may be considered as modified by practice, or ascertained by the
treaties of nations at different periods. It does not follow, therefore,
that because a principle cannot be found settled by the consent
or practice of nations at one time, it is to be concluded, that at no
subsequent period the principle can be considered as incorporated
into the public code of nations. Nor is it to be admitted, that no
principle belongs to the law of nations, which is not universally
recognized, as such, by all civilized communities, or even by those
constituting, what may be called, the Christian states of Europe.
Some doctrines, which we, as well as Great Britain, admit to belong
to the law of nations are of but recent origin and application, and
have not, as yet, received any public or general sanction in other
nations; and yet they are founded in such a just view of the duties and
rights of nations, belligerent and neutral, that we have not hesitated
to enforce them by the penalty of confiscation. There are other doc-
and character, the court has repeatedly expressed a disposition not to hold them
bound to the utmost rigor of that system of public laws on which European states
have so long acted in their intercourse with one another" (The Madonna del Burso,
1802, 4 C. Rob. 169, 172. (To the same effect, he says in another case: It has been
argued that it would be extremely hard on persons residing in the kingdom of Mo-
rocco, if they should be held bound by all the rules of the law of nations, as it is
practised amongst European states. On many accounts uniloubtedly they are not to
be strictly considered on the same footing as European merchants ; they may, on some
points of the law of nations, be entitled to a very relaxed application of the principles,
established by long usage, between the states of Europe holding an intimate and
constant intercourse with each other. It is a law made up of a good deal of complex
reasoning, though derived from very simple rules, and altogether composing a pretty
artificial system, which is not familiar either to their knowledge or their observations.
Upon such considerations, the court has, on some occasions, laid it down that the
European law of nations is not to be applied in its full rigor to the transactions of
persons of the description of the present claimants, and residing in that part of the
world (2d Adm. Rep. p. 88). But on a point like this, the breach of a blockade, one
of the most universal and simple operations of war in all ages and countries, except-
ång such as were merely savage, no such indulgence can be shown (The Hurtige Hane,
1801, 3 C. Rob. 324,325, 326)... ED.
4
INTRODUCTION.
trines, again, which have met the decided hostility of some of the
European states, enlightened as well as powerful, such as the right
of search, and the rule, that free ships do not make free goods, which,
nevertheless, both Great Britain and the United States maintain, and
in my judgment with unanswerable arguments, as settled rules in the
Law of Prize, and scruple not to apply them to the ships of all other
nations. And yet, if the general custom of nations in modern times,
or even in the present age, recognized an opposite doctrine, it could
not, perhaps, be affirmed, that that practice did not constitute a part,
or, at least, a modification of the law of nations.
But I think it may be unequivocally affirmed, that every doctrine,
that may be fairly deduced by correct reasoning from the rights and
duties of nations, and the nature of moral obligation, may theoreti-
cally be said to exist in the law of nations; and unless it be relaxed
or waived by the consent of nations, which may be evidenced by their
general practice and customs, it may be enforced by a court of justice,
whenever it arises in judgment. And I may go farther and say, that
no practice whatsoever can obliterate the fundamental distinction
between right and wrong, and that every nation is at liberty to apply
to another the correct principle, whenever both nations by their pub-
lic acts recede from such practice, and admit the injustice or cruelty
of it.
AN ACT FOR PRESERVING THE PRIVILEGES OF AMBAS-
SADORS, AND OTHER PUBLIC MINISTERS OF FOR-
EIGN PRINCES AND STATES. 1708.
(1 Chitty's Statutes, 3d ed., 47.)
Whereas several turbulent and disorderly persons having in a most
outrageous manner insulted the person of his excellency Andrew
Artemonowitz Mattneof, ambassador extraordinary of his czarish
majesty, emperor of Great Russia, her majesty's good friend and
ally, by arresting him, and taking him, by violence, out of his coach
in the public street, and detaining him in custody for several hours,
in contempt to the protection granted by her majesty, contrary to the
law of nations and in prejudice of the rights and privileges which
ambassadors and other public ministers, authorized and received as
1 See the Declaration of Paris, 1856, infra. The United States observed the prin-
ciples of the Declaration in the Civil War, 1861-1865, and the rules of the Declaration
were officially adopted and proclaimed by the President, April 26, 1898, at the out-
break of the Spanish-American War (10 Richardson's Messages & Papers, 204). See
also Dapa's Wheaton, note, 223; Hall's Int. Law, 708–717. - ED.
INTRODUCTION.
5
such, have at all times been thereby possessed of, and ought to be
kept sacred and inviolable; Be it therefore declared, that all actions
and suits, writs and processes, commenced, sued, or prosecuted, against
the said ambassador by any person or persons whatsoever, and all bail
bonds given by the said ainbassador, or any other person or persons on
his behalf, and all recognizances of bail given or acknowledged in any
such action or suit, and all proceedings upon or by pretext or color of
such action or suit, writ or process, and all judgments had thereupon,
are utterly null and void, and shall be deemed and judged to be utterly
null and void, to all intents, constructions, and purposes whatsoever.
2. That all entries, proceedings, and records, against the said am-
bassador or his bail, shall be vacated and cancelled.
3. And to prevent the like insolences for the future, be it further
declared, that all writs and processes that shall at any time hereafter
be sued forth or prosecuted whereby the person of any ambassador
or other public minister of any foreign prince or state authorized
and received as such by her majesty, her heirs or successors, or the
domestic or domestic servant of any such ambassador or other public
minister, may be arrested and imprisoned, or his or their goods or
chattels may be distrained, seized, or attached, shall be deemed and
adjudged to be utterly null and void, to all intents, constructions, and
purposes whatsoever.
4. That in case any person or persons shall presume to sue forth
or prosecute, any such writ or process, such person and persons, and
all attorneys and solicitors prosecuting and soliciting in such case,
and all officers executing any such writ or process, being thereof con-
victed by the confession of the party, or by the oath of one or more
credible witness or witnesses, before the lord chancellor or keeper
of the great seal of Great Britain, the chief justice of the court of
queen's bench, the chief justice of the court of common pleas, for the
time being, or any two of them, shall be deemed violators of the laws
of nations, and disturbers of the public repose, and shall suffer such
pains, penalties, and corporal punishment, as the said lord chancellor,
lord keeper, and the said chief justices, or any two of them, shall
judge fit to be imposed and inflicted.
5. Provided, that no merchant or other trader, whatsoever, within
the description of any of the statutes against bankrupts who hath or
shall put himself into the service of any such ambassador or public
minister, shall have or take any manner of benefit by this act, and
that no person shall be proceeded against as having arrested the ser-
vant of an ambassador or public minister by virtue of this act, unless
the name of such servant be first registered in the office of one of the
principal secretaries of state, and by such secretary transmitted by
6
INTRODUCTION.
the sheriffs of London and Middlesex for the time being, or their
under sheriffs or deputies, who shall, upon the receipt thereof, hang
up the same in some public place in their offices, whereto all persons
may resort, and take copies thereof without fee or reward.
6. That this act shall be taken and allowed in all courts within
this kingdom as a public act, and that all judges and justices shall
take notice of it without special pleading, and all sheriffs, bailiffs,
and other officers and ministers of justice concerned in the execution
of process are hereby required to have regard to this act, as they
will answer the contrary at their peril.1
TRIQUET AND OTHERS V. BATH.
PEACH AND ANOTHER V. BATH.
COURT OF KING'S BENCH, 1764.
(3 Burrow, 1478.)
Mr. Blackstone, Mr. Thurlow, and Mr. Dunning, on behalf of the
plaintiffs, showed cause why the bill of Middlesex in each of these
causes should not be set aside, and the bail-bond be cancelled.
The rule was made upon affidavits “Of the defendant's being a
domestic servant of a foreign minister; and having taken all the
proper steps to entitle him to the privilege of such domestics."
The only question was, "Whether the defendant (Christopher Bath)
was really and truly and bona fide a domestic servant of Count Has-
lang, the Bavarian minister; ” or, “Whether his service was only color-
able, and a mere sham and pretence calculated to protect him from
the just demands of his creditors.”
Lord MANSFIELD:--This privilege of foreign ministers and their
domestic servants depends upon the law of nations. The act of Par-
liament of 7 Ann. c. 12, is declaratory of it. All that is new in this
act, is the clause which gives a summary jurisdiction for the punish-
ment of the infractors of this law.
The act of Parliament was made upon occasion of the Czar's ambas-
sador being arrested. If proper application had been immediately
1 " Sections 4062, 4063, 4064, and 4065 were originally sections 25, 26, 27, and 28.
of the Crimes Act of April 30, 1790, c. 9, 1 Stat. 118; and these were drawn from the
statute of Annę, c. 12, which was declarațory simply of the law of nations, which Lord
MANSFIELD observed, in Heathfield v. Chilton, 4 Burrow, 2015, 2016, the Act did not
intend to alter, and could not alter.” Per FULLER, C. J., in Re Baiz, 1889, 135 U. S.
403, 420.- ED.
INTRODUCTION.
7
made for his discharge from the arrest, the matter might and doubtless
would have been set right. Instead of that, bail was put in, before
any complaint was made. An information was filed by the then
attorney-general against the persons who were thus concerned, as
infractors of the law of nations, and they were found guilty, but never
brought up to judgment.
The Czar took the matter up, highly. No punishment would have
been thought by him an adequate reparation. Such a sentence as the
court could have given, he might have thought a fresh insult.
Another expedient was fallen upon and agreed to; this act of Par-
liament passed, as an apology and humiliation from the whole nation.
It was sent to the Czar, finely illuminated, by an ambassador extra-
ordinary, who made excuses in a solemn oration.
A great deal relative to this transaction and negotiation appears in
the annals of that time; and from a correspondence of the Secretary
of State there printed.
But the act was not occasioned by any doubt “Whether the law of
nations, particularly the part relative to public ministers, was not
part of the law of England, and the infraction, criminal; nor in-
tended to vary an iota from it.
I remember in a case before Lord Talbot, of Buvot v. Barbut, upon
a motion to discharge the defendant (who was in execution for not
performing a decree), “Because he was agent of commerce, commis-
sioned by the King of Prussia, and received here as such;" the matter
was very elaborately argued at the bar; and a solemn deliberate opin-
ion given by the court. These questions arose and were discussed.
“Whether a minister could, by any act or acts, waive his privi-
lege." —“Whether being a trader was any objection against allowing
privilege to a minister, personally." -"Whether an agent of com-
merce, or even a consul, was entitled to the privileges of a public
minister.” " What was the rule of decision: the act of Parliament
or the law of nations." Lord Talbot declared a clear opinion -
“That the law of nations, in its full extent, was part of the law of
England." — "That the act of Parliament was declaratory, and oc-
casioned by a particular incident." " That the law of nations was to
be collected from the practice of different nations, and the authority
of writers.” Accordingly, he argued and determined from such in-
stances, and the authority of Grotius, Barbeyrac, Binkershoek, Wique-
fort, &c.; there being no English writer of eminence upon the
subject.
I was counsel in this case, and have a full note of it.
I remember, too, Lord Hardwicke's declaring his opinion to the
same effect; and denying that Lord Chief Justice Holt ever had any
8
INTRODUCTION.
doubt as to the law of nations being part of the law of England, upon
the occasion of the arrest of the Russian ambassador.
Mr. Blackstone's principles are right; but as to the facts in the
present case, the affidavits on the part of the defendant have outsworn
those on the part of the plaintiffs. (And his Lordship, as well as Mr.
Justice Wilmot, took notice that the person who drew the affidavits
on the part of the defendant had very exactly pursued the course of
the cases that had been determined upon questions of this kind; and
had taken care to meet and answer all objections that might arise
from them.) Lord Mansfield observed also, that the defendant was
employed in the service of Monsieur Hastang, before the plaintiff
took out his writ.
It was not to be expected, he said, that every particular act of the
service should be particularly specified; it is enough if an actual bona
fide service be proved. And if such a service be sufficiently proved
by affidavit, we must not, upon bare suspicion only, suppose it to
have been merely colorable and collusive.
As to the latter point, “Of his being a trader” – his having been
so in Ireland (and even that seven years ago, too), will not bring him
within the exception of the 5th clause of this act, which provides
"That no merchant or other trader whatsoever, within the descrip-
tion of any of the statutes against bankrupts, who hath or shall put
himself into the service of any such ambassador or public minister,
shall have or take any manner of benefit by that act."
And there is no color for bringing this case within that of Dods-
worth V. Anderson ; for here is no connection between the goods
bought in England and those sold in Ireland. It does not appear
that they were the same goods; neither is any time specified, when
they were bought, or when they were sold.
Per Cur. Both rules were made absolute, but without costs, by
reason of the suspicious circumstances of this case.
BLACKSTONE'S COMMENTARIES, BOOK IV.
CHAPTER IV., 1765.
The law of nations is a system of rules, deducible by natural reason
and established by universal consent among the civilized inhabitants
of the world; in order to decide all disputes, to regulate all ceremonies
and civilities and to insure the observance of justice and good faith,
in that intercourse which must frequently occur between two or more
independent states and the individuals belonging to each.
INTRODUCTION.
9
This general law is founded upon this principle, that different nations
ought in time of peace to do one another all the good they can, and in
time of war as little harın as possible, without prejudice to their own
real interests. And, as none of these states will allow a superiority in
the other, therefore neither can dictate or prescribe the rules of this
law to the rest; but such rules must necessarily result from those prin-
ciples of natural justice in which all the learned of every nation agree ;
or they depend upon mutual compacts or treaties between the respective
communities ; in the construction of which there is also no judge to
resort to but the law of nature and reason, being the only one in which
all the contracting parties are equally conversant, and to which they
are equally subject.
In arbitrary states this law, wherever it contradicts or is not pro-
vided for by the municipal law of the country, is enforced by the royal
power ; but since in England no royal power can introduce a new law
or suspend the execution of the old, therefore the law of nations
(wherever any question arises which is properly the object of its juris-
diction) is here adopted in its full extent by the common law, and is
held to be a part of the law of the land. And those acts of parliament
which have from time to time been made to enforce this universal law,
or to facilitate the execution of its decisions, are not to be considered
as introductive of any new rule, but merely as declaratory of the old
fundamental constitutions of the kingdom; without which it inust
cease to be a part of the civilized world. Thus in mercantile questions,
such as bills of exchange and the like; in all marine causes, relating
to freight, average, demurrage, insurances, bottomry, and others of a
similar nature; the law merchant, which is a branch of the law of
nations, is regularly and constantly adhered to. So too in all disputes
relating to prizes, to shipwrecks, to hostages, and ransom bills, there
is no other rule of decision but this great universal law, collected from
history and usage, and such writers of all nations and languages as are
generally approved and allowed of.
But, though in civil transactions and questions of property between
the subjects of different states, the law of nations has much scope and
extent, as adopted by the law of England ; yet the present branch of
our inquiries will fall within a narrow compass, as offences against the
law of nations can rarely be the object of the criminal law of any par-
ticular state. For offences against this law are principally incident to
whole states or nations ; in which case recourse can only be had to
war;
which is an appeal to the God of hosts, to punish such infrac-
tions of public faith as are committed by one independent people
against another : neither state having any superior jurisdiction to
resort to upon earth for justice. But where the individuals of any
10
INTRODUCTION.
state violate this general law, it is then the interest as well as duty of
the government, under which they live, to animadvert upon them with
a becoming severity, that the peace of the world may be maintained.
For in vain would nations in their collective capacity observe these
universal rules, if private subjects were at liberty to break them at
their own discretion and involve the two states in a war. It is there-
fore incumbent upon the nation injured, first to demand satisfaction
and justice to be done on the offender, by the state to which he belongs;
and, if that be refused or neglected, the sovereign then avows himself
an accoinplice or abettor of his subject's crime, and draws, upon his
community the calamities of foreign war.
.
.
ARTICLES OF CONFEDERATION, 1777 (1781-1788)
ARTICLE IX.
The United States in Congress assembled shall have the sole and
exclusive right and power of determining on peace and war, except in
the cases mentioned in the sixth Article; of sending and receiving
ambassadors ; entering into treaties and alliances, provided that no
treaty of commerce shall be made whereby the legislative power of the
respective states shall be restrained from imposing such im posts and
duties on foreigners as their own people are subjected to, or from
prohibiting the exportation or importation of any species of goods or
commodities whatsoever; of establishing rules for deciding in all cases
what captures on land or 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
reprisal 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;
provided that no member of Congress shall be appointed as judge of
any of the said courts.
The United States in Congress assembled shall also be the last
resort on appeal in all disputes and differences now subsisting, or that
hereafter may arise between two or more states concerning boundary,
jurisdiction, or any other cause whatever.1 * * *
1 On Articles of Confederation, see .generally Fiske's “Critical Period of American
History," pp. 92–102 ; Frothingham's "Rise of the Republic,” pp. 561-572. For the ju-
diciary contemplated by the Articles, see a valuable essay entitled “ The Predecessor of
the Supreme Court,” by Professor Jameson in " Essays in the Constitutional History
of the United States” (1889). “It is obviously impossible," he says, at page 34 of
the essay referred to,“ to discuss here the various cases decided by the court, though
INTRODUCTION.
11
* * * To regu-
THE CONSTITUTION OF THE UNITED STATES, 1789.
Art. I., Sect. 8. The Congress shall have power
late commerce with foreign nations, and among the several States
and with the Indian tribes;
To establish an uniform rule of naturalization * * *;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high
seas, and offences against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules
concerning captures on land and water;
Section 10. No State shall enter into any treaty alliance, or con-
federation; grant letters of marque or reprisal. ***
No State shall, without the consent of Congress, lay any duty of
tonnage, keep troops or ships of war in time of peace, enter into any
agreement or compact with another' State, or with a foreign power, or
engage in war, unless actually invaded, or in such imminent danger
as will not admit of delay.
Art. II., Sect. 2. He [the President] shall have power, by and with
the advice and consent of the Senate, to make treaties, provided two
thirds of the Senators present concur; and he shåll nominate, and by
and with the advice and consent of the Senate shall appoint ambas-
sadors, other public ministers and consuls. * * *
Sect. 3. *** He shall receive ambassadors and other public min-
isters; he shall take care that the laws be faithfully executed and shall
commission all the offices of the United States.
Art. III., Sect. 1. The judicial power of the United States shall be
vested in one Supreme Court, and in such inferior.courts as the Con-
gress may from time to time ordain and establish. * * *
two of them were afterward important as cases in the Supreme Court of the United
States, — the cases of Penhallow v. Doane, 3 Dallas, 54, and Jennings v. Carson, 4
Cranch, 2, the former of which, in 1795, settled the jurisdiction of the Court of
Appeals. Judge Davis computes that'sixty-five cases in all were submitted to the
Committees of Congress, of wliich forty-nine were decided by them, four seem to have
disappeared, and twelve went over to the Court of Appeals for decision;' and that
'fifty-seven cases in all, including the twelve which went over, were submitted to the
Court of Appeals, and all were disposed of.' Eight more of its cases are reported in
2 Dallas (1-42), making one hundred and eighteen in all.” Sone of these cases are
printed infra. See also Hon. J. C. Bancroft Davis' monograph entitled " The Com-
mittees of the Continental Congress chosen to hear and determine Appeals from Courts
of Admiralty and the Court of Appeals in Cases of Capture, established by that Body"
(131 U. S., Appendix XII.-LXIII.). This matter of the judiciary under the Articles of
Confederation is briefly but admirably treated in Chapter III. (pp. 39–64) of Hampton
L. Carsons' authoritative “Supreme Court of the United States, its History" (1891).
- ED.
12
INTRODUCTION,
Sect. 2. The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the United States,
and treaties made, or which shall be made, under their authority; to all
cases affecting ambassadors, other public ministers, and consuls; to
all cases of admiralty and maritime jurisdiction to controversies to
which the United States shall be a party ; to controversies between
two or more States ; between a State and citizens of another State;
between citizens of different States; between citizens of the same State
claiming lands under grants of different States, and between a State,
or the citizens thereof, and foreign states, citizens, or subjects.
In all cases affecting ambassadors, other public ministers and consuls,
and those in which a State shall be a party, the Supreme Court shall
have original jurisdiction. In all the other cases before mentioned
the Supreme Courts shall have appellate jurisdiction, both as to law
and fact, with such exceptions and under such regulations as the Con-
gress shall make.
The trial of all crimes, except in cases of impeachment, shall be by
jury; and such trial shall be held in the State where the said crimes
shall have been committed ; but when not committed within any State,
the trial shall be at such place or places as the Congress may by law
have directed.
Sect. 3. Treason against the United States shall consist only in
levying war against them, or in adhering to their enemies, giving them
aid and comfort. No person shall be convicted of treason unless on
the testimony of two witnesses to the same overt act, or on confession
1 Maritime law (unless part of international law) has the effect of law only in so
far as it is adopted by the laws, usages, and customs of the particular country,
Norwich Co. v. Wright, 1872, 13 Wall. 104 ; especially The Lottawanna, 1874, 21 Wall.
558, 572-578, where the subject is discussed in detail; The Scotland, 1881, 105
U. S. 24, where cases in 13 & 21 Wallace are cited and approved.
In The Manhasset, 1884, 18 Fed. R. 918, 920-923, this subject was considered
and the following résumé is found on p. 922 of the judgment of HUGHES, J. : “From
all that has been said, these things would seem to be clear: First, that maritime law,
existing as it does by the common consent of nations, and being a general law, cannot
be changed or modified as to its general operation by any particular sovereignty;
second, that it has force in any country only by its adoption, express or implied, by
that country, and may be modified in its special operation in that jurisdiction at the
will of the special sovereignty ; third, that it is by sucli adoption part of the Federal law
of the United States, and incapable of modification by state enactment, -Congress
having exclusive power, under the constitution, to regulate commerce with foreign
nations, and among the several States, and with the Indian tribes;' and the judicial
power of the United States, exclusive of the State courts,' extending to all cases of
admiralty and maritime jurisdiction.'
The leading cases on mercantile and maritime 'law are collected and annotated in
Tudor's Mercantile Cases (3d ed., 1884). For the origin, nature, and extent of admi-
ralty jurisdiction in the United States, see Ames: Cases on Admiralty (1901). — Ed.
7"
INTRODUCTION.
13
in open court. The Congress shall have power to declare the punish-
ment of treason. * * *
Art. VI. *** This Constitution, and the laws of the United States
which shall be made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United States, shall
be the supreme law of the land; and the judges in every State shall
be bound thereby, anything in the Constitution or laws of any State
to the contrary notwithstanding. * *
*
UNITED STATES Y. SMITH.
SUPREME COURT OF THE UNITED STATES,
1820.
(5 Wheaton, 153.)
This was an indictment for piracy against the prisoner Thomas
Smith, before the circuit court of Virginia, under the act of Congress,
of the 3d of March, 1819, c. 76, which provides (s. 5) "That if any
person or persons whatsoever, shall, on the high seas, commit the
crime of piracy, as defined by the law of nations, and such offender
or offenders shall afterwards be brought into, or found in, the United
States, every such offender or offenders shall, upon conviction thereof,
before the circuit court of the United States for the district into which
he or they may be brought, or in which he or they shall be found,
be punished with death.”
The jury found a special verdict as follows: “We of the jury
find, that the prisoner, Thomas Smith, in the month of March, 1819,
and others, were paft of the crew of a private armed vessel, called
the Creollo (commissioned by the government of Buenos Ayres, a
colony then at war with Spain), and lying in the port of Margaritta;
that in the month of March, 1819, the said prisoner and others of the
crew mutinied, confined their officers, left the vessel, and in the said
port of Margaritta seized by violence a vessel called the Irresistible, a
private armed vessel, lying in that port, commissioned by the govern-
ment of Artegas, who was also at war with Spain ; that the said
prisoner and others, having so possessed themselves of the said vessel,
the Irresistible, appointed their officers, proceeded to sea on a cruise,
without any documents or commission whatever; and while on that
cruise, in the month of April, 1819, on the high seas, committed the
offence charged in the indictment, by the plunder and robbery of
the Spanish vessel therein mentioned. If the plunder and robbery
aforesaid be piracy under the act of the Congress of the United States,
entitled, 'An act to protect the commerce of the United States, and
11
INTRODUCTION,
punish the crime of piracy,' then we find the said prisoner guilty ; if
the plunder and robbery, above stated, be not piracy under the said act
of Congress, then we find him not guilty."
The circuit court divided on the question, whether this be piracy as
defined by the law of nations, so as to be punishable under the act of
Congress, of the 3d of March, 1819, and thereupon the question was
certified to this court for its decision.
Mr. Justice Story delivered the opinion of the court: — "The act
of Congress upon which this indictment is founded provides, that if
any person or persons whatsoever shall, upon the high seas, commit
the crime of piracy, as defined by the law of nations, and such offender
or offenders shall be brought into, or found in the United States, every
such offender or offenders shall, upon conviction thereof, etc., be pun-
ished with death.
“The first point made at the bar is, whether this enactment be a
constitutional exercise of the authority delegated to Congress upon
the subject of piracies. The Constitution declares, that Congress
shall - have power to define and punish piracies and felonies, com-
mitted on the high seas, and offences against the law of nations. The
argument which has been urged in behalf of the prisoner is, that Con-
gress is bound to define, in terms, the offence of piracy, and is not at
liberty to leave it to be ascertained by judicial interpretation. If the
argument be well founded, it seems admitted by the counsel that it
equally applies to the 8th section of the act of Congress of 1790, ch. 9,
which declares, that robbery and murder committed on the high seas
shall be deemed piracy; and yet, notwithstanding a series of contested
adjudications on this section, no doubt has hitherto been breathed of
its conformity to the Constitution.
“In our judgment, the construction contended for proceeds upon
too narrow a view of the language of the Constitution. The power
given to Congress is not merely 'to define and punish piracies ;' if it
were, the words to define 'would seem almost superfluous, since the
power to punish piracies would be held to include the power of ascer-
taining and fixing the definition of the crime. And it has been very
justly observed, in a celebrated commentary, that the definition of
piracies might have been left without inconvenience to the law of
nations, though a legislative definition of them is to be found in most
municipal codes. But the power is also given to define and punish
felonies on the high' seas, and offences against the law of nations.'
The term 'felonies' has been supposed in the same work not to
have a very exact and determinate meaning in relation to offences at
the common law committed within the body of a country. However
this may be, in relation to offences on the high seas, it is necessarily
INTRODUCTION.
15
somewhat indeterminate, since the term is not used in the criminal
jurisprudence of the admiralty in the technical sense of the common
law. Offences, too, against the law of nations cannot, with any ac-
curacy, be said to be completely ascertained and defined in any public
code recognized by the common consent of nations. In respect; there-
fore, as well as to felonies on the high seas as to offences against the
law of nations, there is a peculiar fitness in giving the power to define
as well as to punish; and there is not the slightest reason to doubt
that this consideration had very great weight in producing the phrase-
ology in question.
“But, supposing Congress were bound in all the cases included in the
clause under consideration to define the offence, still there is nothing
which restricts it to a mere logical enumeration in detail of all the facts
constituting the offence. Congress may as well define by using a term
of a known and determinate meaning, as by an express enumeration of
all the particulars included in that term. That is certain which is by
necessary reference made certain. When the act of 1790 declares, that
any person who shall commit the crime of robbery, or murder on the
high seas, shall be deemed a pirate, the crime is not less clearly ascer-
tained than it would be by using the definitions of these terms as they
are found in our treatises of the common law. In fact, by such a
reference, the definitions are necessarily included, as much as if they
stood in the text of the act. In respect to murder, where malice
aforethought' is of the essence of the offence, even if the common-law
definition were quoted in express terms, we should still be driven to
deny that the definition was perfect, since the meaning of malice
aforethought' would remain to be gathered from the common law.
There would then be no end to our difficulties, or our definitions, for
each would involve some terms which might still require some new
explanation. Such a construction of the Constitution is, therefore,
wholly inadvisable. To define piracies, in the sense of the Constitu-
tion, is merely to enumerate the crimes which shall constitute piracy,'
and this may be done, either by a reference to crimes having a techni-
cal name and determinate extent, or by enumerating the acts in detail,
upon which the punishment is inflicted.
"It is next to be considered, whether the crime of piracy is defined
by the law of. nations with reasonable certainty. What the law of
nations on this subject is, may be ascertained by consulting the works
of jurists, writing professedly on public law; or by the general usage
and practice of nations; or by judicial decisions recognizing and
enforcing that law. There is scarcely a writer on the law of nations
who does not allude to piracy as a crime of a settled and determinate
nature; and whatever may be the diversity of definitions in other
1
16
INTRODUCTION.
respects, all writers concur in holding that robbery, or forcible depre-
dations upon the sea animo furandi, is piracy. The same doctrine is
held by all the great writers on maritime law in terms that admit of
no reasonable doubt.
“The common law, too, recognizes and punishes piracy as an offence,
not against its own municipal code, but as an offence against the law of
nations (which is part of the common law), as an offence against the
universal law of society, a pirate being deemed an enemy of the human
race. Indeed, until the statute of 28th of Henry VIII., ch. 15, piracy
was punished in England only in the admiralty as a civil-law offence;
and that statute, in changing the jurisdiction, has been universally
admitted not to have changed the nature of the offence. Sir Charles
Hedges, in his charge at the admiralty sessions, in the case of Rex v.
Dawson, 5 State Trials, declared in emphatic terms that piracy is
only a sea term for robbery, piracy being a robbery committed within
the jurisdiction of the admiralty.' Sir Leoline Jenkins, too, on a like
occasion, declared that a robbery, when committed upon the sea, is
what we call piracy ;' and he cited the civil-law writers, in proof.
“ And it is manifest from the language of Sir William Blackstone,
4 Bl. Comm. 73, in his comments on piracy, that he considered the
common-law definition as distinguishable in no essential respect from
that of the law of nations. So that, whether we advert to writers on
the common law, or the maritime law, or the law of nations, we shall
find that they universally treat of piracy as an offence against the law
of nations, and that its true definition by that law is robbery upon the
And the general practice of all nations in punishing all persons,
whether natives or foreigners, who have committed this offence against
any persons whatsoever, with whom they are in amity, is a conclusive
proof that the offence is supposed to depend, not upon the particular
provisions of any municipal code, but upon the law of nations, both
for its definition and punishment. We have, therefore, no hesitation
in declaring that piracy, by the law of nations, is robbery upon the sea,
and that it is sufficiently and constitutionally defined by the fifth
section of the act of 1819.
“Another point has been made in this case, which is, that the special
verdict does not contain sufficient facts upon which the court can
pronounce that the prisoner is guilty of piracy. We are of a different
opinion. The special verdict finds that the prisoner is guilty of the
plunder and robbery charged in the indictinent; and finds certain
additional facts from which it is most manifest that he and his associates
were, at the time of corn mitting the offence, freebooters upon the sea,
not under the acknowledged authority, or deriving protection from the
flag or commission of any government. If, under such circumstances,
sea.
A
INTRODUCTION.
17
the offence be not piracy, it is difficult to conceive any which would
more completely fit the definition.
“ It is to be certified to the circuit court that upon the facts stated
the case is piracy, as defined by the law of nations, so as to be punish-
able under the act of Congress of the 3d of March, 1819."
Mr. Justice LIVINGSTONE dissented,
On the ground that the act of Congress did not contain such a
definition of piracy as the constitution requires.
THE SCOTIA.
SUPREME COURT OF THE UNITED STATES, 1871.
(14 Wallace, 170.)
Mr. Justice STRONG delivered the opinion of the court.2
It must be conceded, however, that the rights and merits of a case
may be governed by a different law from that which controls a court
in which a remedy may be sought. The question still remains, what
was the law of the place where the collision occurred, and at the time
when it occurred. Conceding that it was not the law of the United
States, nor that of Great Britain, nor the concurrent regulations of
the two governments, but that it was the law of the sea, was it the
ancient maritime law, that which existed before the commercial va-
tions of the world adopted the regulations of 1863 and 1864, or the
law changed after those regulations were adopted? Undoubtedly,
no single nation can change the law of the sea. That law is of
universal obligation, and no statute of one or two nations can create
obligations for the world. Like all the laws of nations, it rests upon
the common consent of civilized communities. It is of force, not
because it was prescribed by any superior power, but because it has
been generally accepted as a rule of conduct. Whatever may have
been its origin, whether in the usages of navigation or in the ordi-
nances of maritime states, or in both, it has become the law of the
sea only by the concurrent sanction of those nations who may be said
to constitute the commercial world. Many of the usages which pre-
vail, and which have the force of law, doubtless originated in the
1 In speaking of this case Sir Robert Phillimore (1 Int. Law, 489, note d) says:
“The note (a) to this page [163] contains a most learned and careful accumulation of all
the authorities on the subject of Piracy.” Lack of space unfortunately compels its
omission. - Ep.
2 The facts of the case are omitted, and only that part of the opinion concerning
the question of international law is given. — Ed.
2
18
-ܪ
INTRODUCTION.
positive prescriptions of some single state, which were at first of
limited effect, but which when generally accepted became of universal
obligation. The Rhodian law is supposed to have been the earliest
system of marine rules. It was a code for Rhodians only, but it soon
became of general authority because accepted and assented to as a
wise and desirable system by other maritime nations. The same may
be said of the Amalphitan table, of the ordinances of the Hanseatic
League, and of parts of the marine ordinances of Louis XIV. They
all became the law of the sea; not on account of their origin, but by
reason of their acceptance as such. And it is evident that unless
general assent is efficacious to give sanction to international law,
there never can be that growth and development of maritime rules
which the constant changes in the instruments and necessities of navi-
gation require. Changes in nautical rules have taken place. How
have they been accomplished, if not by the concurrent assent, express
or understood, of maritime nations? When, therefore, we find such
rules of navigation as are mentioned in the British orders in council
of Jan. 9, 1863, and in our act of Congress of 1864, accepted as
obligatory rules by more than thirty of the principal commercial
states of the world, including almost all which have any shipping on
the Atlantic Ocean, we are constrained to regard them as in part at
least, and so far as relates to these vessels; the laws of the sea, and
as having been the law at the time when the collision of which the
libellants complain took place.
This is not giving to the statutes of any nation extraterritorial
effect. It is not treating them as general maritime laws, but is
recognition of the historical fact that, by common consent of inan-
kind, these rules have been acquiesced in as of general obligation.
Of that fact we think we may take judicial notice. Foreign muni-
cipal laws must indeed be proved as facts, but it is not so with the
law of nations.
The consequences of this ruling are decisive of the case before us.
The violation of maritime law by the Berkshire in carrying a white
light (to say nothing of her neglect to carry colored lights), and her
carrying it on deck instead of at her masthead, were false repre-
sentations to the Scotia. They proclaimed that the Berkshire was a
steamer, and such she was manifestly taken to be. The movements
of the Scotia were therefore entirely proper, and she was without
fault.
Decree affirmed, with costs.
1
INTRODUCTION.
19
1
THE "PAQUETTE HABANA.” THE - LOLA."
SUPREME COURT OF THE UNITED STATES, 1899.
(175 United States, 677.)
1
During the Spanish-American war two small Spanish fishing smacks,
the Paquette Habana and the Lola were respectively captured at sea
by the gunboat Castine and the steamship Dolphin, and taken by their
captors into Key West, Fla., where they were libelled and condemned
as enemy's property, and sold under decree of the court.
On appeal
to the Supreme Court of the United States, the question before the
court was, are fishing smacks, in the absence of municipal law or
treaty, protected from capture by the law of nations, and is such law
of nations part of the municipal law of the United States?
Mr. Justice Gray delivered the opinion of the court.
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as
often as questions of right depending upon it are duly presented for
their determination. For this purpose, where there is no treaty, and
no controlling executive or legislative act or judicial decision, resort
must be had to the customs and usages of civilized nations; and, as
evidence of these, to the works of jurists and commentators, who, by
years of labor, research, and experience, have made themselves pecu-
liarly well acquainted with the subjects of which they treat. Such
works are resorted to by judicial tribunals, not for the speculations
of their authors concerning what the law ought to be, but for trust-
worthy evidence of what the law really is. Hilton v. Guyot, 159
U. S. 113, 163, 164, 214, 215.2
Wheaton places, among the principal sources of international law,
"text-writers of authority, showing what is the approved usage of
nations, or the general opinion respecting their mutual conduct, with
the definitions and modifications introduced by general consent." As
to these he forcibly observes: "Without wishing to exaggerate the
importance of these writers, or to substitute, in any case, their
authority for the principles of reason, it may be affirmed that they
are generally impartial in their judgment. They are witnesses of the
sentiments and usages of civilized nations, and the weight of their
testimony increases every time that their authority is invoked by
statesmen, and every year that passes without the rules laid down
1 This brief statement is substituted for that of the report and only part of the
opinion of the court is given.- ED.
Compare the language of Lord COLERIDGE, C. J., in The Queen v. Keyn, infra. - Ed.
2
20
INTRODUCTION:
in their works being impugned by the avowal of contrary principles."
Wheaton's International Law (8th ed.), $ 15.
Chancellor Kent says: "In the absence of higher and more authori-
tative sanctions, the ordinances of foreign states, the opinions of emi-
nent statesmen, and the writings of distinguished jurists, are regarded
as of great consideration on questions not settled by conventional law.
In cases where the principal jurists agree, the presumption will be
very great in favor of the solidity of their maxims; and no civilized
nation, that does not arrogantly set all ordinary law and justice at
defiance, will venture to disregard the uniform sense of the established
writers on international law." 1 Kent Com. 18.
This review of the precedents and authorities on the subject appears
to us abundantly to demonstrate that at the present day, by the general
consent of the civilized nations of the world, and independently of
any express treaty or other public act, it is an established rule of
international law, founded on considerations of humanity to a poor
and industrious order of men, and of the mutual convenience of bel-
ligerent states, that coast-fishing vessels, with their implements and
supplies, cargoes and crews, unarmed, and honestly pursuing their
peaceful calling of catching and bringing in fresh fish, are exempt
from capture as prize of war.
The exemption, of course, does not apply to coast fishermen or their
vessels, if employed for a warlike purpose, or in such a way as to
give aid or information to the enemy; nor when military or naval
operations create a necessity to which all private interests must give
way.
Nor has the exemption been extended to ships or vessels employed
on the high sea in taking whales or seals, or cod or other fish, which
are not brought fresh to market, but are salted or otherwise cured.
and made a regular article of commerce.
This rule of international law is one which prize courts, adminis-
tering the law of nations, are bound to take judicial notice of, and to
give effect to, in the absence of any treaty or other public act of their
own government in relation to the matter.
Calvo, in a passage already quoted, distinctly affirms that the ex-
emption of coast-fishing vessels from capture is perfectly justiciable,
or, in other words, of judicial jurisdiction or cognizance. Calvo,
§ 2368. Nor are judicial precedents wanting in support of the view
that this exemption, or a somewhat analogous one, should be recog-
nized and declared by a prize court,
By the practice of all civilized nations, vessels employed only for
the purposes of discovery or science are considered as exempt from
the contingencies of war, and therefore not subject to capture. It
INTRODUCTION.
21
has been usual for the government sending out such an expedition to
give notice to other powers; but it is not essential. 1 Kent Com.
91, note; Halleck, c. 20, $ 22; Calvo, § 2376; Hall, $ 138.
In 18.13, while the United States were at war with England, an
American vessel, on her voyage froin Italy to the United States, was
captured by an English-ship, and brought into Halifax in Nova Scotia,
and with her cargo condemned as lawful prize by the Court of Vice-
Admiralty there. But a petition for the restitution of a case of paint-
ings and engravings which had been presented to and were owned by
the Academy of Arts in Philadelphia, was granted by Dr. Croke, the
juage of that court, who said: “The same law of nations, which pre-
scribes that all property belonging to the enemy shall be liable to con-
fiscation, has likewise its modifications and relaxations of that rule.
The arts and sciences are admitted, amongst all civilized nations, as
forming an exception to the severe rights of welfare, and as entitled
to favor and protection. They are considered not as the peculium of
this or of that nation, but as the property of mankind at large, and
as belonging to the common interests of the whole species.” And he
added that there had been "innumerable cases of the mutual exercise
of this courtesy between nations in former wars." The Marquis de
Somerueles, Stewart Adm. (Nova Scotia), 445, 482.
In 1861, during the war of the rebellion, a similar decision was
made, in the District Court of the United States for the Eastern
District of Pennsylvania, in regard to two cases of books belonging
and consigned to a university in North Carolina. Judge Cadwalader,
in ordering these books to be liberated from the custody of the mar-
shal, and restored to the agent of the university, said: “Though this
claimant, as the resident of a hostile district, would not be entitled
to restitution of the subject of a commercial adventure in books, the
purpose of the shipment in question gives to it a different character.
The United States, in prosecuting hostilities for the restoration of
their constitutional authority, are compelled incidentally to confiscate
property captured at sea, of which the proceeds would otherwise in-
crease the wealth of that district. But the United States are not at
war with literature in that part of their territory.” He then referred
to the decision in Nova Scotia, and to the French decisions upon cases
of fishing vessels, as precedents for the decree which he was about
to pronounce; and he added that, without any such precedents, he
should have had no difficulty in liberating these books. The Amelia,
4 Philadelphia, 417.1
1 Dissenting opinion of Fuller, C. J., in which Harlan and McKenna, JJ., con-
curred, is omitted. The opinion of the late Mr. Justice Gray contains an elaborate ex-
amination of the authorities, both precedents and text-books, and should be read in full
22
INTRODUCTION.
In the case of the Charming Betsy, 1804, 2 Cranch, 64, 118, Marshall, C. J., said:
“It has also been observed that an act of Congress ought never to be construed to
violate the law of nations if any other possible construction remains, and consequently
can never be construed to violate neutral rights, or to affect neutral commerce further
than is warranted by the law of nations as understood in this country."
In the case of the Nereide, 1815, 9 Cranch, 388, 423, the same judge said: “Till such
an act [of Congress] be passed, the court is bound by the law of nations, which is a
part of the law of the land.” See also Talbot v. Seeman, 1801, 1 Cranch, 1, 43.
In the case of Bentzon v. Boyle, 1815, 9 Cranch, 191, 198, Marshall, C. J., said:
“The law of nations is the great source from which we derive those rules respecting
belligerent and neutral rights which are recognized by all civilized states throughout
Europe and America. This law is in part unwritten, and in part conventional. To
ascertain that which is unwritten, we resort to the great principles of reason and
justice; but, as these principles will be differently understood by different nations
under different circumstances, we consider them as being, in some degree, fixed and
rendered stable by a series of judicial decisions. The decisions of the courts of every
country, so far as they are founded upon the law common to every country, will be
received, not as authority, but with respect. The decisions of the courts of every
country show how the law of nations, in the given case, is understood in that country,
and will be considered in adopting the rule which is to prevail in this."
Bishop says (" Criminal Law," 7th ed. 60): "Doubtless if the legislature, by words
admitting of no interpretation, commands a court to violate the law of nations, the
judges have no alternative but to obey. Yet no statutes have ever been framed in
form thus conclusive; and if a case is prima facie within the legislative words, still a
court will not take the jurisdiction should the law of nations forbid.” Again (p. 69) :
"All statutes are to be construed in connection with one another, with the common
law, with the constitution, and with the law of nations."
On international law as interpreted and enforced in law courts, see the admirable
address of Hon. Simeon E. Baldwin before the meeting of the International Law
Association at Rouen, 1900, on The Part taken by Courts of Justice in the Develop-
ment of International Law." - ED.
PART I.
INTERNATIONAL RELATIONS IN TIME OF PEACE.
CHAPTER 1.
STATES - TERRITORIAL RIGHTS.
SECTION 2.- (a) DEFINITION AND CHARACTER OF SOVEREIGN STATES.
YRISARRI V. CLEMENT.
COMMON PLEAS, 1825.
(2 Carrington & Payne,? Nisi Prius, 223.)
[In an action brought by the plaintiff against defendant for a libel
published in the “Morning Chronicle,” it appeared that the plaintiff
had been appointed minister and diplomatic agent to Great Britain ;
that he employed Messrs. Hullett and Widder to raise a loan of £100,-
000 for the service of Chili; that the “Morning Chronicle” imputed
fraud to plaintiff in the application of the money raised by him.]
BEST, C. J. - It occurs to me at present, that there is this dis-
tinction. If a foreign state is recognized by this country, it is not
necessary to prove that it is an existing state ; but if it is not so
recognized, such proof becomes necessary.
There are hundreds in
India, and elsewhere, that are existing states, though they are not
recognized. I take the rule to be this — if a body of persons assemble
together to protect themselves, and support their own independence, and
1 Only so much of the opinion is given as relates to Chili as a “foreign state.” On
leave given the court " thought that the opinion of the Chief Justice which he gave at
the trial was correct. But they decided on another ground, viz. the incorrectness of
some material innuendoes, which was not adverted to at Nisi Prius, and therefore
made the rule absolute for a new trial” (2 Car. & P. 229). - ED.
24
[PART I.
STATES.
make laws, and have courts of justice, that is evidence of their being a
state. We have had, certainly, some evidence here to-day that these
provinces formerly belonged to Spain; but it would be a strong thing
to say, that because they once belonged, therefore they must always
belong. We have recognized lately some of these states. It makes
no difference whether they formerly belonged to Spain, if they do not
continue to acknowledge it, and are in possession of a force sufficient
to support themselves in opposition to it. This is my present opinion;
but I will give my brother Taddy leave to move the court upon the
subject.
THE REPUBLIC OF HONDURAS, APPELLANT, V. MARCO
AURELIO SOTO, RESPONDENT.
COURT OF APPEALS, 1889.
(112 New York, 310.)
RUGER, Ch. J. Section 3268 of the Code of Civil Procedure provides
that a defendant, in an action brought in a court of record, may
require security for costs, in cases, among others, where the plaintiff
was, when the action was commenced, either "a person residing with-
out the state;" or "a foreign corporation.” The plaintiff claims to be
a foreign independent state.
It is urged by the plaintiff that it is neither a person nor a foreign
corporation, within the meaning of the Code. It is not disputed but
that the plaintiff is an independent government, recognized as such by
the United States, and capable of entering into contracts and acquiring
property, as well as competent, through the rule of comity, of bringing
and maintaining actions in the courts of this country; but it is claimed
that it does not come within the description of legal entities authorized
to require security for costs. That it is within the spirit of the enact-
ment, we think cannot be disputed, and we are also of the opinion
that it is within the letter as well.
Vattel defines “nations or states to be bodies politic, societies of
men united together for the purpose of promoting their mutual safety
and advantage by the joint effort of their combined strength. Such a
society has her affairs and her interests. She deliberates and takes
resolutions in common, thus becoming a moral person, who possesses
an understanding and a will peculiar to himself, and is susceptible of
obligations and rights." (Law of Nations, 1; Wheaton's International
Law, chap. 2, $$ 1, 2; Bouvier's Institutes, title, “ Nation.")
CHAP. I.]
25
TEXAS U. WAITE,
That such a being constitutes a legal entity, capable of acquiring
and enjoying property and protecting itself from injuries thereto in
the courts of foreign countries, has long been recognized and estab-
lished in the tribunals of civilized nations. (Republic of Mexico v. De
Arrangoiz, 5 Duer, 636; Hullet v. King of Spain, 1 Dow. & C. 169;
Cherokee Nation v. Georgia, 5 Peters, 52.)
There can be no doubt but that under title 2, chapter 10, part 3, of
the Revised Statutes, providing for security for costs in an action
brought by any plaintiff, not residing within the jurisdiction of the
court, that foreign states and nations were required to give such
security, and we do not think that the provisions of the Code were
intended to change the law in that respect.
Section 3268 of the Code is stated to be a re-enactment of the
previous statute, and it cannot, we think, have been intended thereby
to take away the right which resident defendants had to require
security for costs. No reason is seen for such a change, and we
do not think any was intended to be made. The word 66
person
was, we think, used in its enlarged sense, as comprising all legal
entities except foreign corporations, which were authorized to bring
actions in this state. In that sense it einbraces moral persons having
legal rights, capable of entering into contracts and incurring obli-
gations, as well as natural persons. The statute must be construed
with reference to the objects it had in view, the evils intended to
be remedied and the benefits expected to be derived from it; and,
as thus construed, we can see no reason why the plaintiff is not
included within the description of persons intended to be subjected
to its obligations."
TEXAS v. WHITE, 1868.
(7 Wall. 700, 720-721, 725-726.)
CHASE, C. J. Some not unimportant aid, however, in ascertaining
the true sense of the Constitution may be derived from considering
what is the correct idea of a State, apart from any union or confed-
eration with other States. The poverty of language often compels the
employment of terms in quite different significations; and of this
hardly any example more signal is to be found than in the use of the
word we are now.considering. It would serve no useful purpose to
attempt an enumeration of all the various senses in which it is used.
A few only need be noticed.
1 Facts and part of opinion omitted. — Ed.
26
[PART I.
STATES.
It describes sometimes a people or community of individuals uniteil
more or less closely in political relations, inhabiting temporarily or
permanently the same country; often it denotes only the country or
territorial region inhabited by such a community ; not unfrequently it
is applied to the government under which the people live; at other
times it represents the combined idea of people, territory, and
government.
It is not difficult to see that in all these senses the primary con-
ception is that of a people or community. The people, in whatever
territory dwelling, either temporarily or permanently, and whether
organized under a regular government, or united by looser and less
definite relations, constitute the state.
This is undoubtedly the fundamental idea upon which the republican
institutions of our own country are established. It was stated very
clearly by an eminent judge,' in one of the earliest cases adjudicated
by this court, and we are not aware of anything, in any subsequent
decision, of a different tenor.
In the Constitution the term state most frequently expresses the
combined idea just noticed, of people, territory, and government. A
state, in the ordinary sense of the Constitution, is a political commun-
ity of free citizens, occupying a territory of defined boundaries, and
organized under a government sanctioned and limited by a written
constitution, and established by the consent of the governed. It is
the union of such states, under a common constitution, which forms
the distinct and greater political unit, which that Constitution
designates as the United States, and makes of the people and states
which compose it one people and one country.
The use of the word in this sense hardly requires further remark.
In the clauses which impose prohibitions upon the States in respect
to the making of treaties, emitting of bills of credit, and laying
duties of tonnage, and which guarantee to the States representation
in the House of Representatives and in the Senate, are found some
instances of this use in the Constitution. Others will occur to every
mind.
But it is also used in its geographical sense, as in the clauses which
require that a representative in Congress shall be an inhabitant of the
State in which he shall be chosen, and that the trial of crimes shall be
held within the State where committed.
And there are instances in which the principal sense of the word
seems to be that primary one to which we have adverted, of a peo-
ple or political community, as distinguished from a government.
In this latter sense the word seenus to be used in the clause which
1 Mr. Justice IREDELL in Penhallow v. Doane's Admrs., 3 Dallas, 93.
זין
1
27
CHAP. I.]
TEXAS V. WHITE.
provides that the United States shall guarantee to every State in the
Union a republican form of government, and shall protect each of
them against invasion.
In this clause a plain distinction is made between a State and the
government of a State.
Having thus ascertained the senses in which the word state is
employed in the Constitution, we will proceed to consider the proper
application of what has been said. * * *
But the perpetuity and indissolubility of the Union, by no means
implies the loss of distinct and individual existence, or of the right of
self-government by the States. Under the Articles of Confederation
each State retained its sovereignty, freedom, and independence, and
every power, jurisdiction, and right not expressly delegated to the
United States. Under the Constitution, though the powers of the
States were much restricted, still, all powers not delegated to the United
States, nor prohibited to the States, are reserved to the States respec-
tively, or to the people. And we have already had occasion to remark
at this term, that "the people of each State compose a State, having
its own government, and endowed with all the functions essential to
separate and independent existence,” and that “without the States in
union, there could be no such political body as the United States.” 1
Not only, therefore, can there be no loss of separate and independent
autonomy to the States, through their union under the Constitution,
but it inay be not unreasonably said that the preservation of the States,
and the maintenance of their governments, are as much within the
design and care of the Constitution as the preservation of the Uniou
and the maintenance of the national government. The Constitution,
in all its provisions, looks to an indestructible Union, composed of
indestructible States.
When, therefore, Texas became one of the United States, she entered
into an indissoluble relation. All the obligations of perpetual union,
and all the guaranties of republican government in the Union, attached
at once to the State. The act which consummated her adınission into
the Union was something more than a compact ; it was the incorpora-
tion of a new member into the political body. And it was final. The
union between Texas and the other States was as complete, as per-
petual, and as indissoluble as the union between the original States.
There was no place for reconsideration, or revocation, except through
revolution, or through consent of the States.2
1 County of Lane v. The State of Oregon, 1868, 7 Wall. 71, 76. —- En.
2 Equality is the necessary consequence of independence and sovereignty, in speak-
ing of which, Chief Justice MARSHALL says: “In this commerce (slave trade] thus
sanctionell by universal assent, every nation had an equal right to engage. IIow is
28
(PART I.
STATES.
KEITH V. CLARK.
SUPREME COURT OF THE UNITED STATES, 1878.
(97 United States, 454.)
[The State of Tennessee organized the Bank of Tennessee in 1838,
and agreed by a clause in the Charter to receive all its issues of cir-
culating notes in payment of taxes. A constitutional amendment
adopted in 1865 declared the issues of the bank during the insurrec-
tionary period void and forbade their receipt for taxes. The plaintiff
tendered forty dollars in bankbills issued during the insurrectionary
period but defendants refused to receive them in payment of taxes.
The plaintiff thereupon paid under protest forty dollars in lawful
money, to recover which sum he brought suit. From judgment of the
Supreme Court of Tennessee in favor of the defendant, the suit was
brought by writ of error before the Supreme Court of the United
States.]
MR. Justice MILLER delivered the opinion of the court. ***
In entering upon this inquiry we start with the proposition, that
unless there is something in the relation of the State of Tennessee and
the bank, after the date mentioned, to the government of the United
States, or something in the circumstances under which the notes now
sued on were issued, that will repel the presumption of a contract
under the twelfth section, or will take the contract out of the opera-
tion of the protecting clause of the Federal Constitution; this court
has established already that there was a valid contract to receive them
for taxes, and that the law which forbade this to be done is uncon-
stitutional and void.
Those who assert the exception of these notes from the general
his right to be lost? Each may renounce it for its own people; but can this renuncia-
tion affect others ?
"No principle of general law is more universally acknowledged than the perfect
equality of nations. Russia and Geneva have equal rights. It results from this
equality that no one can rightfully impose a rule on another. Each legislates for
itself, but its legislation can operate on itself alone. A right, then, which is vested in
all hy the consent of all, can be devested only by consent; and this trade, in which
all have participated, must remain lawful to those who cannot be induced to relinquish
it. As no nation can prescribe a rule for others, none can make a law of nations; and
this traffic remains lawful to those whose governments have not forbidden it” (The
Antelope, 1825, 10 Wheat. 66, 122). — Ed.
1 Part of the opinion relating to the question of jurisdiction is omitted. — Ed.
CHAP. I.]
29
KEITH V. CLARK.
proposition are not very well agreed as to the reasons on which it shall
rest, and we must confess that, as they are presented to us, they are
somewhat vague and shadowy. They may all, however, as far as we
understand them, be classed under three principal heads
1. The first is to us an entirely new proposition, urged with muclı
earnestness by the counsel who argued the case orally for the defendant.
It is, in substance, that what was called the State of Tennessee prior
to the 6th of May, 1861, became, by the ordinance of secession passed
on that day, subdivided into two distinct political entities, each of
which was a State of Tennessee. One of them was loyal to the
Federal government, the other was engaged in rebellion against it.
One State was composed of the minority who did not favor secession,
the other of the majority who did. That these two States of Ten-
nessee engaged in a public war against each other, to which all the
legal relations, rights, and obligations of a public war attached. That
the government of the United States was the ally of the loyal State
of Tennessee, and the confederated rebel States were the allies of the
disloyal State of Tennessee. That the loyal State of Tennessee, with
the aid of her ally, conquered and subjugated the disloyal State of
Tennessee, and by right of conquest imposed upon the latter such
measure of punishment and such system of law as it chose, and that
by the law of conquest it had the right to do this. That one of the
laws so imposed by the conquering State of Tennessee on the con-
quered State of Tennessee was this one, declaring that the issues of
the bank during the temporary control of affairs by the rebellious
State was to be held void; and that, as conqueror and by right of con-
quest, the loyal State had power to enact this as a valid law.
It is a sufficient answer to this fanciful theory that the division of
the State into two States never had any actual existence; that, as we
shall show hereafter, there has never been but one political society in
existence as an organized State of Tennessee, from the day of its
admission to the Union in 1796 to the present time. That it is a mere
chimera to assert that one State of Tennessee conquered by force of
arms another State of Tennessee, and imposed laws upon it; and,
finally, that the logical legerdemain by which the State goes into rebel-
lion, and makes, while thus situated, contracts for the support of the
government in its ordinary and usual functions, which are necessary
to the existence of social life, and then, by reason of being conquered,
repudiates these contracts, is as hard to understand as similar physical
performances on the stage.
2. The second proposition is a modification of this, and deserves
more serious attention. It is, as we understand it, that each of the
eleven States who passed ordinances of secession and joined the so-
30
STATES.
[PART 1.
called Confederate States so far succeeded in their attempt to separate
themselves from the Federal government,, that during the period in
which the rebellion maintained its organization those States were in
fact no longer a part of the Union, or, if so, the individual States, by
reason of their rebellious attitude, were mere usurping powers, all of
whose acts of legislation or administration are void, except as they are
ratified by positive laws enacted since the restoration, or are recognized
as valid on the principles of comity or sufferance.
We cannot agree to this doctrine. It is opposed by the inherent
powers which attach to every organized political society possessed of
the right of self-government; it is opposed to the recognized principles
of public international law; and it is opposed to the well-considered
decisions of this court.
“Nations or States," says Vattel, « are bodies politic, societies of
men uvited together for the promotion of their mutual safety and
advantage by the joint efforts of their combined strength. Such a
society has her affairs and her interests. She deliberates and takes
resolutions in common, thus becoming a moral person who possesses
an understanding and a will peculiar to herself, and is susceptible of
obligations and rights." Law of Nations, sect. 1.
Cicero and subsequent public jurists define a State to be a body
political or society of men united together for the purpose of pro-
moting their mutual safety and advantage by their combined strength.
Wheaton, International Law, sect. 17. Such a body or society, when
once organized as a State by an established government, must remain
so until it is destroyed. This may be done by disintegration of its
parts, by its absorption into and identification with some other State
or nation, or by the absolute and total dissolution of the ties which
bind the society together. We know of no other way in which it can
cease to be a State. No change of its internal polity, no modification
of its organization or system of government, nor any change in its
external relations short of entire absorption in another State, can
deprive it of existence or destroy its identity. Id., sect. 22.
Let us illustrate this by two remarkable periods in the history of
England and France.
After the revolution in England, which dethroned and decapitated
Charles I., and installed Cromwell as supreme, whom his successors
called a usurper; after the name of the government was changed from
the Kingdom of England to the Commonwealth of England; and when,
after all this, the son of the beheaded monarch caṁe to his own, treaties
made in the interregnum were held valid, -the judgments of the
courts were respected, and the obligations assumed by the government
were never disputed.
CHAP. I.
31
KEITH V. CLARK.
same,
So of France. Her bloody revolution which came near dissolving
the bonds of society itself, her revolutionary directory, her consul, her
Emperor Napoleon, and all their official acts, have been recognized .
by the nation, by the other nations of Europe, and by the legitimate
inonarchy when restored, as the acts of France, and binding on her
people.
The political society which in 1796 became a State of the Union, by
the name of the State of Tennessee, is the same which is now repre-
sented as one of those States in the Congress of the United States.
Not only is it the same body politic now, but it has always been the
There has been perpetual succession and perpetual identity.
There has from that time always been a State of Tennessee, and the
same State of Tennessee. Its executive, its legislative, its judicial
departments have continued without interruption and in regular order.
It has changed, inodified, and reconstructed its organic law, or State
Constitution, more than once. It has done this before the rebellion,
during the rebellion, and since the rebellion. And it was always done
by the collective authority and in the name of the same body of people
constituting the political society known as the State of Tennessee.
This political body has not only been all this time a State, and the
same State, but it has always been one of the United States, a State
of the Union. Under the Constitution of the United States, by virtue
of which Tennessee was born into the family of States, she had no law-
ful power to depart from that Union. The effort which she made to
do so, if it had been successful, would have been so in spite of the
Constitution, by reason of that force which in many other instances
establishes for itself a status, which must be recognized as a fact,
without reference to any question of right, and which in this case would
have been, to the extent of its success, a destruction of that Constitu-
tion. Failing to do this, the State remained a State of the Union.
She never escaped the obligations of that Constitution, though for a
while she inay have evaded their enforcement,
In Texas v. White (7 Wall. 700), the first and important question
was, whether Texas was then one of the United States, and as such
capable of sustaining an original suit in this court by reason of her
being such State. And this was at a time when Congress had not
permitted her, after the rebellion, to have representatives in either
house of that body.
Mr. Chief Justice Chase, in delivering the judgment of the court on
this question, says: “The ordinance of secession, adopted by the con-
vention and ratified by a majority of the citizens of Texas, and all the
acts of her legislature intended to give effect to that ordinance, were
absolutely null. They were utterly without operation in law. The
32
(PART I.
5
STATES.
obligations of the State, as a member of the Union, and of every citizen
of the State, as a citizen of the United States, remained perfect and
unimpaired. It certainly follows that the State did not cease to be
a State, nor her citizens to be citizens, of the Union. If this were
otherwise, the State must have become foreign, and her citizens for-
eigners. The war must have ceased to be a war for the suppression
of rebellion, and must have become a war for conquest and subjuga-
tion. Our conclusion, therefore, is, that Texas continued to be a State,
and a State of the Union, notwithstanding the transactions to which
we have referred."
In White v. Hart (13 id. 646), Mr. Justice Swayne, after a full con-
sideration of the subject, states the result in this forcible language :
“At no time were the rebellious States out of the pale of the Union.
* * * Their constitutional duties and obligations were unaffected, and
remained the same.” And he shows by reference to the formula used
in the several reconstruction acts, as compared with those for the
original admission of new States into the Union, that in regard to the
States in rebellion there was a simple recognition of their restored
right to representation in Congress, and po readınission into the Union.
These cases, and especially that of Texas v. White, have been re-
peatedly cited in this court with approval, and the doctrine they assert
must be considered as established in this forum at least.
If the State of Tennessee has through all these transactions been
the same State, and has been also a State of the Union, and subject to
the obligations of the Constitution of the Union, it would seem to
follow that the contract which she made in 1838 to take for her taxes
all the issues of the bank of her own creation, and of which she was
sole stockholder and owner, was a contract which bound her during
the rebellion and which the Constitution protected then and now, as
well as before. Mr. Wheaton says: “As to public debts, -- whether
due to or from the State, a mere change in the form of the govern-
ment, or in the person of the ruler, does not affect their obligation.
The essential power of the State, that which constitutes it an inde-
pendent community, remains the same: its accidental form only is
changed. The debts being contracted in the name of the State, by its
authorized agents, for its public use, the nation continues liable for
them, notwithstanding the change in its internal constitution. The
new government succeeds to the fiscal rights, and is bound to fulfil the
fiscal obligations, of the former government." International Law, sect
30. And the citations which he gives from Grotius and Puffendorf
sustain him fully.
We are gratified to know that the Supreme Court of the State of
Tennessee has twice affirmed the principles just laid down in reference
t
33
CHAP. I.]
KEITH V. CLARK.
to the class of bank-notes now in question. In a suit brought by the
State of Tennessee against this very bank of Tennessee, to wind up
its affairs and distribute its assets, that court, in April, 1875, decreed,
among other things, “that the acts by which it was atteinpted to
declare the State independent, and to dissolve her connection with the
Union, had no effect in changing the character of the bank, but that
it had the same powers, after as before those acts, to carry on a legiti-
mate business, and that the receiving of deposits was a part of such
legitimate business.” “That the notes of the bank issued since May
6, 1861, held by Atchison and Duncan, and set out in their answer, are
legal and subsisting debts of the bank, entitled to payment at their
face value, add to the same priority of payment out of the assets of
the bank as the notes issued before May 6, 1861.”
At a further hearing of the same case, in January, 1877, that court
reaffirmed the same doctrine, and also held that the notes were not
subject to the Statute of Limitations, and were not bound by it. State
of Tennessee v. The Bank of Tennessee, not reported. This decision
was in direct conflict with schedule 6 of the constitutional amendment
of 1865, which declared all issues of the bank after May 6, 1861, void,
and it necessarily held that the schedule was itself void as a violation
of the Federal Constitution.
3. The third proposition on which the judgment of the courts of
Tennessee is supported is, that the notes on which the action is brought
were issued in aid of the rebellion, to support the insurrection against
the lawful authority of the United States, and are therefore void for
all purposes.
The principle stated in this proposition, if the facts of the case come
within it, is one which has repeatedly been discussed by this court.
The decisions establish the doctrine that no promise or contract, the
consideration of which was something done or to be done by the
promisee, the purpose of which was to aid the war of the rebellion
or give aid and comfort to the enemies of the United States in the
prosecution of that war, is a valid promise or contract, by reason of
the turpitude of its consideration.
In Texas v. White (supra), the suit was for the recovery of certain
bonds of the United States which, previously to the war, had been
issued and delivered to the State of Texas. During the rebellion the
legislature of that State had placed these bonds in the hands of a
military commission, and they were delivered by that committee to
White and Childs, to pay for supplies to aid the inilitary operations
agaiust the government. This court held that while the State was
still a State of the Union, and her acts of ordinary legislation were
valid, it was otherwise in regard to this transaction. As this is the
3
34
[PART I.
STATES.
earliest assertion of the doctrine in this court, and this branch of the
opinion received the assent of all the members of the court but one,
and has been repeatedly cited since with approval, we reproduce a
single sentence from it: “ It may be said,” says the court, “ perhaps
with sufficient accuracy, that acts necessary to peace and good order
among citizens, such, for example, as acts sanctioning and protecting
marriage and the domestic relations, governing the course of descents,
regulating the conveyance and transfer of property, personal and real,
and providing remedies for injuries to person and estate, and other
similar acts which would be valid if emanating froin a lawful govern-
ment, must be regarded in general as valid when proceeding from an
actual though unlawful government; and that acts in furtherance or
support of rebellion against the United States, or intended to defeat
the just rights of citizens, and other acts of like nature, must, in
general, be regarded as invalid."
In Hanauer v. Doane (12 Wall. 342), it was held that duebills,
given in purchase of supplies by a purchasing agent of the Confederate
States, were void, though in the hands of a third party; and in sup-
port of the judgment Mr. Justice Bradley said: “We have already
decided, in the case of Texas v. White, that a contract made in aid of
the late rebellion, or in furtherance and support thereof, is void. The
same doctrine is laid down in most of the circuits, and in many of the
State courts, and must be regarded as the settled law of the land.”
The latest expression of the court on the subject was by Mr. Justice
Field, without dissent, in Williams v. Bruffy (96 U. S. 176), in which
tlie whole doctrine is thus tersely stated : “ While thus holding that
there was no validity in any legislation of the Confederate States
which this court can recognize, it is proper to observe, that the legis-
lation of these States stands on very different grounds. The same
general form of government, the same general laws for the adminis-
tration of justice and the protection of private rights, which had
existed in the State prior to the rebellion, remained during its con-
tinuance and afterwards. As far as the acts of the States did not
impair, or tend to impair, the supremacy of the national authority, or
the just rights of the citizens under the Constitution, they are, in
general, to be treated as valid and binding." See Horn v.
See Horn v. Lockhart
et al., 17 Wall. 570; Sprott v. United States, 20 id. 459.
There is, however, in the case before us nothing to warrant the con-
clusion that these notes were issued for the purpose of aiding the
rebellion, or in violation of the laws or the Constitution of the United
States. There is no plea of that kind in the record. No such ques-
tion was submitted to the jury which tried the case. The sole matter:
stated in defence, either by facts found in the bill of exceptions, or in
CHAP. I.]
35
KEITA V. CLARK.
the decree of the court, is that the bills were issued after May 6, 1861,
while the State was in insurrection, and therefore come within the
amended Constitution of. 1865, declaring them void. The provision of
the State Constitution does not go upon the ground that the State
bonds and bank-notes, which it declared to be invalid, were issued in
aid of the rebellion, but that they were issued by a usurping govern-
ment, a reason which we have already demonstrated to be unsound.
Not only is there nothing in the Constitution or laws of Tennessee to
prove that these notes were issued in support of the rebellion, but
there is nothing known to us in public history which leads to this
conclusion. The opinion of the Supreme Court, which we have already
cited, states that the bank was engaged in a legitimate business at
this time, receiving deposits, and otherwise performing the functions
of a bank; and though, as is abundantly evident, willing enough to
repudiate these notes as receivable for taxes, that court held them to
be valid issues of the bank, in the teeth of the ordinance declaring
them void.
It is said, however, that considering the revolutionary character of
the State government at that time, we must presume that these notes
were issued to support the rebellion.
But while we have the Supreme Court of Tennessee holding that the
bank during this time was engaged in a legitimate banking business,
we have no evidence whatever that these notes were issued under any
new law of the rebel State government, or by any interference of its
officers, or that they were in any manner used to support the State
government. If this were so, it would still remain that the State gov-
erninent was necessary to the good order of society, and that in its
proper functions it was right that it should be supported.
We cannot infer, then, that these notes were issued in violation of
any Federal authority.
On the other hand, if the fact be so, nothing can be easier than to
plead it and prove it. Whenever such a plea is presented, we can, if
it comes to us, pass intelligently on its validity. If issue is taken,
the facts can be embodied in a bill of exceptions or some other forin,
and we can say whether those facts.render the contract void. To
undertake to assume the facts which are necessary to their invalidity
on this record is to give to conjecture the place of proof, and to rest a
judgment of the utmost importance on the existence of facts not found
in the record, nor proved by any evidence of which this court can
take judicial notice. We shall, when the matter is presented properly
to us, be free to determine, on all the considerations applicable
to the case, whether the notes that may be then in controversy are
protected by the provision of the Constitution or not. And that is
36
[PART I.
STATES.
2
the only question of which, in a case like the present, we would have
jurisdiction.
The judgment of the Supreme Court of Tennessee will, therefore,
be reversed, and the case remanded to that court for further proceed-
ings in accordance with this opinion; and it is
So ordered.
WAITE, C. J., and BRADLEY and HARLAN, JJ., dissented.
i Re-affirmed in Clark v. Keith, 1882, 106 U. S. 464.
Some further judicial definitions of States or nations follow: “A distinction was.
taken at the bar between a State and the people of the State. It is a distinction
I am not capable of conprehending. By a State forming a republic (speaking of it
as a moral person) I do not mean the Legislature of the State, the Executive of the-
State, or the Judiciary, but all tlie citizens whicli compose that State, and are, if I
may so express myself, integral parts of it; all together forming a body politic. The
great distinction between monarchies and republics (at least our republics) in general
is, that in the former the monarch is considered as the sovereign, and each individual.
of his nation as subject to him, though in sone countries with many important special
limitations : This, I say, is generally the case, for it has not been so universally. But
in a republic, all the citizens, as such, are equal, and no citizen can rightfully exercise
any authority over another but in virtue of a power constitutionally given by the
whole community, and such authority, when exercised, is in effect an act of the whole
community, which fornis such body politic. In such governments, therefore, the
sovereignty resides in the great body of the people, but it resides in them not as so
many distinct individuals, but in their politic capacity only," per Iredell, J., in
Penhallow et al. v. Doane's Administrators, 1795, 3 Dall. 54, 93.
“The terms state and nation are used in the law of nations, as well as in common
parlance, as importing the same thing, and imply a body of men, united together, to:
procure their mutual safety and advantage by means of their union. Such a society
has its affairs and interests to manage; it deliberates, and takes resolutions in com-
mon, and thus becomes a moral person, having an understanding and a will peculiar
to itself, and is susceptible of obligations and laws. Vattel, 1. Nations being com-
posed of men naturally free and independent, and who, before the establishment of
civil societies, live together in the state of nature, nations or sovereign states, are to
be considered as so many free persons, living together in a state of nature. Vattel, 2,
§ 4. Every nation that governs itself, under what form soever, without any depend-
ence on a foreign power, is a sovereign state. Its rights are naturally the same as.
those of any other state. Such are moral persons who live together in a natural so-
ciety, under the law of nations. It is sufficient if it be really sovereign and inde-
pendent: that is, it must govern itself by its own authority and laws. We ought,
therefore, to reckon in the number of sovereigns those states that have bound them-
selves to another more powerful, although by an unequal alliance. The conditions.
of these unequal alliances may be infinitely varied; but whatever they are, provided.
the inferior ally reserves to itself the sovereignty or the right to govern its own body,
it ought to be considered an independent state. Consequently, a weak state, that, in
order to provide for its safety, places itself under the protection of a more powerful
one, without stripping itself of the right of government and sovereignty, does not.
cease on this account to be placed among the sovereigns who acknowledge no other
power. Tributary and feudatory states do not thereby cease to be sovereign and in-
dependent states, so long as 'self-government, and sovereign and independent authority
CHAP. I.]
37
THOMPSON V. POWLES.
(6) Recognition of the Existence of a State.
THOMPSON v. POWLES.
CHANCERY, 1828.
(2 Simons, 194.)
The contract in this case was for the purchase of Guatemala bonds,
which were in the hands of the London agents of that government.
The plaintiff was led into the venture by the fraud and misrepre-
sentations of the agents and their partners in guilt, and now files a
bill in Chancery for the recovery of his money, the Guatemalan gov-
ernment having 'repudiated its agents and all their engagements
because of these frauds.
The following is an extract from the judgment of Vice-Chancellor
SHADWELL:
“ But there is this further consideration; that this is represented to
have been a contract, by the plaintiff, to purchase the obligations of
persons who were stated to be the government of the federal repub-
lic of Central America.
"" I confess that, after all I have heard fall from the mouth of Lord
Eldon, on the subject of persons representing themselves to be gov-
ernments of foreign countries, which this country had not acknowl-
edged to be governments, and which the courts cannot acknowledge
them to be, till the government of the country has recognized them
<
is left in the administration of the state. Vattel, c. 1, pp. 16, 17.” (Thompson, J., in
The Cherokee Nation v. The State of Georgia, 1831, 5 Pet. 1, 52, 53.)
“ The argument rests entirely upon an assumption, which, it appears to us, is cer-
tainly groundless; the assumption that personality cannot be truly predicated of a
republic. A republic, acknowledged as such by our own Government, is an indepen-
dent sovereign power; in other words, a state, just as certainly, and in the same sense
as a monarchy, limited or absolute; and every state is a person, an artificial person
in a more extensive and far higher sense than an ordinary corporation. A state,
whatever may be the form of its internal government, and by whatever appellation it
may be known, is, in the language of Vattel, ' a moral person, having an understand-
ing and a will, capable of possessing and acquiring rights, and of contracting and ful-
filling obligations.' (Vattel Droit des Gens, liv. 1, c. 1, § 4; vide, also, Wheaton's
Elein. of Interna. Law, vol. 1, c. 2, SS 1 & 2.)
". The definition given by other writers on the law of nations is substantially the
sanre, and, indeed, it is upon the truth of this definition that the whole science of in-
ternational law is founded since it is evident, that it is only upon persons, having an
understanding and a will, that law can operate. Every valid law implies the duty of
obedience, and it is only by persons that obedience can be rendered. (Duer, J., in
The Republic of Mexico v. De Arrangoiz, 1856, 5 Duer, 634, 636, 637). — Ev.
38
[PART I.
STATES.
to be so, it does appear to me that this is a contract entered into by
the plaintiff for the purpose of purchasing that which, by the law of
the land, he could not purchase. I think that the contract, being to
purchase securities from these persons, who, as the plaintiff says,
were the government of Guatemala, cannot be considered as being a
contract which this court ought to sanction. The whole case being
founded on that, I do not think that I could give relief to the party,
who builds his case for relief entirely on a transaction originating in
such a manner; and it appears to me that, on' that ground, I must
allow this demurrer.” 1
JONES V. UNITED STATES.
SUPREME COURT OF THE UNITED STATES. 1890
(137 United States, 202.)
Mr. Justice Gray delivered the opinion of the court.?
This was an indictment, found in the District Court of the United
States for the District of Maryland, and remitted to the Circuit Court
under Rev. Stat. § 1039, alleging that Henry Jones, late of that
district, on Sept. 14, 1889, - at Navassa Island, a place which then and
there was under the sole and exclusive jurisdiction of the United
States, and out of the jurisdiction of any particular State or district of
the United States, the same being, at the time of the committing of
1 The principal cases referred to follow :
The City of Berne v. Bank of England, 1804, 9 Ves. 347, in which “ The Lord Chan-
cellor would not make the order ; observing, that he was much struck with the objec-
tion; and it was extremely difficult to say, a judicial court can take notice of a
government never authorized by the government of the country in which that court"
sits; and, whether the foreign government is recognized, or not, is a matter of public
notoriety."
In Jones v. Garcia Del Rio, 1823, Tur. & Rus. 297, the Lord Chancellor sug-
gested, but did not decide, that Peru could not be recognized by the courts if its
independence had not been recognized by the British Government.
In Taylor v. Barclay, 1828, 2 Sim. 213, before Vice-Chancellor Shadwell, the facts,
the parties (except as to the plaintiff) and judgment were the same. Important ex-
tracts are made from this case in Jones v. U. S., infra.. If a foreign government has
recognized the existence of a state or de facto government its subjects and citizens are
bound by such act of recognition, Republic of Peru v. Dreyfus, 1888, L. R., 38 Ch. D.
348, and if the de facto government thus recognized is displaced by the de jure govern-
ment, an act of the latter repealing and declaring void the legislative and executive
acts of its de facto predecessor will not be binding upon the foreign state that had
recognized the de facto government, Republic of Peru v. The Peruvian Guano Co., 1888,
L. R., 36 Ch. D. 489. - ED.
2 Part of the opinion is omitted. — Ed.
CHAP. I.]
39
JONES V. UNITED STATES.
the offences in the manner and form as hereinafter stated by the
persons hereinafter nained, an island situated in the Caribbean Sea,
and named Navassa Island, and which was then and there recognized
and considered by the United States as containing a deposit of guano,
within the meaning and terms of the laws of the United States relat-
ing to such islands, and which was then and there recognized and con-
sidered by the United States as appertaining to the United States, and
which was also then and there in the possession of the United States,
under the laws of the United States then and there in force relating
to such islands," murdered one Thomas N. Foster, by giving him three
mortal blows with an axe, of which he there died on the same day;
and that other persons named aided and abetted in the murder. The
indictment, after charging the murder in usual form, alleged that
the District of Maryland was the District of the United States into
which the defendant was afterwards first brought froin the Island of
Navassa.
[Act of Congress of Aug. 18, 1856, c. 164, 11 Stat. 1191, since reën-
acted in Title 72, $$ 5576-5578 of Revised Statutes and various docu-
ments showing that the United States claimed jurisdiction over the
island, are set forth, after which the opinion proceeds as follows:-)
By the Constitution of the United States, while a crime committed
within any State must be tried in that State and in a district previously
ascertained by law, yet a crime not committed within any State of the
Union may be tried at such place as Congress may by law have
directed. Constitution, art. 3, § 2; Amendments, art. 6; United
States v. Dawson, 15 How. 467, 488. Congress has directed that "the
trial of all offences committed upon the high seas or elsewhere, out of
the jurisdiction of any particular State or district, shall be in the
district where the offender is found, or into which he is first brought.”
Rev. Stat. $ 730. And Congress has awarded the punishment of death
to the crime of murder, whether committed upon the high seas or
other tide waters out of the jurisdiction of any particular State, or
" within any fort, arsenal, dock-yard, magazine or in any other place
or district of country under the exclusive jurisdiction of the United
States." Rev. Stat. § 5339. Both these acts of Congress clearly
include murder committed on any land within the exclusive juris-
diction of the United States and not within any judicial district, as
well as murder committed on the high seas. Ex parte Bollman,
4 Cranch, 75, 136; United States v. Bevans, 3 Wheat. 336, 390, 391;
United States v. Arwo, 19 Wall. 486.
By the law of nations, recognized by all civilized states, dominion
of new territory may be acquired by discovery and occupation, as well
as by cession or conquest; and when citizens or subjects of one nation,
40
[PART 1.
STATES.
in its name, and by its authority or with its assent, take and hold
actual, continuous and useful possession, (although only for the pur-
pose of carrying on a particular business, such as catching and curing
fish, or working mines), of territory unoccupied by any other govern-
ment or its citizens, the nation to which they belong may exercise
such jurisdiction and for such period as it sees fit over territory so ac-
quired. This principle affords ample warrant for the legislation of
Congress concerning guano islands. Vattel, lib. 1, c. 18; Wheaton on
International Law (8th ed.), $$ 161, 165, 176, note 104; Halleck on
International Law, C. 6, SS 7, 15; 1 Phillimore on International Law
(3d ed.), $$ 227, 229, 230, 232, 242; 1 Calvo Droit International
(4th ed.), $$ 266, 277, 300; Whiton V. Albany Ins. Co., 109 Mass.
24, 31.
Who is the sovereign, de jure or de facto, of a territory is not a
judicial, but a political question, the determination of which by the
legislative and executive departments of any government conclusively
binds the judges, as well as all other officers, citizens and subjects of
that government. This principle has always been upheld by this
court, and has been affirmed under a great variety of circumstances.
Gelston v. Hoyt, 3 Wheat. 246, 324; United States v. Palmer, 3 Wheat.
610; The Divina Pastora, 4 Wheat. 52; Foster v. Neilson, 2 Pet. 253,
307, 309; Keane v. McDonough, 8 Pet. 308; Garcia v. Lee, 12 Pet.
511, 520; Williams v. Suffolk Ins. Co., 13 Pet. 415; United States v.
Yorba, 1 Wall, 412, 423; United States v. Lynde, 11 Wall. 632, 638.
It is equally well settled in England. The Pelican, Edw. Adm. appx.
D; Taylor v. Barclay, 2 Sim. 213; Emperor of Austria v. Day, 3 DeG.,
F. & J. 217, 221, 233; Republic of Peru v. Peruvian Guano Co., 36 Ch.
D. 489, 497 ; Republic of Peru v. Dreyfus, 38 Ch. D. 348, 356, 359.
In Williams v. Suffolk Ins. Co., in an action on a policy of insur-
ance, the following question arose in the Circuit Court, and was
brought up by a certificate of division of opinion between the judges
thereof:
“Whether, inasmuch as the American government has insisted and
does still insist, through its regular executive authority, that the Falk-
lands Islands do not constitute any part of the dominions within the
sovereignty of the government of Buenos Ayres, and that the seal
fishery at those islands is a trade free and lawful to the citizens of
the United States, and beyond the competency of the Buenos Ayrean
government to regulate, prohibit or punish; it is competent for the
1 In the Pelican, 1809, cited in the text, Sir William Grant said: “It always belongs
to the government of the country to determine in what relation any other country
stands towards it; that is a point upon which courts of justice cannot decide." - ED.
CHAP. I.]
41
JONES V. UNITED STATES.
99
Circuit Court in this cause to inquire into and ascertain by other
evidence the title of said governinent of Buenos Ayres to the sover-
eignty of the said Falkland Islands, and, if such evidence satisfies the
court, to decide against the doctrines and claims set up and supported
by the A:nerican government on this subject; or whether the action
of the Ainerican government on this subject is binding and conclusive
on this court as to whom the sovereignty of those islands belongs."
13 Pet. 417.
This court held that the action of the executive departinent on the
question to whom the sovereignty of those islands belonged, was bind-
ing and conclusive upon the courts of the United States, saying: “Can
there be any doubt that when the executive branch of the government,
which is charged with our foreign relations, shall in its correspondence
with a foreign nation assume a fact in regard to the sovereignty of any
island or country, it is conclusive on the judicial department ? And
in this view it is not material to inquire, nor is it the province of the
court to determine, whether the executive be right or wrong. It is
enough to know, that in the exercise of his constitutional functions he
has decided the question. Having done this under the responsibilities
which belong to him, it is obligatory on the people and government of
the Union." - In the present case, as the executive in his message,
and in his correspondence with the government of Buenos Ayres, has
denied the jurisdiction which it has assumed to exercise over the
Falkland Islands the fact must be taken and acted on by this
court as thus asserted aud maintained.” 13 Pet. 420.
All courts of justice are bound to take judicial notice of the terri-
torial extent of the jurisdiction exercised by the government whose
laws they administer, or of its recognition or denial of the sovereignty
of a foreign power, as appearing from the public acts of the legislature
and executive, although those acts are not formally put in evidence,
nor in accord with the pleadings. United States v. Reynes, 9 How.
127 ; Kennett v. Chambers, 14 How. 38; Hoyt v. Russell, 117 U.S. 401,
404; Coffee v. Grover, 123 U. S. 1; State v. Dunwell, 3 R. I. 127;
State v. Wagner, 61 Maine, 178; Taylor v. Barclay, and Emperor of
Austria v. Day, above cited; 1 Greenl. Ev. $ 6.
In United States v. Reynes, upon the question whether a Spanish
grant of land in Louisiana was protected, either by the treaty of
retrocession from Spain to France, or by the treaty of Paris, by wliich
the Territory of Louisiana was ceded to the United States, this court
held: “The treaties above mentioned, the public acts and proclamations
of the Spanish and French governments, and those of their publicly
recognized agents, in carrying into effect those treaties, though not
made exhibits in this cause, are historical and notorious facts, of which
42
[PART I.
STATES.
the court can take regular judicial notice, and reference to which is
implied in the investigation before us.” 9 How. 147, 148.
In Kennett v. Chambers, a bill to compel specific perforinance of a
contract made in the United States in September, 1836, by which a
general in the Texan Army agreed to convey lands in Texas, in con-
sideration of money paid him to aid in raising and equipping troops
against Mexico, was dismissed on demurrer, because the independence
of Texas, though previously declared by that State, had not then been
acknowledged by the government of the United States; and the court
established this conclusion by referring to messages of the President
of the United States to the Senate, a letter from the President to the
Governor of Tennessee, and a note from the Secretary of State to the
Mexican Minister, none of which were stated in the record before
the court. 14 How. 47, 48.
So in Coffee v. Grover, upon writ of error to the Supreme Court of
Florida, in a case involving a title to land, claimed under conflicting
grants from the State of Florida and the State of Georgia, and depend-
ing upon a disputed boundary between those States, this court
ascertained the true boundary by consulting public documents, some
of which had not been given in evidence at the trial, nor referred
to in the opinion of the court below. 123 U. S. 11 et seq.
In Taylor v. Barclay, a bill in equity, based on an agreement which
it alleged had been made in 1825 by agents of "the government of the
Federal Republic of Central America, which was a sovereign and inde-
pendent state, recognized and treated as such by His Majesty the King
of these Realms," was dismissed on demurrer by Vice-Chancellor
Shadwell, who said: "I have had commuuication with the Foreign
Office, and I am authorized to state that the Federal Republic of
Central America has not been recognized as an independent government
by the government of this country.”' Inasmuch as I conceive it is the
duty of the judge in every court to take notice of public matters which
affect the government of this country, I conceive that, notwithstanding
there is this averment in the bill I am bound to take the fact as it
really exists, not as it is averred to be.” “Nothing is taken to be
: true, except that which is properly pleaded; and I am of opinion that,
when you plead that which is historically false, and which the judges
are bound to take notice of as being false, it cannot be said you
have properly pleaded, merely because it is averred, in plain terms;
and that I must take it just as if there was no such averment on
the record.” 2 Sim. 220, 221, 223.
That case is in harmony with decisions made in the time of Lord
Coke, and in which he took part, that against an allegation of a public
act of Parliament, of which the judges ought to take notice, the other
1
CHAP. I.]
JONES V. UNITED STATES.
43
..
party cannot plead nul tiel record, but, if the act be misrecited, ought
to demur in law upon it. The Prince's Case, 8 Rep. 14a, 28a; Woolsey's
Case, Godb. 178.
In the ascertaininent of any facts of which they are bound to take
judicial notice, as in the decision of matters of law which it is their
office to know, the judges may refresh their memory and inform their
conscience from such sources as they deeni most trustworthy. Gresley
Eq. Ev. pt. 3, c. 1; Fremont v. United States, 17 How. 542, 557;
Brown v. Piper, 91 U. S. 37, 42; State v. Wagner, 61 Maine, 178.
Upon the question of the existence of a public statute, or of the date
when it took effect, they may consult the original roll or other official
records. Spring v. Eve, 2 Mod. 240; 1 Hale's Hist. Com. Law (5th ed.)
19-21; Gardner v. Collector, 6 Wall. 419; South Ottawa v. Perkins, 94
U. S. 260, 267-269, 277; Post v. Supervisors, 105 U. S. 667. As to
international affairs, such as the recognition of a foreign government,
or of the diplomatic character of a person claiming to be its representa-
tive, they may require of the Foreign Office or the Department of
State. Taylor v. Barclay, above quoted ; The Charkieh, L. R. 4 Ad. &
Ec. 59, 74, 86; Ex parte Hitz, 111 U. S. 766: In re Baiz, 135 U. S.403.
In the case at bar, the indictment alleges that the Island of Navassa,
on which the murder is charged to have been committed, was at the
time under the sole and exclusive jurisdiction of the United States, and
out of the jurisdiction of any particular State or district of the United
States, and recognized and considered by the United States as contain-
ing a deposit of guano within the meaning and terms of the laws of
the United States relating to such islands, and recognized and con-
sidered by the United States as appertaining to the United States and
in the possession of the United States under those laws.
These allegations, indeed, if inconsistent with facts of which the
court is bound to take judicial notice, could not be treated as con-
clusively supporting the verdict and judgment. But, on full con-
sideration of the matter, we are of opinion that those facts are quite
in accord with the allegations of the indictment.
The power, conferred on the President of the United States by
section 1 of the act of Congress of 1856, to determine that a guano
island shall be considered as appertaining to the United States, being
a strictly executive power, affecting foreign relations, and the manner
in which his determination shall be made known not having been
prescribed by statute, there can be no doubt that it may be declareil
through the Department of State, whose acts in this regard are in legal
contemplation the acts of the President. Wolsey v. Chapman, 101
U. $. 755, 770; Runkle v. United States, 122 U. S. 543, 557 ; 11
Opinions of Attorneys-General, 397, 399.
44
3
[PART I.
STATES.
For the reasons above stated, our conclusion is that the Guano
Islands. Act of Aug. 18, 1856, c. 164, reënacted in Title 72 of the
Revised Statutes, is constitutional and valid ; that the Island of
Navassa must be considered as appertaining to the United States;
that the Circuit Court of the United States for the District of Maryland
had jurisdiction to try this indictment; and that there is no error in
the proceedings.
Judgment affirmed. 1
6
1 In the case of Luther v. Borden, 1849, 7 How. 1, it was held that the Constitution
had vested the power of recognizing a State government in Congress; that it was
therefore a political and a not judicial question; that the President was vested with
this power by act of Congress and that his exercise of it in this case was within the
grant of this power. See Texas v. White, 1868, 7 Wall. 700, and Taylor and Marshall
v. Beckham, 1899, 178 U. S. 548.
For an account of Dorr's Rebellion, with which the leading case of Luther v. Borden
deals, see A. M. Mowry's Dorr War, 1901.
On the relation of the United States to the States of the Union, see, generally,
McCulloch v. Maryland, 1819, 4 Wheat. 316; Texas v. White, supra; Lane County v.
Oregon, 1868, 7 Wall. 71; ?'arbell's Case, 1871, 13 Wall. 397, and Ex purte Siebold, 1879,
100 U. S. 371.
From the principal case, and citations both in the text and notes it appears con.
clusively that recognition of statehood, foreign and American, in all its various degrees,
is a political, not a judicial, question, and that the court derives its knowledge of such
matters from the political department. As the greater includes the lesser, recognition
of belligerency and insurrection is likewise political and non-judicial. (See The Three
Friends, 1896, 166 U. S. 1, infra.)
While, therefore, the question is beyond controversy, the following remarkably
clear enunciation of the doctrine may be quoted :
" These are the two views of secession on which the public men of the country
divide, and between which some of them oscillate. Which shall the judicial mind
adopt? I answer, that view, if it can be ascertained, which the political departments of
the Federal Government hare adopted. Not that the judiciary is ever, upon principle,
to surrender its independence of judgment to the executive and legislative depart-
ments, but, since the foreign relations of the Federal Government are wholly en-
trusted to the President and Congress, the judiciary must accept them, just as they
have been recognized and established by the President and Congress. It is only from
the acts and declarations of these departments that we can know, judicially, what governments
exist, and what rights we concede to them. This rule of decision was recognized by Ch. J.
Marshall, in United States v. Palmer, 3 Wheat. 634, and in Foster v. Neilson, 2 Peters,
307, and was very distinctly reasserted by Mr. Justice Grier, in the Prize Cases, 2
Black, 670." Fifield v. Ins. Co., 1864, 47 Penn. State, 166, 172, per Woodward, C. J.
It is a fundamental principle of constitutional law that a grant of power carries
with it the right of discretion in its exercise (McCulloch v. Maryland, 1819, 4 Wheat.
316); it therefore follows that the wisdom or expediency of the foreign policy of our
government is not subject to examination in a court of justice. The following passage
shows that the policy of our government in the matter of recognition has been judi.
cious if non-judicial :
“There is a stage in such (revolutionary) contests when the party struggling for
independence has, as I conceive, a right to demand its acknowledgment by neutral
CHAP. I.]
15
THE HELENA.
(©) Kinds of States.
THE HELENA.
High COURT OF ADMIRALTY, 1801.
(4 C. Robinson, 3.)
This was a case of a British ship which had been taken on a voyage
from Saffee to Lisbon by an Algerine corsair, and sold by the Dey of
Algiers to a merchant of Minorca, and by him sold, on the surrender
of the island of Minorca to the British arms, to the present holder, a
merchant of London. On coming into the port of London, a warrant
parties, and when the acknowledgment may be granted without departure from the
obligations of neutrality. It is the stage when the independence is established as
matter of fact, so as to leave the chance of the opposite party to recover their
dominion utterly desperate. The neutral nation must, of course, judge for itself
when this period has arrived; and as the belligerent nation has the same right to
judge for itself, it is very likely to judge differently from the neutral and to make it
a cause or pretext for war, as Great Britain did expressly against France in our
Revolution, and substantially against Holland.
“If war thus results, in point of fact, from the measure of recognizing a contested
independence, the moral right or wrong of the war depends upon the justice and sin-
cerity and prudence with which the recognizing nation took the step. I am satisfied
that the cause of the South Americans, so far as it consists in the assertion of inde-
pendence against Spain, is just. But the justice of a cause,
But the justice of a cause, however it may enlist
individual feelings in its favor, is not sufficient to justify third parties in siding with it.
The fact and the right combined can alone authorize a neutral to acknowledge a new
and disputed sovereignty.” J. Q. Adams to President Monroe, Aug. 24, 1818. (1
Wharton's Digest, 121.)
In M’Ilvaine v. Coxe's Lessee, 1808, 4 Cranch, 209, 212, the Supreme Court of
the United States say: “That the several States which composed this Union, so far at
least as regarded their municipal regulations, became entitled, from the time when they
declared themselves independent, to all the rights and powers of sovereign states, and
that they did not derive them from concessions made by the British king. The treaty
of peace contains a recognition of their independence, not a grant of it. From hence
it results, that the laws of the several State governments were the laws of sovereign
states, and as such were obligatory upon the people of such State from the time they
were enacted.” See also, Ingliss v. Trustees, &c., 1830, 3 Pet. 99.
New states may be recognized conditionally. By the 43d article of the treaty of
Berlin, 1878, it is stipulated that the independence of Roumania shall be recognized lvy
the high contracting parties “on the conditions laid down in the two following arti-
cles." These conditions are, first, that no person shall be deprived of civil or political
rights by reason of his creed; and, second, that Roumania shall restore to Russia cer-
tain territory detached from Russia by the treaty of Paris, 1856.
Servia was recognized upon a similar condition as to religious freedom. (Articles
31 and 35.) — Ed.
46
[PART 1.
STATES.
It
had been applied for to arrest this ship on the part of the former British
proprietor; but the court refused a warrant, and directed a monition
to issue, calling on the possessor to show cause, why she should not be
restored to the former British owner.
Sir W. Scott. – This is a question arising on a ship, which has
been purchased by a British merchant of a Spaniard: A claim is now
given on the part of the original British proprietor, on a suggestion
that the vessel, while sailing his property, was captured and carried
into the Barbary States, and there sold to the Spanish merchant, from
whom the present holder purchased. It is certainly true, as it has been
argued on the part of the present possessor, that the court is disposed
to pay particular respect to derivative titles, when fairly possessed;
and it does this on the plain and general ground, that there must be a
sequel of transactions, continued in a course of time, which shall be
held conclusive, to cure antecedent defects, and to give, security to the
title of a bona fide purchaser. On this foundation all property rests;
with respect to movables, the period is very short for that effect.
is true, that ships pass by formal instruments and written documents,
and therefore do not come entirely under the rules that apply to the
transfer of movable property ; but still they are entitled to the equity
of similar considerations to a certain degree, particularly where posi-
tive regulations have not intervened to exclude them.
This ship
appears to have been taken by the Algerines, and it is argued, that the
Algerines are to be considered in this act as pirates, and that no legal
conversion of property can be derived from their piratical seizure.
Certain it is, that the African States were so considered many years
ago, but they have long acquired the character of established govern-
ments, with whom we have regular treaties, acknowledging and con-
firming to them the relations of legal states. So long ago as the
time of Charles 2d, Molloy speaks of them in language which, though
sufficiently quaint, expresses the true character in which they were
considered in this time. “ Pirates that have reduced themselves into
a government or state, as those of Algier, Sally, Tripoli, Tunis, and
the like, some do conceive ought not to obtain the rights or solemnities
of war, as other towns or places : for though they acknowledge the
supremacy of the Porte, yet all the power of it cannot impose on them
more than their own wills voluntarily consent to. The fainous
Carthage having yielded to the victorious Scipio, did in some respect
continue, and began to raise up her drooping towers, till the knowing
Cato gave council for the total extirpation; out of the ruins of which
arose Tunis, the revenging ghost of that famous city, who now, what
open hostility denied, by thieving and piracy continues; as stinking
elders spring from those places where noble oaks have been felled ;
4
CHAP. I.]
47
THE HELENA.
and in their art are become such masters, and to that degree, as to
disturb the mightiest nations on the western empire; and though the
same is small in bigness, yet it is great in mischief; the consideration
of which put fire into the breast of the aged Lewis IX. to burn up this
nest of wasps, who having equipt out a fleet in his way for Palestine,
resolved to besiege it: whereupon a council of war being called, the
question was, whether the same should be summoned, and carried it
should not; for it was not fit the soleinn ceremonies of war should be
lavished away on a company of thieves and pirates. Notwithstanding
this, Tunis and Tripoli and their sister Algier do at this day (though
nests of pirates) obtain the right of legation. So that now (though
indeed pirates) yet having acquired the reputation of a government,
they cannot properly be esteemed pirates, but enemies.” Molloy,
p. 33, $ iv.
Although their notions of justice, to be observed between nations,
differ from those which we entertain, we do not on that account,
venture to call in question their public acts. As to the mode of con-
fiscation, which may have taken place on this vessel, whether by
formal sentence or not, we must presume it was done regularly in their
way, and according to the established custom of that part of the
world. That the act of capture and condemnation was not a mere
private act of depredation, is evident from this circumstance, that the
Dey himself appears to have been the owner of the capturing vessel ;
at least he intervenes to guarantee the transfer of the ship in question
to the Spanish purchaser. There might perhaps be cause of confisca-
tion, according to their notions, for some infringment of the regula-
tions of treaty; as it is by the law of treaty only that these nations
hold themselves bound, conceiving (as some other people have foolishly
imagined), that there is no other law of nations, but that which is
derived from positive compact and convention. Had there been any
demand for justice in that country on the part of the owners, and the
Dey had refused to hear their coinplaints, there might perhaps have
been something more like a reasonable ground to induce this court to
look into the transaction, but no such application appears to have
been made. The Dey intervened in the transaction, as legalizing the
act. The transfer appears, besides, to have been passed in a solemn
manner before the public officer of the Spanish government, the Spanish
consul; and in the subsequent instance, the property is again trans-
ferred to the present possessor, under the public sanction of the Judge
of the Vice Admiralty court of Minorca.
Under these circumstances, I think it is now much too late for this
court to interfere for the purpose of annulling these several acts of
transfer, which appear to have been made, in both instances, with
48
[PART 1.
STATES.
+
perfect good faith on the part of the several purchasers, and for an
equivalent consideration. Without considering at all the question,
what rule would have been applied to the case of a bona fide purchase
from a piratical captor I shall dismiss the party, and decree the ship
to be delivered to the British purchaser.
Party dismissed.
THE CHARKIEH.
HIGH COURT OF ADMIRALTY, 1873.
(Law Reports, 4 Admiralty and Ecclesiastical Courts, 59.)
This was a cause instituted on behalf of the Netherlands Steamship
Co., the owners of the steamship Batavier, and on behalf of the master,
crew and passengers thereof against the screw steamship Charkieh and
her freight, for damages arising out of a collision between the Batavier
and the Charkieh in the river Thames in 1872.
As a bar to the action for damages resulting from the collision, it
was maintained that the ship was the property of Ismail Pacha,
Khedive of Egypt, the reigning sovereign of the state of Egypt and
that the Charkieh was a public vessel of the government and semi-
sovereign state of Egypt.?
Sir Robert Phillimore. . . . From these averments in the pleadings,
and these facts in the evidence, the following questions arise :
1. Is the international status of the Khedive that of sovereign
prince of Egypt ?
1 “The Algerines, Tripolitans, Tunisians, and those of Salee,” says Bynkershoek, ,
are not pirates, but regular organized societies, who have a fixed territory and an
established government, with whom we are alternately at peace and at war, as with
other nations, and who, therefore, are entitled to the same rights as other independent
states. The European sovereigns often enter into treaties with them, and the States-
Cereral have done it in several instances. Cicero defines a regular enemy to be :
qui haberet rempublicam, curiam ærarium, consensum et concordiam civium rationem aliquam,
si res ità tulisset, pacis et frederis (Phili', p. iv. c. 14). All these things are to be found
among the barbarians of Africa ; for they pay the same regard to treaties of peace and
alliance that other nations do, who generally attend more to their convenience than to
their engagements. And if they should not observe the faith of treaties with the most
scrupulous respect, it cannot be well required of them ; for it would be required in vain
of other sovereigns. Nay, if they should even act with more injustice than other
nations do, they should not, on that account, as Huberus very properly observes (De
Jure Civitat. I. iii. sect. 4, c. 5, n. ult.) lose the rights and privileges of sovereign
states.” Bynkershoek, Quæst. Jur. Pub. lib. i. cap. xvii. — ED.
2 Short statement substituted for that of the report. - ED.
1
CHAP. I.]
49
THE CHARKIEH,
&
2. Is he entitled by virtue of that status to claim the exemption of
this ship froni the jurisdiction of this court?
3. If he be entitled to this privilege, has he waived or forfeited it?
I proceed to consider these questions in their order, and first, as to the
international status of His Highness the Khedive.
[After sketching the history of Egypt from Arabian conquest in
838 A.D. to the year 1833, the learned judge says:]
Here. I will pause a moment to consider the law applicable to the
facts as now stated.
What were the relations at this epoch existing between the Khedive
and the Porte, and what was the nature and character of the authority
of the former, so far as foreign states are connected with these con-
siderations? Did they entitle the Khedive to the privilege of the
sovereign of an independent state ? These are questions which must
be answered, like all others appertaining to international jurisprudence,
by a reference to usage, authority, and the reason of the thing.
Many accredited writers and jurists have drawn a distinction, which
seems not to have escaped the framer of the Khedive's petition on
protest now before me — between a sovereignty absolute and pure, and
that less complete and perfect dominion to which the name of half-
sovereignty (demi-souverain) has been given. I am inclined to think
that the sovereign of a state in the latter category may be entitled to
require from foreign states the consideration and privileges which are
unquestionably incident to the sovereign of a state who is in the former
category. There are also certain acts of feudal homage, or, as jurists
say, servitutes juris gentium, which do not disentitle the state obliged
to them to an international existence as a separate state.
Some examples of half sovereignties are to be found in history.
Some of the smaller states (halb souverain) of the German confedera-
tion, before it was virtually destroyed by Napoleon's confederation of
the Rhine, and formally extinguished by the abdication of the
Emperor Francis in 1806, also furnished examples of states cum
imminutione imperii - to borrow the expression of Grotius, De Jure
Belli et Pacis, lib. ii., C. xv., s. vii., 1; Cambridge edition, 1853, vol. 2,
p. 136 — but entitled to be treated as states by foreign powers.
The old feudal relations of the Dukes of Burgundy, Normandy, and
Brittany to France did not, I believe, prevent these princes from being
considered as sovereigns at home and abroad, and from being entitled
to be represented by ainbassadors at foreign courts.
Other instances might be mentioned, in which neither the payment
of tribute, as in the cases of the Kingdom of the Two Sicilies to the
Pope, continued till 1818 A.D., or of the King of Hungary to the
Sultan, from the reign of Ferdinand the First till the Treaty of
4
50
STATES.
[PART I.
Silvatorok in 1606 A.D., nor other acts of purely feudal homage,
such as the presentation of the white palfrey presented to the Pope hy
the King of the Two Sicilies, -- See Phill. Int. Law, 2d ed., vol. 2,
434, disentitled the representative of a state in these conditions to the
enjoyment abroad of the privileges usually accorded to a foreign sover-
eigu or his representatives.
It has been well said by a commentator on Martens' work :
“La souveraineté extérieure n'est autre chose que l'indépendance de
l'État vis-à-vis des autres états.” Pinheiro Ferreira on Martens, Précis
du droit des gens, edited by Vergé, 1. i. c. 3, s. 23, t. i. p. 98, Paris, 1858.
It may, moreover, be that, if such a status existed de facto, it would
not be the province of the tribunals of a foreign state to look beyond
the fact, or to inquire minutely or at all into the history of its establish-
ment. International law has no concern with the form, character, or
power of a state, if, through the medium of a government, it has such
an independent existence as to render it capable of entertaining inter-
national relations with other states. An apt illustration of this position
is furnished by the status accorded by European Powers in more
modern times to what were once commonly called the Barbary States.
They had practically shaken off the Ottoman dominion. Bynkershoek
describes them as “civitates quæ certam sedem atque ibi imperium
habent, et quibuscum nunc pax est nunc bellum, non secus ac cum aliis
gentibus, quique propterea ceterorum principuin jure esse videntur.'
Bynkershoek, Quæstiones Juris Publici, lib. i., c. 17 ; Opera Omnia,
vol. 2, p. 223, ed. 1767. And in the year 1801 Lord Stowell fully
adopted this position, and asserted that the African states had “long
acquired the character of established governments, with whom we have
regular treaties, acknowledging and confirming to them the relations of
legal states ;” and he remarked that, “although their notion of inter-
national justice differ from those which we entertain, we do not on
that account venture to call in question their public acts," -- that is
to say, that although they are perhaps on some points entitled to a
l'elaxed application of the principles of international law, derived
exclusively from European custom, they are nevertheless treated as
having the rights and duties of states by the civilized world: The
Helena, 4 C. Rob. 3.
It is to be observed, however, that the court proceeded upon the
principle that a nation with whom we had regular treaties was de facto
acknowledged without a formal recognition to have what jurists have
termed the right of a political personality "(Klüber, $ 25 — Droit
des gens moderne de l'Europe, par M. A. Ott, Paris, 1861, p. 35), that
is, the position of a state in the great commonwealth of nations.
If, at this period, I had been obliged to decide whether the Pacha of
CHAP. I.]
51
THE CHARKIEH.
Egypt, was entitled to the privilege of a sovereign in this country, iny
decision would have been influenced by a regard to the de facto
sovereign rights apparently exercised at this period by his Highness;
and perhaps the analogy of a European state having absolute dominion
over its own subjects with feudal subordination to another state
might have been cited with effect.
Though, even in this crisis of the history of Egypt, when the inde-
pendence of that country was so nearly established, it must be observed
that no attempt appears to have been inade on behalf of the Pacha to
exercise the principal international attribute of sovereignty, namely,
the jus legationis, to be represented by an ambassador or diplomatic
agent at the court of foreign sovereigns; nor is there any reason to
believe that such an attempt, if made, would have been successful.
But in the interval between 1833 A.D. and 1841 A.D. the scene is
greatly changed.
The result, then, of the historical inquiry as to the status of his
Highness the Khedive, is as follows: That in the firmans, whose
authority upon this point appears to be paramount, Egypt is invariably
spoken of as one of the provinces of the Ottoman Empire. That the
Egyptian army is regulated as part of the military force of the
Ottoman Empire. That the taxes are imposed and levied in the name
of the Porte. That the treaties of the Porte are binding upon Egypt,
and that she has no separate jus legationis. That the flag for both the
army and the navy is the flag of the Porte.
All these facts, according to the unanimous opinion of accredited
writers, are inconsistent and incompatible with those conditions of
sovereignty which are necessary to entitle a country to be ranked as
one among the great community of states.
Against this array of negative proof is to be set the solitary circum-
stance that the office of Khedive is hereditary. It requires but little
consideration to see that this peculiarity cannot affect the question.
Egypt remains a province of an empire, and does not become an
empire, because her viceroy is hereditary. The viceroy does not
become a sovereign prince because his sovereign permits him to trans-
mit the viceroyalty to his descendants in the direct male line. The
hereditary character does not confer on the holder, in this case, the
right of making war and peace, of sending an ambassador, or of inain-
taining a separate military or naval force, or of governing at all, except
in the name and under the authority of his sovereign.
The hereditary character of the viceroyalty may make the viceroy
the chief subject of the Porte, but he is still a subject prince, and not
a sovereign prince or "reigning sovereign" even of a semi-sovereign
state,” according to the terms of the petition on protest.
52
STATES.
[PART I.
1
I have one more observation to make before I leave this branch of
the subject. It cannot be urged in favour of the exemption of the
Charkieh, that, though she may have been erroneously claimed as a
public vessel of the Egyptian government, it is substantially the
saine thing if she be a public vessel of the Ottoman government of
which the government of Egypt is a part; because at the beginning of
these proceedings I directed the Registrar to write the following letter-
to the ambassador of the Porte :
No answer has been sent to this letter, and no intervention of any
sort has taken place on behalf of the Porte. Thereupon this argument.
occurs. — It cannot be denied that for the abuse of the privilege of the
sovereign or the ambassador, some remedy must be found. It has
been shown that the Khedive has six or seven ships acting as merchant-
men, for whom he claims the same privilege as for the Charkieh, and
the number may be indefinitely increased. It has been said that the
remedy is to be found in an application to the sovereign to abate the
abuse.
Any such application must be made in the present instance to the
Porte. But the ambassador of the Porte asserts no such claim. It is
the governor of a province of the state that insists upon the privilege.
To communicate directly with the governor in this matter would be to
derogate from the dignity of his sovereign, and to place in the rauk of
a sovereign a governor whom his own sovereign has placed in the rank
of a subject.
Lastly, no treaty ever having been made with his Highness, no
ambassador ever received from or sent to him, British consuls in
Egypt receiving no exequatur from him, there being, in other words, no
de facto recognition of his Highness as a sovereign by our government,
has there been any recognition de jure of him in this capacity ?
The Court of Chancery, when a plaintiff averred in his bill that a
certain republic in Central America had been recognized as an inde-
pendent government, put itself in communication with the Foreign
Office, and after such communication, declared itself authorized to state
that the republic in question had never been recognized by the govern-
ment of this country, and on the ground that what was pleaded was
"historically false," allowed a demurrer to the bill: Taylor v. Barclay,
2 Sim. 213. I have communicated with the Foreign Office, and have
received the following answer to my questions, viz. : “ that the Khe-
dive has not been and is not now recognized by Her Majesty as reign-
ing sovereign of the state of Egypt.” “He is recognized by Her
Majesty's government as the hereditary ruler of the province of Egypt.
under the supremacy of the Sultan of Turkey.'
1 Letter omitted. -Ed.
"
1
CHAP. I.]
THORINGTON V. SMITH AND HARTLEY.
53
Upon all these facts I have arrived at the conclusion that indepen-
dently of any other consideration, his Highness the Khedive has failed
to establish his claim to exempt his vessel from the process of this
court. 1
JACK THORINGTON V. WILLIAM B. SMITH AND JOHN
H. HARTLEY.
SUPREME COURT OF THE UNITED STATES.
1868.
(8 Wallace, 1.)
The Chief Justice [CHASE] delivered the opinion of the court.
The questions before us 'upon this appeal are these :
1. Can a contract for the payment of Confederate notes, made dur-
ing the late rebellion, between parties residing within the so-called
Confederate States, be enforced at all in the courts of the United
States ?
2. Can evidence be received to prove that a promise expressed to
be for the payment of dollars was, in fact, made for the payment of
any other than lawful dollars of the United States ?
3. Does the evidence in the record establish the fact that the note
for ten thousand dollars was to be paid, by agreement of the parties,
in Confederate notes ?
The first question is by no means free from difficulty. It cannot be
questioned that the Confederate notes were issued in furtherance of an
unlawful attempt to overthrow the government of the United States,
by insurrectionary force. Nor is it a doubtful principle of law that
no contracts made in aid of such an attempt can be enforced through
the courts of the country whose government is thus assailed. But,
was the contract of the parties to this suit a contract of that character ?
Can it be fairly described as a contract in aid of the rebellion ?
In examining this question the state of that part of the country in
which it was made must be considered. It is familiar history, that
early in 1861 the authorities of seven States, supported, as was alleged,
1 For the present situation of Egypt, see Abd-ul-Messih y. Farra, 1888, L. R., 13
A. C. 431; Sir Alfred (Lord) Milner's “England in Egypt,” (1892); White's “ Expan-
sion of Egypt,” 1899.
For the international status of Cuba during the American occupation see Neely v.
Henkel, 1900, 180 U. S. 109.
For the status of the American Indian tribes, or “Nations," see The Cherokee Nation
v. Ga., 1831, 5 Pet. 1, especially the concurring opinion of Mr. Justice Baldwin, 30-
50. This matter is discussed in § 23, infra. — Ev.
54
STATES.
[PART I.
by popular majorities, combined for the overthrow of the National
Union, and for the establishment, within its boundaries, of a separate
and independent confederation. A governmental organization, repre-
senting these States, was established at Montgomery, in Alabaina, first
under a provisional constitution, and afterwards under a constitution
intended to be permanent. In the course of a few months, four other
States acceded to this confederation, and the seat of the central
authority was transferred to Richmond, in Virginia. It was, by the
central authority thus organized, and under its direction, that civil
war was carried on upon a vast scale against the government of the
United States for more than four years. Its power was recognized
as supreme in nearly the whole of the territory of the States con-
federated in insurrection. It was the actual government of all the
insurgent States, except those portions of them protected from its
control by the presence of the armed forces of the National government.
What was the precise character of this government in contemplation
of law ?
It is difficult to define it with exactness. Any definition that may
be given may not improbably be found to require limitation and quali-
fication. But the general principles of law relating to de facto govern-
ment will, we think, conduct us to a conclusion sufficiently accurate.
There are several degrees of what is called de facto government.
Such a government, in its highest degree, assumes a character very
closely resembling that of a lawful government. This is when the
usurping government expels the regular authorities from their custom-
ary seats and functions, and establishes itself in their place, and so
becomes the actual government of a country. The distinguishing
characteristic of such a government is, that adherents to it in war
against the government de jure do not incur the penalties of treason;
and under certain limitations, obligations assumed by it in behalf of
the country, or otherwise, will, in general, be respected by the govern-
ment de jure when restored.
Examples of this description of government de facto are found in
English history. The statute 11 Henry VII., c. 1, 2 British Stat. at
Large, 82, relieves from penalties for treason all persons who, in dem
fence of the king, for the time being, wage war against those who
endeavor to subvert his authority by force of arms, though warranted
in so doing by the lawful monarch, 4 Commentaries, 77.
But this is where the usurper obtains actual possession of the royal
authority of the kingdom; not when he has succeeded only in estab-
lishing his power over particular localities. Being in possession,
allegiance is due to him as king de facto.
Another example may be found in the government of England under
i
CHAP. I.]
55
THORINGTON V. SMITH AND HARTLEY.
1
sense.
the Commonwealth, first by Parliament, and afterwards by Cromwell
as Protector. It was not, in the contemplation of law, a government
de jure, but it was a government de facto in the most absolute sense.
It incurred obligations and made conquests which remained the obliga-
tions and conquests of England after the restoration. The better
opinion doubtless. is, that acts done in obedience to this government
could not be justly regarded as treasonable, though in hostility to the
king de jure. Such acts were protected from criminal prosecution by
the spirit, if not by the letter, of the statute of Henry the Seventh.
It was held otherwise by the judges by whom Sir Henry Vane was
tried for treason, 6 State Trials, 119, in the year following the restora-
tion. But such a judgment, in such a time, has little authority.
It is very certain that the Confederate government was never
acknowledged by the United States as a de facto government in this
Nor was it acknowledged as such by other powers. No treaty
was made by it with any civilized state. No obligations of a National
character were created by it, binding after its dissolution, on the States
which it represented, or on the National government. From a very
early period of the civil war to its close, it was regarded as simply the
military representative of the insurrection against the authority of
the United States.
But there is another description of government, called also by pub-
licists a government de facto, but which might, perhaps, be more aptly
denominated a government of paramount force. Its distinguishing
characteristics are (1), that its existence is maintained by active mili-
tary power, within the territories, and against the rightful authority
of an established and lawful government; and (2), that while it exists,
it must necessarily be obeyed in civil matters by private citizens who,
by acts of obedience, rendered in submission to such force, do not
become responsible, as wrongdoers, for those acts, though not warranted
by the laws of the rightful government. Actual governments of this
sort are established over districts differing greatly in extent and con-
ditions. They are usually administered directly by military authority,
but they may be administered, also, by civil authority, supported more
or less directly by military force.
One example of this sort of government is found in the case of Cas-
tine, in Maine, reduced to British possession during the war of 1812.
From the 1st of September, 1814, to the ratification of the treaty of
peace in 1815, according to the judgment of this court in United States
v. Rice, 4 Wheaton, 253, “the British government exercised all civil
and military authority over the place.” “The authority of the United
States over the territory was suspended, and the laws of the United
States could no longer be rightfully enforced there, or be obligatory
56
[PART I.
STATES.
upon the inhabitants who remained and submitted to the conqueror.
By the surrender, the inhabitants passed under a temporary allegiance
to the British government, and were bound by such laws, and such
only, as it chose to recognize and impose.” It is not to be inferred
from this that the obligations of the people of Castine as citizens of
the United States were abrogated. They were suspended merely by
the presence, and only during the presence, of the paramount force.
A like example is found in the case of Tampico, occupied during the
war with Mexico by the troops of the United States. It was deter-
mined by this court, in Fleming v. Page, 9 Howard, 614, that, although
Tampico did not become a port of the United States in consequence
of that occupation, still, having come, together with the whole State
of Tamaulipas, of which it was part, into the exclusive possession of
the National forces, it must be regarded and respected by other nations
as the territory of the United States. These were cases of temporary
possession of territory by lawful and regular governments at war with
the country of which the territory so possessed was part.
The central government established for the insurgent States differed
from the temporary governments at Castine and Tampico, in the cir-
cumstance, that its authority did not originate in lawful acts of regular
war, but it was not, on that account, less actual or less supreme. And
we think that it must be classed among the governments of which these
are examples. It is to be observed that the rights and obligations of
a belligerent were conceded to it, in its military character, very soon
after the war began, from motives of humanity and expediency by the
United States. The whole territory controlled by it was thereafter
held to be enemies' territory, and the inhabitants of that territory were
held, in most respects, for enemies. To the extent, then, of actual
supremacy, however unlawfully gained, in all matters of government
within its military lines, the power of the insurgent government can-
not be questioned. That supremacy did not justify acts of hostility
to the United States. How far it should excuse them must be left to
the lawful government upon the re-establishment of its authority.
But it made obedience to its authority in civil and local matters not
only a necessity but a duty. Without such obedience, civil order was
impossible.
It was by this government exercising its power throughout an im-
mense territory, that the Confederate notes were issued early in the
war, and these notes in a short time became almost exclusively the
currency of the insurgent States. As contracts in themselves, except
in the contingency of successful revolution, these notes were nullities;
for, except in that event, there could be no payer. They bore, indeed,
this character upon their face, for they were made payable only “after
CHAP. I.] THORINGTON V. SMITH AND HARTLEY.
57
the ratification of a treaty of peace between the Confederate States
and the United States of America." While the war lasted, however,
they had a certain contingent value, and were used as money in nearly
all the business transactions of inany millions of people. They must
be regarded, therefore, as a currency, imposed on the community by
irresistible force.
It seems to follow as a necessary consequence from this actual
supremacy of the insurgent government, as a belligerent, within the
territory where it circulated, and from the necessity of civil obedience
on the part of all who remained in it, that this currency must be con-
sidered in courts of law in the same light as if it had been issued by
a foreign government, temporarily occupying a part of the territory
of the United States. Contracts stipulating for payments in this cur-
rency, cannot be regarded for that reason only, as made in aid of the
foreign invasion in the one case, or of the domestic insurrection in the
other. They have no necessary relations to the hostile government,
whether invading or insurgent. They are transaction in the ordinary
course of civil society, and, though they may indirectly and remotely
promote the ends of the unlawful government, are without blame,
except when proved to have been entered into with actual intent to
further invasion or insurrection. We cannot doubt that such contracts
should be enforced in the courts of the United States, after the res-
toration of peace, to the extent of their just obligation. The first
question, therefore, must receive an affirmative answer.
The second question, Whether evidence can be received to prove
that a promise, made in one of the insurgent States, and expressed to
be for the payment of dollars, without qualifying words, was in fact
made for the payment of any other than lawful dollars of the United
States ? is next to be considered.
It is quite clear that a contract to pay dollars, made between citizens
of any State of the Union, while maintaining its constitutional rela-
tions with the National government, is a contract to pay lawful money
of the United States, and cannot be modified or explained by parol
evidence. But it is equally clear, if in any other country, coins or
notes denominated dollars should be authorized of different value from
the coins or notes which are current here under that name, that, in a
suit upon a contract to pay dollars, made in that country, evidence
would be admitted to prove what kind of dollars were intended, and,
if it should turn out that 'foreign dollars were meant, to prove their
equivalent value in lawful money of the United States. Such evidence
does not modify or alter the contract. It simply explains an am-
biguity, which, under the general rules of evidence, may be removed
by parol evidence.
*
58
(PART I.
STATES.
We have already seen that the people of the insurgent States, under
the Confederate government were, in legal contemplation, substantially
in the same condition as inhabitants of districts of a country occupied
and controlled by an invading belligerent. The rules which would
apply in the former case would apply in the latter; and, as in the
former case, the people must be regarded as subjects of a foreign
power, and contracts among them be interpreted and enforced with
reference to the conditions imposed by the conqueror, so in the latter
case, the inhabitants must be regarded as under the authority of the
insurgent belligerent power actually established as the government
of the country, and contracts made with them must be interpreted and
enforced with reference to the condition of things created by the acts
of the governing power.
It is said, indeed, that under the insurgent government the word
dollar had the same meaning as under the government of the United
States; that the Confederate notes were never made a legal tender,
and, therefore, that no evidence can be received to show any other
meaning of the word when used in a contract. But, it must be re-
membered that the whole condition of things in the insurgent States
was matter of fact rather than matter of law, and, as matter of fact,
these notes, payable at a future and contingent day, which has not
arrived and can never arrive, were forced into circulation as dollars, if
not directly by the legislation, yet indirectly and quite as effectually
by the acts of the insurgent government. Considered in themselves,
and in the light of subsequent events, these notes had no real value,
but they were made current as dollars by irresistible force. They were
the only measure of value which the people had, and their use was
a matter of almost absolute necessity. And this use gave them a sort
of value, insignificant and precarious enough it is true, but always
having a sufficiently definite relation to gold and silver, the universal
measures of value, so that it was always easy to ascertain how much
gold and silver was the real equivalent of a sum expressed in this cur-
rency. In the light of these facts it seems hardly less than absurd to
say that these dollars must be regarded as identical in kind and value
with the dollars which constitute the money of the United States.
We cannot shut our eyes to the fact that they were essentially differ-
ent in both respects; and it seems to us that no rule of evidence prop-
erly understood requires us. to refuse, under the circumstances, to
admit proof of the sense in which the word dollar is used in the con-
tract before us. Our answer to the second question is, therefore, also
in the affirmative. We are clearly of opinion that such evidence
must be received in respect to such contract, in order that justice may
be done between the parties, and that the party entitled to be paid in
+
59
CHAP. I.]
THE HOME INSURANCE COMPANY'S CASE.
these Confederate dollars can recover their actual value at the time
and place of the contract, in lawful money of the United States.
We do not think it necessary to go into a detailed examination of
the evidence in the record in order to vindicate our answer to the third
question. It is enough to say that it has left no doubt in our minds
that the note for ten thousand dollars, to enforce payment of which
suit was brought in the circuit court, was to be paid, by agreement of
the parties, in Confederate notes.
It follows that the decree of the circuit court must be reversed
and the cause remanded, for further hearing and decree, in conformity
with this opinion.
THE HOME INSURANCE COMPANY'S CASE.
COURT OF CLAIMS, 1872.
(8 Court of Claims, 449.)
DRAKE, Ch. J., delivered the opinion of the court.
This case, considered merely as a claim for the proceeds of cotton
captured by the military forces of the United States during the rebel-
lion, has no point of controversy. The claimant's ownership, the
capture and sale of the cotton, and the payment of the proceeds
thereof into the treasury, are all established. The only question
raised in the case is as to the right of the claimants, a corporation
created by an act passed by the Legislature of the State of Georgia,
while that State was in armed rebellion against the Government of
the United States, to sue in this court for the recovery of said pro-
ceeds. The counsel for the Government urge that the claimant has
no legal existence entitling it to one in this court; that the act creat-
ing it was the act of a Legislature which had no lawful authority to
pass any such act; that no legislation whatever of the late rebel
States is entitled as a matter of right to recognition in the Union;
and that, therefore, the claimant's petition should be dismissed.
The question thus presented has not, we believe, been before raised.
If we were required to pass upon it without any guidance from the
appellate court, we should approach its consideration with more hesi-
tation than we now feel. But we consider the question practically
decided by the Supreme Court in Texas v. White (7 Wallace, 700),
where, as we conceive, the following propositions were enunciated.
1. That no rebel State ceased, by its act of secession and rebellion,
to be a State of the Union.
60
[PART I.
STATES.
.
2. That the citizens of any such State did not, by such secession
and rebellion, cease to be citizens of the Union.
3. That the Legislature of any such State cannot be regarded in the
courts of the United States as a lawful legislature, or its acts as
lawful acts.
4. That, nevertheless, the 'rebel government in any such State
was its only actual government, which, having displaced the regular
and lawful authority, and established itself in the customary seats of
power and in the exercise of the ordinary functions of administration,
constituted a de facto government, whose acts, during its existence as
such, would be effectual, and, in many respects, valid.
5. That the acts of such a de facto though unlawful government,
which must be regarded as valid, are those that are necessary to peace
and good order among citizens; such, for example, as acts sanctioning
and protecting marriage and the domestic relations, governing the
course of descents, regulating the conveyance and transfer of prop-
erty, real and personal, and providing remedies for injuries to person
and estate, and other similar acts.
6. That the acts of such a government which must be regarded as
invalid and void are those that were in furtherance or support of re-
bellion against the United States, or intended to defeat the just rights
of citizens, and other acts of a like nature.
From all of which propositions we deduce this general proposition
as the final doctrine of that court on this subject, namely: That what-
ever act of the Legislature of a rebel State did not tend to further or
support the rebellion, or to defeat the just rights of citizens, but re-
lated merely to the domestic affairs of the people of the State as a
community aside from the connection of that people with the rebel-
lion, is a valid act by a de facto though unlawful government, which
will be sustained in the courts of the United States.
This seems to us to draw the only line of distinction which
can
well
be drawn, and to be the only alternative to the entire refusal of recog-
nition to such acts. It is clearly impossible for the judiciary to pass
upon the expediency of every act of a merely municipal character
passed by a rebel legislature, or to decide whether every such act was
necessary to peace and good order among citizens; but there is no
difficulty in applying to every such act these two simple tests:
1. Was it intended to further or support the rebellion, or to defeat
the just rights of citizens? and 2. Was it intended merely to regulate
the domestic affairs of the people of the State, aside from their con-
nection with the rebellion? If the first question can be answered
negatively, and the second affirmatively, then it seems to us that the
ruling of the Supreme Court requires us to give effect to the act.
1
CHAP. I.]
61
THE HOME INSURANCE COMPANY'S CASE.
1
1
.
Any other view of the matter would, in our judgment, involve the
domestic affairs of the people of the rebel States in a confusion and
entanglement from which extrication would be almost impossible.
Applying to the charter of the Home Insurance Company the tests
indicated, we do not find that its enactment was intended to further
or support the rebellion, or to defeat the just rights of citizens; but,
on the other hand, that it was intended as a means, so far as it went,
of regulating the domestic affairs of the State; in which work in
every civilized state the creation of corporations bears no inconsider-
able part.
We therefore hold the company to have a valid existence, entitling
it to sue in this court; and award judgment in its favor for the pro-
ceeds of its cotton found to have been captured.
1 Affirmed on appeal in U. S. Supreme Court, 1874, 22 Wall. 99.
Other leading cases on the status and acts of the Confederacy and of its members
are: Fifield v. Insurance Co., 1864, 47 Penn. State, 166; Mauran v. Insurance Co., 1867,
6 Wall. 1; Miller v. U. S., 1870, 11 Wall. 268; Sprott v. U. S., 1874, 20 Wall. 459;
Williams v. Bruffy, 1877, 96 U. S. 176; Ford v. Suryet, 1878, 97 U, S. 594; Ketcham
v. Buckley, 1878, 99 U. S. 188. In Baldy v. Hunter, 1897, 171 U. S. 388, Mr. Justice
Harlan says (after an elaborate enumeration and discussion of the leading cases deal-
ing with the status of Confederate States) : “From these cases it may be deduced
“That the transactions between persons actually residing within the territory dom-
inated by the government of the Confederate States were not invalid for the reason
only that they occurred under the sanction of the laws of that government or of any
local government recognizing its authority ; that, within such territory, the preserva-
tion of order, the maintenance of police regulations, the prosecution of crimes, the
protection of property, the enforcement of contracts, the celebration of marriages, the
settlement of estates, the transfer and descent of property, and similar or kindred
subjects were, during the war, under the control of the local governments constituting
the so-called Confederate States.
“ That what occurred or was done in respect of such matters under the authority of
the laws of these local de facto governments should not be disregarded or held to be
invalid merely because those governments were organized in hostility to the Union
established by the national Constitution ; this, because the existence of war between
the United States and the Confederate States did not relieve those who were within
the insurrectionary lines from the necessity of civil obedience, nor destroy the bonds
of society, nor do away with civil government or the regular administration of the
laws, and because transactions in the ordinary course of civil society as organized
within the enemy's territory, although they may have indirectly or remotely promoted
the ends of the de facto or unlawful government organized to effect a dissolution of
the Union, were without blame 'except when proved to have been entered into with
actual intent to further invasion or insurrection ;' and,
“That judicial and legislative acts in the respective States composing the so-called
Confederate States should be respected by the courts if they were not hostile in their
purpose or mode of enforcement to the authority of the National Government, and did
hot impair the rights of citizens under the Constitution."
And in the very recent case of Oakes v. U. S., 1898, 174 U. S. 778, 794, Mr. Justice
Gray, speaking for the court, says:
“The government of the Confederate States, although in no sense a government
62
[PART 1.
STATES.
UNDERHILL V. HERNANDEZ,
UNITED STATES CIRCUIT COURT OF APPEALS, 2D CIRCUIT, 1895.
(26 United States Appeals, 573.)
WALLACE, Circuit Judge, delivered the opinion of the court.
This is a writ of error by George F. Underhill, the plaintiff in the
court below, to review a judgment for José Manuel Hernandez, the
de jure, and never recognized by the United States as in all respects de facto, yet was
an organized and actual government, maintained by military power, throughout the
limits of the States that adhered to it, except in those portions of them protected from
its control by the presence of the armed forces of the United States; and the United
States, from motives of humanity and expediency, had conceded to that government
some of the rights and obligations of a belligerent. Prize Cuses, 2 Black, 635, 673,
674; Thorington v. Smith, 8 Wall. 1, 7, 9, 10; Ford v. Surget, 97 U. S. 594, 604, 605; The
Lilla, 2 Sprague, 177, and 2 Clifford, 169.”
The Lilla referred to was a Maine brig called the Betsy Ames, captured by a Con-
federate privateer commanded by H. S. Libby, carried into Charleston, S. C., and
there condemned and sold, the purchasers being John Fraser & Co. of that city. Her
name was changed to the Mary Wright, and, loaded with cotton, under the command
of Libby, she ran the blockade, arrived at Liverpool on the 2d of April, 1862, and dis-
posed of her cargo. April 24th she was registered as a British vessel, called the Lilla,
and in the name of R. G. B., as sule owner. A fortnight later she sailed for Nassau,
N. P., under the command of A., according to her papers, but really still under com-
mand of Libby. There is evidence going to show that it was arranged that Fraser &
Co. should have a steamer of theirs follow to Nassau, there take on the Lilla's cargo
and proceed to Charleston.
Parts of the cargo were falsely documented in the name of R. G. B. for the purpose
of deceiving the United States cruisers.
The vessel was seized by the United States gunboat Quaker City, brought in, and
claimed by her original owners.
Sprague, J., decided that R. G. B. lost whatever he possessed in the cargo by
reason of his falsely documenting other goods as his own to deceive belligerent cruisers
and that the vessel should be restored upon the authority of the Act of 1800, Chap. 14,
secs. 1, 2. U. S. Stats. at Large, 16, which provides that when a merchant vessel,
belonging to any person under the protection of the United States, shall have been
taken by a public enemy, and shall be recaptured by a public armed vessel of the
United States, such vessel not having been condemned by competent authority before
the recapture, the same shall be restored to the former owners upon payment of one-
eighth part of the true value, for and in lieu of salvage. The court also says:
The second objection to this claim is also fatal. There is no doubt that this vessel
was the property of Maxwell and others, until her capture by a Confederate privateer.
But it is contended that she has since been condemned and sold by a prize court in
Charleston, S. C., and the purchasers conveyed her to the claimant Bushby. If this
were so, of which there is no sufficient proof, still, such proceedings would not divest
the title of the original owner. In the case of The Amy Warwick [2 Sprague 123],
CHAP. I.]
63
UNDER EILL V. HERNANDEZ.
defendant, entered upon the verdict of a jury, pursuant to the direction
of the trial judge. The suit was for*false imprisonment and assault
and battery of the plaintiff, committed by the defendant at the city of
Bolivar, Venezuela. The acts complained of consisted in the deten-
tion of the plaintiff at his own residence in the City of Bolivar, under
a guard of soldiers stationed near the house, from August 13 to
October 15, 1892, by the authority of the defendant, during which
time the plaintiff was not permitted to leave the house without an
escort of soldiers, and was several times refused a passport to leave
the city, for which he made application to the defendant. During this
period the defendant was in command of the city as a military officer.
A revolution had been organized against the government of Venezuela,
and an army had been mustered against the adherents of the recent
president, whose term of office had expired, and who, it was claimed
by the revolutionists, no longer represented the legitimate government.
The principal parties to this conflict were those who recognized
Palacio as their chief, and those who followed the leadership of
Crespo. The defendant belonged to the revolutionary party and
commanded its forces in the vicinity of Bolivar. Early in August an
engageinent took place between the forces of the two parties near
Bolivar; the revolutionists prevailed, and on August 13, the defendant
entered Bolivar at the head of his forces and assumed command of the
city. From that time until the plaintiff was permitted to leave
Bolivar the defendant was the civil and military chief. Early in
October the revolutionary party prevailed generally, and took posses-
this Court held that treating the Confederates in some respects as belligerents was
not an abandonment of sovereign rights, and by no means precluded us from treating
them iu other respects as rebels. Most assuredly I sliall not recognize the Soutliern
Confederates as a nation, or as having a government competent to establish prize
No proceedings of any such supposed tribunals can have any validity here,
and a sale under them would convey no title to the purchaser, nor would it confer
upon him any right to give a title to others. But it is argued that, under the Queen's
proclamation, recognizing the Confederates as belligerents, a British court would hold
a sale to be valid. What the decision of a British court might be upon that question
we do not know, it never having been there litigated. But such a decision, if made,
would be no more binding upon our courts than the political views of the British gov-
ernment would be upon the President or the Congress.”
But generally de facto judgments are valid as in the case of a Spanish judg-
ment made in Louisiana after the cession but before delivery of possession to the
United States; for it was the judgment of a competent Spanish tribunal, having juris-
diction of the case, and rendered whilst the country, though ceded, was, de facto, in
the possession of Spain, and subject to Spanish laws, and such--judgments, so far as
they affect the private rights of thie parties thereto, must be deemed valid, Keene v.
McDonough, 1834, 8 Pet. 308; Trevino v. Fernandez, 1855, 13 Tex. 630, 662, 666; Daniel
v. Hutchinson, 1803, 83 Tex. 51, affirming the validity of judgments of military courts
established in Texas during the reconstruction period. --- Ed.
courts.
64
(PART I.
STATES.
sion of the capital of Venezuela, and on the 26th day of October,
1892, the Crespo government, so-called, was formally recognized as the
legitimate government of Venezuela by the government of the United
States, pursuant to instructions from the State department to our
minister to recognize the new government, provided it was accepted
by the people in possession of the power of the nation, and fully
established. Foreign Relations of the United States (1892), p. 635.
The plaintiff was a citizen of the United States, who had constructed
a waterworks system for the city of Bolivar, under a contract with
the government, and was engaged in supplying the place with water.
He also carried on a machinery repair business. The evidence upon
the trial indicated that the purpose of the defendant in his treatment
of the plaintiff was to coerce the plaintiff to operate his waterworks
and his repair works for the benefit of the community and the revolu-
tionary forces; it was not sufficient to have warranted a finding by the
jury that the defendant was actuated by malice or any personal por
private motive. The trial judge ruled, at the request of the defendant, ,
that upon these facts the plaintiff was not entitled to recover, and
directed a verdict for the defendant against the exception of the
plaintiff.
The important question presented by the assignments of error
arises upon the exception to the direction of a verdict for the
defendant. This ruling proceeded upon the ground that because the
acts of the defendant were those of a military commander, represent-
ing à de facto government in the prosecution of a war, he was not
civilly responsible therefor.
Considerations of comity, and of the highest expediency, require
that the conduct of states, whether in the transactions with other
States or with individuals, their own citizens or foreign citizens, should
not be called in question by the legal tribunals of another jurisdiction.
The citizens of a state have an adequate redress for any grievance at
its band by an appeal to the courts or the other departments of their
own government. Foreign citizens can rely upon the intervention of
their respective governments to redress their wrongs, even by a resort,
if necessary, to the arbitrament of war. It would be not only offensive
and unnecessary, but it would imperil the amicable relations between
governments, and vex the peace of nations, to permit the sovereign
acts or political transactions of states to be subjected to the examina-
tion of the legal tribunals of other states. Influenced by these
reasons, and because the acts of the official representatives of the
state are those of the state itself, when exercised within the scope of
their delegated powers, courts and publicists have recognized the
immunity of public agents from suits brought in foreign tribunals for
1
CHAP. I.]
65
UNDERHILL V. HERNANDEZ.
acts done within their own states in the exercise of the sovereignty
thereof. m Moondalay v. Morton, 1 Bro. Ch., 469, 471, the Master of
the Rolls, while retaining jurisdiction of a suit, which involved the
private transactions of the East India Company, said: “They have
rights as a sovereign power, they have also duties as individuals; if
they enter into bonds in India, the sums secured may be recovered
here." "I admit that no suit will lie in this court against a sovereign
power for anything done in that capacity.” In The Nabob of Arcot v.
East India Co., 4 Bro. Ch., 180, the answer to a bill in equity alleged
that all the transactions mentioned in the bill were of a political
nature and matters of state; and the court dismissed the suit upon
that ground. In The Duke of Brunswick v. The King of Hanover, 6
Beavan, 1, the Master of the Rolls concluded an elaborate discussion
of the liability of the defendant to a suit in chancery with the opinion
that the King of Hanover, although a subject of Great Britain, was
exempt from all liability to be sued in the courts of this country for
any acts done by him as King of Hanover. Upon an appeal from his
judgment, dismissing the cause to the House of Lords, that tribunal
decided that the defendant, notwithstanding he was a British subject,
and was in England exercising his rights as such when sued, could not
be made to account in the Court of Chancery for acts of state, whether
right or wrong, done by him abroad in virtue of his authority as
sovereign. The decision was put not upon the personal immunity of
the sovereign from suit, but upon the principle that no court in
England could sit in judgment upon the act of a sovereign effected by
virtue of his sovereign authority abroad. The Lord Chancellor said
that “a foreign sovereign, coining into this country, cannot be made
responsible here for an act done in his sovereign character in his own
country,” and that " the courts of this country cannot sit in judgment
upon an act of a sovereign, effected by virtue of his sovereign
authority abroad, an act not done as a British subject, but supposed to
be done in the exercise of his authority, vested in him as sovereign.
The Duke of Brunswick v. The King of Hanover, 2 H. L. Cas. 1, 16.
In Hatch v. Baez, 7 Hun, 596, 599, 600, the New York Supreme Court
decided that an action could not be maintained in the courts of the
State against the former president of the Dominican Republic for acts
done by him in his official capacity, although he had ceased to be
president when the suit was brought. The court said: “ We think
that, by the universal comity of nations and the established rules of
international law, the courts of one country are bound to abstain from
sitting in judgment on the acts of another government done within its
own territory. * * * To make himself amenable to a foreign jurisdic-
tion for such acts, would be a direct assault upon the sovereignty and
5
66
[PARTL
STATES.
independence of his country. * * * The fact that the defendant has
ceased to be president of St. Domingo does not destroy his immunity.
That springs from the capacity in which the acts were done, and
protects the individual who did them, because they emanate from a
foreign and friendly government." The law officers of the United
States have uniformly advised the executive department that individ-
uals are not answerable in foreign tribunals for acts done in their own
country in behalf of their government by virtue of their official
authority.
In 1794 one Collot, lately the French Governor of Guadaloupe, was
arrested in this country in an action brought against himn for the seizure
and condemnation of a vessel. The matter having been brought to
the attention of our Government, it was referred to the Attorney
General, and he advised that the defendant being subject to process
the Government could not then intervene, but added his opinion, “if
the seizure of the vessel is admitted to have been an official act, done
by the defendant by virtue, or under color, of the powers vested in
him as governor, that it will of itself be a sufficient answer to the
plaintiff's action; that the defendant ought not to answer in our
courts for any mere irregularity in the exercise of his powers ;
and
that the extent of his authority can, with propriety or convenience, be
determined only by the constituted authorities of his own nation.”
Suits against Foreigners, 1 Opin. Att. Gen. 45, 46. In 1797, in the
case of Sinclair, the Attorney General expressed the opinion “that a
person acting under a commission from the sovereign of a foreign
nation is not amenable for what he does in pursuance of his commis-
sion, to any judicial tribunal of the United States. Actions against
Foreigners, 1 Opin. Att. Gen., 81. In 1871, in the case of the
Pacific Steamship Company, the Attorney General advised the Secretary
of State as follows: “ It has often been laid down that before a citizen
of one country is entitled to the aid of his government in obtaining
redress for wrongs done him by another government, he must have
sought redress in vain from the tribunals of the offending power. The
object of this rule plainly is to give the offending government an
opportunity of doing justice to the injured party in its own regular
way, and of thus avoiding all occasion for international discussion.”
New Granadian Passenger Tax, 13 Opin. Att. Gen. 547, 550.
.
In 1872 in the Case of the Steamer Tipitapa, the Attorney General
advised the Secretary of State, in a case where an officer with a party
of armed men, acting under the order of the judicial officer of the
port of Granada, had seized an American vessel at that port, the
seizure having been made for enforcing a supposed legal right, that
the “Government ought not to make reclamation in behalf of the
CHAP. I.]
67
UNDERHILL V. HERNANDEZ.
+
owner, as it is presumable that, if the proceedings were illegal, the
judicial tribunals of Nicaragua will afford redress.” 13 Opin. Att.
Gen., 554.
Conspicuous among the acts which are sheltered by this principle of
international law are those of military officers in command of the
armed forces of the state. According to one of the most recent com-
mentators upon international law (Hall's Treatise on International
Law, 3d ed., § 102), officers in command of armed forces of the state,
and their subordinates and soldiers, are not in any case amenable to
the civil or criminal laws of a foreign state, in respect to acts done
in their capacity as agents for which they would be punishable or
civilly responsible if done in their private capacity. This doctrine
was sanctioned by our Government in 1841, in the case of McLeod,
who was under indictment for murder in a State court of New York.
He had been engaged as a member of the Colonial forces in repelling
an attack made on Canada by an armed force from the United States,
and had assisted in the destruction of a vessel moored on the American
shore of the Niagara River, during which an American citizen was
killed. The British Government, through its minister at Washington,
demanded his release upon the ground that the destruction of the
vessel was a public act of persons in her Majesty's service, obeying
orders of the superior authorities, and, therefore, according to the
usages of nations, could only be the subject of discussion between the
two governments. Mr. Webster, then Secretary of State, acceded to
this view, stating that “the Government of the United States enter-
tains no doubt that, after this avowal of the transaction as a public
transaction, authorized and undertaken by the British authorities,
individuals concerned in it ought not, by the principles of public law
and the general usuage of civilized states, to be holden personally
responsible in the ordinary tribunals of law for their participation in
it."i The courts of New York refused to release McLeod at the
intervention of the General Government, and he was tried and
acquitted on proof of an alibi. The episode led to the enactinent by
Congress on August 29, 1842 (5 Stat. 539, c. 257, sec. 1), of the
1 Extract from a letter written by Daniel Webster, while Secretary of State,
under the direction of William Henry Harrison, President, dated at the Department
of State, Washington, April 24, 1841, addressed to Mr. H. S. Fox, Envoy Extraor-
dinary and Minister Plenipotentiary of hier Britannic Majesty, in reply to a letter
received from Mr. Fox, dated March 12, 1841, demanding "from the Government of
the United States, formally, in the name of the British Government, the immediate
release of Mr. Alexander McLeod” from arrest. The works of Daniel Webster, vol.
5, p. 253. The history of this case will be found in Mr. Webster's speech of the 6th
and 7th of April, 1846, in vindication of the treaty of Washington. The works of
Daniel Webster, vol. 5, p. 73.
68
STATES.
[PART I.
provision, now section 753, United States Revised Statutes, by which
the courts of the United States are authorized to issue a writ of habeas
corpus where a person, “ being a subject or citizen of a foreign state,
and domiciled therein, is in custody for an act done or omitted under
any alleged right; title, authority, privilege, protection or exemp-
tion claimed under the commission, or order, or sanction of any foreign
state, or under color thereof, the validity and effect whereof depend.
upon the law of nations.
Upon principle it cannot be important whether the acts of military
authorities, when called in question, are done by the authority of a de
jure or titular or of a de facto government. In either case, if they are
done in the legitimate exercise of belligerent powers, they are not
ordinarily attended with civil responsibility. This principle has been
recognized by the Supreme Court of the United States in cases in which
the civil liability of Confederate soldiers for acts done as members of the
insurgent forces, during the Rebellion, was under consideration. Ford
V. Surget, 97 U. S., 594; Freeland v. Williams, 131 U. S., 405. As
was decided in Williams v. Bruffy, 96 U. S., 176, 185, the government.
of the Confederate States was a de facto government of an inferior class.
“It never represented the nation, it never expelled the public authori-
ties from the country, it never entered into any treaties, nor was it:
ever recognized as that of an independent power.”
Ford v. Surget was an action brought by the plaintiff to recover the
value of a certain cotton destroyed during the war of the rebellion in
the State of Mississippi; and the court held that the defence that it was.
destroyed by the defendant, acting under the orders of the military
authorities of the Confederate States, was a good justification.
Freeland v. Williams was a bill in equity to invalidate a judgment
of the court of the State of West Virginia, obtained against the
defendant for a tort coinmitted by him as a soldier of the Confederate
Army. One of the questions discussed was whether the judgment was
void, inasmuch as it proceeded on the ground that the defendant was
civilly responsible as a trespasser for an act done by him as a Confed-
erate soldier in accordance with the usages of civilized war. In the
prevailing opinion, at p. 416, the court said : “ The case as it is now
presented to us shows that the trespass for which the original judgment.
was rendered was of that character; and it is argued with much force-
that the court which rendered that judgment had no jurisdiction in the
case, or, at all events, had no jurisdiction to render such a judgment,
and that it was therefore void. It follows from this view of the
subject that the court in which it was originally rendered had no
jurisdiction to set it aside or annul it without the aid of the constitu-
tional provision of the State of West Virginia, and that, on that
CHAP. I.]
69
UNDERHILL V. HERNANDEZ.
one
ground alone, the decree that we are called upon to review must be
affirined. In this view of the subject some of the judges of this
court concur.” Again, the court said, at p. 418: “If it be true that,
when the original act was presented to the Circuit Court of Preston
County, the thing complained of was found to be an act in accord-
ance with the usages of civilized war, during the existence of a war
flagrant in that part of the country, the court should have proceeded
no further, and its subsequent proceedings may be held to have
been without the authority of law. While it is not necessary to hold
that the judgment, as presented by the record, is absolutely void,
it may be conceded that a court of equity, in a proper case, can pre-
vent the enforcement of it." In a dissenting opinion Mr. Justice
HARLAN insisted that the government was not void, but conceded
that the complainant was not civilly responsible if his act was
of legitimate warfare as a soldier in the Confederate Army.
The acts of the defendant as a military commander of the revo-
lutionary forces in the civil war in Venezuela, although performed
before the revolution became successful, are sheltered by the same
immunities that would surround them if they had been performed sub-
sequently. The organization of which he was a part represented that
a kind of de facto government which is described in Williams v. Bruffy,
supra, p. 186: “Such as exists where a portion of the inhabitants of a
country have separated themselves from the parent state and estab-
lished an independent government. The validity of its acts, both
against the parent state and its citizens or subjects, depends en-
tirely upon its ultimate success. If it fail to establish itself per-
manently, all such acts perish with it. If it succeed, and becomes
recognized, its acts from the commencement of its existence are upheld
as those of an independent nation." By its success the revolutionary
party vindicated its claim to recognition as the legitimnate government
of Venezuela, and achieved a justification in the estimation of foreign
governments and their legal tribunals for the acts of its military
forces, as complete and ample as though those forces had been employed
by any sovereign power. After the recognition of the new government
by the United States, the courts of this country must accord to those
who throughout the progress of the civil war acted as the agents of the
people of Venezuela the position of official representatives of the state.
The act of recognition by our Government neither added to nor
detracted from the responsibility of the people of Venezuela for any
prior injuries which citizens of the United States may have suffered
on her soil from the hands of her de facto authorities, but these
responsibilities, in our judgment, are to be adjudicated by the two
governments by international action, according to the principles of
70
STATES.
[PART I.
international law applicable to such cases. For these reasons we con-
clude that the acts of the defendant were the acts of the government
of Venezuela, and as such are not properly the subject of adjudi-
cation in the courts of another government.
The various requests made to the court on behalf of the plaintiff
for instructions to the jury either involve propositions of law, which,
according to the views we have expressed, were properly refused, or
propositions for the submission of questions of fact, as to which there
was no conflict of evidence, and which therefore the trial judge was
not required to submit to the jury. If the trial judge in directing
a verdict for the defendant enunciated a rule which to its full extent
may not obtain, because it implies that the defendant would not be
civilly responsible, even in a court of Venezuela, for any act done
by him as a military commander, his disposition of the case was
nevertheless proper, and the result is not affected by his expression
of an erroneous opinion.
The judgment is affirmed.
SECTION 3. — ACQUISITION OF TERRITORY.
HARCOURT Y. GAILLARD.
SUPREME COURT OF THE UNITED STATES, 1827.
(12 Wheaton, 523.)
A British grant of land within the limits of the old Thirteen
Colonies was made to ancestor of the plaintiff on Jan. 24, 1777, and the
question in issue was whether the title to the land in controversy was
in the British government or not at the date of the grant.
Mr. Justice Johnson delivered the opinion of the court: ***
“ But this is not the material fact in the case; it is this, that this
limit was claimed and asserted by both of those states in the Declara-
tion of Independence, and the right to it was established by the
most solemn of all international acts, the treaty of peace. It has
never been admitted by the United States, that they acquired any-
thing by way of cession from Great Britain by that treaty. It has
been viewed only as a recognition of pre-existing rights, and on that
principle the soil and sovereignty, within their acknowledged limits,
were as much theirs at the declaration of independence as at this
1 Affirmed Underhill v. Hernandez, 1897, 168 U. S. 250: This case should be con-
sulted in connection with immunity of sovereigns from suit, extraterritorial acts by
order of State, infra. -Ed.
CHAP. I.]
71
JOHNSON V. M'INTOSH.
hour, By reference to the treaty, it will be found that it amounts
to a simple recognition of the independence and the limits of the
United States, without any language purporting a cession or relin-
quishment of right on the part of Great Britain. In the last article
of the treaty of Ghent will be found a provision respecting grants of
land made in the islands then in dispute between the two states,
which affords an illustration of this doctrine. By that article, a
stipulation is made in favor of grants before the war, but none for
those which were made during the war. And such is unquestion-
ably the law of nations. War is a suit prosecuted by the sword;
and where the question to be decided is one of original claim to ter-
ritory, grants of soil made flagrante bello by the party that fails
can only derive validity from treaty stipulations."
"1
JOHNSON AND GRAHAM'S LESSEE V. WILLIAM M’INTOSH.
SUPREME COURT OF THE UNITED STATES, 1823.
(8 Wheaton, 543.)
Judgment- MARSHALL, C. J.?
- The plaintiffs in this cause claim the land, in their declaration
mentioned, under two grants, purporting to be made, the first in
1773, and the last in 1775, by the chiefs of certain Indian tribes,
constituting the Illinois and the Praukeshaw nations; and the ques-
tion is, whether this title can be recognized in the courts of the
United States.
“The facts, as stated in the case argued, show the authority of the
chiefs who executed this conveyance so far as it could be given by
their own people; and likewise show, that the particular tribes for
whom these chiefs acted were in rightful possession of the land they
sold. The inquiry, therefore, is, in a great measure, confined to the
1 In More v. Steinbach, 1887, 127 U. S. 70, 80–81, it was held that only politi-
cal jurisdiction and sovereignty passed by cession and that to validate claim to a
grant of land from the public domain under Mexicans in California, delivery of pos-
session by Mexican officials was necessary to complete title; that Mexican jurisdiction
over California terminated July 7, 1846, and that courts recognize that dale fixed hy
the political party for termination of Mexican authority ; that the land laws do not re-
main in force after cession of territory and as in the case with laws of a non-political
nature; that no proceedings affecting the rights of the new sovereign over public
property can be taken except in pursuance of his authority ; that an act of Con-
gress (as Act of March 3, 1851) requiring the confirniation of all perfected as well as
imperfect claims to public land was constitutional. – ED.
2 Only so much of the decision is given as applies to discovery. — En.
72
[PART I.
STATES.
power of Indians to give, and of private individuals to receive, a
title which can be sustained in the courts of this country.
" As the rights of society, to prescribe those rules by which prop-
erty may be acquired and preserved is not, and cannot be, drawn
into question; as the title to lands, especially, is and must be
admitted to depend entirely upon the law of the nation in which
they lie, it will be necessary, in pursuing this inquiry, to examine,
not singly those principles of abstract justice, which the Creator
of all things has impressed on the mind of His creature man, and
which are admitted to regulate, in a great degree, the rights of
civilized nations, whose perfect independence is acknowledged ; but
those principles also which our own government has adopted in the
particular case, and given us as the rule for our decision.
“On the discovery of this immense continent the nations of
Europe were eager to appropriate to themselves so much of it as
they could respectively acquire. Its vast extent offered an ample
field to the ambition and enterprise of all; and the character and
religion of its inhabitants afforded an apology for considering them
as a people over whom the superior genius of Europe might claim
an ascendency. The potentates of the old world found no difficulty
in convincing themselves that they made ample compensation to
the inhabitants of the new, by bestowing on them civilization and
Christianity, in exchange for unlimited independence. But, as they
were all in pursuit of nearly the same object, it was necessary, in
order to avoid conflicting settlements, and consequent war with
each other, to establish a principle which all should acknowledge as
the law by which the rights of acquisition, which they all asserted,
should be regulated as between themselves. This principle was, that
discovery gave title to the government by whose subjects, or by
whose authority, it was made, against all other European govern-
inents, which title might be consummated by possession.
“ The exclusion of all other Europeans necessarily gave to the
nation making the discovery the sole right of acquiring the soil
from the natives, and establishing settlements upon it. It was a
right with which no Europeans could interfere.
It was a right which all asserted for themselves, and to the
assertion of which, by others, all assented.
« Those relations which were to exist between the discoverer and
the natives were to be regulated by themselves. The rights thus
acquired being exclusive, no other power could interpose between
them.
.66 On the establishment of these relations, the rights of the original
inhabitants were, in no instance, entirely disregarded, but were
CHAP. I.]
JOHNSON V. M'INTOSH.
73
necessarily, to a considerable extent, impaired. They were admitted
to be the rightful occupants of the soil, with a legal as well as just
claim to retain possession of it, and to use it according to their own
discretion; but their rights to complete sovereignty, as indepen-
dent nations, were necessarily diminished and their power to dispose
of the soil at their own will, to whomsoever they pleased, was
denied by the original fundamental principle, that discovery gave
exclusive title to those who made it.
" While the different nations of Europe respected the right of the
natives, as occupants, they asserted the ultimate dominion to be in
themselves; and claimed and exercised, as a consequence of this
ultimate dominion, a power to grant the soil, while yet in posses-
sion of the natives. These grants have been understood by all to
convey a title to the grantees, subject only to the Indian right of
occupancy.
“The history of America, from its discovery to the present day,
proves, we think, the universal recognition of these principles.
“Spain did not rest her title solely on the grant of the Pope. Her
discussions respecting boundary, with France, with Great Britain,
and with the United States, all show that she placed it on the rights
given by discovery. Portugal sustained her claim to the Brazils by
the same title:
“ France, also, founded her title to the vast territories she claimed
in America on discovery. However conciliatory her conduct to the
natives may have been, she still asserted her right of dominion over
a great extent of country not actually settled by Frenchmen, and
her exclusive right to acquire and dispose of the soil which remained
in the occupation of Indians. *
“ The States of Holland also made acquisitions in America, and
sustained their right on the common principle adopted by all
Europe. *
“ No one of the powers of Europe gave its full assent to this
principle more unequivocally than England. The documents upon
this subject are ample and complete. So early as the year 1496, her
monarch granted a commission to the Cabots, to discover countries
then unknown to Christian people, and to take possession of them
in the name of the king of England. Two years afterwards, Cabot
proceeded on this voyage, and discovered the continent of North
America, along which he sailed as far south as Virginia. To this
discovery the English trace their title.
c. In this first effort made by the English government to acquire
territory on the continent, we perceive a complete recognition of the
principle which has been mentioned. The right of discovery given
*
**
*
*
74
[PART 1.
STATES.
*
*
by this commission is confined to countries then unknown to all
Christian people;' and of these countries Cabot was empowered to
take possession in the name of the king of England, thus asserting
a right to take possession notwithstanding the occupancy of the
natives, who were heathen, and, at the same time, admitting any
prior title of any Christian people who may have made a previous
discovery. *
“ Thus, all nations of Europe, who have acquired territory on this
continent, have asserted in themselves and have recognized in others,
the exclusive right of the discoverer to appropriate the lands occu-
pied by the Indians. *
“ The power now possessed by the government of the United States
to grant lands, resided, while we were colonies, in the crown, or its
grantees.
“The validity of the titles given by either has never been questioned
in our courts. It has been exercised uniformly over territory in
possession of the Indians. The existence of this power must negative
the existence of any right which may conflict with, and control it.
An absolute title to lands cannot exist, at the same time, in different
persons, or in different governments.
“ An absolute, must be an exclusive title, or at least a title which
excludes all others not compatible with it. All our institutions recog-
nize the absolute title of the crown, subject only to the Indian right
of occupancy, and recognize the absolute title of the crown to ex-
tinguish that right. This is incompatible with an absolute and
complete title in the Indians.” 1
1 See further on the general question, Jones v. U. S. supra; Stockton v. Williams,
1845, 1 Doug. (Mich.) 546 ; Montgomery v. Ives, 1844, 13 S. & M.
Ives, 1844, 13 S. & M. Miss.) 161; Mitchel
v. U. S., 1835, 9 Pet. 711, 746-761 ; U. S. v. Fernandez, 1836, 10 Pet. 303; Shively v.
Bowlby, 1893, 152 U. S. 1, 15, 50; Ex Parte Ortiz, 1900, 100 Fed. 955.
For acquisition of territory by "alluvium and increment,” The Anna, 1805, 5 C.
Rob. 373; by long possession and prescription, Rhode Island v. Massachusetts, 1846,
4 How. 591 ; Virginia v. Tennessee, 1892, 148 U. S. 503, 522–524, and the authorities
there cited.
For non-judicial precedents, see the controversy between Gt. Britain and U. S. rela-
: tive to Oregon, 1845–46, Dana's Wheaton, 250-254; Foster's Am. Dip. 302–313; the
Delagoa Bay controversy, 1872, Hall's Int. Law, 122; The Santa Lucia dispute,
1 Phillimore, Int. Law, 368.
At the present time it is generally conceded that discovery alone is not enough to
give title to territory; it must be followed by actual occupation.
In regard to the extent of the interior country to which the occupation of the
seacoast gives title, the extravagant claim was put forward in some of the earlier
charters, granting lands in North America, that such right extended from the Atlantic
to the Pacific Ocean. A more reasonable rule was laid down by the U. S. Commis-
sioners, appointed to settle the boundary of Louisiana, namely, "that when any Euro-
pean nation takes possession of any extent of seacoast, that possession is understood
CHAP. I.]
75
FOSTER V. NEILSON,
SECTION 4. — BOUNDARIES.
FOSTER & ELAM V. NEILSON.
SUPREME COURT or THE UNITED STATES, 1829.
(2 Peters, 253.)
This was the case of lands in the disputed territory between the
rivers Iberville and Perdido granted to the plaintiffs by the Spanish
governor. The defendant alleged that by the treaty of Ildefonso,
1800, this territory was ceded by Spain to France, and in 1803, by
France to the United States. And it was a question of the inter-
pretation of the treaty of cession.
The court refused to go into the merits of the treaty, holding
itself bound by the decision of the political department of the govern-
inent, as appears from the following extract from the judgment of
MARSHALL, C. J.:-
“* * * In a controversy between two nations concerning national
boundary, it is scarcely possible that the courts of either should
refuse to abide by the measures adopted by its own government.
“There being no common tribunal to decide between them, eaclı
determines for itself on its own rights, and if they cannot adjust their
differences peaceably, the right remains with the strongest. The
judiciary is not that department of the government to which the
assertion of its interests against foreign powers is confided ; and its
duty commonly is to decide upon individual rights, according to those
principles which the political departments of the nation have estab-
lished. If the course of the nation has been a plain one, its courts
would'hesitate to pronounce it erroneous.
“We think, then, however individual judges might construe the
treaty of St. Ildefonso, it is the province of the court to conform its
decisions to the will of the legislature, if that will has been clearly
expressed. * * *
“ After these acts of sovereign power over the territory in dispute,
asserting the American construction of the treaty by which the
government claims it, to maintain the opposite construction in its
own courts would certainly be an anomaly in the history and practice
of nations. If those departments which are intrusted with the foreign
as extending into the interior country, to the source of the rivers emptying themselves
within that coast, to all their branches, and the country they cover, and to give it a
right in exclusion of all other nations to the same. - Ed.
76
STATES.
(PART I.
v
intercourse of the nation, which assert and maintain its interests
against foreign powers, have unequivocally asserted its right of
dominion over a country of which it is in possession, and which it
claims under a treaty; if the legislature has acted on the construction
thus asserted, it is not in its own courts that this construction is to be
denied. A question like this respecting the boundaries of nations, is,
as has been truly said, more a political than a legal question; and in
its discussion the courts of every country must respect the pronounced
will of the legislature.” 1
UNITED STATES V. TEXAS.
SUPREME COURT OF THE UNITED STATES, 1891.
(143 United States, 621.)
Mr. Justice HARLAN delivered the opinion of the Court.
This suit was brought by original bill in this court pursuant to the
act of May 2, 1890, providing a temporary government for the territory
of Oklahoma The 25th section recites the existence of a controversy
1 See also, U. S. v. Arredondo, 1832, 6 Pet. 691; Gracia v. Lee, 1838, 12 Pet. 511.
"Whether or not Greer County is part of the State of Texas depends upon where
the northern boundary line of our State, dividing it from Indian Territory, should be
located. This is a question to be settled by the political and not the judicial depart-
ment of our State government. It is judicially known to us that the political authority
has always claimed the territory composing Greer County as part of the domain of our
State, and has exercised acts of control over it; such as organizing it into a county
and attaching it to another of our counties for judicial purposes, &c. We cannot under-
take to limit the jurisdiction thus recognized and asserted by the political depart-
ment, and until that department ceases to exercise such authority we must treat
this county as subject to the jurisdiction of the State of Texas. Bedel v. Loomis, 11
N. H. 15; State v. Dunwell, 3 R. I. 127; Guadalupe Co. v. Wilson Co., 58 Tex. 228;
Foster v. Neilson, 2 Pet. 254; United States v. Arredondo, 6 Pet. 691." — WILLIE, C. J.,
in Harrold v. Arrington, 1885, 64 Tex. 232, 233.
In re Cooper, 1891, 143 U. S. 472, the court held inter alia that a treaty is the law of
the land where it prescribes a rule for determining rights of citizens or subjects; that
courts may not determine whether Government's action is proper in pending negotia-
tions; that the Supreme Court has no power to determine political questions and that
courts are bound by the Government's act asserting dominion over any part of the
(Behring) sea.
So in the James G. Swan, 1892, 50 Fed. 111, the court held that the President and
Congress are vested with all the responsibility and powers of the Government for
determination of questions as to the maintenance and extension of our national
dominion, and inasmuch as they had assumed jurisdiction and sovereignty over the
waters of Behring Sea outside of the three-mile limit, the people and the courts are
bound by such action. -Ed.
CHAP. I.]
77
UNITED STATES V. TEXAS.
between the United States and the State of Texas as to the ownership
of what is designated on the map of Texas as Greer County, and pro-
vides that the act shall not be construed to apply to that county until the
title to the same has been adjudicated and determined to be in the
United States. In order that there inight be a speedy and final judi-
cial determination of this controversy the Attorney General of the
United States was authorized and directed to commence and prosecute
on behalf of the United States a proper suit in equity in this court
against the State of Texas, setting forth the title of the United States
to the country lying between the North and South Forks of the Red
River where the Indian Territory and the State of Texas adjoin, east
of the one hundredth degree of longitude, and claimed by the State of
Texas as within its boundary. 26 Stat. 81, 92, c. 182, § 25.1
The relief asked is a decree determining the true line between the
United States and the State of Texas, and whether the land constitut-
ing what is called “Greer County," is within the boundary and juris-
diction of the United States or of the State of Texas. The Government
prays that its rights, as asserted in the bill, be established, and that it
have such other relief as the nature of the case may require.
In support of the contention that the ascertainment of the boundary
between a territory of the United States and one of the States of the
Union is political in its nature and character, and not susceptible of
judicial determination, the defendant cites Foster v. Neilson, 2 Pet. 253,
307, 309; Cherokee Nation v. Georgia, 5 Pet. 1, 21; United States v.
Arredondo, 6 Pet. 691, 711; and Garcia v. Lee, 12 Pet. 511, 517.2
In United States v. Arredondo the court, referring to Foster v. Neil-
son, said: “This court did not deem the settlement of boundaries a
judicial, but a political question that it was not its duty to lead, but
to follow the action of the other departments of the Government."
The same principles were recognized in Cherokee Nation v. Georgia
and Garcia v. Lee,
These authorities do not control the present case. They relate to
questions of boundary between independent nations, and have no ap-
plication to a question of that character arising between the general
Government and one of the States composing the Union, or between two
States of the Union. By the Articles of Confederation, Congress was
made “the last resort on appeal in all disputes and differences" then
subsisting or which thereafter might arise “between two or more
States concerning boundary, jurisdiction or any other cause whatever;
the authority so conferred to be exercised by a special tribunal to be
i See Harrold v. Arrington, 1885, 64, Tex. 233, ante, for the Texan claim. Ed.
2 The succeeding paragraph quoting passage from Foster v. Neilson, printed ante, is
omitted. --- Ep.
78
.
[PART I.
STATES.
organized in the mode prescribed in those Articles, and its judginent
to be final and conclusive. Art. 9. At the time of the adoption of
the Constitution there existed, as this court said in Rhode Island v.
Massachusetts, 12 Pet. 657, 723, 724, controversies between eleven
States, in respect to boundaries, which had continued from the first
settlement of the colonies. The necessity for the creation of some
tribunal for the settlement of these and like controversies that might
arise, under the new government to be formed, must, therefore, have
been perceived by the frainers of the Constitution, and, consequently,
among the controversies to which the judicial power of the United
States was extended by the Constitution, we find those between two or
more States. And that a controversy between two or more States, in
respect to boundary, is one to which, under the Constitution, such
judicial power extends, is no longer an open question in this court.
The cases of Rhode Island v. Massachusetts, 12 Pet. 657; New Jersey v.
New York, 5 Pet. 284, 290; Missouri v. Iowa, 7 How. 660; Florida
v. Georgia, 17 How. 478; Alabama v. Georgia, 23 How. 505; Virginia .
v. West Virginia, 11 Wall. 39, 55; Missouri v. Kentucky, 11 Wall. 395;
Indiana v. Kentucky, 136 U. S. 479; and Nebraska v. Iowa, ante, 359,
were all original suits, in this court, for the judicial determination of
disputed boundary lines between States. In New Jersey y. New York,
5 Pet. 284, 290, Chief Justice Marshall said: “It has then been settled
by our predecessors, on great deliberation, that this court may exercise
its original jurisdiction in suits against a State, under the authority
conferred by the Constitution and existing acts of Congress.” And in
Virginia v. West Virginia, it was said by Mr. Justice Miller to be the
established doctrine of this court “that it has jurisdiction of questions
of boundary between two States of the Union, and that this jurisdiction
is not defeated, because in deciding that question it becomes necessary
to examine iuto and construe compacts or agreements between those
States, or because the decree which the court may render, affects the
territorial limits of the political jurisdiction and sovereignty of the
States which are parties to the proceeding.” So, in Wisconsin v. Peli-
can Ins. Co., 127 U. S. 265, 287, 288; "By the Constitution, therefore,
this court has original jurisdiction of suits brought by a State against
citizens of another State, as well as of controversies between two States.
As to controversies between two or more States. The most
numerous class of which this court has entertained jurisdiction is that
of controversies between two States as to the boundaries of their terri-
tory, such as were determined before the Revolution by the King in
Council, and under the Articles of Confederation (while there was
no national judiciary) by committees or commissioners appointed by
Congress."
*
*
*
CHAP. I.]
79
UNITED STATES V. TEXAS. .
In view of these cases, it cannot, with propriety, be said that a
question of boundary between a Territory of the United States and
one of the States of the Union is of a political nature, and not suscep-
tible of judicial determination by a court having jurisdiction of such a
controversy. The important question, therefore, is, whether this court
can, under the Constitution, take cognizance of an original suit brought
by the United States against a State to determine the boundary be-
tween one of the Territories and such State. Texas insists that no
such jurisdiction has been conferred upon this court, and that the only
mode in which the present dispute can be peaceably settled is by agree-
ment, in some form, between the United States and that State. Of
course, if no such agreement can be reached -- and it seems that one is
not probable — and if neither party will surrender its claim of authority
and jurisdiction over the disputed territory, the result, according to
the defendant's theory of the Constitution, must be that the United
States, in order to effect a settlement of this vexed question of boun-
dary, must bring its suit in one of the courts of Texas — that State
consenting that its courts may be open for the assertion of claims
against it by the United States -or that, in the end, there must be a
trial of physical strength between the government of the Union and
Texas. The first alternative is unwarranted both by the letter and
spirit of the Constitution. Mr. Justice Story has well said: "It
scarcely seems possible to raise a reasonable doubt as to the propriety
of giving to the national courts jurisdiction of cases in which the
United States are a party. . In would be a perfect novelty in the
history of national jurisprudence, as well as of public law, that a sov-
ereign had no authority to sue in his own courts. Unless this power
were given to the United States, the enforcement of all their rights,
powers, contracts and privileges in their sovereign capacity would be
at the mercy of the States. They inust be enforced, if at all, in the
State tribunals.” Story Const., § 1674. The second alternative, above
mentioned, has no place in our constitutional system, and cannot be
contemplated by any patriot except with feelings of deep concern.
The cases in this court show that the framers of the Constitution
did provide, by that instrument, for the judicial determination of all
cases in law and equity between two or inore States, including those
involving questions of boundary. Did they omit to provide for the
judicial determination of controversies arising between the United
States and one or more of the States of the Union ? This question is
in effect answered by United States v. North Carolina, 136 U. S., 211.
That was an action of debt brought in this court by the United States
against the State of North Carolina, upon certain bonds issued by that
State. The State appeared, the case was determined here upon its
80
STATES.
[PART 1.
merits, and judgment was rendered for the State. It is true that no
question was made as to the jurisdiction of this court, and nothing was
therefore said in the opinion upon that subject. But it did not escape
the attention of the court, and the judgment would not have been ren-
dered except upon the theory that this court has original jurisdiction
of a suit by the United States against a State. As, however, the
question of jurisdiction is vital in this case, and is distinctly raised,
it is prop.-r to consider it upon its merits.
The Constitution extends the judicial power of the United States
“to all cases, in law and equity, arising under this Constitution, the
laws of the United States and treaties made, or which shall be inade,
under their authority; to all cases affecting ambassadors, other public
ministers and consuls; to all cases of admiralty and maritime juris-
diction; to controversies to which the United States shall be a party;
to controversies between two or more States; between a State and citi-
zens of another State; between citizens of different States ; between
citizens of the same State claiming lands under grants of different
States, and between a State or the citizens thereof and foreign States,
citizens or subjects.
"In all cases, affecting ambassadors, or other public ininisters and
consuls, and those in which a State shall be party, the Supreme Court
shall have original jurisdiction. In all the other cases before men-
tioned, the Supreme Court shall have appellate jurisdiction, both as to
law and fact, with such exceptions and under such regulations as the
Congress shall make.” Art. 3, $ 2. “The judicial power of the United
States shall not he construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens
of another State, or by citizens or subjects of any foreign State.” 11th
Amendment.
It is apparent upon the face of these clauses that in one class of
cases the jurisdiction of the courts of the Union depends "on the
character of the cause, whoever may be the parties," and, in the other,
on the character of the parties, whatever may be the subject of contro-
versy. Cohens v. Virginia, 6. Wheat. 264, 378, 393. The present suit
falls in each class, for it is, plainly, one arising under the Constitution,
laws and treaties of the United States, and, also, one in which the
Uuited States is a party. It is, therefore, one to which, by the express
words of the Constitution, the judicial power of the United States
extends. That a Circuit Court of the United States has not jurisdic-
tion, under existing statutes, of a suit by the United States against a
State, is clear; for by the Revised Statutes it is declared
done by the Judiciary Act of 1789 -- that “the Supreme Court shall
have exclusive jurisdiction of all controversies of a civil nature where
as was
CHAP. I.]
81
UNITED STATES V. TEXAS.
a State is a party, except between a State and its citizens, or between a
State and citizens of other States or aliens, in which latter cases it
shall have original, but not exclusive, jurisdiction." Rev. Stat. $ 687;
Act of Sept. 24, 1789, c. 20, $ 13; 1 Stat. 80. Such exclusive juris-
diction was given to this court, because it best comported with the
dignity of a State, that a case in which it was a party should be deter-
inined in the highest, rather than in a subordinate judicial tribunal of
the nation. Why then may not this court take original cognizance of
the present suit involving a question of boundary between a Territory
of the United States and a State ?
The words, in the Constitution, “in all cases
in which a
State shall be party, the Supreme Court shall have original jurisdic-
tion,” necessarily refer to all cases mentioned in the preceding clause
in which a State may be made, of right, a party defendant, or in which
a State may, of right, be a party plaintiff. It is admitted that these
words do not refer to suits brought against a State by its own citizens
or by citizens of other States, or by citizens or subjects of foreign
states, even where such suits arise under the Constitution, laws and
treaties of the United States, because the judicial power of the United
States does not extend to suits of individuals against States.
Hans v.
Louisiana, 134 U. S. 1, and authorities there cited ; North Carolina
v. Temple, 134 U. S. 22, 30. It is, however, said that the words last
quoted refer only to suits in which a State is a party, and in which,
also, the opposite party is another State of the Union or a foreign
state. This cannot be correct, for it must be conceded that a State
can bring an original suit in this court against a citizen of another
State. Wisconsin v. Pelican Ins. Co., 127 U., S. 265, 287. Besides,
unless a State is exempt altogether from suit by the United States, we
do not perceive upon what sound rule of construction suits brought by
the United States in this court — especially if they be suits the correct
decision of which depends upon the Constitution, laws or treaties of
the United States - are to be excluded from its original jurisdiction
as defined in the Constitution. That instrument extends the judicial
power of the United States “to all cases,” in law and equity, arising
under the Constitution, laws and treaties of the United States, and to
controversies in which the United States shall be a party, and confers
upon this court original jurisdiction "in all cases" "in which a State
shall be party," that is, in all cases mentioned in the preceding clause
in which a State may, of right, be made a party defendant, as well as in
all cases in which a State may, of right, institute a suit in a court of
the United States. The present case is of the former class. We can-
not assume that the framers of the Constitution, while extending the
judicial power of the United States to controversies between two or
6
82
STATES.
[PART 1.
more States of the Union, and between a State of the Union and
foreign states, intended to exempt a State altogether from suit by the
General Government. They could not have overlooked the possibility
that controversies, capable of judicial solution, might arise between the
United States and some of the States, and that the permanence of
the Union might be endangered if to some tribunal was not intrusted
the power to determine them according to the recognized principles of
law. And to what tribunal could a trust so momentous be more
appropriately committed than to that which the people of the United
States, in order to form a more perfect Union, establish justice and
insure domestic tranquillity, have constituted with authority to speak
for all the people and all the States, upon questions before it to which
the judicial power of the nation extends? It would be difficult to
suggest any reason why this court should have jurisdiction to determine
questions of boundary between two or more States, but not jurisdiction
of controversies of like character between the United States and a
State.
Mr. Justice Bradley, speaking for the court in Hans v. Louisiana,
134 U. S. 1, 15, referred to what had been said. by certain statesmen
at the time the Constitution was under submission to the people, and
said: “The letter is appealed to now, as it was then, as a ground
for sustaining a suit brought by an individual against a State. * * *
The truth is, that the cognizance of suits and actions unknown to the
law, and forbidden by the law, was not contemplated by the Constitu-
tion when establishing the judicial power of the United States. Some
things, undoubtedly, were made justiciable which were not known as
such at the coinmon law; such, for example, as controversies between
States as to boundary lines, and other questions admitting of judicial
solution. And yet the case of Penn v. Lord Baltimore, 1 Ves. Sen
444, shows that some of these unusual subjects of litigation were not
unknown to the courts even in colonial times; and several cases of the
same general character arose under the Articles of Confederation, and
were brought before the tribunal provided for that purpose in those
articles. 131 U. S. App. 50. The establishment of this new branch
of jurisdiction seemed to be necessary from the extinguishment of dip-
lomatic relations between the States.” That case, and others in this
court relating to the suability of States, proceeded upon the broad
ground that “it is inherent in the nature of sovereignty not to be
amenable to the suit of an individual without its consent."
The question as to the suability of one government by another gov-
ernment rests upon wholly different grounds. Texas is not called to
the bar of this court at the suit of an individual, but at the suit of the
government established for the common and equal benefit of the people
CHAP. I.]
83
UNITED STATES V. TEXAS.
of all the States. The submission to judicial solution of controversies
arising between these two governments, “each sovereign, with respect
to the objects committed to it, and neither sovereign with respect to
the objects committed to the other," McCulloch v. State of Maryland,
4 Wheat. 316, 400, 410, but both subject to the supreme law of the
land, does no violence to the inherent nature of sovereignty. The
States of the Union have agreed, in the Constitution, that the judicial
power of the United States shall extend to all cases arising under the
Constitution, laws and treaties of the United States, without regard
to the character of the parties (excluding, of course, suits against a
State by its own citizens or by citizens of other States, or by citizens
or subjects of foreign states), and equally to controversies to which
the United States shall be a party, without regard to the subject of
such controversies, and that this court may exercise original jurisdic-
tion in all such cases, “in which a State shall be party," without ex-
cluding those in which the Uuited States may be the opposite party.
The exercise, therefore, by this court, of such original jurisdiction in a
suit brought by one State against another to determine the boundary
line between them, or in a suit brought by the United States against
a State to determine the boundary between a Territory of the United
States and that State, so far from infringing, in either case, upon the
sovereignty, is with the consent of the State sued. Such consent was
given by Texas when admitted into the Union upon an equal footing
in all respects with the other States.
We are of opinion that this court has jurisdiction to determine the
disputed question of boundary between the United States and Texas.
It is contended that, even if this court has jurisdiction, the dispute
as to boundary must be determined in an action at law, and that the
act of Congress requiring the institution of this suit in equity is
unconstitutional and void as, in effect, declaring that legal rights shall
be tried and deterinined as if they were equitable rights. This is not
a new question in this court. It was suggested in argument, though
not decided, in Fowler v. Lindsey, 3 Dall. 411, 413. Mr. Justice
Washington, in that case, said: “I will not say that a State could sue
at law for such an incorporeal right as that of sovereignty and juris-
diction ; but even if a court of law would not afford a remedy, I can
ason why a remedy should not be obtained in a court of equity.
The State of New York might, I think, file a bill against the State of
Connecticut, praying to be quieted as to the boundaries of the disputed
territory; and this court, in order to effectuate justice, might appoint
commissioners to ascertain and report those boundaries. But the
question arose directly in Rhode Island v. Massachusetts, 12 Pet. 657,
734, which was a suit in equity in this court involving the boundary
see no
84
[PART I.
STATES.
line between two States. The court said: “No court acts differently
in deciding on boundary between States than on lines between separate
tracts of land ; if there is uncertainty where the line is, if there is a
confusion of boundaries by the nature of interlocking grants, the oblit-
eration of marks, the intermixing of possession under different proprie-
tors, the effects of accident, fraud or time or other kindred causes, it
is a case appropriate to equity. An issue at law is directed, a com-
mission of boundary awarded; or, if the court are satisfied without
either, they decree what and where the boundary of a farm, a manor,
a province or a State is and shall be.' When that case was before the
court at a subsequent term, Chief Justice Taney, after stating that the
case was of peculiar character, involving a question of boundary between
two sovereign States, litigated in a court of justice, and that there were
no precedents as to forms and modes of proceedings, said: “The sub-
ject was, however, fully considered at January term, 1838, when a
motion was made by the defendant to dismiss this bill. Upon that.
occasion the court determined to frame their proceedings according to
those which bad been adopted in the English courts, in cases most
analogous to this, where the boundaries of great political bodies had
been brought into question. And, acting upon this principle, it was
then decided, that the rules and practice of the Court of Chancery
should govern in conducting this suit to a final issue. The reasoning
vzpon which that decision was founded is fully stated in the opinion
then delivered; and upon re-examining the subject, we are quite satis-
fied as to the correctness of this decision." 14 Pet. 210, 256. The
above cases, New Jersey v. New York, Missouri v. Iowa, Florida v.
Georgia, Alabama v. Georgia, Virginia v. West Virginia, Missouri v.
Kentucky, Indiana v. Kentucky, Nebraska 'v. Iowa, were all original.
suits in equity in this court, involving the boundary of States. In
view of these precedents, it is scarcely necessary for the court to
examine this question anew. Of course, if a suit in equity is appro-.
priate for determining the boundary between two States, there can be
no objection to the present suit as being in equity and not at law. It.
is not a suit simply to determine the legal title to, and the ownership
of, the lands constituting Greer County. It involves the larger ques--
tion of governmental authority and jurisdiction over that territory.
The United States, in effect, asks the specific execution of the terms
1 These, together with Handly v. Anthony, 1820, 5 Wheat. 374, are the leading cases.
on river boundaries, as well as on the question of jurisdiction. The exact references
to the reports in which they are found are given in an earlier section of the opinion,
suprit.
It may be noted that Foster v. Neilson and cases cited were instances of conventional.
or artificial boundaries; these, on the contrary, are cases of rivers or natural bound-
aries. — Ed.
CHAP. I.]
85
UNITED STATES OF AMERICA V. PRIOLEAU.
of the treaty of 1819; to the end that the disorder and public mischiefs
that will ensue from a continuance of the present condition of things
may be prevented. The agreement; emrbodied in the treaty, to fix the
lines with precision, and to place landmarks to designate the limits of
the two contracting nations, could not well be enforced by an action at
law. The bill and amnended bill make a case for the inter position of a
court of equity.
Demurrer overruled. 1
SECTION 5. -CHANGE OF SOVEREIGNTY.
(a) Effect on Public Rights and Obligations.
UNITED STATES OF AMERICA V. PRIOLEAU.
CHANCERY, 1866.
.
(35 Law Journal, Chancery, N. S.)
Toward the end of the civil war in the United States (1861–
1865), the Confederate government having got possession of 1,365
bales of cotton in Texas, had it shipped from Galveston to Havana,
where it was consigned to an agent of Fraser & Co. On the 10th of
June, 1865, the cotton was shipped from Havana to Liverpool, con-
signed to the defendants Fraser, Trenholm & Co. (Prioleau being
the English member of the firm), and was of the value of 40,0001.
Fraser, Trenholm & Co. had made a contract with one M'Rae, gen-
eral European agent of the Confederate government, to build eight
steamships to be employed in transporting cotton and other produce
from the Confederate States. They were to receive all consignments
of said merchandise and sell the same according to the instructions
they should receive for that purpose. The company were to
advance the expenses of transportation, and were then to recoup
themselves out of the proceeds of the consignments. They had
already expended 20,0007 for sailing expenses, to say nothing of the
cost of the ships.
1 The dissenting opinion of Fuller,,C.J., with whom Lamar, J.., concurred, is omitted.
Grants of land within a district made by a ştate exercising de fucto sovereignty over
the district, in the mistaken belieľ that the district is included within its boundaries
as ascertained by compromise between the States are void (Coffee v. Grorer; 1887,
123 U. S. 1, reversing same case as reported in 19 Fla. 61 and 20: id. 64). - ED.
For a brief but, admirable statement of " Boundary Controversies and Commissions
in the United States," see A, B. Hart's Foundations of American Foreign Policy,
1901, pp. 91–107.
.
86
[PART 1.
STATES.
When this consignment of cotton arrived in Liverpool, the Con-
federate government had been dissolved, and the Confederate States
had submitted to the authority of the United States government;
and the latter government filed a bill praying to have the cotton
delivered up to them, and for an injunction and receiver.1
Judgment.— WOOD, V. C.: “There are one or two points which, I
think, are tolerably clear in this case. The first point is with reference
to the right of the United States of America, at this moment, to the
cotton, subject to the agreement. I treat it first in that way. It
has scarcely been disputed on the present argument, and could
hardly be disputed at any further stage of the inquiry, that the
right is clear and distinct, because the cotton in question is the
admitted result of funds raised by a de facto government, exercising
authority in what were called the Confederate States of America;
that is to say, several of those states which, in union, formerly con-
stituted the United States, and which now, in fact, constitute them ;
and that de facto government, exercising its powers over a consider-
erable number of states (more than one would be quite enough),
raises money—be it by voluntary contribution, or be it by taxation, is.
not of much importance. The defendant Prioleau, in cross-exam-
ination, admits that they exercised considerable power of taxation;
and with those means, and claiming to exercise that authority, they
obtained from several of the States of America funds by which
they purchased this cotton for the use of the de facto government.
That being so, and that de facto government being displaced, I
apprehend it is quite clear that the United States of America (that
is to say, the government which has been successful in displacing
the de facto government, and whose authority was usurped or dis-
placed, or whatever term you may choose to apply to it), the au-
thority being restored, stand, in reference to this cotton, in the posi-
tion of those who have acquired, on behalf of the citizens of the
United States, a public property; because otherwise, as has been
well said, there would be no body who could sue in respect of, or
deal with, property that has been raised, not by contribution of any
one sovereign state (which might raise a question, owing to the
peculiar constitution of the Union, if it had been raised in Virginia
or Texas, or in any given State), but the cotton is the product of
levies, voluntary or otherwise, on the members of the several states
which have united themselves into the Confederate States of
America, and which are now under the control of the present plaint-
iffs, and are represented, for all purposes, by the present plaintiffs.
That being so, the right of the present plaintiffs to this cotton, sub-
1 Statement of the case substituted by the Editor.
CHAP. I.]
87
UNITED STATES OF AMERICA V. PRIOLEAU.
1
A
ject to this agreement is, I think, clear, because the agreement is
an agreement purporting to be made on behalf of the then de facto
existing government, and not of any other persons. That case of
The King of the Two Sicilies and the case of The King of Spain,
and other cases of the same kind, which it is not necessary to go
through, show that whenever a government de facto has obtained
the possession of property, as a government, and for the purposes of
the government de facto, the government which displaces it suc-
ceeds to all the rights of the former government, and, among other
things, succeeds to the property they have so acquired.
“Now I come to the second head of the question, and I confess at
this moment, as at present advised, I do not feel much doubt on the
subject, namely, the question whether or not, taking this property,
they must or must not take it subject to the agreement. It appears
to me, at present, they must take it subject to the agreement. It is
an agreement entered into by a de facto governinent, treating with
persons who have a perfect right to deal with them. I apprehend if
they had been American subjects they might do so. One of them.
Prioleau, is not an American subject; he is a naturalized British
subject; he would have a perfect right to deal with a de facto
government; and it cannot be compared with any one of those cases
Mr. Gifford put, of persons taking the property of another with
knowledge of the rights of that other. That is a species of argu-
ment that cannot be applied to international cases of this descrip-
tion, and for a very good reason; if so, there would be no possibility
during the existence of a government de facto of airy person dealing
with that government in any part of the world. The courts of
every country recognize a government de facto to this extent, for
the purpose of saying—you are established de facto, if you are
carrying on the course of government, if you are allowed by those
whom you affect to govern to levy taxes on them, and they pay
those taxes, and contribution is made accordingly, or you are acquir-
ing proprety, and are at war, having the rights of belligerents, not
being treated as mere rebels by persons who say they are the
authorized government of the country. Other nations can have
nothing to do with that matter. They say we are bound to protect
our subjects who treat with the existing government; and we inust
give to those subjects, in our country, every right which the govern-
ment de facto can give to them, and must not allow the succeeding
government to assert any right as against the contracts which have
1 Cases referred to: King of the Two Sicilies v. Willco.z, 1851; 1 Sim. N. S. 301,
3:32–336, where cases are elaborately cited; Hullett v. King of Spain, 1828, 1 Dow & CI.
109 (also reported in 2 Bligh, N. S. 31, and 4 Russ. 225.) - ED.
88
STATES,
(PART I..
*
been entered into: by the government de facto; but, as expressed by
Lord Cranworth in the case referred to, they must succeed in every
respect to the property as they find it, and subject to all the condi-
tions and liabilities to which it is subject and by which they are
bound. Otherwise, I do not see any answer to Mr. James's illus-
tration, and I do not see why there should not have been a bill filed
to have the Alabama delivered
up;
* * because on the theory of
the present plaintiffs, it was their property just as much as their
cotton is now. If the case had been this (and it is the only case I
can consider as making any difference, but that difference would be
fatal to the plaintiffs? case in another point of view): if they had
been a set of marauders, a set of robbers (as was said to be the case
in the kingdom of Naples, truly or untruly), devastating the country,
and acquiring property in that way, and ther affecting to deal with
your subjects in England, it would not be the United States, but the
individuals who had been robbed and suffered, who could come as
plaintiffs. The United States could only come to claim this because
it has been raised by public contribution; and although the United
States, who are now the government de facto and de jure, claim it
as public property, yet it would not be public property unless it
was raised, as I have said, by exercising the rights of government,
and not by means of mere robbery and violence.
“I confess, therefore, I have so little doubt, that this agreement
is one that would be binding on the plaintiffs, that I cannot act
against these gentlemen without securing to them the reasonable
benefit of this agreement; and I cannot put them under any terms
which would exclude them from the reasonable benefit of what they
are entitled to, and must be held entitled to, as I think, at the hear-
ing of the cause."
[The Vice Chancellor then proceeds to decree that the cotton was
now the property of the United States Government, but that they
must take it subject to the obligations entered into respecting it by
the de facto Confederate Government.
The defendant Prioleau was appointed receiver, with power to sell
the cotton, but he was required to give security for its value ultra
the 20,0001., the amount of the defendant's lien.']
1 In the case of the United States of America v. McRae, 1869, L. R. 8 Eq.
69, JAMES, V. C., held, “that, upon the suppression of a rebellion, the restored
legitimate government is entitled, as of right, to all moneys, goods, and treasure
which were public property of the government at the time of the outbreak, such
right being in no way affected by the wrongful seizure of the property by the usurp-
ing government.
“But with respect to property which has been voluntarily contributed to, or
CHAP. ]
ly
UNITED STATES V. SMITA.
UNITED STATES V. SMITH.
UNITED STATES, CIRCUIT COURT, EASTERN DISTRICT OF VIRGINIA, 1877.
(1 Hughes Reports, 347.)
HUGHES, J. -- This case is not before me upon issues of fact, but
upon faets admitted by demurrer, and upon the law as arising upon
the facts: so admitted.
The allegations of the declaration are these:
1st. That the defendant was indebted to the insurgent government
of Virginia, in the sum of $5,000, on the 2d day of April, 1865.
2d. That he promised the said government to pay the said indebt-
edness.
3d. That the said insurgent government was, on the 9th April, 1865,
overthrown by the United States by force of arms, and the lawful
authority of the United States re-established in the State ; and,
4th. That the defendant, after the said 9th day of April, 1865, in
consideration of the premises, undertook and promised to pay to the
United States the said sum of $5,000.
The demurrer admits these allegations to be true; yet denies that
they constitute a case of indebtedness by the defendant to the United
States, and prays judgment, &c.
In technical strictness, by admitting the truth of these several allega-
tions, the demurrer admits the case of the plaintiffs to be sufficient to
warrant a judgment for hiin.
But let it be assumed that the fourth allegation, being an inference
of law, is not admitted by the demurrer. Then the question for
decision is, whether the United States acquired by conquest of, and
succession to, the insurgent government of Virginia, on the 9th April,
1865, such a right to the money which was then due froin the defend-
ant to the insurgent State government as was valid and insufficient to
raise the assumpsit set forth in the fourth clause of the declaration.
Stating the case differently, the question before me is, whether the
United States succeeded by conquest and succession to the rights of
action, as well as the property, of the insurgent State government,
acquired by, the insurrectionary government in the exercise of its usurped au-
thority, and has been impressed in its hands with the character of public property,
the legitimate government is not, on its restoration, entitled by title paramount,
but as successor only (and to that extent recognizing the authority) of the dis-
placed usurping government; and in seeking to recover such property from an
agent of the displaced government can only do so to the same extent, and subject
to the same rights and obligations, as if that government had not been displaced
and was itself proceeding against the agent.”—ED.
90
[PART 1.
STATES.
which was overthrown on the 9th April, 1865. If so, the law will
adjudge that the defendant promised to pay to the United States the
money which he thus owed to that government, and the court will
render judgment against him accordingly.
As a matter of history, it cannot be disputed that it was the power
of the United States, and not of any State, or of what was called the
Alexandria government of Virginia, which was brought to bear against
the insurrectionary government of the South; or, that the overthrow
and conquest of the insurrectionary government of Virginia was in fact
affected by the United States. Therefore, whatever rights of property
or of action ordinarily result under the law of nations and of war
from conquest, resulted to the United States, on the 9th April, 1865,
and did not result to what was called the Alexandria government of
Virginia.
The very able committee of the General Assembly of Virginia, Mr.
Marshall at its head, which had this matter in charge, in the winter
of 1865, in the report submitted through one of its members, Judge
Joynes, one of the ablest and most learned judges of the State, con-
ceded this right to the United States in their report, in which they
said:
" It is very clear that the present government representing the State
of Virginia cannot assert any claim to this money by right of conquest,
for all the rights of conquest, whatever they be, belong to the United
States."
And, therefore, the particular question for decision in this case is,
whether the right of action, which the demurrer admits that the insur-
gent State government of Virginia had against the defendant on the 2d
to the 8th April, 1865, for $5,000, passed by conquest, and, after the
peace following complete conquest, to the United States, on or after
the 9th April, 1865. Does succession, after complete conquest and
peace, give to the conquering power the right of enforcing, by civil
action, the payment of debts due, at the date of the conquest, to the
conquered power? In this case it is to be observed that there was not
merely a temporary conquest, and that condition of quasi belligerence
attending such an event, but complete and final conquest producing
absolute peace, and that undisputed succession of one power by the
other resulting from such a conquest. It was a case of undisputed
succession peacefully held after complete, final conquest.
Speaking of what passes by conquest to the conquering power, the
Supreme Court of the United States says, in United States v. Lyon et
al., 16 Wallace, 435, the conquerer's rights are no longer limited to
the mere occupation of what he has taken into his actual possession,
but they extend to all the property, and rights of a conquered State,
B
CHAP. I.]
91
UNITED STATES V. SMITH.
including even debts as well as personal and real property." Mr.
Justice Clifford, in delivering this opinion of the court, and using the
language thus quoted, simply gives expression to the settled principle
of the law of nations.
In the case of The Attorney-General of Bombay v. Amerchand, cited
at length in Elphinstone v. Bedreechum, 1 Knapp's P. C. Cases, 329, it
was held that money in bank belonging to a conquered prince may be
recovered in a suit against the banker by the conquering nation.
In the case of United States v. McRae, English Law Reports, 8
Equity Cases, p. 72, it was said by the vice-chancellor :
“I apprehend it to be clear, public, universal law, that any govern-
ment which de facto succeeds to any other government, whether by
revolution or restoration, conquest or reconquest, succeeds to all the
public property, to everything in the nature of public property, and to
all rights in respect to the public property of the displaced power,
whatever may be the nature or origin of the title of such displaced
power. Any such public money in any treasury, any such public
property found in any warehouse, fort, or arsenals, would, on the success
of the new or restored power, vest ipso facto in such power, and it
would have the right to call to account any fiscal or other agent, or any
debtor or accountant to or of the persons who had exercised and had
ceased to exercise the authority of a government, the agent, debtor, or
accountant having been the agent, debtor, or accountant of such persons
in their character or pretended character of a government. But this is
the right of succession, is the right of pepresentation, is a right, not
paramount, but derived, I will not say under, but through, the sup-
pressed and displaced authority, and can only be enforced in the same
way, and to the same extent, and subject to the same correlative
obligations and rights, as if that authority had not been suppressed
and displaced, and was itself seeking to enforce it.” 1
All the authorities have held the same doctrine, and, indeed, it has
never been disputed.
These authorities close the question in favor of the right of the
1 66
Therefore, a bill by the United States Government, after the suppression of
the rebellion; against an agent of the late Confederate government, for an account
of his dealings in respect of the Confederate loan, which he was einployed to raise
in this country (England), was dismissed with costs, in the absence of proof that
any property to which the plaintiffs were entitled in their own right, as distin-
guished from their right as successors of the Confederate government, ever reached
the hands of the defendant, and on the plaintiff declining to have the account
taken on the same footing as if taken between the Confederate government and
the defendant as the agent of such government, and to pay what, on the footing of
such account might be found due from them.” (Quoted from 2 Phillimore's Inter-
national Law, 154.) -- ED.
92
[PART I.
STATES.
United States to the property of the overthrown government of Vir-
ginia, as the insurgent government, and to the debts due, whether
from citizens or from foreigners, to that government, at the time of its
overthrow.
The objection of defendant's counsel, that assumpsit will not lie for
an obligation arising by implication from a debtor to a conquered
State to the conquering governinent after conquest, because promises
do not arise from acts of violence, is not tenable. It is not denied, it
is admitted by demurrer, that the defendant by receiving from the
State government before its overthrow $5,000 not due to him, became
indebted to that government. It is settled law, as already shown,
that a conquering power after the conquest, succeeds to the debts
which were due to the conquered power. If, therefore, by the law of
nations, which is part of the law of England and America, such a debt
becomes due from a citizen to the conquering power, then the law of
England and America, even the common law of the two countries,
implies an assumpsit, a promise on the part of that citizen to pay the
debt. The citizen owes the debt to some one. The money he owes
does not belong to himself. He is bound in conscience to pay it to
the rightful owner, who is entitled ex quo et bono to receive it. And the
law of nations, as well as of England and America, declares that the
conquering power is that rightful owner. There is no violence between
the debtor, as such, and the conquering power. The violence was
between the two governments. The debt, as a debt, becomes due to
the conquering power, irrespective of the consideration whether the
debtor was a combatant or a non-combatant. In his character of debtor,
not in that of man or woman, combatant or non-combatant, native or
foreigner, he became, qua debtor to the conquered power, the debtor of
the conquering power.
This is not a question between soldier and citizen, growing out of
acts committed while war was flagrant, in the course of the soldier's
service, as in Hughes v. Litsey, 5 Am. L. Reg. 148. Nor is it a ques-
tion of prize or capture durante bello, concerning property taken or
right acquired during the progress of war, as in Coolidge v. Guthrie,
8 Id. 22; and in Elphinstone v. Bedreechum, 1 Knapp, P. C. C. 300,
where the court expressly says that the capture was made nondum
cessant bello.
The indebtedness of the defendant in this case to the insurgent
government of Virginia, was not one arising jure belli between bellig-
erents, but by contract between friends. It is true that the succession
of the United States to the insurgent government was an event durante
bello; but that event having been completed, the indebtedness of the
defendant to the succeeding government arising after the close of the
CHAP. I.
93
UNITED STATES V. SMITH.
war, was not an indebtedness jure belli, but by contract. Being in-
debted, the implied assumpsit of the defendant to pay, his promise to
pay, is a common law obligation. A debtor may be liable in assumpsit
to a creditor, but if by violence the creditor is killed, the debtor then
becomes liable in assumpsit to the creditor's administrator.
I do not think, therefore, with defendant's counsel, that this is a
case of first impression. It is an action at cominon law, founded upon
a contract arising of common law implication, and as such, is not new
or unprecedented.
Nor is the objection of defendaut's counsel tenable, which they take
on the score of the jurisdiction of the court. The circuit courts of the
United States have original cognizance “of all suits at common law,
etc., etc., where the United States is plaintiff” (see clause 3 of section
629, U. S. R. S.), or in other words “of all suits of a civil nature at
common law or in equity, etc., etc., in which the United States is
plaintiff, etc., etc.” (Section 1, Jurisdiction Act of March 3d, 1875).
These definitions of jurisdiction do not refer to the claim sued upon,
its character or its origin, but only to the nature and form of the
action which may be made the instrument for establishing the demand.
A citizen of the United States, indebted to a citizen of France by a
contract made in Paris, may be sued in the Circuit Court of the United
States for the district in which he resides in this country. His demand
is not a common law demand, but if sued upon it, in an action at law,
the suit is in form and character a suit at common law. He may be
sued in assumpsit, if the demand be such as to make that form of
action proper. So a demand arising durante bello, and not arising at
common law, may be sued upon in an action at common law in this
country, either in a State or Federal court. Under whatever law,
whether of peace or war, of the domicile or foreign jurisdiction, the
obligation of the defendant arises, the suit proper to enforce it accord-
ing to the forms of action employed in England or this country,
whether it be at common law or in equity, may be brought in the
Federal courts, if the courts have jurisdiction of the parties to the
suit.
As to the proposition of defendant's counsel, that this money is a
trust fund, and the execution or abuse of the trust must be examined
into by Virginia alone, — that is a question not yet arising in the
cause, and it does not appear how it will arise. This State has, by
adopting the report of the committee of 1865, and by long inaction,
declined to look into or after the trust, if such it be. The defendant
has put in no plea in the cause claiming that he has discharged his
fiduciary obligations in respect to the debt as a trust fund. And it is
not until all action of the sort has seemed to have become wholly im-
probable, that the United States have now moved in the matter.
94
(PART I,
STATES.
As a preliminary step to devoting the fund to its trust purposes, it
would seem incumbent that the person charged with the legal title in
trust should proceed to collect it in, and as the legal title, by the law
of nations and of the land, is in the United States, we have a right to
presume that, if the fund bears the character of a trust, the United
States will, after collecting it, give to it the direction required by the
trust.
As to the proposition of defendant's counsel, that the war of the
United States was not against the insurgent government of Virginia,
and that the overthrow of that government was not a conquest, but
only the setting aside of one government and the assumption of its
functions by another, it can hardly find acceptance in view of the facts
of history. The event happened at the close of a frightful war, and
was directly produced by arms, and by armies in the field. The power
of the United States was directed against the insurgent State govern-
ments, even more than against their confederated authorities. The
war was conducted for the overthrow of those governments. When
they were crushed, the war ceased, and the historical facts of conquest
cannot be changed or obliterated by the employment of theoretic
paraphrases in speaking of it. As to the insurgent State govern-
ments, it was a conquest, and was followed by the legal results of
conquest. This debt is due. It is due to some rightful claimant, and
I think the law makes it sufficiently apparent who that claiınant is.
The demurrer must be overruled.i
1 “In war, the public property of an enemy captured on land becomes, for the time
being at least, the property of the conqueror. No judicial proceeding is necessary to
pass the title. Usually the ultimate ownership of real property is settled by the treaty
of peace, but so long as it is. Jield and not surrendered by a treaty or otherwise it
remains the property of the conqueror.
“This well-settled principle in the law of war was recognized by this court in United
States v. Huckabee, 16 Wallace, 434, as applicable to the late civil war. At the close
of that war there was no treaty. When the insurrection was put down the govern-
ment of the insurgents was broken up and there was no power to treat with. Hence
the title to all captured property of the confederate government then became absolute
in the United States ” (Chase, C. J., in Titus v. U. S., 1874, 20 Wall. 475, 481, 482).
See, also, Whitfield v. U. S., 1875, 92 U. S. 165.
In the case of the Texan Bonds (1 Wharton's Digest, 20-23), Mr. Upham, commis-
sioner, in delivering his opinion, said:
“ The matter of the indebtedness of Texas was a distinct subject of agreement by
the terms of the union. According to those terms the vacant and unappropriated lands
within the limits of Texas were to be retained by her, and applied to the payment of
the debts and liabilities of the Republic of Texas, and the residue of the lands, after
discharging these debts and liabilities, was to be disposed of as the State might direct,
but in no event were the debts and liabilities to become a charge upon the Government
of the United States.' (U. S. Statutes at Large, vol. 5, p. 798.)
“The lands of Texas were thus specifically set apart for the payment of the debts
CHAP. I.]
95
THE UNITED STATES V. PERCHEMAN.
(6) Effect on Private Rights.
THE UNITED STATES V. PERCHEMAN.
SUPREME COURT OF THE UNITED STATES, 1833.
(7 Peters, 51.)
1
Juan Percheman claimed two thousand acres of land lying in the
territory of Florida, by virtue of a grant of the Spanish governor of
that province made in 1815. After the cession of Florida to the United
of Texas, by agreement of the two governments, in addition to any separate pledge
Texas had previously made of this class of property, for the payment of her debts.
“The United States subsequently, by act of Congress, on the 9th of September,
1850, on condition of the cession of large tracts of these lands, agreed to pay Texas
$10,000,000, but stipulated 'that $5,000,000 of the amount should be retained in the
United States treasury until creditors, holding bonds, for which duties on imports were
specifically pledged, should file releases of all claims against the United States."
(U. S. Statutes at Large, vol. 9, ch. 49, p. 446.)
“It thus appears that the United States has acted, from the outset, in concert with
Texas, in causing express provision to be made for the payment of these debts.
“A difficulty early arose in carrying the law, above cited, into effect, for the reason
that the pledge of payment of the debts of Texas was made generally upon her reve-
pues, and was not specific'on imposts' eo nomine, and for the further reason that doubts
arose whether any portion of the debts could be paid under this contract, unless the
whole could be discharged.”
(Report of the commission of claims under the convention of 1853.)
Mr. Dana says of this case:-
" It certainly would not be satisfactory to say that the United States discharges its
obligation to the creditors of Texas, to whom her customs were pledged, by paying
only the amount of the customs received.
“The United States determines what those duties shall be, in reference to the in-
terest and policy of the whole republic. The condition of Texas is changed by her
annexation. The new government has a large control over the material resources
of the inhabitants, in the way of internal revenues, excise or direct taxation, in its
demands on the services of the people, and in the debts it can impose; in fact, the
entire public system of Texas has passed into other hands, and no such state of things
any longer exists as that to which the creditor looked. It may be better or worse, but
it is not the same; and, if the duties laid by the United States and collected in Texan
ports did not in fact pay the debts, it would be unjust for the United States to limit the
payment of the creditor to them. The truth is, by the annexation the United States
changed the nature of the thing pledged, and is bound generally to do equity to the
creditor." (Dana's Wheaton, note 18.)
Mr. Lawrence says: “ The liability of the United States for the debts of Texas
came before the mixed commission, under the convention with England of 1853, in the
case of a British subject who had received before the annexation, bonds secured by a
pledge of the faith and revenue of Texas. It was disposed of on the ground that never
having been made a subject for international interposition against the United States,
it did not fall within the scope of the convention; but it seemed to be admitted that
96
(PART I.
STATES,
.
States by the treaty of 1819, this claim was rejected by the United
States commissioners appointed to settle claims to territory in Florida;
and the question then came before the court for decision, from the
opinion of which the following extract from page 86 is given :
Mr. Chief Justice MARSHALL delivered the opinion of the court:
1
the liability of the United States, if any, arose, not from the merger, but from the
transfer, under the Constitution of the United States, to the Federal Government of
the duties on imports. It was said by the American commissioner, in announcing liis
opinion, that it was an inaccurate view of the case to regard this annexation as an
entire adoption of one nation and its revenues by another. “Texas is still a sovereign
State, with all the rights and capacities of government, except that her international
relations are controlled by the United States, and she has transferred to the United
States her right of duties on imports.'
“And he seemed to consider any claim arising from the previous plege of such
duties to be limited to their value. The Britislı commissioner held that the obligation
of Texas to pay her debts is not in dispute, nor has it been argued that the more act
of her annexation to the United States has transferred her liabilities to the Federal
Government, though certainly, as regards foreign governments, the United States is
now bound to see that the obligations of Texas are fulfilled. It is the transfer of the
integral revenues of Texas to the Federal Government that is relied on as creating
the new liability."
(Decisions of the Commission of Claims under the convention of 1853, 405–420,
Lawrence's Wheaton, ed. 1863, p. 54, note).
See, also, Magoon's Law of Civil Government under Military Occupation (20. ed.
1902) pp. 177–193 (especially at p. 190); 529-531 ; 630-646.
When Lombardy and Venice were respectively acquired by Italy at the close of
the wars of 1859 and 1866 with Austria, the Italian government assumed no part
of the general debt of Austria, but only the local debts of the ceiled provinces. So, in
the case of the cession of Alsace and Lorraine to Germany in 1871, no part of the
French national debt was assunied by Germany on their account. (Bluntschli: Droit
International, Article 48.)
On the other hand, on the seizure of Schleswig-Holstein by Prussia, in 1886, the
debt of Denmark was divided between that country and Schleswig-Holstein ; "and in
the same year, Italy, by convention with France, took upon itself so much of the Papal
debt as was proportionate to the revenues of the Papal provinces which it had appro-
priated.” (Hall's Int. Law, 104, note.)
The following passage states briefly the general-doctrine of publicists :
“It is well to be understood, at a period when alterations in the constitutions of
governments, and revolutions in states, are familiar, that it is a clear position of the
law of nations, that treaties are not affected, nor positive obligations of any kind with
other powers, or with creditors, weakened, by any such mutations. A state neither
loses any of its rights, nor is discharged from any of its duties, by a change in the form
of its civil government. The body politic is still the sanie, though it may have a dif-
ferent organ of communication. So, if a state should be divided in respect to terri-
tory, its rights and obligations are not impaired; and if they have not been apportioned
by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by
all the parts in common.” (1 Kent's Com., 25.) - ED.
1 That part of the opinion is omitted which discusses the power of the conqueror
to confirm and to regulate procedure to confirmi inchoate titles to land. The case it-
self as well as cases cited in the note clearly establish the right. -- ED.
CHAP. I. ]
THE UNITED STATES V. PERCHEMAN.
97
“It may not be unworthy of remark that it is very unusual even
in cases of conquest, for the conqueror to do more than to displace
the sovereign and assume dominion over the country. The modern
usage of nations, which has become law, would be violated ; that
sense of justice and of right which is acknowledged and felt by the
whole civilized world would be outraged, if private property should
be generally .confiscated, and private rights annulled. The people
change their allegiance; their relation to their ancient sovereign is
dissolved; but their relations to each other, and their rights of prop-
erty, remain undisturbed. If this be the modern rule even in cases
of.conquest, who can doubt its application to the case of an amicable
cession of territory? Had Florida changed its sovereign by an act
containing no stipulation respecting the property of individuals, the
right of property in all those who became subjects or citizens of the
new government would have been unaffected by the change. It
would have remained the same as under the ancient sovereign. * * *
“ A cession of territory is never understood to be a cession of
the property belonging to its inhabitants. The king cedes that only
which belonged to him. Lands he had previously granted were not
his to cede. Neither party could so understand the cession. Neither
party could consider itself as attempting a wrong to individuals,
condemned by the practice of the whole civilized world. The cession
of a territory by its name from one sovereign to another, conveying
the compound idea of surrendering at the same time the lands and
the people who inhabit them, would be necessarily understood
to pass the sovereignty only, and not to interfere with private
property.” 1
1 Followed in: Mutual Asso. Soc. v. Watts, 1816, 1 Wheat. 279; Milchel et al. .y.
U. S., 1835, 9 Pet. 711, 734-736, 749; Strother v. Lucus, 1838, 12 Pet. 410; U. S. v.
Clarke's lleir's, 1842, 16 Pet. 228; dirhart v. Mussieu, 1878, 98 U. S. 491: Kinkead
v. U. S., 1893, 150 U. S. 483, to the effect that fixtures attached to laud pass with
cession of land.
Distinguislied in: Gurcia v. Lee, 1838, 12 Pet. 511; U. S. v. Wiggins, 1840, 14 Pet.
334; U. S. v. Mirundu et al., 1853, 10 Pet. 153; Charez v. Charcz de Sanchez, 1803,
7 New Mex. 58.
Hollowed in State Courts : Hull v. Rool, 1861, 19. Ala. 378; Teschemacher v. Thomp-
son, 1861, 18 Calif. 11, 22–25 (opinion of Field, C. J.); Minturn v. Brower, 1864, 24
Calif. 644, 660 et seq.; Lillle v. Watson, 1850, 32 Me. 214; May v. Specht et al., 1849,
1 Mich. 187; Sunborn v. Vance, 1888, 69 Mich. 224; Roussin v. Purks, 1844,8 Mo.
Charlotle. (of color) v. Chouleau, 1857, 25 Mo. 466, 478-479); U. S. .v. Lucern,
1869, 1 New Mex. 422; Browning v. Browning, 1886, 3 New Mex. 371; Barnett v.
Burnett, 1897, 9 New Mex. 205, 211-213.
See especially, Leitensdorfer v. Webb, 1857, 20 How. 176, infra. See brief note on
Barnett v. Burnett, in 11 Harv. Law Rev. 343. -- ED.
528;
7
98
[PART I.
STATES.
THE UNITED STATES V. REPENTIGNY.
SUPREME COURT OF THE UNITED STATES, 1866.
(5 Wallace, 211.)
Mr. Justice Nelson delivered the opinion of the court.1
The bill in this case was filed in the court below to recover posses-
sion of a large tract of land of six leagues square, fronting on the
River Ste. Marie, at the Saut, which connects the waters of Lake
Superior with those of Lake Huron, in the State of Michigan. The
grant of the land was made on the 18th October, 1750, by the gov-
ernor and intendant-general of Canada (then called New France) to
Louis De Bonne, a captain of infantry, and Count Repentigny, an
ensign, in the French army. The complainants derive title under
them. It was confirmed by the King of France the next year, on the
24th June, 1751.
The grant was to De Bonne and Repentigny, their heirs and assigns,
“in perpetuity by title of feof and seigniory," with all the customary
rights belonging to that species of estate. Repentigny went into
possession about the date of the grant, at the Saut, having about the
same time received an appointment to command the military post
established there. He constructed a small stockade fort, and inade
some improvements in connection with it, such as the clearing of a
few acres of land and the erection of huts for the people with him,
and continued thus engaged till 1754. When war broke out between
France and England he was called away into active military service
of the government, and never afterwards returned. De Bonne never
took personal possession, or possession of any other character, except
that derived from the transient occupation of his co-tenant.
The bill was filed on the 9th January, 1861, one hundred and ten
years since the date of the graut.
This act of 1860, which authorizes the institution of these proceed-
ings, was passed in pursuance of petitions to Congress by the repre-
sentatives of the original grantees. The first notice to this government
of any claim to the lands on their behalf was in the year 1825 or 1826,
some seventy-five years after the date of the grant. Since then the
subject has, from time to time, been brought to the attention of Con-
gress, and finally disposed of by the passage of the act in question.
The act, as we have seen, refers the claimants to the judiciary for
relief, and prescribes the principles which shall govern it in hearing
and adjudicating upon the case. They are -
i Statement of facts of the case omitted. -- ED.
CHAP. I.]
99
THE UNITED STATES V. REPENTIGNY.
1. The law of nations. ·
2. The laws of the country from which the title was derived.
3. The principles of justice.
4. The stipulations of treaties.
In the light of these principles, we shall proceed to an examination
of the claim; and, first, as to the claim of the representatives of
Repentigny. He was a native of Canada, and a captain in the French
army at the close of the war, which terminated in the surrender of that
province to the British forces, in 1760. His family was among the
earliest emigrants to the country after possession had been taken by
the King of France, and held high and influential positions in the
government. Soon after the execution of the definitive treaty of peace
of 1763, the Governor of Canada opened a correspondence with Repen-
tigny to induce him to remain in the province, and become a subject
of Great Britain, promising him protection and advancement in his
profession. He was then about thirty-eight years of age. But he
declined all the advances made to him, and soon after left the country,
by order of his superior officer, to take a command on the Island of
Newfoundland, where the Indians were disturbing the settlers, and
spent the rest of his life in the military service of France, having
risen to the rank of Major-General and Governor of Senegal, on the
Island of Goree, and its dependencies. He died in 1786, leaving a son
Gaspard, an officer in the French naval service, from whom the present
claimants descended, and who reside in the Island of Guadaloupe.
The preliminary treaty of the 3d November, 1762, at the surrender of
Canada, provided in the second article, in behalf of his Britannic
majesty, that the French inhabitants, or others who would have been
subjects of the Most Christiau King, in Canada, may retire in all safety
and freedom, wherever they please, and may sell their estates, pro-
vided it be to his Britannic majesty's subjects, and transport their
effects, as well as their persons, without being restrained in their
emigration, under any pretence whatsoever, except debts or criminal
prosecutions, — the term limited for this emigration being the space
of eighteen months, to be computed from the day of the ratification of
the definitive treaty. The definitive treaty of the 10th February of
1763 contained a similar article.
The articles of capitulation at Montreal, dated Sth September, 1760,
when the Canadas were given up to the British forces, secured to the
inhabitants their property, movable and immovable; and the proclama-
tion of the king, under date of 7th October, 1763, pledged to his loving
subjects of Canada his paternal care for the security of the liberty and
property of those who are, or should become, inhabitants thereof.
These pledges, both before and after the treaty, were but the recogni-
100
[PART I.
STATES.
tion of the modern usages of civilized nations which have acquired the
force of law, even in the case of an absolute and unqualified conquest
of the enemy's country. But the rule is limited, as in the pledge of
the king, in his proclaination to the inhabitants of the conquered terri-
tory, to those who remain and become the subjects or citizens of the
victorious sovereign, - those who, in the language of Chief Justice
Marshall, change their allegiance, and where the relations to their
ancient sovereign are dissolved. Speaking of the cession of Florida,
he observed : “Had Florida changed its sovereign by an act contain-
i.ng no stipulation respecting the property of individuals, the right of
property in all those who became subjects or citizens of the new gov-
ernment would have been unaffected by the change." United States
v. Percheman, 7 Peters, 51–87.
Another rule of public law, kindred to this one is, that the con-
queror who has obtained permanent possession of the enemy's country
has the right to forbid the departure of his new subjects or citizens
from it, and to exercise his sovereign authority over them. Hence
the stipulation in the capitulation and treaties of cession providing
for the emigration of those inhabitants who desire to adhere to their
ancient allegiance, usually fixing a limited period within which to leave
the country, and frequently extending to them the privilege, in the
meantime, of selling their property, collecting their debts, and carry-
ing with them their effects.
Now, in view of these principles, it is apparent that Repentigny,
having refused to continue an inhabitant of Canada, and to become a
subject of Great Britain, but, on the contrary, elected to adhere in
his allegiance to his native sovereign, and to continue in his service,
deprived himself of any protection or security of his property, except.
so far as it was secured by the treaty. That protection, as we have
seen, was limited to the privilege of sale or sales to British subjects,
and to carry with him his effects, at any time within eighteen inonths
w from its ratification. Whatever property was left unsold was aban-
doned to the conqueror. Repentigny acted upon this view of his rights.
Besides the property in question, he owned and possessed a seigniory
situate above Montreal, on the River St. Lawrence, called La Chenay,
which he sold to Colonel Christie, a British officer, and in the deed it.
is recited that he had a mind to go to France, and therefore, as allowed.
by the late treaty of peace, was disposed to sell, &c. This was in 1766,
although it appears that steps had been taken in respect to the sale.at
an earlier day. It is evident, also, that he had been 'engaged in nego-
tiating for the sale of the seigniory in question, as in a memorial of
his services presented to the chief of the bureau of the French col-
conies, he states, under date of 1765, that the establishment, - referring:
I
CHAP. I.]
101
THE UNITED STATES. V. REPENTIGNY.
to that at the Saut Ste. Marie, was burnt in 1762 by the Indians, at
the time his attorney. was negotiating at Montreal with the English
for the sale of it. And, in. 1772, in a communication to the French
authorities on the subject of military services and sacrifices, be
observes: “I thought that after a lease of thirty years of services,
fulfilled with honor in the colonies, and the sacrifice of a fortune more
than reasonable, in leaving Canada, my native country, I should be
able at forty-five years of age to claim a regiment in the colonies with-
out too much ambition.” And again, in answer to an intimation that
the king: would give him permission to retire, he observes: "If I had
not calculated upon dying in the service, I should not have sacrificed
more than four-fifths of my fortune, my well-being, and that of my
family, in abandoning Canada, my country."
And, further, in a communication to his government, supposed to be
about 1773 or 1774, he observed : “ The cession of Canada, my country,
has overturned a fortune more than moderate, which I could preserve
only by an oath of fidelity to the new master, which was too hard for
my heart. The offers of the English ministry made to my eldest
brother to retain us in their service are unequivocal proofs of the con-
sideration we enjoyed in Canada."
Repentiguy was a gentleman of education and high intelligence.
He l'ose to the rank of general in the army, and aspired to that of
Marshal of France; was Governor of Senegal and its dependencies,
and, as is obvious from his correspondence with his government, com-
prehended fully the principles of public law which forfeited all his
property left unsold at the time he retired from Canada, under the
provisions of the treaty.
He died in 1786, twenty-three years after the date of the treaty;
and, during all this time, not only set up no claim to this seigniory,
but, on the contrary, repeatedly, as we have seen, urged the patriotic
sacrifice of it to his government, as a merit for her favorable con-
sideration of himself and family. And we may add that his only son,
an officer in the French navy, and who died in 1808, at the age of fifty-
five, also never set up any clair or right to it to this government, and
the first notice she had of it, so far as the record discloses, was in 1824
or 1825, from the descendants of this son residing in the Island Guada-
loupe, and who are the complainants in the suit.
The purposes for which this grant was made, and the conditions
annexed to it, are specifically stated upon its face. It recites that
Repentigny and De Bonue -entertaining the purpose of establishing
a seigniory - had cast their eyes upon a place called the Saut Ste.
1 That part of the opinion dealing with the moiety claimed under De Bonne is
omitted. — En,
1
102
(PART Í.
STATES.
*
Marie ; that a settlement in that place would be most useful for voy-
ageurs from the neighboring ports and those from the western sea,
who could there find a safe retreat, and by proper precautions, which
the petitioners proposed to take, would destroy in those parts the trade
of Indians with the English; and (after the words of concession of
six leagues in front on the river at the Saut, and six in depth) it pro-
vides that the grantees shall hold and possess the same by themselves,
and cause the same to be held and possessed by their tenants, and
cause all others to desert and give up the land, and "in default thereof
the present concession shall be and shall remain null.” In the deed
of confirination, by the king, is the following clause: “That they (the
grantees) improve the said concession, and use and occupy the same
by their tenants. In default thereof the same shall be reunited to
his majesty's domain;” and, in a subsequent clause: “ His majesty
ordering that the said concession shall be subject to the conditions
above expressed, without any pretext that they should not have been
stipulated in the said concession."
There is a letter in the record from the Governor-General of Canada,
under date of October 5, 1771, to the government at Paris, giving the
reasons for this concession. He writes : “I had the honor to let you
know (by a former letter) that in order to thwart the movements that
the English do not cease to make to seduce the Indian nations of the
north, I had sent Sr. Chevalier Repentigny to the Saut of Ste. Marie,
to make there an establishment at his own expense, and to build a
palisade fort to stop the Indians of the northern posts, who go to and
from the English, to intercept the commerce they carry on, and to
stop and prevent the talks, and also the presents which the English
send these nations to corrupt them and get them in their interests.
Moreover, I had in view in that establishment to secure a retreat to
the French voyageurs, especially those who trade in the northern parts,
and for the purpose to clear the lands which are proper for the pro-
duction of Indian corn, and to sustain thereby the victualling the
people of the said post, and even to the needs of the voyageurs.”
And in a letter, by the minister at Paris, to a high official in Canada,
he alludes to that of the governor above referred to, and observes,
"In one of my despatches last year to the governor, I had intimated
to him that I had approved the construction of a fort at the Saut of
Ste. Marie, and the project of cultivating the land there, and raising
We cannot but approve the dispositions which have been made
for the execution of that establishment, but it must be considered that
the cultivation of the lands, and the multiplication of cattle must be
the principal object, and that trade must be only accessory. As it can
hardly be expected, he observes, that any other grain than corn will
cattle.
CHAP. I.] THE UNITED STATES V. REPENTIGNY.
103
grow there, it is necessary, at least for a while, to stick to it, and not
to persevere stubbornly in trying to raise wheat.”
The purposes and conditions of the grant are too obvious to require
further coinment.
It is admitted by the learned and intelligent jurists of Canada, who
have been examined as witnesses in this case, that the legal liabilities
to seignioral reunion to the royal domain exists in cases of the non-
fulfilment of the conditions of settlement, and which is rigorously
enforced if there be no cleared lands and no settlers on the seigniory.
That the right to resume the grant applies only to unimproved seign-
iories, to all those that have been neglected, as it respects the estab-
lishment of tenants upon the lands, and the consequent absence of
cultivation, such as clearing the forests, converting them into fruitful
fields, laying out and working public roads, building mills for the
convenience of the tenants, and the like.
We agree to this interpretation of the conditions. We cannot,
however, assent to the next position taken, namely, that the posses-
sion and improvement of Repentigny, during the four years that he
occupied the seigniory at the Saut, should be regarded as a fulfilment
of this condition. It contained over two hundred thousand acres of
land, and the whole of the improvements claimed in his.behalf, besides
the stockade fort, consisted in the erection of three or four temporary
huts for laborers, the clearing of a few acres of land around the fort,
and planting the same with Indian corn. His stock consisted of seven
head of cattle and two hoises, and, since 1754, over a century before
the commencement of this suit, there has been no possession or occu-
pancy by either of the grantees, or their descendants, tenants, or
assigns, or further trace of improvements. The primeval forest re-
mained unbroken till settlers entered upon it and established them-
selves under the protection of the laws, and regulations in pursuance
thereof, of the United States.
The United States succeeded to all the rights to this territory that
existed in the King of France, under the treaty of 1783, with Great
Britain, at the close of the Revolution. The United States then
became the lord paramount of this seigniory, and were thereby invested
with the power to deal with the seigniorial estate, the same as the
King of France, had it continued under his dominion; and we agree
that before a forfeiture or reunion with the public domain could take
place, a judicial inquiry should be instituted, or, in the technical lan-
guage of the common law, office found, or its legal equivalent. A
legislative act, directing the possession and appropriation of the land,
is equivalent to office found. The mode of asserting or of assuming
the forfeited grant, is subject to the legislative authority of the gov-
:
104
[PART I.
STATES:
ernment. It may be after judicial investigation, or by taking posses-
sion directly, under the authority of the government, without these
preliminary proceedings. Fairfax: v. Hunter, 7 Cranch, 603,622, 631;
Smith v. Maryland, 6 id. 286. In the present instance we have seen.
the laws have been extended over this tract, the lands surveyed, and
put on sale, and confirmed to the occupants or purchasers, and, in the
meantime, an opportunity given to all settlers and claimants to come
in before a board of commissioners and exhibit their claims. This is
a legislative equivalent for the reunion by office found.
Upon the whole we are quite satisfied that, consistent with the
principles, in the light of which we are directed by the act of Congress
to examine into the validity of this title, the complainants have failed
to establish it. We have felt justified in applying to the case these
principles with reasonable strictness and particularity, as it is nearly,
if not wholly, destitute of merit.
Decree of the court below reversed, and case remanded with di-
rections to
Dismiss the bill.2
(c) Effecť on Law.2:
BLANKARD V. GALDY.
KING'S BENCH, 1693.
(2 Salkeld, 411.)
In debt on a bond, the defendant prayed oyer of the condition, and
pleaded the statute E. 6, against buying offices concerning the admin-
istration of justice; and averred, That this bond was given for the
purchase of the office of provost-marshal in Jamaica, and that it con-
cerned the administration of justice, and that Jamaica is part of the
revenue and possessions of the Crown of England: The plaintiff replied,
that Jamaica is an island beyond the seas, which was conquered from
the Indians and Spaniards in Queen Elizabeth's time, and the inhabi-
tants are governed by their own laws, and not by the laws of England :
The defendant rejoined, That before such conquest they were governed
by their own laws; but since that, by the laws of England: Shower
1 This case has been repeatedly cited and approved by the Supreme Court, most
forcibly and aptly perhaps in New York Indians v. U. S., 1897, 1, 25. For the ques-
tion of citizenship of inhabitants of the provinces ceded by Spain to United States in
consequence of the recent Spanish-American war, see Art. IX., of the Treaty of Paris,
1898, and Magoon's Military Occupation, 173-177.— Ed.
2 The cases and notes in this subsection are through the courtesy of Professor
Beale printed from his Caseg on the Conflict of Laws (1900), vol. 1, pp. 65–84. - ED.
CHAP. I.]
105
BLANKARD' V. GALDY.
argued for the plaintiff, that on a judgment in Jamaican, no writ of
error: lies here, but only an appeal to the Council; and as they are
not represented in our. Parliament, so they are not bound by our stat-
utes, unless specially named. Vide. And. 115. Pemberton contra
argued, that by the conquest. of a nation, its liberties, rights, and prop-
erties are quite lost; that by consequence their laws are lost too, for
the law is but the rule and guard of the other; those that conquer can-
not by their victory lose their laws, and become subject to others.
Vide Vaugh. 405. That error lies here upon a judgment in Jamaica,
which could not be if they were not under the same law. Et per Holt,
C. J. & Cur:
First, in case of an uninhabited country newly found out by English
subjects, all laws in force in England are in force there ; so it seemed
# to be agreed.
Secondly, Jamaica being conquered, and not pleaded to be parcel of
the kingdom of England, but part of the possessions and revenue of
the Crown of England, the laws of England did not take place there,
until declared so by the conqueror or his successors. The Isle of Man
and Ireland are part of the possessions of the Crown of England; yet
retain their ancient laws: That in Davis, 36, it is not pretended that
the custom of tanistry was determined by the conquest of Ireland, but
by the new settlement made there after the conquest: That it was im-
possible the laws of this nation, by mere conquest, without more,
should take place in a conquered country; because, for a time, there
must want officers, without which our laws can have no force: That if
our law did take place, yet they in Jamaica having power to make new
laws, our general laws may be altered by theirs in particulars; also
they held, that in the case of an infidel country, their laws by conquest
do not entirely cease, but only such as are against the law of God; and
that in such cases where the laws are rejected or silent, the conquered
country shall be governed according to the rule of natural equity.
Judgment pro quer."
1 Another report of the same case may be found in 4 Mod. 222. In that case the
court is reported to have said: “And therefore it was held, that Jamaica was not gov-
erned by the laws of England after the conquest thereof, till new laws were made: for
they had neither sheriff nor counties ; they were only an assembly of people which are
not bound by our laws; unless particularly mentioned. In Barbadoes all freeholds are
subject to debts, and are: esteemed as chattels till the creditors are satisfied, and then
the lands descend to an heir; but the law is otherwise here; which shows that thouylı
that. island is parcel of the possessions of England, yet it is not governed by the laws
made here, but by their own particular laws and customs."
Acc. Earl Derby's Case, 2 And. 116; Men. 2. P. Wms. 75. See Cross v. Harrison,
16 Ho:w. 164; Airhart v. Massieu, 98. U. S. 491. --- ED.
For the effect of settlement of India on Hindoo, and the introduction of English
106
[PART I.
STATES.
EMERSON, J., in First National Bank v. Kinner, 1 Utah, 100 (1873).
In American Ins. Co. v. Canter, 1 Pet. 511, the court, by Judge Mar-
shall, say substantially, that the laws of Florida, as they were when
the Territory was ceded, so far as not inconsistent with the Consti-
tution and Laws of the United States, continued in force until altered
by the newly created power of the State. (See, also, United States v.
Powers, 11 How. 570; Strothers v. Lucas, 12 Pet. 410, 436.) This
law, see Advocate-General v. Ranee Surnomoye Dossee, 1863, 2 Moore's P. C., N. S., 22.
(Beale, 67).
In considering whether and in how far the common law of England was introduced
into and became a part of the law of the colonies (Massachusetts) Chief Justice SHAW
says:
We do not accede to the proposition, that the present existence and effect of the
whole body of law, which existed before the Constitution, depends solely upon this
provision of it. We take it to be a well-settled principle, acknowledged by all civilized
states governed by law, that by means of a political revolution, by which the political
organization is changed, the municipal laws, regulating their social relations, duties,
and rights, are not necessarily abrogated. They remain in force, except so far as they
are repealed or modified by the new sovereign authority. Indeed, the existence of
this body of laws, and the social and personal rights dependent upon them, from 1776,
when the Declaration of Independence was made, and our political revolution took
place, to 1780, when this Constitution was adopted, depend on this principle. The
clause in the Constitution, therefore, though highly proper and experient to remove
doubts, and give greater assurance to the cautious and timid, was not necessary to
preserve all prior laws in force, and was rather declaratory of an existing rule, than the
enactment of a new one. We think, therefore, it should have such a construction as
best to carry into effect the great principle it was intended to establish.
“When our ancestors first settled this country, they came here as English subjects;
they settled on the land as English territory, constituting part of the realm of England
and of course governed by its laws; they accepted charters from the English govern-
ment, conferring both political powers and civil privileges; and they never ceased to
acknowledge themselves English subjects, and never ceased to claim the rights and
privileges of English subjects, till the revolution. It is not, therefore, perhaps, so
accurate to say that they established the laws of England bere, as to say, that they
were subject to the laws of England. When they left one portion of its territory they
were alike subject on their transit and when they arrived at another portion of the
English territory; and therefore always, till the Declaration of Independence, they
were governed and protected by the laws of England, so far as those laws were ap-
plicable to their state and condition. Under this category must come all municipal
laws regulating and securing the rights of real and personal property, of person and
personal liberty, of habitation, of reputation and character, and of peace. The laws
designed for the protection of reputation and character, and to prevent private quar-
rels, affrays, and breaches of peace, by punishing malicious libel, were as important
and as applicable to the state and condition of the colonists as the law punishing
violations of the rights of property, of person, or of habitation; that is, as laws for
punishing larceny, assault and battery, or burglary. Being part of the common law
of England, applicable to the state and condition of the colonists, they necessarily
applied to all English subjects and territories, as well in America as in Great Britain,
and so continued applicable till the Declaration of Independence.” (Commonwealth v.
Chapmun, 1848, 13 Met. 68; Beale, 72-76.) - Ed.
CHAP. I.]
107
BLANKARD V. GALDY.
appears to be the settled doctrine in regard to conquered and ceded
Territory in the absence of special treaty stipulation. It applies to
territory acquired from Mexico, since the treaty of Guadaloupe made
no special provision on the subject. Utah was embraced in that ac-
quisition. As in Florida the pre-existing law was Spanish, so in Utah,
it was Mexican, and in both cases the laws were derived mainly from
the laws of Rome. In neither did the English common law, or the
Statute of Frauds, prevail. Congress made no special change, and
the Territorial Legislature, upon whom authority was conferred, have
made no express enactment upon the subject.
This Territory was first settled in 1847, and from that time up to the
acquisition and treaty in 1848, the settlers were comparatively few in
nuinber. There were no settled laws, usages, and customs among
them. They came here as American citizens, under the flag, and
claiming the protection of the United States Government.
The particular class of persons forming the great, if not the
entire bulk of emigrants, claim to have furnished troops from among
their own numbers to assist this Government in its war against
Mexico.
At the time of the acquisition and treaty they could not claim Mexi-
can citizenship, and have never adopted its laws and customs.
Soon after the change of sovereignty by the treaty, emigrants in
large numbers flocked in from the States and surrounding Territories,
and for many years there has been an organized community.
When we turn to the communities from whence the emigrants pro-
ceeded, we find that they differed one from another, more or less, in
regard to their laws and institutions. No two are alike. In the most,
it is true, many common-law principles and doctrines were in force.
Still, the body of the common law in each was peculiar to the particular
State, and it was rather the common law of the State than the English
common law.
In some, the English statutes had been received as
common law; in others, not.
These diversities make it impossible to assume that any specific body
of the common law was transplanted to the Territory by the fact of
immigration.
But one course was open, and that was for the whole body of the
people to agree, expressly or tacitly, upon a common measure.
to be expected that the emigrants would not be contented with the
loose and alien institutions of an outlying Mexican department, and
they have not been.
They have tacitly agreed upon maxims and principles of the common
law suited to their conditions and consistent with the Constitution and
laws of the United States, and they only wait recognition by the courts
It was
1
108
1
[PART I.
STATES.
to become the common law of the Territory. When so recognized,
they are laws as certainly as if expressly adopted by the law-making
power.
.
CHAPPELL V. JARDINE.
SUPREME COURT OF ERRORS OF CONNECTICUT, 1884.
(Reported 51 Connecticut, 64.)
PARK, C. J. This is a suit for the foreclosure of certain mortgaged
premises, constituting an island, known as Ram Island, in Long Island
Sound. The complaint alleges that the land mortgaged, at the time
the deed was given, lay in the town of Southhold, Suffolk County, in
the State of New York, and it is averred that the mortgage was re-
corded in the office of the clerk of Suffolk County in that State. It is
further alleged that Ram Island, by the recent establishment of the
boundary line between the State of New York and this State, has
become a part of the town of Stonington in this State. The complaint
is demurred to, so that the averment stands admitted that the island
was, when the mortgage was inade, a part of the State of New York.
We have heretofore held (Elphick v. Hoffman, 49 Conn. 331) that
the boundary agreed upon by the joint commission of the two States
and established by the legislative acceptance of both States, was to be
regarded as presumably a designation and establishment of the pre-
existing boundary line which had become lost, and not as the establish-
ment of a new line, leaving the matter open to proof in special cases.
If we should apply that rule here, and consider the island in question
as having been legally a part of this State when the mortgage was
made, we should at once encounter another question of a serious nature.
There can be no question that whatever has been the de jure jurisdic-
tion over the island, it has been for many years within the de facto
jurisdiction of the State of New York; and we should be compelled
to determine the legal effect upon this mortgage of that de facto
jurisdiction.
We have thought it as well, therefore, to take the case as the parties
have themselves presented it, the plaintiff by the averments of his com-
plaint and the defendants by the admissions of their demurrer, and
regard the island in question as having been within the State of New
York when the mortgage was made, and afterwards brought within *
this State by the establishment of the boundary line. Indeed, as the
1 Part of the opinion is omitted. - ED.
CHAP. I.]
109
CHAPPELL V. JARDINE.
proceeding is in error, we cannot properly govern ourselves by anything
but the record as it comes before us.
And in treating the island as within the State of New York when the
mortgage was made we are regarding the contract and the right of
the parties under .it, precisely as they themselves understood them at
the time.
The mortgaged premises having been in the State of New York when
the mortgage was made, it is of course to be governed in its construc-
tion and effect.by the laws of that State then in force. In McCormick:
v. Sullivan, 10 Wheat. 192, the court say: "It is an acknowledged
principle of law that the title and disposition of real property is exclu-
sively subject to the laws of the country where it is situated, which can
alone prescribe the mode by which a title to it can pass from one per-
son to another. The same doctrine is held in United States v. Crosby,
7 Cranch, 115, Kerr v. Moon, 9 Wheat. 565, Darby v. Mayer, 10 id.
465, and in many other cases. Indeed the doctrine is unquestioned
law everywhere.
Now, according to the laws of the State of New York then and still
in force, a mortgage of real estate creates a mere chose in action, a
pledge, a security for the debt. It conveys.no title to the property.
The claim of the mortgagee is a mere chattel interest. He has no right
to the possession of the property. The title and seisin remain in the
mortgagor, and he can maintain trespass and ejectment against the
mortgagee, if he takes possession of the property without the consent
of the mortgagor. This appears clearly from the following cases.1
It follows, therefore, that while the land in question remained in the
State of New York, it was incumbered by a mortgage of this.character ;
and when it came into this State it bore with it the same burden pre-
cisely. There was nothing in the change of jurisdiction that could
affect the contract of mortgage that had been made between the parties.
The title to the property.continued to remain in the mortgagor, and it
remains in him still. This is clear. The laws of this State could not
make a new contract for the parties or add to one already made. They
had to take the contract as they found it.
Now, it is clear that there is no remedy by way of foreclosure kuown
to our law which is adapted or appropriate to giving relief on a mort-
gage of this character. Our remedy is adapted to a mortgage deed
which conveys the title of the property to the mortgagee, and when the
-law day has passed, the forfeiture, stated in the deed, becomes absolute
1 The learned judge here cited and discussed the following cases : Gardner y. Heartt,
3 Den. 232,; Power v. Lester, 23 N. Y. 527; Timm v. Marsh, 54 N. Y. 599; Jackson
v. Willard, 4 Johns. 42; Astor v. Hoyt, 5 Wend. 603; Kortright v. "Cady, 21 N. 'Y.
* 343; Merritt v. Bartholick, 36 N. Y. 44. – ED.
110
[PART I.
STATES.
It conveys
at law, and vests a full and complete title in the mortgagee, with the
exception of the equitable right of redemption, which still remains in
the mortgagor. The object of the decree of foreclosure is, to extin-
guish this right of redemption if the mortgage debt is not paid by a
specified time. The decree acts upon this right only. .
nothing to and decrees nothing in the mortgage if the debt is not paid.
After the law day has passed the right of redemption becomes a mere
cloud on the title the mortgagee then has, and when it is removed his
title becomes clear and perfect. Phelps v. Sage, 2 Day, 151; Roath
v. Smith, 5 Conn. 136; Chamberlin v. Thompson, 10 id. 244; Porter
v. Seeley, 13 id., 564; Smith v. Vincent, 12 id., 1; Doton v. Russell,
17 id. 151; Cross v. Robinson, 21 id. 379; Dudley v. Caldwell, 19 id.
218; Colwell v. Warner, 36 id. 224. .
What effect would such a decree produce upon a mortgage like the
one under consideration, where the legal title remains in the mortgagor,
and nothing but a pledgee's interest is in the mortgagee, even after the
debt becomes due? It could only extinguish the right of redemption,
if it could do that. It could not give the mortgagee the right of pos-
session of the property, for the mortgagor has still the legal title, which
carries with it the right of possession. It would require another pro-
ceeding in equity, to say the least, to dispossess him of that title, and
vest it in the inortgagee. Hence it is clear that full redress cannot be
given the plaintiff in this proceeding.
But the plaintiff has a lien on the property in the nature of a pledge
to secure payment of the mortgage debt. And although our remedy of
strict foreclosure may not be adapted to give redress to the plaintiff
through the medium of such a lien, still a court of equity can devise a
mode that will be appropriate; for it would be strange if a lawful lien
upon property to secure a debt could not be enforced according to its
tenor by a court of chancery. It is said that every wrong has its
remedy; so it may be said that every case requiring equitable relief
has its corresponding mode of redress. We have no doubt that a court
of equity has the power to subject the property in question to the pay-
ment of this debt, upon a proper coinplaint adapted to the purpose.
When personal property is pledged to secure the payment of a debt, it
may be taken and sold, that payment may be made, after giving the
pledgor a reasonable opportunity for redemption. So here, we think
a similar course might be taken with this property. Such a course
would fall in with the original intent of the parties, and with the civil
code and mode of procedure of the State of New York. Modes of
redress in that State have of course no force in this State, but such a
mode of procedure seems to be adapted to a case of this character.
And we further think that on an amended complaint, setting forth
CHAP. I.] MORTIMER V. NEW YORK ELEVATED RAILROAD CO. 111
all the essential facts, and praying that if there shall be a default in
redeeming the property during such time as the court shall allow for
redemption, then the right of redemption shall be forever foreclosed,
and the legal title and possession of the property be decreed in the
mortgage, such course might be taken.
We think either of the modes suggested might be pursued; but inas-
much as the course which has been taken leaves the legal title and pos-
session of the property in the mortgagor, we think the court erred in
holding the complaint sufficient, and in passing the decree thereon.
There is error in the judgment appealed fron, and it is reversed, and
the case remanded.
In this opinion the other judges concurred.
MORTIMER V. NEW YORK ELEVATED RAILROAD CO.
SUPERIOR COURT OF THE CITY OF NEW YORK, 1889.
(Reported 6 New York Supplement, 898.)
1
FREEDMAN, J. The claim made in this case by and on behalf of
the elevated railway companies is that the absolute fee of the street
known as the “Bowery” was, prior to the surrender of the Dutch
forces to the English in 1664, in the Dutch government; that such
fee thereafter went to the State or to the city of New York so abso-
lutely that abutting owners never had, and do not now have, any ease-
ment of any kind in said street, and that, the elevated railway running
through the Bowery having been constructed with the consent of both
the city and the State, neither its owners nor its lessees are liable for
any injury inflicted upon abutting property by reason of the construc-
tion and operation of the railway.
The claim of the English that they were the owners, by right of
discovery, under governmental authority, of the land of which the
present city of New York forms a part, and that this gave them such
exclusive ownership that the Dutch government acquired no title to
the land which can be recognized, has been fully set forth in the opin-
ion of Judge Truax. I concur in his remarks as far as they go, but
wish to add the following, viz. : -
The claim of the English, it is true, has occasionally been criticised
on the ground that neither of the Cabots landed in or near New York,
or saw the coast of New York. The right of discovery is not recog-
nized in the Roman law unless followed by occupation, or unless the
intention of the sovereign or State to take possession be declared or
made known to the world. And it must be conceded that modern
112
:STATES.
[PART 1.
diplomatists and publicists incline to the opinion that mere transient
discovery amounts to.nothing unless followed in a reasonable time by
occupation and settlement, more or less permanent, under the sanction
of the State. But the question in the case at:har is not to be decided
according to the rules of the international law of the present time. It
is a question purely between the public authorities of the State of
New York and citizens of the same State, and as such it is controlled
by the decisions referred to by Judge TRUAX, to the effect that
what the English did do was sufficient to give them title by discovery,
and that such title is superior to the Indian title. These decisions
proceeded upon the theory that the claim of the Dutch 'was contested
by the English from the very start, not because they questioned the
title given by discovery, but because they insisted on being themselves
the rightful claimants under that title; and that the claim of the
English was finally decided in their favor by the sword. That being
so, it follows that, in contemplation of present law, neither the Dutch
nor the Roman law ever prevailed in the State of New York de jure
and that the common law of England must be deemed to be the origi-
nal source of all our law. And it further follows that the foundations
of the rights of owners of land.abutting on a street laid out while the
Dutch were in possession, as against the city or the State of New York,
rest upon the English common law, and that they are not:to be affected
by the Dutch or Roman law.
Reported cases in which the validity of Dutch .grants was upheld
between individuals have no application to the present controversy.
Now, under the English common law, the presumption is that the
owners of lands lying on a highway are the owners of the fee of the
highway; that the owners on each side of the highway own the soil
of the highway in fee to the centre of the highway; and that the
rights of the public in and to the highway are no higher or other
than those of a inere easement. Wager v. Railroad Co., 25 N. Y. 529.
This presumption applies as well to the streets of a city as to a country
highway. Bissell v. Railroad Co., 23 N. Y. 61. This presumption
of law is founded on the supposition that the way was originally
granted by the adjoining owners in equal proportions. Watrous v.
Southworth, 5 Conn. 305. But the presumption may be rebutted by
proof to the contrary, and it is rebutted by the production of a deed
under which the owner derives title granting the land to the side of
the street only. Under the operation of this rule, and there being no
proof of alienation or escheat requiring a different conclusion, it must
he assumed in this case that the original grantors from whom plaintiffs'
title has been derived owned the soil of the Bowery in front of the
preinises in suit to the centre of the street. But even if the title of ·
.
1
CHAP. 1.] MORTIMER V. NEW YORK ELEVATED RAILROAD CO. 113
the English rested not in discovery, but in conquest, and the English,
upon the surrender by the Dutch in 1664, acquired from the Dutch a
title to the then existing streets as absolute as under the Roman law
the title of the government to a military highway was, the fact would
not improve the position of the defendants. Upon receiving such
title the English could do with it what they pleased. They were not
bound to enforce it against abutting owners, as the Dutch government
might have enforced it. The presumption is that they took the title
and the streets to be held by thein according to their own laws, and
as matter of fact they thereafter so dealt with said streets as to admit
of no other conclusion. The province having been granted by Charles
II. to his brother, the Duke of York, by the charter of 1664, several
months before the surrender to Sir Richard Nicolls, the grant, in order
to remove all doubt as to its validity, was afterwards confirmed by the
charter of 1674, also granted to the Duke of York. The object of
both charters was to enable the Duke of York to plant a colony on this
continent. The charter of 1664, issued under the great seal of Eng-
land, contained a provision that the statutes, ordinances, &c., to be
established by the Duke in the new country, "should not be contrary.
to, but as nearly as might be agreeable to, the laws, statutes, and
government of the realm of England." This charter was, therefore,
in itself, an explicit declaration of the King's will that the laws of
England should be established in the colony, and that the laws of the
Dutch settlers should not be retained. The consequence was that,
having obtained the lands, the English held them, not under the
Dutch or the civil law, but under the common law of their own coun-
try. English law governed English land, so that, even if an absolute
title to a street was obtained, the street was ever thereafter treated as.
an English street, under the common law.1
1 The learned judge then expressed the opinion that by subsequent acts of the Pro-
prietor and of the State the city lost its rights, if any, to the legal fee.
In his concurring opinion TRUAX, J., said I am of the opinion that the fee of
the Bowery, and of the other streets in the city of New York that are known as Dutch.
streets, never was in the Dutch government; and that it was, prior to the Revolution,
bound by the rules of the common law, and not by the rules of the Dutch civil law..
While the Dutch were in actual possession this execution of the common law was:
suspended, just as, during the late rebellion, this execution of the laws of the United
States could not be enforced in some of the Southern States. But, said the Supreme:
Court of the United States in Ketchum v. Buckley, 99 U. S., 188," the same general
form of government, the same general law for the administration of justice, and the
protection of private rights which liad existed in the States prior to the rebellion,
remained during its continuance and afterwards."
See Ketchum v. Buckley, 90 U. S. 188, and cases cited. -- ED.
8
114
[PART I.
STATES.
MCKENNON v. WINN.
SUPREME COURT OF OKLAHOMA TERRITORY, 1893.
(Reported i Oklahoma Reports, 327.)
BURTORD, J. The appellant filed his complaint in the court below
to enforce the specific performance of a contract for the conveyance of
real estate situated in Oklahoma City, Oklahoma County, Oklahoma
Territory. A demurrer was filed to the complaint, alleging as
grounds: First. That the court has no jurisdiction of the person of
defendant, or the subject of the action. Second. That the complaint
does not state facts sufficient to constitute a cause of action. The
demurrer was sustained, to which the appellant excepted and brings
the case to this court by appeal. * * *
The second ground for demurrer presents two questions: First.
Can a parol contract for the conveyance of real estate, or an interest
therein, made after the settlement of this country, and prior to the
adoption of our organic act, be enforced? Second. Is a contract for
the conveyance of real estate, entered into before title is acquired
from the United States, and to be executed after title is acquired,
void, as against public policy?
The first proposition seems to be settled by the adjudicated cases
and text writers in favor of the appellant. “Every contract, on
whatever subject, may be in oral words, which will have the same
effect as if written, except when some positive rule of the common or
statutory law has provided otherwise.” Bish. Cont. sect. 153; Mal-
lory v. Gillett, 21 N. Y. 412; Wyman v. Goodrich, 26 Wis. 21; Green
v. Broolins, 23 Mich. 48; White v. Maynard, 111 Mass. 250. By
the common law, prior to the enactment of the Statute of Frauds (29
Car. II., c. 3, A. D. 1676), contracts for the sale of real estate, or an
interest therein, were not required to be in writing. Bish. Cont.,
sect. 1231; 4 Kent Com., p. 450. The English-speaking people
brought the common law to America with them, in the first settle-
ment of the colonies; and it has prevailed in all the States and Terri-
tories, modified by legislative acts, local conditions, and such of the
English statutes adopted prior to the settlement of our colonies as
were of general application, and suited to our conditions, except in
some portions where the French or civil law prevailed. At the time
of the settlement and discovery of America the Statute of Frauds bad
1 Part of the opinion is omitted. -- ED.
CHAP. I.)
115
MCKENNON V. WINN.
not been adopted, and has only become the law of the United States,
or of our several States and Territories, by legislative enactment.
This leads us to the inquiry, Did the common law prevail in the
Territory in April, 1889? It is contended that prior to the settle-
ment of Oklahoma, and until the same was superseded by statutory
laws, the Code Napoleon, or civil law, prevailed. Whatever may
have been the laws of the country now known as Oklahoma, they
ceased to operate in the region originally comprising the Indian
Territory when the Territory ceased to be a part of the Territory of
Louisiana, and the laws of the Territory of Indiana and the Territory
of Missouri, which may have once prevailed in said region, became
inoperative in and ceased to have any force or effect in the Indian
Territory, when that Territory ceased to be a part of said Territories.
Railroad Co. v. O'Loughlin, 49 Fed. Rep. 440. There was no law in
the Indian Territory regulating the making of contracts at the time
of the approval of the act of Congress establishing a United States
district court in said Territory by the act of March 1, 1889. 25 Stat.
783. Congress, with the assent of the Indians, created the court for
the whole of the Indian Territory, which included Oklahoma, and
conferred on it jurisdiction in all civil cases between citizens of the
United States who are residents of the Territory, or between citizens
of the United States or of any State or Territory, and any citizen of,
or person residing or found in, the Indian Territory. It gave the
court authority, and imposed upon it the duty, to apply the estab-
lished rules and principles of the common law to the adjudication of
those cases of which it was given jurisdiction. Pyeatt v. Powell, 51
Fed. Rep. 551. But if it be held that the establishment of a United
States court in the Indian Territory did not put the common law in
force in said Territory, except in so far as was necessary to execute
the powers of said court, and for the adjudication of such cases as
actually went into that forum, then there was no law in Oklahoma, at
the date of its settlement, regulating the making of contracts. If
this should be conceded, then it necessarily follows, on principle, that
when people from all parts of the United States, on the 22d day of
April, 1889, settled the country known as Oklahoma, built cities,
towns, and villages, and began to carry on trade and commerce in all
its various branches, they brought into Oklahoma, with them, the
established principles and rules of the common law, as recognized and
promulgated by the American courts, and as it existed when im-
ported into this country by our early settlers, and unmodified by
American or English statutes. So that, in any event, the common
law prevailed in Oklahoma at the time the contract between the
appellant and appellee was entered into; and as, at common law, con-
116
[PART I.
STATES,
tracts for the sale and conveyance of real estate were not required to
be in writing, the contract mentioned in the complaint may be en-
forced, unless void for other reasons.
1
SECTION 6. - TERRITORIAL WATERS OF A STATE.
(a) Rivers. 2
HANDLY'S LESSEE V. ANTHONY.
SUPREME COURT OF THE UNITED STATES, 1820.
( 5 Wheaton, 374.)
Mr. Chief Justice MARSHALL delivered the opinion of the court.
This was an ejectment brought in the Circuit Court of the United
States for the District of Kentucky, to recover land which the plain-
tiff claims under a grant from the State of Kentucky, and which the
defendants hold under a grant from the United States as being part
of Indiana. The title depends upon the question whether the lands
lie in the State of Kentucky, or in the State of Indiana.
At this place, as appears from the plat and surveyor's certificate,
the Ohio turns its course, and runs southward for a considerable dis-
tance, and then takes a northern direction, until it approaches within
less than three miles, as appears from the plat, of the place where
its southern course commences.
A small distance above the narrow-
est part of the neck of land which is thus formed, a channel, or what
is commonly termed in that country a bayou, makes out of the
Ohio, and enters the same river a small distance below the place
where it resumes its westward course. This channel, or bayou, is
about nine miles by its meanders, three miles and a half in a
straight line, and from four to five poles wide. The circuit made by
the river appears to be from fifteen to twenty miles. About midway
of the channel two branches empty into it from the northwest,
between six and seven hundred yards from each other; the one of
1 The contract was held not to be void on the ground alleged; the court followed
on this point Lamb v. Davenport, 18 Wall. 307. - ED.
2 As previously said, ante, p. 84, note, the cases cited in U.S. v. Texas, ante, 76,
are the leading authorities in the United States on tliis subject. They are, how-
ever, too long to print, and the decision of Handl., v. Anthony is supplemented by two
State cases, which, although less known, correctly state the law.-ED.
+
CHAP. I.]
117
HANDLY'S LESSEE V. ANTHONY.
which runs along the channel at low water, eastward, and the other
westward, until they both enter the main river. Between them is
ground over which the waters of the Ohio do not pass until the river
has risen about ten feet above its lowest state. It rises from forty
to fifty feet, and all the testimony proves that this channel is made
by the waters of the river, not of the creeks which empty into it.
The people who inhabit this peninsula, or island, have always paid
taxes to Indiana, voted in Indiana, and been considered as within
its jurisdiction, both while it was a Territory, and since it has be-
come a State. The jurisdiction of Kentucky has never been extended
over them.
The question whether the lands in controversy lie within the State
of Kentucky or of Indiana, depends chiefly on the land law of Virginia,
and on the cession made by that State to the United States.
Both Kentucky and Indiana were supposed to be comprehended
within the charter of Virginia at the commencement of the war of
our revolution. At an early period of that war, the question whether
the immense tracts of unsettled country which lay within the charters
of particular States, ought to be considered as the property of those
States, or as an acquisition made by the arms of all, for the benefit
of all, convulsed our confederacy, and threatened its existence. It was
probably with a view to this question that Virginia, in 1779, when she
opened her land office, prohibited the location or entry of any land
on the northwest side of the river Ohio.
In September, 1780, Congress passed a resolution, recommending
"to the several States having claims to waste and unappropriated
lands in the western country, a liberal cession to the United States,
of a portion of their respective claims, for the common benefit of the
Union.” And in January, 1781, the Commonwealth of Virginia
yielded to the United States "all right, title, and claim, which the
said Commonwealth had to the territory northwest of the river Ohio,
subject to the conditions annexed to the said act of cession." One of
these conditions is, "that the ceded territory shall be laid out and
formed into States.” Congress accepted this cession, but proposed
some small variation in the conditions, which was acceded to; and in
1783 Virginia passed her act of confirmation, giving authority to
her members in Congress to execute a deed of conveyance.
It was intended then by Virginia, when she made this cession to
the United States, and most probably when she opened her land
office, that the great river Ohio should constitute a boundary between
the States which might be formed on its opposite banks. This inten-
tion ought never to be disregarded in construing this cession.
The two exceptions present substantially the same questions to the
118
STATES,
[PART I.
mences.
court, and may therefore be considered together. They are, whether
land is properly denominated an island of the Ohio, unless it be sur-
rounded with the water of the river, when low? and whetiferkentucky
was bounded on the west and northwest by the low water mark of the
river, or at its middle state? or, in other words, whether the State of
Indiana extends to low-water mark, or stops at the line reached by the
river when at its medium height?
In pursuing this inquiry, we must recollect that it is not the bank
of the river, but the river itself, at which the cession of Virginia com-
She conveys to Congress all her right to the territory "situ-
ate, lying, and being to the northwest of the river Ohio." And this
territory, according to express stipulation, is to be laid off into inde-
pendent States. These States, then, are to have the river itself,
wherever that may be, for their boundary. This is a natural boun-
dary, and in establishing it, Virginia must have had in view the
convenience of the future population of the country.
When a great river is the boundary between two nations or states,
if the original property is in neither, and there be no convention
respecting it, each holds to the middle of the stream.
But when,
as in this case, one State is the original proprietor, and grants the
territory on one side only, it retains the river within its own domain,
and the newly created State extends to the river only. The river,
however, is its boundary.
“In case of doubt,” says Vattel, “every country lying upon a river,
,
is presumed to have no other limits but the river itself; because noth-
ing is more natural than to take a river for a boundary, when a state
is established on its border; and wherever there is a doubt, that is
always to be presumed which is most natural and most probable.
"If,” says the same author, “the country which borders on a river,
I has no other limits than the river itself, it is in the number of terri-
tories that have natural or indetermined limits, and it enjoys the
I right of alluvion.”
Any gradual accretion of land, then, on the Indiana side of the
Ohio, would belong to Indiana, and it is not very easy to distinguish
between land thus formed, and land formed by the receding of the
water.
If, instead of an annual and somewhat irregular rising and falling
of the river, it was a daily and almost regular ebbing and flowing of
the tide, it would not be doubted that a country bounded by the river
would extend to low-water mark. This rule has been established by
the common consent of mankind. It is founded on common conven-
ience.
Even when a State retains its dominion over a river which
constitutes the boundary between itself and another State, it would
CHAP. I.]
119
HANDLY'S LESSEE V. ANTHONY.
be extremely inconvenient to extend its dominion over the land on
the other side, which was left bare by the receding of the water.
And this inconvenience is not less where the rising and falling is
annual, than where it is diurnal. Wherever the river is a boundary
between States, it is the main, the permanent river, which constitutes
that boundary; and the mind will find itself embarrassed with insur-
mountable difficulty in attempting to draw any other line than the
low-water-mark.
When the State of Virginia made the Ohio the boundary of States,
she must have intended the great river Ohio, not a narrow bayou into
which its waters occasionally run. All the inconvenience which
would result from attaching a narrow strip of country lying on the
northwest side of that noble river to the States on its southeastern
side, would result from attaching to Kentucky, the State on its
southeastern border, a body of land lying northwest of the real river,
and divided from the mainland only by a narrow channel, through
the whole of which the waters of the river do not pass, until they rise
ten feet above the low-water inark.
The opinions given by the court must be considered in reference
to the case in which they were given. The sole question in the cause
respected the boundary of Kentucky and Indiana; and the title de-
pended entirely upon that question. The definition of an island
which the court was requested to give, was either an abstract
proposition, which it was unnecessary to answer, or one which was
to be answered according to its bearing on the facts in the cause.
The definition of an island was only material so far as that defini-
tion might aid in fixing the boundary of Kentucky. In the opinion
given by the court on the motion made by the counsel for the defen-
dants, they say that “no land can be called an island of the Ohio,
unless it be surrounded by the waters of that river at low-water
mark." We are not satisfied that this definition is incorrect, as
respected the subject before the court; but it is repdered unimpor-
tant, by the subsequent member of the sentence, in which they say,
“that to low-water mark only, on the western and northwestern side
of the Ohio, does the State of Kentucky extend."
So, in the motion made by the counsel for the plaintiff, the court
was requested to say, that if the waters of the Ohio flowed in the
channel, in its middle and usual state, it was not only an island, but
" within the State of Kentucky.”
If. the land was not within the State of Kentucky, the court could
not give the direction which was requested. The court gave an
instruction substantially the same with that which had been given on
the motion of the defendant's counsel.
1
120
[PART I.
STATES.
If it be true, that the river Ohio, not its ordinary bank, is the
boundary of Indiana, the limits of that State can be determined only
by the river itself. The same tract of land cannot be sometimes in
Kentucky, and sometimes in Indiana, according to the rise and fall
of the river. It must be always in the one State, or the other.
There would be little difficulty in deciding, that in any case other
than land which was sometimes an island, the State of Indiana would
extend to low-water mark. Is there any safe and secure principle, on
which we can apply a different rule to land which is sometimes,
though not always, surrounded by water?
So far as respects the great purposes for which the river was taken
as the boundary, the two cases seem to be within the same reason,
and to require the same rule. It would be as inconvenient to the
people inhabiting this neck of land, separated from Indiana only by
a bayou or ravine, sometimes dry for six or seven hundred yards
of its extent, but separated from Kentucky by the great river Ohio,
to form a part of the last-mentioned State, as it would for the inhabi-
tants of a strip of land along the whole extent of the Ohio, to forın a
part of the State on the opposite shore. Neither the one nor the
other can be considered as intended by the deed of cession.
If a river, subject to tides, constituted the boundary of a State, and
at flood the waters of the river flowed through a narrow channel,
round an extensive body of land, but receded from that channel at
ebb, so as to leave the land it surrounded at high water, connected
with the main body of the country; this portion of territory would
scarcely be considered as belonging to the State on the opposite side
of the river, although that State should have the property of the
river. The principle that a country bounded by a river extends to
low-water mark, a principle so natural, and of such obvious con-
venience as to have been generally adopted, would, we think, apply
to that case. We perceive no sufficient reason why it should not
apply to this.
The case is certainly not without its difficulties; but in great ques-
ţions which concern the boundaries of States, where great natural
boundaries are established in general terms, with a view to public
convenience, and the avoidance of controversy, we think the great
object, where it can be distinctly perceived, ought not to be defeated
by those technical perplexities which may sometimes influence con-
tracts between individuals. The State of Virginia intended to make
the great river Ohio, throughout its extent, the boundary between
the territory ceded to the United States and herself. When that
part of Virginia, which is now Kentucky, became a separate State,
the river was the boundary between the new States erected by Con-
CHAP. I.]
121
BUTTENUTA V. ST. LOUIS BRIDGE CO.
gress in the ceded territory, and Kentucky. Those principles and
considerations which produced the boundary, ought to preserve it.
They seem to us to require, that Kentucky should not pass the main
river, and possess herself of lands lying on the opposite side, although
they should, for a considerable portion of the year, be surrounded by
the waters of the river flowing into a narrow channel.
It is a fact of no inconsiderable importance in this case, that the
inhabitants of this land have uniformly considered themselves, and
have been uniformly considered, both by Kentucky and Indiana, as
belonging to the last-mentioned State. No diversity of opinion
appears to have existed on this point. The water on the north-
western side of the land in controversy, seems not to have been
spoken of as a part of the river, but as a bayou. The people of the
vicinage, who viewed the river in all its changes, seem not to have
considered this land as being an island of the Ohio, and as a part of
Kentucky, but as lying on the northwestern side of the Ohio, and
being a part of Indiana.
The compact with Virginia, under which Kentucky became a State,
stipulates, that the navigation of, and jurisdiction over, the river,
shall be concurrent between the new States, and the States which
may possess the opposite shores of the said river. This terni seems
to be a repetition of the idea under which the cession was made.
The shores of a river border on the water's edge.
Judgment affirmed, with costs.
WILLIAM BUTTENUTH et al. y. THE ST. LOUIS
BRIDGE COMPANY.
SUPREME COURT OF ILLINOIS, 1888.
(123 Illinois, 535.)
Mr. Justice Scott delivered the opinion of the court. * * *
The remaining ground of relief insisted upon is, that part of the
bridge structure which lies west of its easternmost pier is outside of
the State of Illinois, and was illegally assessed and included in the
assessment with that part which is confessedly within the limits of
the State. On this branch of the case some evidence was offered, and
some discussion has been had as to the boundary line between the
States of Missouri and Illinois at the point where the bridge struc-
ture spans the Mississippi River. That question is certainly one of
great gravity, and one this court will hardly undertake to determine
definitely on the meagre evidence to be found in this record, and in
122
[PART I.
STATES.
a case where neither State is represented, and where there are no
defendants other than private citizens, neither of whom had the
slightest personal interest in the matter. The utmost this court
will assume to decide is, what part of complainant's bridge is to be
regarded as within the State of Illinois for the purposes of taxation,
or, what is the same thing, does the valuation of complainant's prop-
erty, as made by the assessor for 1885, include any portion of the
bridge not subject to taxation in this State.
It is certain no part of that portion of the bridge structure assessed
by the local assessor for taxation in this State is in the State of Mis-
souri, nor does it appear that it was ever subject to taxation in that
State. In the act of Congress, March 6, 1820 (U. S. Stat. at Large,
p. 545), to enable the territory of Missouri to form a constitution, in
fixing the boundaries it is declared, “thence due east to the middle of
the main channel of the Mississippi River, thence down and follow-
ing the course of the Mississippi River, in the middle of the main
channel thereof." The State of Missouri, by its constitution of 1820,
ratified the boundaries as fixed by the enabling act of Congress, and
there can be no pretence the eastern boundary of the State has since
been changed. The constitution of 1875, of that State, simply rati-
fied and confirmed the boundaries of the State as established by law.
Notwithstanding the fact the main channel of the river might be.
changed by imperceptible natural wear on one side, or by gradual
formation of alluvions, still "the middle of the main channel," when
ascertained, would be the boundary of the State. It might be a
slightly shifting line, hardly perceptible; still it would be a well-
known and easily ascertainable boundary line. The rule of law is,
when a stream dividing co-terminous States, being a boundary line,
alters its channel by a gradual or imperceptible process of wear or of
alluvions, the boundary shifts with the channel. No matter what
conclusion might be reached as to the western boundary of Illinois,
it cannot be maintained the eastern boundary of the State of Missouri
is farther east than the "middle of the main channel" of the Missis.
sippi at the point where the bridge structure spans that river. It is
not alleged in the bill, nor claimed in argument, any portion of the
bridge assessed by the local assessor in this State lies west of the
"middle of the inain channel" of the river. It would seem to follow,
therefore, if that portion of the bridge included in the assessment that
lies between the eastern pier of the bridge and the "widdle of the
main channel" of the river, is not within the limits of the State of
Illinois, it is not included within the defined boundaries of either
State. That conclusion will hardly be adopted, unless the question.
will admit of no other solution.
CHAP. I.]
123
BUTTENUTE V. ST. LOUIS BRIDGE CO.
The act of Congress of April 18, 1818, to enable the people of the
Territory of Illinois to forin a State constitution, fixed the western
boundary at the "middle of the Mississippi River,” and declared the
State should have concurrent "jurisdiction on the Mississippi River
with any State or States to be formed west thereof, so far as said
river shall form a common boundary to both.” By the constitution
of 1818, the people ratified the boundaries fixed for the State by the
enabling act of Congress, and in the constitutions of 1848 and of 1870
the same boundaries and jurisdiction are declared, except in the two
last constitutions it is provided "this State shall exercise such juris-
diction upon the Ohio River as she is now entitled to, or such as may
be agreed upon by this State and the State of Kentucky.” It seems
clear, from all legislation and ordinances on this subject, it was in-
tended the Mississippi River should constitute "a common boundary"
between the State of Illinois and any State or States that might be
formed to the west and next to that river. That intention is more
definitely declared than it was in regard to the Ohio River, for in
fixing the boundary of Illinois, when the line down along the middle
of the Mississippi River should reach the confluence of that river
with the Ohio, the boundary should be from thence up the latter
river "along its northwestern shore," and yet it has been held the
river is the boundary between States divided by the Ohio River,
although the original proprietor, in granting the territory, retained
the river within its own domain. The law, as stated by law writers,
and in the adjudged cases, seems to be, that where a river is declared
to be the boundary between States, although it may change imper-
ceptibly, from natural causes, the river, "as it runs, continues to be
the boundary." But if the river should suddenly change its course,
or desert the original channel, the rule of law is, the boundary re-
mains in the middle of the deserted river bed. Where a river is a.
boundary between States, as is the Mississippi between Illinois and
Missouri, it is the main. - the permanent
the permanent — river which constitutes
the boundary, and not that part which flows in seasons of high water,
and is dry at other times. (Handly's Lessee v. Anthony, 5 Wheat.
174.) In no other way would a river be a permanent fixed boundary,
at all times readily ascertainable. There are many cogent reasons
why the boundary lines between States should be permanent, other-
wise territory in one State at one time, sooner or later might be in
another State. It must be in one State all the time, or else the State
would lose jurisdiction over it.
Treating, then, as must be done, the Mississippi River as a common
boundary between the States of Illinois and Missouri, what meaning
is to be given to the term,"middle of the Mississippi River," used
12+
[PART I.
STATES.
in the enabling act of Congress and in the constitution, defining the
boundaries of the State of Illinois? Whether, when mere private
rights are involved, the phrases the "middle of the river,” and the
"middle of the main channel,” or, what is the same thing, the
“thread of the stream,” mean the same thing, and may be inter-
changeably used, there are many considerations affecting the public
welfare why it should be held the "middle of the channel" of a river
between independent States or countries should be regarded as the
boundary line between them, in the absence of express agreement to
the contrary. When applied to rivers as boundaries between States,
the phrases, "middle of the river," "and middle of the main chan-
nel," are equivalent expressions, and both mean the centre line of the
main channel, — or, as it is most frequently expressed, the "thread
of the stream." Should the expression, "middle of the river," be
construed to mean a line midway of the water surface, that would give
no permanent boundary that could be ascertained. It would be at
one point at one time, and distant away at another. Had the boun-
daries of Illinois been fixed at the time of the high water in 1844, and
the middle of the river opposite St. Louis be held to be a line mid-
way of the surface of the water, that line would then have been far
east of the present city of East St. Louis, and on the waters receding,
it would have shifted back towards the west, nearer the city of St.
Louis. So unsatisfactory a proposition as that will not be adopted.
It would lead to insurmountable difficulties. Some light will be cast
upon the subject of inquiry by first ascertaining, as near as may be,
the meaning of the words, “main channel," "mid-channel,” “middle
of the current,” as those terms are used in the adjudged cases and in
the text-books that shall be examined.
The definition of the word "channel," given in the most recent edi-
tion of Webster's Dictionary, is, “the bed of a stream of water;
especially the deeper part of a river or bay where the main current
flows." The case of Dunleith and Dubuque Bridge Co. v. County of
Dubuque, 55 Iowa, 558, while this court does not approve the deci-
sion of the case, contains a very accurate definition of the word
"channel," as commonly used by river men. It is “the word chan-
nel, when employed in treating subjects connected with the navigation
of rivers, indicates the line of the deep water which vessels follow."
In Rowe v. Smith, 51 Conn. 266, it is said, "the expression, middle
of the channel of the bay or harbor,' does not refer to the thread of
deepest water, but to that space within which ships can and usually
do pass.” It is apprehended it is in this sense the expressions,
"middle of the river," "middle of the main channel," "mid-channel,"
"middle thread of the channel," are used in enabling acts of Congress
CHAP. I.]
125
BUTTENUTH V. ST. LOUIS BRIDGE CO.
and in State constitutions establishing State boundaries. It is the
free navigation of the river, — when such river constitutes a common
boundary, that part on which boats can and do pass, sometimes called
" nature's pathway,” – that States demand shall be secured to them.
When a river, navigable in fact, is taken or agreed upon as the boun-
dary between two nations or States, the utility of the main channel,
or, what is the same thing, the navigable part of the river, is too
great to admit a supposition that either State intended to surrender
to the State or nation occupying the opposite shore, the whole of
the principal channel or highway for vessels, and thus debar its own
vessels the right of passing to and fro for purposes of defence or
commerce. That would be to surrender all, or at least the most valu-
able part, of such river boundary, for the purposes of commerce or
other purposes deemed of great value, to independent States or
nations.
Construing, then, the phrases, "middle of the Mississippi River,"
and the "middle of the main channel of the Mississippi River,” to
mean the same thing, both acts of Congress fixing the boundaries of
Illinois and Missouri declare the middle of the main channel of the
Mississippi River to be the boundary line between the States, and
that is the thread of the main stream.
In Thomas v.. Hatch, 3 Sumner, 170, Story, J., said: “I consider
the law to be clearly settled that a boundary on a stream, on or by
a stream, or to a stream, includes the flats, at least to low-water
mark, and in many cases to the middle thread of the river."
A valuable case on this subject is Morgan v. Reading, 3 Sm. &
.
Marsh. 366. The opinion is by Chief Justice Sharkey. Although
not directly involved, the discussion, in part, had relation to the
boundary line of the State of Mississippi. The facts as stated in the
opinion are, that by various treaties and cessions the United States
had succeeded to all the territory east of a line drawn along the mid-
dle of the Mississippi, above the 31st degree of latitude. Louisiana
was then bounded on the east by the same line, the iniddle of the
river above the river Iberville, as it had been established by the
treaty of 1763. In 1798, while the middle of the river was still
the boundary line between the province of Louisiana and the United
States, Congress established the Mississippi territory, bounding it on
the west by the Mississippi. It was in reference to that line the
court said, "we have said that Congress omitted to mention the mid-
dle of the river, but bounded the territory by the Mississippi.” The
common law, by construction, extends grants bounded "by" or "on"
or "along” a fresh water stream, to the thread of the stream. The.
Mississippi territory, by this rule, extended to the middle of the river..
126
(PART 1.
STATES.
In Handly's Lessee v. Anthony, supra, it was said by the court:
“Where a great river is the boundary between two nations or States,
if the original property is in neither, and there be no convention
respecting it, each holds to the middle of the streann."
Mr. Field, in his work entitled "Outlines of an International Code,"
(2d ed.). section 30, in speaking of boundary by stream or channel,
says: "The limits of national territory bounded by a river or stream,
or by a strait or sound, or arm of the sea, the other shore of which is
the territory of another nation, extend outward to a point equidis-
tant from the territory of the nation occupying the opposite shore, or,
if there be a stream or a navigable channel, to the thread of the
stream, – that is, to the mid-channel, - or, if there be several chan-
nels, to the middle of the principal one.”
In his work on the “ Law of Nations,” p. 31, Mr. Polson says: “If
the river divides two States, the unid-channel is considered as the
boundary line, unless prior occupation has given to the one or the
other the right of possession to the whole."
There are cases in this and other courts, although the discussion
had reference directly to riparian rights, and not to boundaries be-
tween States, that illustrate this same doctrine. In Fletcher V.
Thunder Bag Boom Co., 51 Mich. 277, it was held, the riparian rights
of defendant in the case being considered, extended to the thread of
the stream -- to the centre of the main channel of the river. It was
said by this court in Middleton v. Pritchard, 3 Scam. 510, “that all
grants bounded upon a river not navigable by the common law,
entitled the grantee to all islands lying between the mainland and
the centre thread of the current." In Cobb v. Lavalle, 89 Ill. 331, it
was said: “It seems to be the settled law of this country, that the
owner of land bordering upon a river not navigable at common law,
such as the Mississippi River, will be entitled to claim to the centre
of the current of the stream." The same doctrine was re-stated in
Piper v. Connelly, 108 Ill. 646, where it was said: “The general doc-
trine that grants of land bounded upon rivers, or the margins above
tide water, carry the exclusive right and title of the grantee to the
centre thread of the current, unless the terms of the grant clearly
denote the intention to stop at the margin of the river, has been too
long established and too firmly adhered to by this court to be now
questioned.”
No reason is perceived why the principles here stated should not
control the decision of the case being considered. As before re-
marked, it is manifest it was the intention of Congress the Missis-
sippi River should constitute a common boundary” between the
States of Illinois and Missouri, and had the words the “middle of
92
CHAP. I.] BUTTENUTË V. ST. LOUIS BRIDGE CO.
127
:
the Mississippi River,” and the "middle of the main channel,” been
omitted in both enabling acts of Congress, still the river itself would
be the boundary, and each State would hold to the middle of the
stream,"
- that is to say, the middle thread of the stream. The in-
tention in this respect is made most manifest by the fact it must have
been and was known to Congress when it passed the enabling act for
Missouri, and fixed the boundary at the "middle of the main channel
of the Mississippi River,” that the western boundary of Illinois had
been fixed "at the middle of the Mississippi River," and certainly it
was not intended to fix two distinct or different boundary lines. That
would have left a space not in either State, and no such absurd inten-
tion should be imputed to Congress. It was most appropriately said
by the court in Morgan v. Reading, supra, in respect to the boundary
line as fixed by the act of Congress organizing the territory of Missis-
sippi, which established the “Mississippi River" as the western boun-
dary: “All west of that line,” – that is, the middle of the river,
was owned by a foreign power, and we cannot suppose Congress,
under the circumstances, designed to limit the jurisdiction of the
territory by the bank of the river."
The suggestion, Congress, by its enabling acts, may have estab-
lished one line in the Mississippi River for the eastern boundary for
Missouri, and another line, farther east, for the western boundary of
Illinois, has nothing, in law or in fact, upon which to rest. The
whole legislation on this subject shows, as before remarked, it was
the intention of Congress to make the river a "common boundary”
between these States, and the expressions used in both enabling acts,
although the words used may not be the same, make the middle of
the main channel of the permanent river the boundary line. In
such cases the principle is as stated by Mr. Woolsey, in his work on
International Law, section 58: “Where a navigable river forms the
boundary between States, both are presumed to have free use of it,
and the dividing line will run in the middle of the channel, unless
the contrary is shown by long occupancy or agreement of parties.”
Commercial considerations make it imperative, where States or
nations are divided by a navigable river, each should hold to the
centre thread of the main channel or current along which vessels in
the carrying trade pass. That is the "channel of commerce, - not
the shallow water of the stream, which, at some seasons of the year,
may be impossible of navigation, -- upon which each nation or State
demands the right to move its products without any interference from
the State or nation occupying the opposite shore. So important bas
this right ever been deemed, it is thought to be embraced in all trea-
ties, cessions, ordinances, statutes and constitutions made, enacted or
128
!
STATES.
I..
[PART adopted in regard to the Mississippi River since the Federal Govern-
ment was organized. It was the great desire to secure this important.
privilege that gave rise to all the efforts on the part of the general.
Government to obtain the control of the Mississippi River from its,
source to that point where it empties into the gulf and connects with
the sea.
It has been often ruled, the intention in such great matters as State:
boundaries, when clearly manifested by cessions, grants or legislative
acts, should control. It is a fact so well known it is not called in
question, that so far back as can be known, either from history or
tradition, the main channel of the Mississippi River at the point:
where complainant's bridge is constructed, was always west of Bloody
Island, – that is, between that island and the Missouri shore. Both
States have always recognized this fact, and for that reason “Bloody
Island,” although the river east of it was, in fact, at one time, navi
gable for shallow-draft vessels, -certainly in seasons of high water,
was always regarded as being within the limits of the State of
Illinois. At one time grave apprehensions were entertained that the
main channel of the river might change to the east side of “Bloody
Island,” and thus leave the Missouri side; but by the consent of: Illi-
nois, expressed by the General Assembly, dykes and other structures
were erected at the upper end of the island to keep the main channel
on the Missouri side, where it had previously been. Those structures
proved efficient, and the main channel of the river now flows where it
did since before the boundaries of either State divided by it were es-
tablished by Congress or declared by State constitutions. It is not
claimed, either by the bill or in the evidence, that any part of com-
plainant's bridge that was assessed by the local assessor lies west of
the middle of what has always been the main channel of the river
since the States were organized under the acts of Congress, and this
court has no hesitation in coming to the conclusion that all of that
part of the bridge, with its approaches, that lies east of the middle
line of the main channel of the river, is within the jurisdiction
of the State of Illinois, for the purposes of State and local taxa-
tion. Only that part of the bridge east of the middle of the main
channel of the river, as appears from the plat used in making
the assessment, was assessed in this case, and that was warranted
by law.
The case of Missouri v. Kentucky, 11 Wall. 395, cited by counsel
for complainant as being conclusive of the case in hand, has been
examined, and it is not perceived it contains anything in conflict with
the general views here expressed. Indeed, some of the reasoning
in that case has been adopted in this opinion.
CHAP. I.]
129
COOLEY V. GOLDEN.
The judgment of the circuit court will be reversed, and the cause
will be remanded, with directions to that court to dismiss the bill.
Judgment reversed.
1
MILLARD F. COOLEY V. JAMES F. GOLDEN.
KANSAS CITY COURT OF APPEALS, 1893.
(52 Missouri Appeals, 52.)
SMITH, P.J. -- This is an action of forcible entry and detainer which
was brought before a justice of the peace of Atchison County.
By the act of Congress, approved June 7, 1836, United States Stat-
utes at Large, 34, entitled “ An Act to extend the western boundary of
the State of Missouri to the Missouri River," it was provided that,
when the Indian title to all the lands lying between the State of Mis-
souri and the Missouri River should be extinguished, the jurisdiction
over said lands should be thereby ceded to the State of Missouri. It
is to be observed that the act ceded the land between the old State
line and the river, and the extension of the boundary was to the river,
not to the bank, thus making the natural water-course the boundary;
and the general rules, construing such words of cession as shown by
the adjudged cases, carry that boundary to the centre of the channel.
Benson v. Morrow, 61 Mo. 345; Jones v. Soulard, 24 How. 41; Howard
v. Ingersoll, 13 How. 381; Railroad v. Devereux, 41 Fed. Rep. 14; Mis-
souri v. Iowa, 7 How. 660. And this seems to have been the intention
of Congress; for it will be seen by reference to the act providing for
the admission of the Territory of Nebraska into the Union that one of
the boundaries of the State so admitted should be from the junction
of the Niobrara River down the middle of the channel of the latter
river following the meanderings thereof, &c. 13 United States Stat-
i Sir William Scott states the law tersely in The Twee Gebroeders, 1801, 3 C. Rob.
336, 339: “The law of rivers flowing entirely through the provinces of one state is
perfectly clear. In the sea, out of the reach of cannon-sliot, universal use is
presumed.
In rivers flowing through coterminous states, à common use to the
different states is presumed. Yet in both of these there may, hy legal possibility,
exist a peculiar property, excluding the universal or the common use. Portions of
the sea are prescribed for; so are rivers flowing through contiguous states; the banks
on one side may have been first settled, by which the possession and property may
have been acquired, or cessions may have taken place upon conquests, or other events.
But the general presumption certainly bears strongly against such exclusive rights,
and the title is a matter to be established, on the part of those claiming under it, in
the same manner as all legal demands are to be substantiated, by clear and competent
evidence."--Ed.
9
130
[PART I.
STATES.
utes at Large, 47. It would be unreasonable to suppose that Congress
intended to linnit the extention of the territorial jurisdiction of the
State of Missouri to the bank of the Missouri, and thus leave a sort
of neutral territory between the Missouri shore and the middle of the
channel of the river over which neither the States of Missouri nor
Nebraska had jurisdiction.
The Constitution of Missouri, section 1, article 1, declared that the
boundaries of the State as heretofore established by law are hereby
ratified and confirmed; so that it is not to be doubted that Congress by
the ceding act extended the northern boundary line of the State to the
middle of the channel of the Missouri River, and from thence down
the river to the middle of the Kansas River. Act of Congress of March
6, 1820, for the admission of Missouri; Revised Statutes, 1889, 47.
In the cession act of June 7, 1836, is embraced what is commonly
known as the “Platte purchase," consisting of a number of counties,
among which is Atchison, situate in the northwest corner of the State.
At the time of the cession and until the year 1867, the Missouri
River in its course along the western boundary of Atchison County
made a horseshoe-shaped bend, with toe to the east, and heel pointing
to the west. During the spring of the last-named year the river, dur-
ing a great flood, changed its course by effecting a channel across the
heel of the bend, and thus abandoned its former channel around the
bend. The bend became a lake and gradually filled up with sedimentary
matter until it became solid land, fit for tillage and pasture. The land,
the possession of which is in dispute in this suit, is situate in the old
abandoned bed of the river in this bend. The decisive questions in
the case arise on the instructions given and refused by the court.
The theory of the plaintiff's instructions which were refused by the
court was to the effect that if the lands in dispute were situate in the
old bed of the river which had become dry on account of the change
of its course by cutting off a bend on the Nebraska side and forming
a new channel, then in that case it was not material on which side of
the main channel of the old river bed the lands in dispute were sit-
uate. The theory of the defendant which was adopted by the court
was that the ordinary boundary of Atchison County where it borders
on the Missouri River extended to the middle of the main channel of
the river as the inain channel ran or was located in the year 1867 prior
to the change or cut-off, and that, unless it was found the land in ques-
tion was situate in Atchison County, the plaiutiff could not recover.
The defendant's theory further was that the boundary line of the State
of Missouri at the location in question was the middle of the main
channel of the Missouri River as the main channel ran before the cut-
off in 1867. These theories are wholly irreconcilable. The jury found
CHAP. I.
131
COOLEY V. GOLDEN.
under the instructions that the land in dispute was not in Atchison
County, and, as there was substantial testimony tending to establish
that fact, the finding is conclusive upon us. It seems that the river
by its changed course cut off a considerable area of land which was
formerly on the Nebraska side, but is now on the Missouri side of it,
so tliat the river as it runs along the western border of this area
of cut-off land is wholly within the State of Nebraska.
It is not contended, as we understand it, that the change of the course
of the river in 1867 effected a change of the boundary line between
the two States as it was fixed in the ceding act, for, if it were, such
contention could not be sustained, because it is plain to be seen that
the allowance of such consequences might result inost disastrously
to the geography of the State. The law seems to be well settled that
when a river is declared to be the boundary between States, although
it may change imperceptibly from natural causes, the river as it runs
continues to be the boundary. But, if the river should suddenly
change its course or desert the original channel, the rule of law is, the
boundary remains in the middle of the deserted river bed. Iowa v.
Nebruska, 143 U. S. 359; St. Louis v. Rutz, 136 U. S. 225; Missouri v.
Kentucky, 11 Wall. 395; Butterworth v. Bridge Co. 123 Ill. 535; Hol-
brook v. Moore, 4 Neb. 437; Collins( v. State, 3 Tex. App. 324; Gould
on Waters, sect. 159.
1,
But the real question is whether the States of Missouri and Nebraska
have concurrent jurisdiction over the old bed of the river just as was
the case when the river ran there before 1867. The jurisdiction of
this State over that part of the river which forms a common boundary
of the States is concurrent. It extends not only to the middle of the
channel but over the entire channel. Constitution, art. 1, sect. 1;
Swearingen v. Steamboat, 13 Mo. 519; Sanders v. Anchor Line, 97 Mo.
26. But here there is no river, but in its stead is dry land upon which
are cultivated fields and pastures. The physical conditions have been
changed. Is the case different than if the boundary line between the
two States had been located originally on dry land instead in the middle
of the chaunel of the river? We think not. The concurrent jurisdic-
tion of the States of Missouri and Nebraska under their enabling acts
does not in any case extend beyond their common boundary, except
when that boundary is the middle of the channel of the Missouri River.
Congress has imposed this limitation upon its' existence. It is diffi-
cult to see why it exists here any more than if the river had always
run where it did after 1867. The reason for the grant of this concur-
rent jurisdiction, which is so well and forcibly expressed by Judge
Barclay in 97 Mo. supra, lends no support to plaintiff's claim of
concurrent jurisdiction in this case. The conditions are wanting which
1
132
[PART I.
STATES.
constitute the basis of this jurisdiction. The boundary line between
the States is the middle of the former bed of the river, and to this line
the jurisdiction of each extends, but the concurrent jurisdiction along
there disappeared when the river did.
It is not believed that it was contemplated by Congress or the States
that the grant of concurrent jurisdiction of the two States on the river
authorized the bringing of an action of forcible entry and detainer or
of ejectinent in this State for the recovery of lands situate anywhere
within the territorial limits of Nebraska. We cannot sustain the
theory of the plaintiff's instructions which were to that effect. We
do not think that the elimination by the court of a part of the plaintiff's
fourth instruction was harmful to him, in view of the issues submitted
to the jury by other instructions and found adversely to the plaintiff.
The case was fairly submitted to the jury by the instructions of the
court. The judgment seems to be for the right party and so will be
affirmed. All concur.1
.
(6) Straits and Lakes.
UNITED STATES V. RODGERS.
SUPREME COURT OF THE UNITED STATES, 1893.
(150 United States, 249.)
2
Mr. Justice FIELD delivered the opinion of the court.
Several questions of interest arise upon the construction of section
5346 of the Revised Statutes, upon which the indictment in this case
was found. The principal one is whether the term “high seas," as
there used, is applicable to the open, unenclosed waters of the Great
Lakes, between which the Detroit River is a connecting stream. The
1 See, also, opinion of C. Cushing, 1856, 8 Op. Atty. Gen. 175. For disputes con-
cerning the right freely to use and navigate the Mississippi, see Dana's Wheaton,
279-283; Snow's American Diplomacy, 4, 67, 106; for the St. Lawrence, Dana's
Wheaton, 283-287, and Dana's note, 287–288; Snow's Am. Dip. 99; for Euro-
pean rivers, Dana's Wheaton, 275-279; Schuyler's Am. Dip. ; Calvo's Int. Law,
5th ed., vol. 1, 433-446; Hertslet's Map of Europe by Treaty; Engelhardt, in the
Revue de Droit International, vol. 11, 363-381; of South American rivers, the
River La Plata, with its branches, the Parana and the Uruguay,was opened to general
commerce during the period from 1851 to 1859, and the Amazon during that from
1858–1867, Dana’s Wheaton, 287–288, note 118; Schuyler's Am. Dip.. 319-344 ;
Calvo, I., 451-455; of African rivers the Congo and Niger were by Conference of
Berlin (1885) declared free and open to navigation (Calvo, I 455-463). See articles
hy M. Duchêne : Le Droit de Navigation dans Le Niger (2 R. G. D. I. 439–447); M.
Pillet: La Liberté de Navigation du Niger (3 id. 190-223). — Ed.
i Statement of the case omitted. -- ED.
CHAP. I.]
133
UNITED STATES V. RODGERS.
term was formerly used, particularly by writers on public law, and
generally in official communications between different governments, to
designate the open, iinenclosed waters of the ocean, or of the British
seas, outside of their ports and havens. At one time it was claimed
that the ocean, or portions of it, were subject to the exclusive use of
particular nations. The Spaniards, in the 16th century, asserted the
right to exclude all others from the Pacific Ocean. The Portuguese
claimed, with the Spaniards, under the grant of Pope Alexander VI.,
the exclusive use of the Atlantic Ocean west and south of a desiguated
line. And the English, in the 17th century, claimed the exclusive
right to navigate the seas surrounding Great Britain. Woolsey on
International Law, $ 55.
In the discussions which took place in support of and against these
extravagant pretensions the term "high seas” was applied, in the
sense stated. It was also used in that sense by English courts and law
writers. There was no discussion with them as to the waters of other
seas.
The public discussions were generally limited to the considera-
tion of the question whether the high seas, that is, the open, unenclosed
seas, as above defined, or any portion thereof, could be the property or
under the exclusive jurisdiction of any nation, or whether they were
open and free to the navigation of all nations. The inquiry in the
English courts was generally limited to the question whether the juris-
diction of the admiralty extended to the waters of bays and harbors,
such extension depending upon the fact whether they constituted a
part of the high seas.
Iu his treatise on the rights of the sea, Sir Matthew Hale says:
“The sea is either that which lies within the body of a county, or
without That arın or branch of the sea which lies within the funccs
terræ, where a man may reasonably discern between shore and shore,
is, or at least may be, within the body of a county, and, therefore,
within the jurisdiction of the sheriff or coroner. That part of the sea
which lies not within the body of a county is called the main sea or
ocean." De Jure Maris, c. iv. By the “main sea
" Hale here means
the same thing expressed by the term “high sea mare altum,”
or 6 le haut mer."
In Waring v. Clarke, 5 How. 440, 453, this court said that it had
been frequently adjudicated in the English common law courts since
the restraining statutes of Richard II. and Henry IV., “that high seas
mean that portion of the sea which washes the open coast.” In
United States v. Grush, 5 Mason, 290, it was held by Mr. Justice Story,
in-the United States Circuit Court, that the term “high seas,” in its
usual sense, expresses the unenclosed ocean or that portion of the sea
which is without the fauces terræ on the seacoast, in contradistinction
134
[PART I.
STATES.
9
But as
to that which is surrounded or enclosed between narrow headlands or
promontories. It was the open, unenclosed waters of the ocean, or the
open, unenclosed waters of the sea, which constituted the “high seas
in his judgment. There was no distinction made by him between the
ocean and the sea, and there was no occasion for any such distinction.
The question in issue was whether the alleged offences were committed
within a county of Massachusetts on the seacoast, or without it, for in
the latter case they were committed upon the high seas and within the
statute. It was held that they were committed in the County of Suf-
folk, and thus were not covered by the statute.
If there were no seas other than the ocean, the term “high seas
would be limited to the open, unenclosed waters of the ocean.
there are other seas besides the ocean, there must be high seas other
than those of the ocean. A large commerce is conducted on seas other
than the ocean and the English seas, and it is equally necessary to dis-
tinguish between their open waters and their ports and havens, and to
provide for offences on vessels navigating those waters and for colli-
sions between them. The term 66 high seas ” does not, in either case,
indicate any separate and distinct body of water ; but only the open
waters of the sea or ocean, as distinguished from ports and havens and
waters within narrow beadlands on the coast. This distinction was
observed by Latin writers between the ports and havens of the Medi-
terranean and its open waters the latter being termed the high seas.
In that sense the term may also be properly used in reference to the
open waters of the Baltic and the Black Sea, both of which are inland
seas, finding their way to the ocean by a narrow and distant channel.
Indeed, wherever there are seas in fact, free to the navigation of all
nations and people on' their borders, their open waters outside of the
portion “surrounded or enclosed between narrow headlands or promon-
tories," on the coast, as stated by Mr. Justice Story, or "without the
body of a county," as declared by Sir Matthew Hale, are properly
characterized as high seas, by whatever name the bodies of water of
which they are a part may be designated. Their names do not deter-
mine their character. There are, as said above, high seas on the
Mediterranean (meaning outside of the enclosed waters along its coast),
upon which the principal commerce of the ancient world was conducted
and its great naval battles fought. To hold that on such seas there
are no high seas, within the true meaning of that term, that is, no open,
unenclosed waters, free to the navigation of all nations and people on
1 “Insula portum
Efficit objectu laterum, quibus omnis ab alto
Frangitur, inque sinus scindit sese unda reductos.”
– The Æneid, Lib. 1, v. 159-161.
CHAP. I.]
135
UNITED STATES V. RODGERS.
their borders, would be to place upon that term a narrow and contracted
meaning. We prefer to use it in its true sense, as applicable to the
open, unenclosed waters of all seas, than to adhere to the comnion
meaning of the term two centuries ago, when it was generally limited
to the open waters of the ocean and of seas surrounding Great Britain,
the freedom of which was then the principal subject of discussion. If
it be conceded, as we think it must be, that the open, unenclosed
waters of the Mediterranean are high seas, that concession is a suffi-
cient answer to the claim that the high seas always denote the open
waters of the ocean.
Whether the term is applied to the open waters of the ocean or of a
particular sea, in any case, will depend upon the context or circum-
stances attending its use, which in all cases affect, more or less, the
meaning of language. It may be conceded that if a statement is made
that a vessel is on the high seas, without any qualification by language
or circumstance, it will be generally understood as meaning that the
vessel is upon the open waters of one of the oceans of the world. It
is true, also, that the ocean is often spoken of by writers on public law
as the sea, and characteristics are then ascribed to the sea generally
which are properly applicable to the ocean alone; as, for instance, that
its open waters are the highway of all nations. Still the fact remains
that there are other seas than the ocean whose open waters constitute
a free highway for navigation to the nations and people residing on
their borders, and are not a free highway to other nations and people,
except there be free access to those seas by open waters or by conven-
tional arrangements.
As thus defined, the term would seem to be as applicable to the open
waters of the great northern lakes as it is to the open waters of those
bodies usually designated as seas. The Great Lakes possess every
essential characteristic of seas. They are of large extent in length and
breadth; they are navigable the whole distance in either direction by
the largest vessels known to commerce; objects are not distinguishable
from the opposite shores; they separate, in many instances, States,
and in some instances constitute the boundary between independent
nations; and their waters, after passing long distances, debouch into
the ocean. The fact that their waters are fresh and not subject to the
tides, does not affect their essential character as seas. Many seas are
tideless, and the waters of some are saline only in a very slight degree.
The waters of Lake Superior, the most northern of these lakes, after
traversing nearly 400 miles, with an average breadth of over 100 miles,
and those of Lake Michigan, which extend over 350 miles, with an
average breadth of 65 miles, join Lake Huron, and, after flowing about
250 miles, with an average breadth of 70 miles, pass into the river St.
136
[PART 1.
STATES.
Clair; thence through the small lake of St. Clair into the Detroit
River; thence into Lake Erie and, by the Niagara River, into Lake
Ontario ; whence they pass, by the river St. Lawrence, to the ocean,
making a total distance of over 2,000 miles. Ency. Britannica, vol. 21,
p. 178. The area of the Great Lakes, in round numbers, is 100,000
square miles. Ibid. vol. 14, p. 217. They are of larger dimensions
than many inland seas which are at an equal or greater distance from
the ocean.
The waters of the Black Sea travel a like distance before
they come into contact with the ocean. Their first outlet is through
thie Bosphorus, which is about 20 miles long and for the greater part
of its way less than a mile in width, into the sea of Marmora, and
through that to the Dardanelles, which is about 40 miles in length and
less than four miles in width, and then they find their way through the
islands of the Greek Archipelago, up the Mediterranean Sea, past the
Straits of Gibraltar to the ocean, a distance, also, of over 2,000 miles.
In the Genesee Chief Case, 12 How. 443, this court, in considering
whether the admiralty jurisdiction of the United States extended to
the Great Lakes, and speaking, through Chief Justice Taney, of the
general character of those lakes, said: “These lakes are, in truth,
inland seas. Different States border on them on one side, and a foreign
nation on the other. A great and growing commerce is carried on
upon them between different States and a foreign nation, which is sub-
ject to all the incidents and hazards that attend commerce on the ocean.
Hostile fleets have encountered on them, and prizes been made; and
every reason which existed for the grant of admiralty jurisdiction to
the general Government on the Atlantic seas applies with equal force
to the lakes. There is an equal necessity for the instance and for the
prize power of the admiralty court to administer international law, and
if the one cannot be established, neither can the other.” (p. 453.)
After using this language, the Chief Justice commented upon the
inequality which would exist, in the administration of justice, between
the citizens of the States on the lakes, if, on account of the absence of
tide water in those lakes, they were not entitled to the remedies
afforded by the grant of admiralty jurisdiction of the Constitution, and
the citizens of the States bordering on the ocean or upon navigable
waters affected by the tides. The court, perceiving that the reason
for the exercise of the jurisdiction did not in fact depend upon the
tidal character of the waters, but upon their practical navigability for
the purposes of commerce, disregarded the test of tide water prevailing
in England as inapplicable to our country with its vast extent of inland
waters. Acting upon like considerations in the application of the term
high seas to the waters of the Great Lakes, which are equally navi-
gable, for the purposes of commerce, in all respects, with the bodies of
CHAP. I.]
137
UNITED STATES V. RODGERS.
water usually designated as seas, and are in no respect affected by the
tidal or saline character of their waters, we disregard the distinctions
made between salt and fresh water seas, which are not essential, and
hold that the reason of the statute, in providing for protection against
violent assaults on vessels in tidal waters, is no greater but identical
with the reason for providing against similar assaults on vessels in
navigable waters that are neither tidal nor saline. The statute was
intended to extend protection to persons on vessels belonging to citi-
zens of the United States, not only upon the high seas, but in all
navigable waters of every kind out of the jurisdiction of any particular
State, whether moved by the tides or free from their influence.
The character of these lakes as seas was recognized by this court in
the recent Chicago Lake Front Case, where we said: “These lakes
possess all the general characteristics of open seas, except in the fresh-
ness of their waters, and in the absence of the ebb and flow of the tide.”
“In other respects,” we added, “they are inland seas, and there is no
reason or principle for the assertion of dominion and sovereignty over
and ownership by the State of lands covered by tide waters that is not
equally applicable to its ownership of and dominion and sovereignty
over lands covered by the fresh waters of these lakes." Illinois Cen-
tral Railroad v. Illinois, 146 U. S. 387, 435.
It is to be observed also that the terın "high" in one of its signifi-
cations is used to denote that which is common, open, and public.
Thus every road or way or navigable river which is used freely by the
public is a "high" way. So a large body of navigable water other
than a river, which is of an extent beyond the measurement of one's
unaided vision, and is open and unconfined, and not under the exclusive
control of any one nation or people, but is the free highway of adjoin-
ing nations or people, inust fall under the definition of “high seas
within the meaning of the statute. We may as appropriately designate
the open, unenclosed waters of the lakes as the high seas of the lakes,
as to designate similar waters of the ocean as the high seas of the
ocean, or similar waters of the Mediterranean as the high seas of the
Mediterranean.
The language of section 5346, immediately following the term “high
seas," declaring the penalty for violent assaults when committed on
board of a vessel in any arm of the sea or in any river, haven, creek,
basin, or bay, within the admiralty jurisdiction of the United States,
and out of the jurisdiction of any particular State, equally as when
committed on board of a vessel on the high seas, lends force to the
construction given to that term. The language used must be read in
conjunction with that term, and as referring to navigable waters out
of the jurisdiction of any particular State, but connecting with the
138
STATES.
[PART 1.
high seas mentioned. The Detroit River, upon which was the steamer
Alaska at the time the assault was committed, connects the waters of
Lake Huron (with which, as stated above, the waters of Lake Superior
and Lake Michigan join with the waters of Lake Erie, and separates
the Dominion of Canada from the United States, constituting the
boundary between them, the dividing line running nearly midway be-
tween its banks, as established by commissioners, pursuant to the
treaty between the two countries. 8 Stat. 274, 276. The river is
about 22 miles in length and from one to three miles in width, and is
navigable at all seasons of the year by vessels of the largest size. The
number of vessels passing through it each year is immense. Between
the years 1880 and 1892, inclusive, they averaged from thirty-one to
forty thousand a year, having a tonnage varying from sixteen to twenty-
four millions. In traversing the river they are constantly passing
from the territorial jurisdiction of the one nation to that of the other.
All of them, however, so far as transactions had on board are concerned,
are deemed to be within the country of their owners. Constructively
they constitute a part of the territory of the nation to which the owners
belong. Whilst they are on the navigable waters of the river they are
within the admiralty jurisdiction of that country. This jurisdiction
is not changed by the fact that each of the neighboring nations may
in some cases assert its own authority over persons on such vessels in
relation to acts committed by them within its territorial limits.. In
what cases jurisdiction by each country will be thus asserted and to
what extent, it is not necessary to inquire, for no question on that
point is presented for our consideration. The general rule is that the
country to which the vessel belongs will exercise jurisdiction over all
matters affecting the vessel or those belonging to her, without inter-
ference of the local government, unless they involve its peace, dignity,
or tranquillity, in which case it may assert its authority. Wildenhus's
Case, 120 U. S. 1, 12; Halleck on International Law, C. vii, § 26, p. 172.
The admiralty jurisdiction of the country of the owners of the steamer
upon which the offence charged was committed is not denied. They
being citizens of the United States, and the steamer being upon navi-
gable waters, it is deemed to be within the admiralty jurisdiction of
the United States. It was, therefore, perfectly competent for Congress
to enact that parties on board committing an assault with a dangerous
weapon should be punished when brought within the jurisdiction of
the District Court of the United States. But it will hardly be claimed
that Congress by the legislation in question intended that violent
assaults committed upon persons on vessels owned by citizens of the
United States in the Detroit River, without the jurisdiction of any
particular State, should be punished, and that similar offences upon
CHAP. I.]
UNITED STATES V. RODGERS.
139
persons on vessels of like owners upon the adjoining lakes should be
unprovided for. If the law can be deemed applicable to offences com-
initted on vessels in any navigable river, haven, creek, basin, or bay,
connecting with the lakes, out of the jurisdiction of any particular
State, it would not be reasonable to suppose that Congress intended
that no remedy should be afforded for similar offences committed on
vessels upon the lakes, to which the vessels on the river, in almost all
instances, are directed, and upon whose waters they are to be chiefly
engaged. The more reasonable inference is that Congress intended to
include the open, unenclosed waters of the lakes under the designation
of high seas. The term, in the eye of reason, is applicable to the open,
unenclosed portion of all large bodies of navigable waters, whose extent
cannot be measured by one's vision, and the navigation of which is
free to all nations and people on their borders, by whatever names
those bodies may be locally designated. In some countries small lakes
are called seas, as in the case of the Sea of Galilee, in Palestine. In
other countries large bodies of water, greater than many bodies de-
nominated seas, are called lakes, gulfs, or basins. The nomenclature,
however, does not change the real character of either, nor should it
affect our construction of terms properly applicable to the waters of
either. By giving to the term “high seas" the construction indicated,
there is consistency and sense in the whole statute, but there is neither
if it be disregarded. If the term applies to the open, unenclosed
waters of the lakes, the application of the legislation to the case under
indictment cannot be questioned, for the Detroit River is a water con-
necting such high seas, and all that portion which is north of the
boundary line between the United States and Canada is without the
jurisdiction of any State of the Union. But if they be considered as
not thus applying, it is difficult to give any force to the rest of the
statute without supposing that Congress intended to provide against
violence on board of vessels in navigable rivers, havens, creeks, basins,
and bays, without the jurisdiction of any particular State, and inten-
tionally omitted the much more important provision for like violence
and disturbances on vessels upon the Great Lakes.
All vessels in any
navigable river, haven, creek, basin, or bay of the lakes, whether
within or without the jurisdiction of any particular State, would some
time find their way upon the waters of the lakes; and it is not a rea-
sonable inference that Congress intended that the law should apply to
offences only on a limited portion of the route over which the vessels
were expected to pass, and that no provision should be made for such,
offences over a much greater.distance on the lakes.
Congress in thus designating the open, unenclosed portion of large
bodies of water, extending beyond one's vision, naturally used the same
140
[ [PART I.
STATES.
was
term to indicate it as was used with reference to similar portions of the
ocean or of bodies which had been designated as seas. When Con-
gress, in 1790, first used that term the existence of the Great Lakes
nown; they had been visited by great numbers of persons in
trading with the neighboring Indians, and their immense extent and
character were generally understood. Much more accurate was this
knowledge when the act of March 3, 1825, was passed, 4 Stat., 115,
C. 65, and when the provisions of section 5346 were re-enacted in the
Revised Statutes in 1874. In all these cases, when Congress provided
for the punishment of violence on board of vessels, it must have
intended that the provision should extend to vessels on those waters
the same as to vessels on seas, technically so called. There were no
bodies of water in the United States to any portion of which the term
“high seas” was applicable if not to the open, unenclosed waters of
the Great Lakes. It does not seem reasonable to suppose that Congress
intended to confine its legislation to the high seas of the ocean, and to
its navigable rivers, havens, creeks, basins, and bays, without the
jurisdiction of any State, and to make no provision for offences on those
vast bodies of inland waters of the United States. There are vessels
of every description on those inland seas now carrying on a commerce
greater than the commerce on any other inland seas of the world.
And we cannot believe that the Congress of the United States purposely
left for a century those who navigated and those who were conveyed
in vessels upon those seas without any protection.
The statute under consideration provides that every person who,
upon the high seas or in any river connecting with them, as we construe
its language, within the admiralty jurisdiction of the United States,
and out of the jurisdiction of any particular State, commits, on board
of any vessel belonging in whole or in part to the United States, or
any citizen thereof, an assault on another with a dangerous weapon or
with intent to perpetrate a felony, shall be punished, &c. The Detroit
River, from shore to shore, is within the admiralty jurisdiction of the
United States, and connects with the open waters of the lakes — high
seas, as we hold them to be, within the meaning of the statute. From
the boundary line, near its centre, to the Canadian shore it is out of
the jurisdiction of the State of Michigan. The case presented is
therefore directly within its provisions. The act of Congress of Sep-
tember 4, 1890, 26 Stat. 424, chap. 874 (1 Sup. to the Rev. Stat., chap.
874, p. 799), providing for the punishment of crimes subsequently
committed on the Great Lakes, does not, of course, affect the construc-
tion of the law previously existing.
We are not unmindful of the fact that it was held by the Supreme
Court of Michigan in People v. Tyler, 7 Michigan, 161, that the criminal
t
CHAP. I.]
141
UNITED STATES V. RODGERS.
jurisdiction of the Federal courts did not extend to offences committed
upon vessels on the lakes. The judges who rendered that decision
were able and distinguished ; but that fact, whilst it justly calls for a
careful consideration of their reasoning, does not render their conclu-
sion binding or authoritative upon this court. Their opinions show
that they did not accept the doctrine extending the admiralty juris-
diction to cases on the lakes and navigable rivers, which is now gener-
ally, we might say almost universally, received as sound by the judicial
tribunals of the country. It is true, as there stated, that, as a general
principle, the criminal laws of a nation do not operate beyond its terri-
torial limits, and that to give any government, or its judicial tribunals,
the right to punish any act or transaction as a crime, it must have
occurred within those limits. We accept this doctrine as a general
rule, but there are exceptions to it as fully recognized as the doctrine
itself. One of those exceptions is that offences committed upon vessels
belonging to citizens of the United States, within their admiralty
jurisdiction (that is, within navigable waters), though out of the ter-
ritorial limits of the United States, may be judicially considered when
the vessel and parties are brought within their territorial jurisdiction.
As we have before stated, a vessel is deemed part of the territory of
the country to which she belongs. Upon that subject we quote the
language of Mr. Webster, while Secretary of State, in his letter to Lord
Ashburton of August, 1842. Speaking for the government of the
United States, he stated with great clearness and force the doctrine
which is now recognized by all countries. He said: It is natural to
consider the vessels of a nation as parts of its territory, though at sea;
as the state retains its jurisdiction over them; and, according to the
commonly received custom, this jurisdiction is preserved over the ves-
sels even in parts of the sea subject to a foreign dominion} This is
the doctrine of the law of nations, clearly laid down by writers of
received authority, and entirely conformable, as it is supposed, with
the practice of modern nations. If a murder be committed on board
of an American vessel by one of the crew upon another or upon a pas-
senger, or by a passenger on one of the crew or another passenger,
while such vessel is lying in a port within the jurisdiction of a foreign
state or sovereignty, the offence is cognizable and punishable by the
proper court of the United States in the same manner as if such offence
had been committed on board the vessel on the high seas. The law of
England is supposed to be the same. It is true that the jurisdiction
of a nation over a vessel belonging to it, while lying in the port of
another, is not necessarily wholly exelusive. We do not so consider
or so assert it. For any unlawful acts done by her while thus lying in
port, and for all contracts entered into while there, by her master or
1
142
STATES.
[PART I.
owners, she and they must, doubtless, be answerable to the laws of the
place. Nor, if her master or crew, while on board in such port, break
the peace of the community by the commission of crimes, can exemption
be claimed for them. But, nevertheless, the law of nations, as I have
stated it, and the statutes of governments founded on that law, as I
have referred to them, show that enlightened nations, in modern times,
do clearly hold that the jurisdiction and laws of a nation accompany
her ships not only over the high seas, but into ports and harbors, or
wheresoever else they may be water-borne, for the general purpose of
governing and regulating the rights, duties, and obligations of those
on board thereof, and that, to the extent of the exercise of this juris-
diction, they are considered as parts of the territory of the nation
herself.” 6 Webster's Works, 306, 307.
We do not accept the doctrine that, because by the treaty between
the United States and Great Britain the boundary line between the
two countries is run through the centre of the lakes, their character as
seas is changed, or that the jurisdiction of the United States to regu-
late vessels belonging to their citizens navigating those waters and to
punish offences committed upon such vessels, is in any respect impaired.
Whatever effect may be given to the boundary line between the two
countries, the jurisdiction of the United States over the vessels of
their citizens navigating those waters and the persons on board remains
unaffected. The limitation to the jurisdiction by the qualification that
the offences punishable are committed on vessels in any arm of the sea,
or in any river, haven, creek, basin, or bay “without the jurisdiction
of any particular State,” which means without the jurisdiction of any
State of the Union, does not apply to vessels on the “high seas
the lakes, but only to vessels on the waters designated as connecting
with them. So far as vessels on those seas are concerned, there is no
limitation named to the authority of the United States. It is true
that lakes, properly so called, that is, bodies of water whose dimensions
are capable of measurement by the unaided vision, within the limits
of a State, are part of its territory and subject to its jurisdiction, but
bodies of water of an extent which cannot be measured by the unaided
vision, and which are navigable at all times in all directions, and border
on different nations or States or people, and find their outlet in the
ocean as in the present case, are seas in fact, however they may be
designated. And seas in fact do not cease to be such, and become
lakes, because by local custom they may be so called.
» of
1 Dissenting opinions of Mr. Justice Gray and Mr. Justice Brown omitted.
Distinguished in U. S. v. Peterson, 1894, 64 Fed. 145; Bigelow v. Nickerson, 1895,
70 Fed. 116.
For international controversies concerning sounds and straits, see the Danish
CHAP. I.]
143
THE ALLEGANEAN.
(c) Bays.
THE “ALLEGANEAN."
(STETSON v. THE UNITED STATES.)
COURT OF COMMISSIONERS OF ALABAMA CLAIMS, 1885.
(32 Albany Law Journal, 484; 4 Moore's International Arbitration, 4333; 5 id. 4675.)
1
Claim to recover damages for destruction of a vessel. The opinion
states the facts.
Henry M. Baker, for claimants.
John H. A. Creswell, for United States.
DRAPER, J., delivered the opinion of the court.
The facts upon which a judgment to the amount of $69,334.80 is
prayed for in this case are substantially as follows:
The ship Alleganean, duly registered at the port of New York, and
being recently repaired and well equipped, and entitled to the protec-
tion of the United States, cleared with a cargo from the port of
Baltimore on the 22d of October, 1862, upon a voyage to London.
Six days later, at about 10.30 o'clock in the evening, being at anchor,
through rough water in Chesapeake Bay, south of the mouth of the
Rappahannock River, and opposite Guinn's Island, she was boarded
by some eighteen officers and men of the Confederate navy, commanded
by Lieutenants John Taylor Wood and S. Smith Lee. These leaders
were commissioned officers in the Confederate navy, and in the attack
upon the Alleganean they were acting under the special orders of the
Secretary of the Navy of the Confederate. „States, and the men
accompanying them had been specially detailed from the James River
squadron, for the purpose of preying upon United States merchant
vessels in Chesapeake Bay. They came overland to Chesapeake Bay
from the Patrick Henry, an armed and commissioned Confederate
vessel, and securing two or three sinall vessels -- the largest being of
fifteen or twenty tons burden — had been cruising about two or three
nights before the attack. The precise relationship which these vessels
bore to the Confederate navy is left by the evidence in some doubt.
Lieutenant Wood says of the vessel in which he operated: “She
Claim to sound dues (Dana's Wheaton, 264–267; Snow's Am. Dip. 124–127); The
Bosphorus and Dardanelles, (Dana's Wheaton, 263–264, 273–274, Dana's note, No. 111;
Schuyler's Am. Dip., 317). — Eu.
1 Hon. Andrew S. Draper, LL.D., now President of the University of Illinois. - ED.
144
[PART I.
STATES.
was a boat fitted out for this purpose, and attached to the squadron as
a tender. She was about fifteen or twenty.. tons, armed as customary
with this class of boats. * * * The tender which I commanded was
one belonging to a regular commissioned ship of the Confederate
States navy.” Lieutenant Lee says:
Lieutenant Lee says: “ We had two small boats that
we obtained on the bay shore, with sails and a sailing skiff we cap-
tured from two Union men. , No boats were brought from Richinond
or from any Confederate cruiser.'
There is no proof, and it was not contended upon the argument,
that they were either “in commission” of, or that they bore letters of
marque from, the Confederate government, but there seems to be
ample evidence that the crews were a part of the naval forces of that
government, attached to duly commissioned, armed war vessels, and
now only temporarily detached therefrom, and coming directly from
such a vessel for this special service, under orders of their Secretary
of the Navy. These small boats seem to have carried no ariament.
Lieutenant Wood says: "The vessels were armed as customary with
this class of boats,” and that “the men were armed and equipped as
men-of-war's men.” Lieutenant Lee says, 6. The vessels carried no
guns, but the men were armed with cutlasses and pistols.”
This force boarded the Alleganean, as stated, speedily reduced the
crew of that vessel to subjection and the state of prisoners of war,
and then burned the ship, totally destroying her, except that some few
rempants were afterwards picked up and disposed of, the proceeds of
which the owners account for in making up their claim.
The value of the Alleganean at the time of loss is placed by the
marine experts en behalf of the Government at $52,591.03, and by the
witnesses for the claimants at amounts varying from $60,000 to
$75,000. The evidence seems to establish beyond question the fact
that the vessel was more than four miles from any shore at the time
of capture and destruction.
The claimant's counsel, with his case as exhaustively prepared and
as fully and ably argued as any which has been before this court, con-
tends that these facts establish a right to a judgment, as of the first
class, under the provisions of section 5 of the act of June 5, 1882,
being a claim “directly resulting from damage done on the high seas
by Confederate cruisers during the late rebellion, including vessels and
cargoes attacked on the high seas, although the loss or damage
occurred within four miles of the shore."
The learned counsel on behalf of the United States insists that the
claimants ought not to recover.
First, because all the waters of Chesapeake Bay, even such as are
more than a marine league from shore, are territorial waters of the
CHAP. I.]
145
THE ALLEGANEAN.
United States, and subject to the exclusive control and jurisdiction
thereof, and that in consequence the Alleganean was not attacked nor
the damage done on the “high seas” within the meaning of the term
as used in the act under which judgment is claimed.
Second, because the persons who destroyed the ship and the vessels
employed by them did not constitute a “Confederate cruiser” within
the meaning of that term as used in the statute.
The term “high seas” as used by legislative bodies, the courts and
text-writers, has been construed to express a widely different meaning.
As used to define the jurisdiction of admiralty courts, it is held to
mean the waters of the ocean exterior to low-water mark. As used
in international law, to fix the limits of the open ocean, upon which
all peoples possess common rights, the “great highway of nations,"
it has been held to mean only so much of the ocean as is exterior to
a line running parallel with the shore, and some distance therefrom,
commonly such distance as can be defended by artillery upon the
shore, and, therefore, a cannon-shot or a marine league (three nautical
or four statute miles). This court, after very able argument by
learned counsel, and after much deliberation, has held that the term
was used in the act of June 5, 1882, in the same sense in which it is
employed by the international law writers. Rich v. United States.
From this it necessarily follows that such portions of the waters of
Chesapeake Bay as are within four miles of either shore form no part
of the high seas. But much of the bay is more than four miles from
shore, and is accessible from the ocean without coming within that
distance of the land. The distance between Cape Henry and Cape
Charles, at the entrance of the bay, is said to be twelve miles, and it
is stated that lines starting from points between the Capes, four iniles
from each, and running up the bay that distance from either shore,
would not intercept each other within 125 miles from the starting
points. The evidence shows that the Alleganean was anchored between
such lines at the time of destruction. Was she upon the high seas as
the court defines the statutory term ?
By common agreement all the authorities assert that there are arms
or inlets of the ocean, which are within territorial jurisdiction, and are
not high seas, Sir R. Phillimore (1 Int. Law, $200), says: “Besides
the rights of property and jurisdiction within the limit of cannon-shot
from the shore, there are certain portions of the sea which, though
they exceed this verge, may under special circumstances be prescribed
for. Maritime territorial rights extend, as a general rule, over arms
of the sea, bays, gulfs, estuaries, which are enclosed, but not entirely
surrounded, by lands belonging to one and the same State. * * *
Thus Great Britain has immemorially claimed and exercised exclusive
1
10
146
STATES.
[PART I.
property and jurisdiction over the bays or portions of the sea cut off
by lines drawn from one promontory to another, and called the King's
Chambers." Grotius (bk. 11, ch. 3, $$ 7,8), and Vattel (vol. 1, bk.
1, ch. 23, $ 291) assert substantially the same doctrine, and the later
writers follow them. Wheat. Int. Law (Dana's 8th Ed., p. 255) says:
“The maritime territory of every state extends to the ports,
harbors, bays, mouths of rivers, and adjacent parts of the sea, inclosed
by headlands, belonging to the same state. The usage of nations
superadds to this extent of territorial jurisdiction a distance of a
marine league, or as far as a cannon-shot will reach from the shore,
along the coasts of the state. Within these limits its rights of
property and territorial jurisdiction are absolute, and exclude those of
every other nation." Chancellor Kent avows the general doctrine and
makes very much broader claims in reference to the jurisdiction of the
United States over adjacent waters, and says (Com., vol. 1, pp. 29, 30):
“Considering the great line of the American coasts, we have a right
to claim for fiscal and defensive regulations a liberal extension of
maritime jurisdiction; and it would not be unreasonable, as I appre-
hend, to assume, for domestic purposes connected with our safety and
welfare, the control of waters on our coasts, though included within
lands stretching from quite distant headlands, as, for instance, from
Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and
from that point to the Capes of the Delaware, and from the South
Cape of Florida to the Mississippi."
Dr. Woolsey (Int. Law, $ 60), upholds the general doctrine, but thinks
the claims of Chancellor Kent are too broad, and rather out of char-
acter for a nation that has ever asserted the freedom of doubtful
waters, as well as contrary to the spirit of more recent times."
Dr. Wharton (Int. Law, $ 192, finishes the subject with the con-
clusion : 6. That it would seem more proper to adopt the test of
cannon-shot, * * * which would, in case of waters whose headlands
belong to the same sovereign, exclude all bays more than eighteen
miles in diameter, assuming the range of cannon-shot to be nine miles.
But this should be made to yield to usage. If a particular nation has
exercised dominion over a bay, and this has been acquiesced in by
other nations, then the bay is to be regarded as belonging to such
nation."
We are quite certain that none of the American courts have passed
upon this subject, although decisions holding that specified waters are
within or without the jurisdiction of the admiralty courts are
numerous. The question has, however, been before the English
courts upon two occasions at least.
Reg. v. Cunningham, Bell Crown Cas. 72, was the case of a crime
!
CHAP. I.]
147
THE ALLEGANEAN.
1
committed upon an American vessel lying in the Bristol Channel,
about three-quarters of a mile off the shores of the county of
Glamorgan, in Wales, but below or exterior to low-water mark, and
perhaps ten miles from the shores of the county of Somerset, in
England. The prisoners were indicted and tried in Glamorgan. The
question was whether the crime was committed within the county of
Glamorgan or upon the high seas. It was held that it was within the
county. This crime was committed, it is true, within the marine
Teague from shore, but the court did not rest its conclusion upon that
ground. Lord Chief Justice Cockburn, delivering the opinion of the
court, said:
Looking at the local situation of this sea, it must be taken to
belong to the counties, respectively, by the shores of which it is
bounded. * * * The whole of this inland sea, between the counties of
Somerset and Glamorgan, is to be considered as within the counties by
the shores of which its several ports are respectively bounded.”
But perhaps the most thoroughly considered and important case is
that of Direct U. S. Cable Co. y. Anglo-American Tel. Co. in the
House of Lords (2 App. Cas. 394). It came up on an appeal from the
Supreme Court of Newfoundland, against an order confirming an
injunction preventing the Direct Cable Company from landing their
wire upon the soil of Newfoundland, on the ground that it would be
an infringement of the rights of the Anglo-American Company. The
cable, as a matter of fact, was buoyed in Conception Bay, more than a
marine league from shore, and it nowhere came within that distance
from the shore, purposely to avoid coming within territorial jurisdic-
tion. But it was asserted that the whole of Conception Bay was
within the territory and jurisdiction of Newfoundland. The Supreme
Court of the province so held, and the determination was upheld by
the House of Lords in a somewhat elaborate opinion.
This opinion states that Conception Bay is a body of water having
an average width of fifteen miles, a distance of forty miles from the
head to one of the capes at the entrance, and fifty miles to the other,
and a distance of twenty miles between the headlands. Coming to the
question, the Lords say (p. 419) :
"We find an universal agreement that harbors, estuaries, and bays
landlocked, belong to the territory of the nation which possesses the
shores round them, but no agreement as to what is the rule to deter-
mine what is a bay for this purpose.
"It seems generally agreed that where the configuration and dimen-
sions of the bay are such as to show that the nation occupying the
adjoining coasts also occupies the bay, it is part of the territory, and
with this idea, most of the writers on the subject refer to defensi-
148
[PART I.
STATES.
bility from the shore as the test of occupation; some suggesting,
therefore, a width of one cannon-shot from shore to shore, or three
miles; some a cannon-shot from each shore, or six miles; some an
arbitrary distance of ten miles. All of these are rules which, if
adopted, would exclude Conception Bay from the territory of New-
foundland, but also would have excluded from the territory of Great
Britain that part of the British Channel which in Reg. v. Cunningham
was decided to be in the county of Glamorgan. It does not appear to
their lordships that jurists and text-writers are agreed what are the
rules as to dimensions and configuration, which, apart from other
considerations, would lead to the conclusion that a bay is or is not a
part of the territory of the state possessing the adjoining coasts; and
it has never, that they can find, been made the ground of any judicial
determination. If it were necessary in this case to lay down a rule
the difficulty of the task would not deter their lordships from at-
tempting to fulfill it. But in their opinion it is not necessary so to do.
It seems to them that, in point of fact, the British government has
for a long period exercised dominion over this bay, and that their
claim has been acquiesced in by other nations. * * * This would be
very strong in the tribunals of any country to show that by prescrip-
tion this bay is a part of the exclusive territory of Great Britain. In
a British tribunal it is decisive."
We must now examine the local circumstance, the status of
Chesapeake Bay, and then determine whether those waters should be
held to be the open ocean or jurisdictional waters of the United
States in the light of these authorities.
The headlands are about twelve miles apart, and the bay is probably
nowhere more than twenty miles in width. The length may be two
hundred miles. To call it a bay is almost a misnomer. It is more a
mighty river than an arm or inlet of the ocean. It is entirely encom-
passed about by our own territory, and all of its numerous branches
and feeders have their rise and their progress wholly in and through
our own soil. It cannot become an international commercial highway;
it is not and cannot be made a roadway from one nation to another.
The second charter of King James I. to the Virginia Company in
the year 1609 granted : “All those lands, countries, and territories
situate, lying and being in that part of America, called Virginia, from
the point of land called Cape or Point Comfort, all along the seacoasts
to the northward, two hundred miles, and all along the seacoasts to
the southward, two hundred miles, and all that space and circuit of
land lying from the seacoast of the precinct aforesaid up into the
land throughout from sea to sea, west and northwest, together with all
the soils, grounds, havens, ports, * * * rivers, waters, fishings," &c. .
CHAP. 'I.]
149
THE ALLEGANEAN.
This language would seem to place Chesapeake Bay within the
boundary lines of Virginia. A line running north (as near as may be)
from Point Comfort along the seacoast crosses the mouth of the bay
from Cape Henry to Cape Charles.
By the King James charter to Lord Baltimore, in 1632, creating the
territory of Maryland, the southern boundary line is made to cross
Chesapeake Bay from Smith's Point, at the mouth of the Potomac
River, to Watkins' Point, on the eastern shore, which apparently places
a portion of this bay within the territory of Maryland. Had this not
been intended the boundary would presumably have followed the shore
line around the bay.
It is a part of the common history of the country that the States of
Virginia and Maryland have from their earliest territorial existence
claimed jurisdiction over these waters, and it is of general knowledge
that they still continue so to do.
The legislation of Congress has assumed Chesapeake Bay to be
within the territorial limits of the United States. The acts of July
31, 1789, ch. 5; August 4, 1790, ch. 35; and March 2, 1799, ch. 128,
§ 11, establishing revenue districts, provided that “the authority of
the officers of the district (Norfolk to Portsmouth) shall extend over all
the waters, shores, bays, harbors, and inlets comprehended within a line
drawn from Cape Henry to the mouth of James River." By section
549, Rev. Stat. U. S., the eastern judicial district of Virginia embraces
the “residue of the State," not included in the western district. The
boundaries of the State include all of Chesapeake Bay south of a
line running from Smith's Point to Watkins' Point, and hence the
eastern district must embrace so much of the bay.
The position taken by this Government and by England and France in
the matter of the British brig Grange, captured in Delaware Bay in 1793
by the French vessel [privateer] l’Embuscade (1 Am. State Papers,
147, 149), has, it seems to us, an important bearing upon the question
under discussion. The brig was seized and the crew made prisoners,
the two foreign governments being at war. The British government
must have deinanded that the United States com pel France to release
the captured vessel on the ground that the seizure was unlawful as
having been made in our territorial and neutral waters. The State
Papers do not show this demand, but it is not material. The opinion
of the Attorney-General was asked, and was given somewhat elabo-
rately by Mr. Randolph. 1 Op. Atựys Gen’l. 32. It quotes the text-
writers, and concludes that the whole of Delaware Bay is within the
territorial jurisdiction of the United States, regardless of the marine
league or cannon-shot limit from the shore. The learned Attorney-
General says: “In like manner is excluded every consideration of how
150
STATES.
[PART I.
far the spot of seizure was capable of being defended by the United
States; for although it will not be conceded that this could not be
done, yet will it rather appear that the mutual rights of the States
of New Jersey and Delaware up to the middle of the river supersede
the necessity of such an investigation. No. The corner-stone of
our claim is that the United States are proprietors of the lands ont
both sides of the Delaware from its head to its entrance into the
sea."
Acting upon the opinion of the Attorney-General, the Secretary of
State, Mr. Jefferson, demanded that France should make restitution of
the Grange, and set the prisoners taken upon her at liberty, which
demand was promptly and cheerfully complied with by the French
government.
If it be said that the mere claims of a nation to jurisdiction over
adjacent waters are to be accepted with some degree of hesitation,
then the action in reference to the Grange is of much weight, for
there the claim made by the United States was promptly acquiesced in
by two great foreign powers, when passions were excited, and when
such acquiescence was greatly against the immediate interest of one of
the combatants, as well as against the general interest of both.
It will hardly be said that Delaware Bay is any the less an inland
sea than Chesapeake Bay. Its configuration is not such as to make it
so, and the distance from Cape May to Cape Henlopen is apparently as
great as that between Cape Henry and Cape Charles.
Reflection upon the subject has caused the court to consider this
question of very considerable · national importance. Contingencies
might arise which would make it of very grave import. The “high
sea" belongs to all alike. It is the great highway of nations. One
cannot lawfully do anything upon it which any other has not the right
to do. One cannot exercise sovereignty over it. Can an American
court concede as much as to Chesapeake Bay ? Other nations, by com-
mon consent of all, have well-recognized peaceable rights even in our
territorial waters. Ought we to admit that they have any rights hos-
tile to the United States, or can we permit belligerent operations be-
tween foreign nations within the shores of this bay? What injustice
can be done to any other nation by the United States exercising sover-
eign control over these waters? What annoyance and what injury may
not come to the United States through a failure to do so ?
Considering therefore the importance of the question, the configura-
tion of Chesapeake Bay, the fact that its headlands are well marked,
and but twelve miles apart; that it and its tributaries are wholly
within our own territory; that the boundary lines of adjacent States
encompass it; that from the earliest history of the country it has
CHAP. I.]
THE ALLEGANEAN.
151
been claimed to be territorial waters, and that the claim has never been
questioned; that it cannot become the pathway from one nation to
another, and remembering the doctrines of the recognized authorities
upon international law, as well as the holdings of the English courts
as to the Bristol Channel and Conception Bay, and bearing in mind the
matter of the brig Grange and the position taken by the Government
as to Delaware Bay, we are forced to the conclusion that Chesapeake
Bay must be held to be wholly within the territorial jurisdiction and
authority of the Government of the United States, and no part of the
“high seas " within the meaning of the term as used in section 5 of
the act of June 5, 1872. Having arrived at the foregoing conclusion,
it is perhaps unnecessary to consider the second objection to a recov-
ery raised by the Government counsel, viz., that the damage was not
done by a “ Confederate...cruiser.” But as the claim is important, and
as the action of the court is final, it is deemed best that our determi-
nation of it should not rest wholly upon our conclusions as to a single
complicated law question, and the more so since we entertain very de-
cided convictions that under previous decisions the second objection
is an insuperable obstacle to recovery by the claimant.
The meaning of the term “Confederate crusier" was defined by this
court in the case of the Roanoke (Warren v. United States), French,
J., delivering the opinion in these words : “We can reach no other
conclusion than that the phrase "Confederate cruiser,' as found in the
act of 1882, was intended by Congress to include only armed vessels,
public or private, fitted for hostile operations, upon the high seas, and
acting under the authority of the Confederate government.”
In the case of the Lenox (Lindsey v. United States), Harlan, J.,
delivering the opinion of the court, said: “In the opinion of the court
the mere presence of armed men on board and in controlof a vessel on
the high seas is not sufficient to establish the character of the craft as
a Confederate cruiser within the meaning of the statute. And if the
vessel used in effecting this capture had been of such construction, or
so armed and equipped as to be itself an implement of warfare, on the
high seas, being under the control of an effective force of armed men,
it would still have been necessary to prove by competent evidence that
the expedition was at the time acting under the authority of the Con-
federate government to bring it within the requirements of the statute."
Proceeding, the court said : “But if it had been conclusively proved
that said Duke (The commander of the Confederate force) was at the
time of the capture of the Lenox an officer in the Confederate navy,
that fact, and his presence in command of a ship on the high seas,
would not in the opinion of the court, considered in the light of all the
decisions cited on the trial, raise the legal presumption that he was
152
STATES,
[PART 1.
acting under the authority of the Confederate government, unless it
were also shown that the ship was a public vessel in commission or its
tender belonging to the Confederate government. Even if found in
command of a private vessel sailing under authority of a letter of
marque, his authority would depend on the letter rather than his com-
mission as a naval officer."
From these decisions, in order to constitute a Confederate cruiser"
there must have been, first, an armed vessel, and second, the vessel
must have been a commissioned vessel of the Confederate navy, or she
amust have carried letters of marquè from the Confederate government.
Further than this, the fact that the crew were a part of the Confederate
naval forces, and were acting under authority of the Confederate
government, would not supply the absence of letters of marque.
The vessels employed in the destruction of the Alleganean were
not armed, they were not in commission, and they had no letters of
marque. The official and authorizeit character of the men could not
do away with the necessity of authority running to the vessels them-
selves, nor could the fact that the men were armed supply the lack of
armament upon the vessels in order to bring them up to the character
of " cruisers."
The learned counsel for the claimants, with much earnestness and
ingenuity, undertakes to meet the difficulty upon the theory that the
vessels employed were tenders to the Patrick Henry, a duly comnis-
sioned and armed vessel of the Confederate navy, and argues that a
cruiser can send her boats and men off to a distance and commit depre-
dations at arm's length, and that the damage in this case was in fact
and effect done by the Patrick Henry herself. It is difficult to see
how this view of the statement of Wood that the boats were tenders
of the cruiser can be sustained in the face of his testimony that, “I
went at once to Matthews County, Virginia, near Point Comfort, and
there found a suitable boat, fitted her as a man-of-war launch” (p. 57,
Record), and in the face of the testimony of Lee that “ we had two
small boats that we obtained on the bay shore, with sails and a sailing
skiff we captured from two Union men. No boats were brought from
Richmond or from any Confederate cruiser” (p. 20, Record). In
the opinion of the court, the claim that these boats were tenders
attached to the cruiser must fail, and with it the suggestion that the
dainage was done by the armed vessel through the instrumentality of
boats attached to her.]
/
1“It may truly be said, in the words of Lord Stowell, when a ship takes by her
boats or tender, she does all she could have done if present” (Sir C. Robinson, in The
Zepherina, 1830, 2 Hagg. 318, 321). Other cases involving the question of “tenders"
are: The Odin, 1803, 4 C. Rob. 318; The Charlotte, 1804, 5 C. Rob. 280. — ED.
CHAP. I.]
153
THE ALLEGANEAN.
So far as being effective in this matter, the Henry might as well have
been iu the Arctic Ocean as over in the James River. Any other loily
of men to the same number might have done the same work. The force
making the capture in this case received 110 support or assistance from
any armed or credentialed war vessel. The difficulty which, it seems to
the court, places the case outside of the provisions of the statute, is that
the damage was done by the men alone, and not by a vessel, when the
act contemplates only damages wrought by an authorized vessel fitted
for belligerent operations upon the high seas.
The large amount of damages believed to have been suffered by the
claimants, tne conviction that the claim has much nerit in it, the ad-
mirable manner in which it was presented, and the fact that the finding of
the court is final, have combined to secure for this case much and most
painstaking consideration. After such consideration the conclusion is
"irresistible that however ineritorious it may be in itself, it is not such
a claim as Congress intended to make provision for in enacting the
statutes under which we are proceeding.
Judgment will be entered for the United States.
All concur.
1
1 The latter part of this opinion should be considered in connection with Part II.
chapter 2.
The Bay of Fundy is considered, on the contrary, an open arm of the sea. (The
Schooner Washington, per Bates, Umpire, in Report of the Commission of Claims, 1853,
p. 170).
In the case of Dunham v. Lamphere, 1855, 3 Gray, 268, before the Supreme Court
of Massachusetts, Shaw, C. J., said: We suppose the rule to be that those limits
extend a marine league, or three geographical miles, from the shore; and in ascertain-
ing the line of shore this limit does not follow each narrow inlet or arm of the sea,
but when the inlet is so narrow that persons and objects can be discerned across it
by the naked eye, the line of territorial jurisdiction stretches across from one headland
to the other of such inlet."
In Mahler v. Transportation Co., 1866, 35 N. Y. 352, Long Island Sound was
held to be part of New York State and subject to its jurisdiction.
In Manchester v. Massachusetts, 1890, 139 U. S. 240, the court held, after an
elaborate survey of English and American authorities, that the jurisdiction of Massa-
chusetts included the marine belt surrounding it; that Buzzard's Bay, falling within
the principle of Dunham v. Lamphere, should be and is governed by it, therely making
Buzzard's Bay for jurisdictional purposes part of Massachusetts; that such bay, being
within Massachusetts, that Commonwealth rightfully exercises all rights of ownership
and possession, including fishing rights and privileges, therein ; that in the absence of
affirmative legislation on the part of Congress, vesting the regulation of fishing in such
bays, State regulations, as in cases of pilot legislation, must remain with the State.
Such bays therefore are not high seas in the sense of international law, and the appur-
tionment of jurisdiction over such bodies of water between the respective States and
the United States is a matter of municipal, not of international, law.
Shively v. Bowlby, 1893, 152 U. S. 1, is a remarkable case, – unfortunately too long
to print, in which the origin, nature and extent of jurisdiction of the United States
154
[PART I.
STATES.
(d) Marginal Seas.
THE QUEEN V. KEYN.
COURT OF CROWN CASES RESERVED, 1876.
(Law Reports, 2 Exchequer Division, 63.)
The prisoner was indicted at the Central Criminal Court for the
manslaughter of Jessie Dorcas Young on the high seas, and within
the jurisdiction of the Admiralty of England. The deceased was a
passenger on board the Strathclyde, a British steamer bound from
London to Bombay. This vessel, when one and nine-tenths of a
mile from Dover pier-head, and within two and a half miles from
Dover beach, was run down and sunk by the Franconia, a German
steamer. In the collision, the deceased woman was drowned, and
the prisoner, the captain of the Franconia, is convicted of man-
slaughter; but a question of law is reserved.
An objection was taken on the part of the prisoner that, inasmuch
as he was a foreigner, in a foreign vessel, on a foreign voyage, sail-
ing upon the high seas, he was not subject to the jurisdiction of any
court in this country.
The Crown contends that inasmuch as, at the time of the collision,
both vessels were within the distance of three miles from the
English shore, the offense was committed within the realm of Eng-
land, and is triable by the English court.
The case was argued before Cockburn, C. J., Lord Coleridge, C. J.,
Kelly, C. B., Sir R. Phillimore, Bramwell, Pollock, and Amphlétt,
B. B., Lush, Brett, Grove, Denman, Archibald, Field and Lindley, JJ.
COCKBURN, C. J ;- “The question is, whether the accused is
amenable to our law, and whether there was jurisdiction to try him?
“The legality of the conviction is contested, on the ground that
the accused is a foreigner; that the Franconia, the ship he com-
manded, was a foreign vessel, sailing from a foreign port, bound on
a foreign voyage; that the alleged offense was committed on the
high seas. Under these circuinstances, it is contended that the
accused, though he may be amenable to the law of his own country,
is not capable of being tried and punished by the law of England.
“The facts on which this defense is based are not capable of
and the States over navigable waters are carefully and exhaustively discussed. As it is
in large part a digest-case, no short note of it can well be given. - ED.
1 Archibald, J., died after the argument and before the judgment was delivered.
CHAP. I.]
155
THE QUEEN V. KEYN.
being disputed; but a twofold answer is given on the part of the
prosecution :-1st. That, although the occurrence on which the ,
charge is founded took place on the high seas in this sense that thu
place in which it happened was not within the body of a county, it
occurred within three miles of the English coast; that by the law of
nations, the sea, for a space of three miles from the coast, is part
of the territory of the country to which the coast belongs; that,
consequently, the Franconia, at the time the offense was committed,
was in English waters, and those on board were therefore subject
to English law.
“ Secondly. That, although the negligence of which the accused was.
guilty occurred on board a foreign vessel, the death occasioned by
such negligence took place on board a British vessel ; and that, as
a British vessel is, in point of law to be considered British territory,
the offense, having been consummated by the death of the deceased
in a British ship, must be considered as having been committed on
British territory. * * *
“According to the general law, a foreigner who is not resid-
ing permanently or temporarily in British territory, or on board a
British ship, cannot be held responsible for an infraction of the law
of this country.
“ Unless, therefore, the accused, Keyn, at the time the offense of
which he has been convicted was committed, was on British territory
or on board a British ship, he could not be properly brought to trial
under British law, in the absence of express legislation. ***
“In the reign of Charles II., Sir Leoline Jenkins, then the
judge of the Court of Admiralty, in a charge to the grand jury at an
Admiralty sessions at the Old Bailey, not only asserted the king's
sovereignty within the four seas, and that it was his right and
province 'to keep the public peace on these seas '—that is, as Sir
Leoline expounds it, to preserve his subjects and allies in their
possessions and properties upon these seas, and in all freedom and
security to pass to and fro on them, upon their lawful occasions,
but extended this authority and jurisdiction of the King. To pre-
serve the public peace and to maintain the freedom and security
of navigation all the world over; so that not the utmost bound of
the Atlantic Ocean, nor any corner of the Mediterranean, nor any
part of the South or other seas, but that if the peace of God and
the King be violated upon any of his subjects, or upon his allies
or their subjects, and the offender be afterwards brought up or
laid hold of in any of His Majesty's ports, such breach* of the peace
is to be inquired of and tried in virtue of a commission of oyer and
terminer as this is, in such county, liberty, or place as His Majesty
>
156
STATES.
[PART I.
1
shall please to direct-so long an arm hath God by the laws given to
his vicegerent the King.' * * *
Venice, in like manner, laid claim to the Adriatic, Genoa to the
Ligurian Sea, Denmark to a portion of the North Sea.
“ The Portuguese claimed to bar the ocean route to India and the
Indian Seas to the rest of the world, while Spain made the like
assertion with reference to the West.
“ All these vain and extravagant pretensions have long since given
way to the influence of reason and common sense.
“ If, indeed, the sovereignty thus asserted had a real existence,
and could now be maintained, it would of course, independently of
any question as to the three-mile zone, be conclusive of the present case.
But the claim to such sovereignty, at all times unfounded, has long
since been abandoned. No one would now dream of asserting that
the sovereign of these realms has any greater right over the surround-
ing seas than the sovereigns on the opposite shores; or that it is the
especial duty and privilege of the Queen of Great Britain to keep the
peace in these seas; or that the Court of Admiralty conld try a
foreigner for an offense committed in a foreign vessel in all parts of
the Channel.
“No writer of our day, except Mr. Chitty in his treatise on the
prerogative, has asserted the ancient doctrine. Blackstone, in his
chapter on the prerogative in the Commentaries, while he asserts
that the narrow seas are part of the realm, puts it only on the ground
that the jurisdiction of the Admiralty extends over these seas.
“He is silent as to any jurisdiction over foreigners within them.
The concensus of jurists, which has been so much insisted on as
authority, is perfectly unanimous as to the non-existence of any such
jurisdiction. Indeed, it is because this claim of sovereignty is
admitted to be untenable that it has been found necessary to resort
to the theory of the three-mile zone.
" It is in vain, therefore, that the ancient assertion of sovereignty
over the narrow seas is invoked to give countenance to the rule
now sought to be established, of jurisdiction over the three-mile
zone.
“ If this rule is to prevail, it must be on altogether different grounds.
To invoke, as its foundation or in its support, an assertion of sover-
eignty which, for all practical purposes, is, and always has been, idle
and unfounded, and the invalidity of which renders it necessary to
have recourse to the new doctrine, involves an inconsistency, on
which it would be superfluous to dwell. I must confess myself
unable to comprehend how, when the ancient doctrine as to sover-
eignty over the narrow seas is adduced, its operation can be confined
CHAP. I.]
157
THE QUEEN V. KEYN.
to the three-mile zone. If the argument is good for anything, it
must apply to the whole of the surrounding seas. But the counsel
for the Crown evidently shrank from applying it to this extent.
Such a pretension would not be admitted or endured by foreign
nations. That it is out of this extravagant assertion of sover-
eignty that the doctrine of the three-mile jurisdiction, asserted on
the part of the Crown, and which, the older claim being necessarily
abandoned, we are now called upon to consider, has sprung up, I
readily admit. * * *
“With the celebrated work of Grotius, published in 1609, began
the great contest of the jurists as to the freedom of the seas.
“The controversy ended, as controversies often do, in a species of
compromise. While maintaining the freedom of the seas, Grotius,
in his work De Jure Belli et Pacis, had expressed an opinion that,
while no right could be acquired to the exclusive possession of the
ocean, an exclusive right or jurisdiction might be acquired in respect
of particular portions of the sea adjoining the territory of indi-
vidual states. * * *
“Other writers adopted a similar principle, but with very varying
views as to the extent to which the right might be exercised. Alberi-
cus Gentiles extended it to 100 miles; Baldus and Bodinus to sixty.
“Loccenius (De Jure Maritimo, ch. iv., s. 6) puts it at two days' sail;
another writer makes it extend as far as could be seen from the
shore. Valin, in his Commentary on the French Ordinances of
1681 (ch. v.), would have it reach as far as bottom could be found
with the lead line. * * *
“Differing altogether from these writers as to the extent of
maritime sovereignty, Bynkershoek, an advocate, like Grotius, for
the mare liberum, and who entered the lists against Selden as to the
dominion of England in the so-called English Sea, in his treatise De
Dominio Maris, published in 1702, follows up the idea of Grotius as
to a limited dominion of the sea from the shore. * * *
“ After combating the doctrine of a mare clausum as regards
the sea at large, and enumerating these inconsistent opinions, which
he seems little disposed to respect, Bynkershoek continues : “ Hinc
videas priscos juris magistros, qui dominium in mare proximum
ausi sunt agnoscere, in regundis ejus finibus admodum vagari incer-
tos. Quare omnino videtur rectius,' he adds, after disposing of
the foregoing opinions, Eo potestatem terræ extendi, quo-
usque tormenta exploduntur; eatenus quippe, cum imperare, tum
possidere videmur. Loquor autem de his temporibus; quibus illis
machinis utimur; alioquin generaliter decendum esset, potestatem
terræ finiri, ubi finitur armorum vis; etenim haec, ut diximus, pos-
sessionem tuetur.'
158
STATES.
(PART I.
“We have here, for the first time, so far as I am aware, a sugges-
tion as to a territorial dominion over the sea, extending as far as
cannon-shot would reach—a distance which succeeding writers fixed
at a marine league, or three miles. Prior to this, no one had suggested
such a limit.
“The jurisdiction, assumed in the Admiralty commissions, or
exercised by the Court of King's Bench in the time of the Edwards,
was founded on the King's alleged sovereignty over the whole of the
narrow seas; it had no reference whatever to any notion of a terri-
torial sea.
To English lawyers the idea of this limited jurisdiction
was utterly unknown.
“ With Selden and Hale, they stood up stoutly for the King's
undivided dominion over the four seas. No English author makes
any distinction, as regards the dominion of the Crown, between
the narrow seas as a whole and any portion of them as adjacent
to the shore. The doctrine was equally unknown to the Scotch
lawyers. * * *
66 Even to our times the doctrine of the three-mile zone has
never been adopted by the writers, on English law. To Blackstone
who, in his Commentaries, treats of the sea with reference to the
prerogative, as also to his modern editor, Mr. Stephen, it is unknown;
equally so to Mr. Chitty, whose work on the prerogative is of the
present century. It was not till the beginning of this century that
any mention of such a doctrine occurs in the courts of this country.
But to the continental jurists, the suggestion of Bynkershoek seemed
a happy solution of the great controversy as to the freedom of the
sea; and the formula, potestas finitur ubi finitur armorum vis, was
a taking one; and succeeding publicists adopted and repeated the
rule which their predecessor had laid down, without much troubling
themselves to ascertain or inquire whether that rule had been rec-
ognized and adopted by the maritime nations who were to be
affected by it. * * *
" But to what, after all, do these ancient authorities amount?
Of what avail are they towards establishing that the soil in the three-
mile zone is part of the territorial domain of the Crown ? These
assertions of sovereignty were manifestly based on the doctrine that
the narrow seas are part of the realm of England. But that doctrine
is now exploded. Who at this day would venture to affirm that the
sovereignty thus asserted in those times now exists? What Eng-
lish lawyer is there who would not shrink from maintaining-what
foreigu jurist who would not deny—what foreign government which
would not repel such a pretension? I listened carefully to see
whether such an assertion would be made; but none was made.
CHAP. I.]
159
THE QUEEN V. KEYN.
No one has gone the length of suggesting, much less of openly as
serting, that the jurisdiction still exists. It seems to me, that when
the sovereignty and jurisdiction from which the property in the soil
of the sea was inferred is gone, the territorial property which was sug.
gested to be consequent upon it, must necessarily go with it. * * *
“ It thus appearing, as it seems to me that the littoral sea
beyond low-water mark did not, as distinguished from the rest of
the high seas, originally form part of the territory of the realm, the
question again presents itself, when and how did it become so ? Can
a portion of that which was before high sea have been converted
into British territory, without any action on the part of the British
government or legislature-by the mere assertions of writers on
public law-or even by the assent of other nations ?
“And when in support of this position, or of the theory of the
three-mile zone in general, the statements of the writers on inter-
national law are relied on, the question may 'well be asked, upon
what authority are these statements founded ?
“When and in what manner have the nations, who are to be af-
fected by such a rule as these writers, following one another, have
laid down, signified their assent to it? to say nothing of the difficulty
which might be found in saying to which of these conflicting opin-
ions such assent had been given.
“For, even if entire unanimity had existed in respect of the im-
portant particulars to which I have referred, in place of so much dis-
crepancy of opinion, the question would still remain, how far the
law as stated by the publicists had received the assent of the civ.,
ilized nations of the world.
“For writers on international law, however valuable their labors
may be in elucidating and ascertaining the principles and rules of
law, cannot make the law. To be binding, the law must have received
the assent of the nations who are to be bound by it. This assent may
be express, as by treaty or the acknowledged concurrence of govern-
ments, or may be implied from established usage,-an instance of
which is to be found in the fact that merchant vessels on the high.
seas are held to be subject only to the law of the nation under whose
flag they sail, while in the ports of a foreign state they are subject
to the local law as well as to that of their own country. In the
absence of proof of assent, as derived from one or other of these
sources, no unanimity on the part of theoretical writers would war-
rant the judicial application of the law on the sole authority of
their views or statements. Nor, in my opinion, would the clearest
proof of unanimous assent on the part of other nations be sufficient
to authorize the tribunals of this country to apply, without an Act
160 :
[PART I.
STATES.
of Parliament, what would practically amount to a new law. In
so doing we should be unjustifiably usurping the province of the
legislature. The assent of nations is doubtless sufficient to give
the power of parliamentary legislation in a matter otherwise within
the sphere of international law, but it would be powerless to confer
without such legislation a jurisdiction beyond and unknown to the
law, such as that now insisted on, a jurisdiction over foreigners in
foreign ships on a portion of the high seas.
“When I am told that all other nations have assented to such
an absolute dominion on the part of the littoral state, over this por-
tion of the sea, as that their ships may be excluded from it, and
that, without any open legislation, or notice to them or their sul
- jects, the latter may be held liable to the local law, I ask first what
proof there is of such assent as here asserted; and, secondly, to
what extent has such assent been carried ; a question of infinite im-
portance, when undirected by legislation, we are called upon to apply
the law on the strength of such assent. It is said that we are to
take the statements of the publicists as conclusive proof of the as-
sent in question, and much has been said to impress on us the re-
spect which is due to their authority, and that they are to be looked
upon as witnesses of the facts to which they speak, witnesses whose
statements, or the foundation on which those statements rest, we
are scarcely at liberty to question. I demur altogether to this
position. I entertain a profound respect for the opinion of jurists
when dealing with the matters of judicial principle and opinion,
but we are here dealing with a question not of opinion but of fact,
and I must assert my entire liberty to examine the evidence and
see upon what foundation these statements are based.
“The question is not one of theoretical opinion, but of fact, and,
fortunately, the writers upon whose statements we are called upon
to act have afforded us the means of testing those statements by
reference to facts. They refer us to two things, and to these alone-
- treaties and usage.
“Let us look a little more closely into both.
First, then, let us see how the inatter stands, as regards treaties.
It may be asserted, without fear of contradiction, that the rule that
the sea surrounding the coast is to be treated as a part of the ad-
jacent territory, so that the state shall have exclusive dominion
over it, and that the law of the latter shall be generally applicable to
those passing over it in the ships of other nations, has never been
made the subject matter of any treaty, or, as matter of acknowledged
right, has forined the basis of any treaty, or has ever been the sub-
ject of diplomatic discussion. It has been entirely the creation
(
CHAP. I.]
161
THE QUEEN V. KEYN.
of the writers on international law. It is true that the writers who
have been cited, constantly refer to treaties in support of the doc-
trine they assert. But when the treaties they refer to are looked
at, they will be found to relate to two subjects only—the observance
of the rights and obligations of neutrality, and the exclusive right
of fishing. In fixing the limits to which these rights should
extend, nations have so far followed the writers on international
law as to adopt the three miles range as a convenient distance.
There are several treaties by which nations have engaged, in the
event of either of them being at war with a third, to treat the sea
within three miles of each other's coasts as neutral territory, within
which no warlike operations should be carried on; instances of
which will be found in the various treatises on international law.
Thus for instance, in the treaties of commerce, between Great Brit-
ain and France, of September, 1786; between France and Russia of
January, 1787; between Great Britain and the United States, of
October, 1794, each contracting party engages, if at war with any
other nation, not to carry on hostilities within cannon shot of the
coast of the other contracting party; or, if the other should be at
war, not to allow its vessels to be captured within the like distance.
There are many other treaties of the like tenor, a list of which is
given by Azuni (vol., II p. 78); and various ordinances and laws
have been made by the different states in order to give effect to
them.
“ Again, nations, possessing opposite or neighboring coasts, border-
ing on a common sea, have sometimes found it expedient to agree
that the subjects of each shall exercise an exclusive right of fishing
to a given distance from their own shores, and here also have
accepted the three miles as a convenient distance. Such, for in-
stance, are the treaties made between this country and the United
States, in relation to the fishery off the coast of Newfoundland, and
those between this country and France, in relation to the fishery on
their respective shores; and local laws have been passed to give
effect to these engagements.
“But in all these treaties this distance is adopted, not as matter
of existing right established by the general law of nations, but as .
matter of mutual concession and convention. Instead of upholding
the doctrine contended for, the fact of these treaties having been
entered into has rather the opposite tendency; for it is obvious that,
if the territorial right of a nation hordering on the sea to this por-
tion of the adjacent waters had been established by the common
assent of nations, these treaty arrangements would have been wholly
superfluous.
11
162
STATES.
(PART 1.
«Each nation would have been bound, independently of treaty
engagement, to respect the neutrality of the other in these waters as
much as in its inland waters. The foreigner invading the rights of
the local fisherman would have been amenable, consistently with
international law, to local legislation prohibiting such infringement,
without any stipulation to that effect by treaty. For what object,
then, have treaties been resorted to ? Manifestly in order to obviate
all questions as to concurrent or conflicting rights arising under the
law of nations.
• Possibly, after these precedents and all that has been written on
this subject, it may not be too much to say that, independently of
treaty, the three-mile belt of sea might at this day be taken as
belonging for these purposes, to the local state.
“But it is scarcely logical to infer, from such treaties alone, that,
because nations have agreed to treat the littoral sea as belonging to
the country it adjoins, for certain specified objects, they have there-
fore assented to forego all other rights previously enjoyed in common,
and have submitted themselves, even to the extent of the right of
navigation on a portion of the high seas, and the liability of their
subjects therein to the criminal law, to the will of the local sovereign,
and the jurisdiction of the local state. Equally illogical is it, as it
seems to me, from the adoption of the three-mile distance in these
particular instances, to assume, independently of everything else, a
recognition, by the common assent of nations, of the principle that
the subjects of one state passing in ships within three miles of the
coast of another, shall be in all respects subject to the law of the
latter. It may be that the maritime nations of the world are pre-
pared to acquiesce in the appropriation of the littoral sea ; but I can-
not think that these treaties help us much towards arriving at the
conclusion that this appropriation has actually taken place. At all
events, the question remains, whether judicially we can infer that
the nations who have been parties to these treaties, and, still further,
those who have not, have thereby assented to the application of the
criminal law of other nations to their subjects on the waters in
question, and on the strength of such inference so apply the crimi-
nal law of this country.
“ The uncertainty in which we are left, so far as judicial knowl-
edge is concerned, as to the extent of such assent, likewise presents,
I think, a very serious obstacle to our assuming the jurisdiction we
are called upon to exercise, independently of the, to my mind, still
more serious difficulty, that we should be assuming it without legis.
lative warrant.
“ So much for treaties. Then how stands the matter as to usage,
CHAP. I.]
THE QUEEN V. KEYN.
163
ras
to which reference is so frequently made by the publicists in support
of their doctrine ?
“ When the matter is looked into, the only usage found to exist
is such as is connected with navigation, or with revenue, local
fisheries, or neutrality, and it is to these alone that the usage relied
on is confined. Usage as to the application of the general law of the
local state to foreigners on the littoral sea, there is actually none.
No nation has arrogated to itself the right of excluding foreign
vessels from the use of its external littoral waters for the purpose of
navigation, or has assumed the power of making foreigners in foreign
ships passing through these waters subject to its law, otherwise
than in respect of the matters to which I have just referred. Nor
have the tribunals of any nation held foreigners in these waters
amenable generally to the local criminal law in respect of offenses.
It is for the first time in the annals of jurisprudence that a court of
justice is now called upon to apply the criminal law of the country
to such a case as the present.
“It may well be, I say again, that-after all that has been said and
done in this respect-after the instances which have been mentioned
of the adoption of the three-mile distance, and the repeated asser-
tion of this doctrine by the writers on public law, a nation which
should now deal with this portion of the sea as its own, so as to
make foreigners within it subject to its law, for the prevention and
punishment of offenses, would not be considered as infringing the
rights of other nations. But I apprehend that as the ability so to
deal with these waters would result, not from any original or
inherent right, but, from the acquiescence of other states, some out-
ward. manifestation of the national will, in the shape of open prac-
tice or municipal legislation, so as to amount, at least constructively,
to an occupation of that which was before unappropriated, would be
necessary to render the foreigner, not previously amenable to our
general law, subject to its control.
“That such legislation, whether consistent with the general law
of nations or not, would be binding on the tribunals of this country
-leaving the question of its consistency with international law to
be determined between the governments of the respective nations-
can of course admit of no doubt. The question is whether such
legislation would not, at all events, be necessary to justify our
courts in applying the law of this country to foreigners under
entirely novel circumstances in which it has never been applied
before. * * *
“It is unnecessary to the defense, and equally so to the de-
cision of the case, to determine whether Parliament has the right
164
[PART I.
STATES.
1
to treat the three-mile zone as part of the realm consistently with
international law.
" That is a matter on which it is for Parliament itself to decide.
It is enough for us that it has, so far as to be binding upon us, the
power to do so. The question is whether, acting judicially, we can
treat the power of Parliament to legislate as making up for the ab-
sence of actual legislation.
“I am clearly of opinion that we cannot, and that it is only in the
instance in which foreigners on the sea have been made specifically
liable to our law by statutory enactment that that law can be applied
to them. * * *
“Hitherto, legislation, so far as relates to foreigners in foreign
ships in this part of the sea, has been confined to the maintenance
of neutral rights and obligations, the prevention of breaches of the
revenue and fishery laws, and, under particular circumstances, to.
cases of collision.
6 In the two first the legislation is altogether irrespective of the
three-mile distance, being founded on a totally different principle,
namely, the right of a state to take all necessary measures for the
protection of its territory and rights, and the prevention of any breach.
of its revenue laws. * * *
“It is apparent that, with the exception of the penalties im-
posed for violation of neutral duties or breaches of the revenue or
fishery laws, there has been no assertion of legislative authority in
the general application of the penal law to foreigners within the three-
mile zone.
The legislature has omitted to adopt the alleged sover-
eignty over the littoral sea, to the extent of making our penal law
applicable generally to foreigners passing through it for the purpose
of navigation. Can a court of justice take upon itself, in such a mat-
ter, to do what the legislature has not thought fit to do—that is, make
the whole body of our penal law applicable to foreign vessels within
three miles of our coast?
" It is further apparent from these instances of specific legislation
that, when ascertaining its power to legislate with reference to the
foreigner within the three-mile zone, Parliament has deemed it neces-
sary, wherever it was thought right to subject him to our law, ex-
pressly to enact that he should be so. We must take this, I think,
as an exposition of the opinion of Parliament that specific legislation
is here necessary, and consequently, that without it the foreigner in
a foreign vessel will not come within the general law of this country
in respect of matters arising on the sea.
“ Legislation, in relation to foreign ships coming into British ports.
CHAP. I.]
165
THE QUEEN V. KEYN.
ac-
and waters, rests on a totally different principle, as was well explained
by Dr. Lushington, in the case of The Annapolis.
“The Parliament of Great Britain it is true,' says Dr. Lushington,
'has not, acoording to the principles of public law, any authority to ,
legislate for foreign vessels on the high seas, or for foreigners out of
the limits of British jurisdiction; though, if Parliament thought fit
so to do, this court, in its instance jurisdiction at least, would be
bound to obey. In cases admitting of doubt, the presumption would
be that Parliament intended to legislate without violating any
rule of international law, and the construction has been
cordingly.
“Within, however, British jurisdiction, namely, within British
territory, and at sea within three miles from the coast, and within all
British rivers intra fauces, and over foreigners in British ships, I
apprehend that the British Parliament has an undoubted right to
legislate. I am further of opinion that Parliament has a perfect right
to say to foreign ships that they shall not, without complying with
British law, enter into British ports, and that if they do enter they
shall be subject to penalties, unless they have previously complied
with the requisitions ordained by the British Parliament whether
those requisitions be, as in former times, certificates of origin, or clear-
ance of any description from a foreign port, or clean bills of health,
or the taking on board a pilot at any place in or out of British juris-
diction before entering British waters.
“Whether the Parliament has so legislated is now the question
to be considered,' * * *
“ In the result, looking to the fact that all pretension to sov-
ereignty or jurisdiction over foreign ships in the narrow seas has
long since been wholly abandoned to the uncertainty which attaches
to the doctrine of the publicists as to the degree of sovereignty and
jurisdiction which may be exercised on the so-called territorial sea-
to the fact that the right of absolute sovereignty therein, and of
penal jurisdiction over the subjects of other states, has never been
expressly asserted or conceded among independent nations, or, in
practice, exercised, and acquiesced in, except for violation of neutral-
ity or breach of revenue, or fishery laws, which, as has been pointed
out, stand on a different footing as well as to the fact that, neither
in legislating with reference to shipping, nor in respect of the crim-
inal law, has Parliament thought proper to assume territorial sover->
eignty over the three-mile zone, so as to enact that all offenses
committed upon it, by foreigners in foreign ships, should be within
the criminal law of this country, but, on the contrary, wherever it
1 Lush. Adm. 295.
166
(PART 1.
STATES.
was thought right to make the foreigner amenable to our law, has
done so by express and specific legislation. I cannot think that, in
the absence of all precedent, and of any judicial decision or authority
applicable to the present purpose, we should be justified in holding
an offense, committed under such circumstances, to be punishable by
the law of England, especially as in so holding we must declare the
whole body of our penal law to be applicable to the foreigner passing
our shores in a foreign vessel on his way to a foreign port. ***
“Having arrived at this conclusion, it becomes necessary to con-
sider the second point taken on the part of the Crown, namely,
w that though the negligence of which the accused was guilty occurred
on board a foreign ship, yet, the death having taken place on board
a British ship, the offense was committed within the jurisdiction of
a British court of justice. * * *
“The , question is—and this appears to me to have been lost
sight of in the argument—not whether the death of the deceased,
which no doubt took place in a British ship, was the act of the de-
fendant in such ship, but whether the defendant, at the time the
act was done, was himself within British jurisdiction.
“ But in point of fact, the defendant was, at the time of the oc-
currence, not on board the British ship, the Strathclyde, but on a
foreign ship, the Franconia. * * *
“But in order to render a foreigner liable to the local law,
he must, at the time the offense was committed, have been
within British territory if on land, or in a British ship if at sea. I
cannot think that if two ships of different nations met on the ocean,
and a person on board of one of them were killed or wounded by a
shot fired from the other, the person firing it would be amenable to
the law of the ship in which the shot took effect.”
LUSH, J., said, in part: “ In the reign of Richard II., the realm
consisted of the land within the body of the counties. All beyond
low-water mark was part of the high seas.
“At that period the three-mile radius had not been thought of.
International law, which, upon this subject at least, has grown up
since that period, cannot enlarge the area of our muncipal law, nor
could treaties with all the nations of the world have that effect.
That can only be done by Act of Parliament. As no such act has
been passed, it follows that what was out of the realm then is out of
the realm now, and what was part of the high seas then is part of
the high seas now; and upon the high seas the Admiralty jurisdic-
tion was confined to British ships. Therefore, although, as between
nation and nation, these waters are British territory, as being under
the exclusive dominion of Great Britain, in judicial language they
+
CHAP. I.]
167
THE QUEEN V. KEYN.
are out of the realm, and any exercise of criminal jurisdiction over a
foreign ship in these waters must in my judgment be authorized by
an Act of Parliament.”
Lord COLERIDGE, C. J., dissenting from the opinion of the majority,
said, in part * * * “But, first, I think the offense was committed
within the realm of England; and if so, there was jurisdiction to
try it. * * *
(
“Now the offense was committed much nearer to the line
of low-water mark than three miles; and therefore, in my opinion,
upon English territory. I pass by for the moment the question
of the exact limit of the realm of England beyond low-water
mark, I am of opinion that it does go beyond low-water mark;
and if it does, no limit has ever been suggested which would ex-
clude from the realm the place where this offense was committed.
But for the difference of opinion of the Bench, and for the great def-
erence which is due to those who differ from me, I should have said
it was impossible to hold that England ended with low-water mark.
I do not of course forget that it is freely admitted to be within the
competency of Parliament to extend the realm how far soever it
pleases to extend it by enactments, at least so as to bind the tribu-
nals of the country; and I admit equally freely that no statute has
in plain terms, or by definite limits, so extended it.
“But, in my judgment, no Act of Parliament was required. The
proposition contended for, as I understand, is that for any act of
violence committed by a foreigner upon an English subject within a
few feet of low-water mark, unless it happens on board a British
ship, the foreigner cannot be tried, and is dispunishable. * * *
“By a consensus of writers, without one single authority to
the contrary, some portion of the coast-waters of a country is
considered for some purposes to belong to the country the coasts of
which they wash. * * *
“This is established as solidly, as, by the very nature of the
case, any proposition of international law can be. Strictly
speaking, international law is an inexact expression and it is apt to
mislead if its inexactness is not kept in mind. Law implies a law-
giver, and a tribunal capable of enforcing it and coercing its trans-
gressors.
“But there is no common law-giver to sovereign states and no
tribunal has the power to bind them by decrees or coerce them if they
transgress. The law of nations is that collection of usages which
civilized states have agreed to observe in their dealings with one
another. What these usages are, whether a particular onė has or
has not been agreed to, must be matter of evidence. Treaties and
168
[PART 1.
STATES.
«acts of state are but evidence of the agreement of nations, and do not
in this county at least per se bind the tribunals. Neither, certainly
does a consensus of jurists; but it is evidence of the agreement of
nations on international points; and on such points, when they arise,
the English courts give effect, as part of English law, to such agree-
ment. * * *
“We find a number of men of education, of many different
nations, most of them uninterested in maintaining any particular
thesis as to the matter now in question, agreeing generally for
nearly three centuries in the proposition that the territory of a mari-
time country extends beyond low-water mark.
"I can hardly myself conceive stronger evidence to show that, as
far as it depends on the agreement of nations, the territory of mari-
time countries does so extend. * * *
“If the matter were to be determined for the first time, I
should not hesitate to hold that civilized nations had agreed to this
prolongation of the territory of maritime states, upon the authority
of the writers who have been cited in this argument as laying down
the affirmative of this proposition. ***
“Furthermore, it has been shown that English judges have
held repeatedly that these coast waters are portions of the realm.
It is true that this particular point does not seem ever distinctly to
have arisen. But Lord Coke, Lord Stowell, Dr. Lushington, Lord
Hatherley, L. C., Erle, C. J., and Lord Wensleydale (and the catalogue
might be largely extended) have all, not hastily, but in writing,
in prepared and deliberate judgments, as part of the reasoning
necessary to support their conclusions, used language, some of them
repeatedly, which I am unable to construe, except as asserting, on
the part of these eminent persons, that the realm of England, the
territory of England, the property of the state and Crown of Eng-
land over the water and the land beneath it, extends at least so far
beyond the line of low water on the English coast, as to include the
place where this offense was committed. * * * The English and
American text writers, and two at least of the most eminent Ameri-
can judges, Marshall and Story, have held the same thing.
“Further—at least in one remarkable instance—the British
Parliament has declared and enacted this to be the law. In the pres-
ent reign two questions arose between Her Majesty and the Prince
of Wales as to the property in minerals below high-water mark
around the coast of Cornwall. The first question was as to the prop-
erty in minerals between high and low-water mark around the
coasts of that county; and as to the property in minerals below low-
water mark won by an extension of workings begun above low-
water mark.
CHAP. I.]
THE QUEEN V. KEYN.
169
"The whole argument on the part of the Crown was founded on
the proposition that the fundus maris below low-water mark, and
therefore beyond the limits of the county of Cornwall, belonged in
property to the Crown. The Prince was in possession of the dis-
puted inines; he had worked them from land undoubtedly his own;
and, therefore, unless the Crown had a right of property in the bed
of the sea, not as first occupier-for the Prince was first occupier,
and was in occupation—the Crown must have failed. * * * Sir John
Patterson * ** thus expressed himself.—'I am of opinion, and so
decide, that the right to the minerals below low-water mark remains
and is vested in the Crown, although those minerals may be won by
workings commenced above low-water mark and extended below it,
and he recommended the passing of an Act of Parliament to give
practical effect to his decision, so far as it was in favor of the crown.
The Act of Parliament accordingly was passed, the 21 & 22 Vict. c. 109.
“We have therefore, it seems, the express and definite authority of
Parliament for the proposition that the realm does not end with low-
water mark, but that the open sea and the bed of it are part of the
realm and of the territory of the sovereign. If so, it follows that
British law is supreme over it, and that the law must be administered
by some tribunal. It cannot, for the reasons assigned by my Brother
Brett, be administered by the judges of oyer and terminer; it can be,
and always could be, by the Admiralty, and if by the Admiralty,
then by the Central Criminal Court."
The Court quashed the conviction.
The majority of the Court was composed of Cockburn, C. J.,
Kelly, C. B., Bramwell, J. A., Lush and Field, JJ., Sir R. Phillimore
and Pollock, B.-Lord Coleridge, C. J., Brett, and Amphlett, J. A.,
Grove, Denman and Lindley, JJ., dissenting.
1
1 On account of the extreme length of the opinion of the Lord Chief Justice, a
considerable part of it-and a part interesting and valuable-has been necessarily
omitted. This is true notably of that portion consisting of the analysis of cases,
and of the abstract of the opinions of text writers. It is regretted, too, that the
opinions of the other judges cannot be given.
For criticisms of the judgment in this case, see Stephen's History of the Criminal
Law, II., 29–42; Maine's International Law, p. 38; Judge Foster, in the Am. Law
Rev., July, 1877; Walker's Science of International Law, p. 173.
In consequence of the decision in this case, an act was passed in the session of
1878 (41 and 42 Vict. c. 73), which would seem to adopt the view of the minority
of the court. The preamble declares that “the rightful jurisdiction of her Majesty,
her heirs and successors extends and has always extended over the open seas
adjacent to the coasts of the United Kingdom, and of all other parts of her Majesty's
dominions to such a distance as is necessary for the defense and security of such
dominions,” and that “it is expedient that all offenses committed in the open sea
within a certain distance of the coasts of the United Kingdom and of all other parts
CHAPTER II.
TERRITORIAL JURISDICTION.
SECTION 7.— RIGHTS, PRIVILEGES AND IMMUNITIES OF FOREIGN
SOVEREIGNS.
(a) Right of Foreign Sovereign to sue in Courts of Foreign State.
THE REPUBLIC OF MEXICO V. FRANCISCO DE
ARRANGOIZ, AND OTHERS.
SUPREME COURT OF THE CITY OF NEW YORK, 1855.
(11 Howard's Practice Reports, 1.)
HOFFMAN, Justice. The defendant, Francisco de Arrangoiz, having
been arrested under an order made by one of the justices of this court,
and given bail to the amount of $60,000, now applies to be discharged
upon the insufficiency of the affidavit on which the order was granted,
and upon further affidavits and documents on his own part.
The first question relates to the form of the undertaking given
upon the arrest, and this materially depends upon the correct under-
standing of the position of the plaintiff upon the record.
The right of a foreign sovereign to sue in the courts of England,
upon which Lord Thurlow entertained doubts, has been fully settled
and sustained. In the case of The King of Spain v. Machado, 4 Rus-
sell, 560, and 1 Bligh, N. S. 60, Lord Redesdale speaks of it as one of
of her Majesty's dominions, by whomsoever committed, should be dealt with according
to law."
The act is entitled the Territorial Waters Jurisdiction Act, 1878; and enacts that,
“An offense committed by a person, whether he is or is not a subject of her
Majesty, on the open sea within the territorial waters of her Majesty's dominions, is
an offense within the jurisdiction of the Admiral, although it may have been committeil
on board or by means of a foreign ship, and the person who committed such offense
may be arrested, tried, and punished accordingly.
“But no proceedings under this act are to be instituted against a foreigner, without
the consent and certificate of a Secretary of State, or in the case of a colony, the cer-
tificate of the Governor.
“The Territorial waters of her Majesty's dominions, in reference to the sea, means
such part of the sea adjacent to the coast of the United Kingdom, or the coast of
some other part of her Majesty's dominions, as is deemned by international law to be
within the territorial sovereignty of her Majesty ; and for the purpose of any
offense declared by this act to be within the jurisdiction of the Admiral, any part
of the open sea within one marine league of the coast measured from low-water mark
shall be deemed to be open sea within the territorial waters of her Majesty's
dominions." - Ev.
CHAP. II.]
171
REPUBLIC OF MEXICO V. ARRANGOIZ.
the clearest cases that could be stated : “ That he sues as a sovereign,
either on his own behalf, or on behalf of his subjects." See, also, The
Nabob of the Carnatic v. East India Company, 1 Vesey, jr., 371; The
King of Hanover v. Wheatley, 4 Beavan, 78; Hullett v. The King of
Spain, 2 Bligh, N. S. 31, and 1 Clark & Finnelly, 33.
It will be seen, that in all the English cases in which the right to
sue has been admitted, the plaintiff was a monarch, and was treated
as an individual. The case of The City of Berne v. The Bank of Eng-
land, 9 Vesey, 348, was decided upon the point of the State not having
been recognized by the British government. It is also to be noticed
that the bill was by a common councilman, on behalf of himself and
his associates in the government. This appears from the report of
the case of Dolder v. The Bank of England, 10 Vesey, 353; and in
Dolder v. Huntingfield, 11 Vesey, 283, the suit was by individuals de-
scribing themselves as Llandamman and two Statholders of the Hel-
vetic Republic, in whom the executive power was vested by the
constitution.
When the case of The King of Spain v. Machado was first before the
court, it was held that two persons, the agents of the king, and to
whom he had given a power of attorney to collect and deposit the
funds, but who had no interest in the amount, could not be joined with
the king as co-plaintiffs. 4. Russell's Rep. 255.
The case of the Colombian Government v. Rothschild, 1 Simons' Rep.
103, is of importance in ascertaining the English rule, not merely be-
cause it was decided by a very able judge (Sir John Leach), but that
it has received the sanction of Lord Eldon, Lord Redesdale, and Lord
Brougham. (Compare the report in the House of Lords in 1 Dow. &
Clark, with that in 1 Clark & Finnelly, 33.)
The bill was, in form, by the government of the State of Colombia,
and Don Manuel T. Hutado, a citizen of such state, and minister
plenipotentiary from the same to the court of his Britannic majesty,
the place of his residence stated. On general demurrer, it was helil
that the bill could not be sustained. The vice-chancellor said, that a
foreign state is as well entitled to the aid of the court, in asserting its
rights, as any individual; but it must sue in a form that makes it pos-
sible for the court to do justice to the defendants. It must sue in the
name of some public officers, who are entitled to sue in the name of
the state, and upon whom process can be served on the part of the
defendants, and who can be called upon to answer a cross-bill. The
general description of the Colombian government precluded the de-
fendants from these just rights, and no instance could be stated in
which the court had entertained the suit of a foreign state, by such a
description
}
172
[ [PART I.
TERRITORIAL JURISDICTION.
The English authorities appear to settle these points. That the
sovereign of a foreign state may sue in the tribunals of the realm, but
he sues as an individual. An action cannot be sustained in the name
of his agent, although they may be empowered to act in the identical
business. He is the party in interest. He must swear to answer a
cross-bill, if one is required. He would be the party to be .examined
personally, whenever such an examination was warranted by the rules
of the court.
Again : If a State sues, without the individuality of a monarch, some
public officer representing it must be upon the record; and it seems
that a minister plenipotentiary is not such an officer.
I cannot think that an examination of the old cases, referred to by
counsel in The Nabob of the Carnatic v. The East India Company, will
tend to prove that an ambassador may sustain an action on behalf of
his sovereign, notwithstanding the doubts of Lord Rosslyn upon the
subject. 3 Vesey, 431.
In The King of Spain v. Oliver, 1 Peter's C. C. Rep. 217, 276, an ac-
tion for the recovery of duties, alleged to be payable to the Crown,
was brought in the circuit court, and decided upon its merits. It
appears that an application was made for a continuance, to take
testimony under a commission, upon the affidavit of the Spanish
minister.
These are all the authorities I have been able to find upon the sub-
ject; and I believe the question is entirely new in our country. The
principle which pervades. the English cases is marked by that spirit
of equality and justice which is the inmate of English tribunals,
and that principle places the sovereign and the peasant on the same
footing
But the reason of the English rule lies deeper. It has its origin in
that leading doctrine of European policy which, in the language of
Guizot, places "the personification of the state in the institution of
monarchy.” This embodiment of the commonwealth in the individual
has given way, over the continent of America, to the idea of the con-
centration of the power in the people in an abstraction. Legitimate
sovereignty does not find its representative in a king with his person-
ality, but in a republic with its idealism.
Still there is the same brotherhood and communion of states to be
recognized. The same family of nations, though with different names
and different forms, exist ; and their rights, and their responsibilities,
must be forever the same. The catholic law of nations is identical in
its application to all.
We must, then, admit these recognized governments to sue in our
courts under their federative title, and adapt our forms of proceeding,
CHAP. II.]
173
PRIOLEAU V. UNITED STATES.
if possible, so as to do justice to all parties; or we must allow an indi-
vidual representative, clothed with competent authority from his gov-
ernment, to act on its behalf, and thus have a party on the record who
can be strictly subjected to those forms.
In my opinion, the action can be maintained in the name of the re-
public as an aggregate body; and the modes of proceeding in cases of
foreign corporations, and of other States of the Union, may be resorted
to for the regulations of the practice.
Before the Revised Statutes had embodied the law into an express
provision, Chancellor Kent had decided that a foreign corporation
could file a bill in our Court of Chancery, as well as sustain a suit at
law. Silver Lake Bank of Pennsylvania v. North, 4 John. C. R. 371.
Such a suit was brought in this court in The Holyoke Bank v. Hast
ings, 4 Sandf. Rep. 675.
Our highest court has also settled, that either of the States of the
Union may sue in our State courts; and difficulties of practice are not
found insuperable. State of Illinois v. Delafield, 2 Hill, 159, 8 Paige,
527 ; State of Indiana v. Woram, 6 Hill, 36.
With these views, I consider the objection to the undertaking not
tenable. The language of the Code admits of the court treating an
undertaking, signed by an admitted agent of a foreign government ap-
pointed to sue, to be an undertaking on the part of the plaintiff. In
the case of Richardson v. Crary, 1 Duer, 666, referred to by the coun-
sel of the defendant, the instrument was executed by sureties alone;
neither by the plaintiff nor by any one on his behalf.1
PRIOLEAU V. UNITED STATES AND ANDREW JOHNSON.
IN EQUITY, 1866.
(Law Reports, 2 Equity, 659.)
This was a cross-bill to a suit of United States v. Prioleau. (Supra,
§ 5, a.)
The original suit was instituted by the United States of America
suing in their corporate capacity to establish their rights to cotton
shipped at Galveston, Texas, during the rebellion and consigned to
the defendants, for sale in England for the benefit of the de facto Con-
1 Remainder of opinion omitted. Affirmed on appeal, 5 Duer, 634.
In King of Prussia v. Küpper, 1856, 22 Mo. 550, citing with approval the principal
case, it was held that a foreign sovereign could sue in a Missouri court, and that such
sovereign may be plaintiff in either State or Federal courts. -ED.
174
(PART I.
TERRITORIAL JURISDICTION.
federate Government. The United States, as plaintiffs, moved for
an injunction to restrain the defendants from obtaining possession
of the cotton from the Dock and Harbor Board, and from dealing
with it otherwise than under the direction of the plaintiffs, who
claimed it as State property to which they had sụcceeded on the dis-
solution of the so-called Confederate Government.
The Vice-Chancellor made an order appointing Mr. Prioleau
receiver of the cotton under bond of £20,000. Messrs. Prioleau filed
this cross-bill against the United State of America and President
Andrew Johnson, for the purpose of obtaining discovery in reference
to the matters in question in the suit.
No answer having been put in by President Johnson, the plaint-
iffs in the cross-suit moved that the time for closing the evidence
in the first suit might be enlarged until one month after the defend-
ants to the cross-bill had put in their answer, and that, failing such
answer, the receivership of Prioleau might be discharged and his
recognizances vacated.
The following are extracts from the opinion of Vice-Chancellor Sir
W. PAGE Wood :
“ The question in this case is one in some degree novel, but the
general principles applicable to it are sufficiently established. The
only difficulty in the present case is the particular mode selected by
the plaintiffs in the cross-suit for arriving at the object they have
in view. A bill being filed by the United States of America, under
that description, against the defendants, a cross-bill is filed by the
defendants for the purpose of obtaining discovery. They cannot, of
course, obtain discovery upon oath from a body which is corporate
-it is difficult to know how to express its position. It is not a
corporation, strictly speaking, but it is a body so far corporate as
not to present to the court as a suitor any one individual. Where
the suitor is an individual, although he may be the sovereign of a
foreign country, and may of himself in reality represent the whole
country of which he is sovereign, this court has refused to acknowl-
edge him when he comes here as a suitor in any other capacity than
as a private individual. It has been determined by the highest au-
thority that he must conform to the practice and regulations for
administration of justice of the tribunals to which he resorts for
relief; and among other things *** he is obliged to answer upon
oath. It is also established *** that all persons sued in this
country as a body corporate are amenable to the process of the
court, and must answer by one or other of their officers upon oath,
inasmuch as it is considered essential to justice that answers shall be
made upon oath. * Now it is quite impossible, on any principle
* * *
CHIAP. II.]
175
UNITED STATES OF AMERICA V. WAGNER.
of analogy, to say that the President has been properly selected, or
that he is the person for whose answer upon oath the United States
must wait before they proceed in their original suit. *** Now the
selection of the President of the United States is open at once to this
objection, that the court cannot take judicial notice—nor do I sup-
pose it is a matter of fact—that the United States Government have
control over their President or can compel him to produce papers or
the like, and therefore I cannot make any order that the proceed-
ings in the original suit be stayed until the President has put in his
answer.
“I can do no more than make an order staying proceedings until
the answer of the United States is put in.”
UNITED STATES OF AMERICA V. WAGNER.
Court OF APPEALS IN CHANCERY, 1867.
(Law Reports, 2 Chancery Appeals, 582.)
The bill in this suit was filed by “ The United States of America”
against agents of the Confederacy, doing business at Liverpool.
The bill alleges that the defendants had large quantities of cotton
consigned to them--that in 1865 the rebellion was suppressed and
that all the property held by the government of the so-called Con-
federate States, including all moneys, goods and ships in the power
of the defendants, had vested in the plaintiffs. The bill prayed for
an account, and for an order of payment of the money in the hands
of the defendants, and a delivery of the goods and cotton in their
hands. The defendants demurred generally, objecting that the bill
should put forward the President of the United States or some state
officer, upon whom process might be served, and who might answer
a cross-bill.
The demurrer was allowed and now the plaintiffs appeal.?
The opinion of Lord Cairns, L. J., is as follows :-
“ It is admitted that, upon the statements in the bill, it must
be taken that the property claimed in the suit belongs to the
United States of America, a foreign sovereign State, adopting the
republican form of government, and recognized and treated with as
such, and under that style, by Her Majesty; but it is contended
that this foreign State, being a republic, cannot sue in its own name,
i Statement by the editor.
176
(PART E.
TERRITORIAL JURISDICTION,
and must either associate with it as plaintiff, or proceed in the name
of the President of the Republic, or some other officer of state.
“ A proposition so startling, so grave in its consequences, and in
euch apparent antagonism to the rules, that the proper plaintiff is
to be sought in the owner of the subject matter of the suit, and that a
foreign State is at liberty to sue in any of our courts, would seem to
require some argument and authority to support it. It was contended
then, that when a monarch sues in our courts, he sues as the rep-
resentative of the State of which he is the sovereign; that the
property claimed is looked upon as the property of the people or
State and that he is permitted to sue, not as for his own property,
but as the head of the executive government of the State to which
the property belongs : and it was contended, in like manner, 'that
when the property belongs to a republic, the head of the executive,
,
or in other words the President, ought to sue for it.
“This argument, in my opinion, is founded on a fallacy. The
sovereign, in a monarchical form of government, may, as between
himself and his subjects, be a trustee for the latter, more or less
limited in his powers over the property which he seeks to recover.
But in the courts of Her Majesty, as in diplomatic intercourse with
the government of Her Majesty, it is the sovereign, and not the State,
or the subjects of the sovereign, that is recognized. From him, and
as representing him individually, and not his State or kingdom, is an
ambassador received. In him individually, and not in a representa-
tive capacity is the public property assumed by all other States, and
by the courts of other States, to be vested. In a republic, on the
other hand, the sovereign power, and with it the public property, is
held to remain and to reside in the State itself, and not in any
officer of the State. It is from the State that an ambassador is ac-
credited, and it is with the State that the diplomatic intercourse is
conducted.
“ It was then contended that the republic of the United States as
a body politic, being plaintiff, no effectual discovery could be had
from it, or relief against it, on a cross-bill; that it is a condition of
obtaining relief in equity, that discovery may be had against the
plaintiff on a cross-bill filed by the defendant; and that in the case
of a corporation, this right is preserved by the rule that its officers
may be made co-defendants for discovery.
“ It is to be observed, however, with regard to the case of a cor-
poration, where the court making an exception from its general
rules allows persons who are merely witnesses to be made co-
defendants for discovery, that the exception does not depend on any
reasons springing out of the nature of bills and cross-bills; for the
t
CHAP. II.] UNITED STATES OF AMERICA V. WAGNER.
177
officers of a corporation may be sued with the corporation, even
where no litigation has been commenced by the corporation; nor
does the liability of the officers to discovery affect the question who
is to be plaintiff ; for the corporation sues for the corporate property
without joining any officer of the corporation as a co-plaintiff.
“ The rule of the court as to corporations, if it proves anything,
would seem to show that in a cross-bill against the United States,
there would be a right to join some officer of the United States for
the purpose of discovery.
“The Vice-Chancellor appears to have thought that the President
of the United States was not an officer who could thus be joined as a
defendant, and I do not desire to express an opinion differing in
that respect from the opinion of his Honor. But if the reference to
suits against corporations does not establish a right to make some
officer of the United States a co-defendant to a cross bill, it is, as
I think, altogether irrelevant. It is, however, in my opinion, an
error to suppose that the right of a plaintiff to sue depends in any
way on the effectiveness of the discovery which on a cross-bill can
be exacted from him. From an infant, a lunatic, a representative,
trustee, or executor, wholly ignorant of the occurrences which are the
subjects of the suit, no practical discovery can be obtained, and
yet
they can maintain a suit.
“I apprehend that the only rule is, that the person, State, or cor-
poration which has the interest must be the plaintiff, and the court
will do the best the law admits of to secure to the defendant such
defensive discovery and relief as he may be entitled to. The court
can in all cases suspend relief on the original bill until justice is in
this respect done to the defendant.
“ The case of the Columbian Government v. Rothschild, 1 Sim., 94,
however, was said to be, and the Vice-Chancellor appears to have
considered that it was, a binding authority against a suit in this
form. I cannot so view that case. The bill was filed in the name of
the State of Columbia, and if this bill had been filed in the name of the .
Government of the United States, the case would have been anala-
gous. Dealing with the words before him, Sir John Leach appears
to have held, and to have most properly held, that an unknown
and undefined body, such as the government of a State, could
not sue by that quasi-corporate name, and the expressions in his
judgment seem to me to intiinate no more than that if the persons
so described could sue at all they must come forward as individuals,
and show that they were entitled to represent their State.
7.66 Nothing could be more unreasonable than to suppose that by
observations of this kind Sir John Leich meant to decide for the
12
178
(PART I.
TERRITORIAL JURISDICTION,
first time, that a republic could not sue in its own name, but must
have, or must create, some officer to maintain a suit on its behalf.
66 1 think the demurrer in this case must be overruled.” 1
THE SAPPHIRE.
SUPREME COURT OF THE UNITED STATES, 1870.
(11 W'allace, 164.)
Mr. Justice BRADLEY delivered the opinion of the court.
The first question raised is as to the right of the French Emperor to
1 Other cases bearing upon the subject of this section are: The King of Spain
V. Hullet and Widder, 1 Clarke and Finnelly, 348 (1833) :-Don Justo José de
Machado was appointed by the Spanish government to receive money for that
government due from France. Upon receiving it, Machado brought the money to
England and deposited a considerable portion of it with the defendants. The King
of Spain applied to Machado for the money, but this demand was refused, where-
upon the King brought a bill for discovery and for payment of the money into court,
against Machado (who was out of the jurisdiction). The bill was demurred to for
lack of parties, etc., but the demurrer was overruled, and the defendants appealed,
mainly on the ground that it had never been held that a foreign sovereign could
sue in courts of equity in England, and on principle such suit should not be allowed.
This appeal was dismissed. Fifteen days later, the defendants filed a cross-bill in
Chancery, the rules of which court compel the identical plaintiff in the original
bill to himself swear to his answer to a cross-bill. The plaintiff asked to put in an
answer either by his agent, or without oath or signature.
The House of Lords refused to deviate from the practice of the court.
Rothschild v. Queen of Portugal, 3 Younge and Collyer 594, (1839) :-The bill
was brought for discovery from the Queen of Portugal, as to matters stated in the
bill, and for a commission to examine witnesses in Portugal, and for an injunc-
tion to restrain an action commenced against the plaintiff by the Queen of Portu-
gal. This action was in contract, the Queen suing Messrs. Rothschild on some
bonds deposited with them. The present plaintiffs now seek by this bill for dis-
covery of certain correspondence and other matters to aid them in their defence.
The Queen demurs to the bill on two grounds, (1) that as a sovereign, the suit
was not maintainable against her--(2) that the plaintiffs had made no case for dis-
covery.
The first point only is considered.
The court overruled the demurrer, and, in the course of its decision, Baron
Alderson said: “I am therefore of opinion that Her Most Faithful Majesty being
a suitor voluntarily in a court of English law, becomes subject, as to all matters
connected with that suit, to the jurisdiction of the Court of Equity.'
1 In Emperor of Austria v. Day f. Kossuth, 1861, 2 Giff. 628, a foreign sovereign's right
to sue was discussed with great learning, especially in Sir Hugh Cairns' argument for
the plaintiff (665–675). On appeal, the judgment of Vice-Chancellor Stuart grant-
ing the injunction was affirmed by the House of Lords in 3 De Gex., F. & J. 217.
The opinion of Lord Justice Turner is especially valuable — Ev.
CHAP, II.]
179
THE SAPPHIRE.
sue in our courts. On this point not the slightest difficulty exists.
A foreign sovereign, as well as any other foreign person, who has a
demand of a civil nature against any person here, may prosecute it in
our courts. To deny him this privilege would manifest a want of
comity and friendly feeling. Such a suit was sustained in behalf of
the king of Spain in the third circuit by Justice Washington and
Judge Peters in 1810.1 The Constitution expressly extends the judi-
cial power to controversies between a State, or citizens thereof, and
foreign states, citizens, or subjects, without reference to the subject-
matter of the controversy. Our own Government has largely availed
itself of the like privilege to bring suits in the English courts in cases
growing out of our late civil war. Twelve or more of such suits are
enumerated in the brief of the appellees, brought within the last five
years in the English law, chancery, and admiralty courts. There are
numerous cases in the English reports in which suits of foreign sov-
ereigns have been sustained, though it is held that a sovereign cannot
be forced into court by suit.?
The next question is, whether the suit has become abated by the re-
cent deposition of the Emperor Napoleon. We think it has not. The
reigning sovereign represents the national sovereignty, and that sov-
ereiguty is continuous and perpetual, residing in the proper successors
of the sovereign for the time being. Napoleon was the owner of the
Euryale, not as an individual, but as sovereign of France. This is sub-
stantially averred in the libel. On his deposition the sovereignty
does not change, but merely the person or persons in wliom it resides.
The foreign state is the true and real owner of its public vessels of
war. The reigning Emperor, or National Assembly, or other actual
person or party in power, is but the agent and representative of the
national sovereignty. A change in such representative works no
change in the national sovereignty or its rights. The next successor
recognized by our Government is competent to carry on a suit already
commenced and receive the fruits of it. A deed to or treaty with a
sovereign as such inures to his successor in the government of the
country. . If a substitution of names is necessary or proper it is a for-
'mal matter, and can be made by the court under its general power
1 King of Spain v. Oliver, 2 Washington's Circuit Court, 431
2 King of Spain v. Hullett, 1 Dow & Clarke, 169; S.C., 1 Clark & Finnelly, 333; S. C.,
2 Bligh, N. S., 31; Emperor of Brazil, 6 Adolphus & Ellis, 801 ; Queen of Portugal, 7
Clark & Finnelly, 466; King of Spain, 4 Russell, 225; Emperor of Austria, 3 De Gex,
Fisher & Jones, 174; King of Greece, 6 Dowling's Practice Cases, 12; S. C., 1 Jurist,
914; United States Law Reports, 2 Equity Cases, 659; Ditto, Ib. 2 Chancery Appeals,
582 ; Duke of Brunswick v. King of Hanover, 6 Beavan, 1; S. C., 2 House of Lords
Cases, 1: Dc Haber v. Queen of Portugal, 17 Q. B. 169; also 2 Phillimore's International
Law, part vi, chap. i; 1 Daniel's Chancery Practice, chap. ii, $ 2.
1
180
[PART I.
TERRITORIAL JURISDICTION.
to preserve due symmetry in its forms of proceeding. No allegation
has been made that any change in the real and substantial ownership
of the Euryale has occurred by the recent devolution of the sovereign
power. The vessel has always belonged and still belongs to the French
nation.
If a special case should arise in which it could be shown that injus-
tice to the other party would ensue from a continuance of the proceed-
ings after the death or deposition of a sovereign, the court, in the
exercise of its discretionary power, would take such order as the exi-
gency might require to prevent such a result.
The remaining question relates to the merits of the case.
(6) Immunity of Foreign Sovereigns from Suit.
DE HABER v. QUEEN OF PORTUGAL.
QUEEN'S BENCH, 1851.
(17 Queen's Bench, 196.)
The plaintiff commenced an action of debt in the court of the Lord
Mayor of London against the Queen of Portugal. It appears that
he brought action for 12,1361 sterling which he had left in the hands
of Ferreiri, a Lisbon banker and which Ferreiri paid over to the
Portuguese Government. The plaintiff, proceeding according to the
custom of foreign attachment in London, sent out a summons for the
defendant to appear. The defendant being called and not appearing,
the plaintiff alleged that Senhor Guilherne Candida Xavier De Brito,
of London, the garnishee had money and effects of the defendant in
his hands, and prayed to attach the defendant by that money.
The judge awarded an attachment as prayed.
The judgment of the court was delivered by CAMPBELL, C. J. :-
***« Notwithstanding the dictum of Bynkershoek, and the outlawry
of the King of Spain, supposed to be related by Selden, we cannot
doubt that the awarding of the attachment in the present case by
the Lord Mayor's Court was an excess of jurisdiction, on the ground
that the defendant is sued as a foreign potentate. *** We have
now to consider whether we can grant the prohibition on the appli-
cation of the Queen of Portugal before she appears in the Lord
Mayor's Court. The plaintiff's counsel argue that, before she can be
heard, she must appear and be put in bail, in the alternative, to pay
1 Short statement substituted for that of the reporter. - ED.
CHAP. II.]
181
DE HABER V. QUEEN OF PORTUGAL,
or to render. It would be very much to be lamented if, before doing
justice to her, we were obliged to impose a condition upon her which
would be a further indignity, and a further violation of the law of
nations. If the rule were that the application for a prohibition can
only be by the defendant after appearance, we should have had little
scruple in making this an exception to the rule. But we find it laid
down in books of the highest authority that, where the court to
which the prohibition is to go has no jurisdiction, a prohibition may
be granted upon the request of a stranger, as well as of the defendant
himself.
“ Therefore this court; vested with the power of preventing all
inferior courts from exceeding their jurisdiction to the prejudice of
the Queen or her subjects, is bound to interfere when duly informed
of such an excess of jurisdiction. What has been done in this case
by the Lord Mayor's Court must be considered as peculiarly in con-
tempt of the Crown, it being an insult to an independent sovereign,
giving that sovereign just cause of complaint to the British Gov-
ernment, and having a tendency to bring about a misunderstanding
between our gracious Sovereign and her ally the Queen of Portugal.
“ Therefore, upon the information and complaint of the Queen
of Portugal, either as the party grieved, or as a stranger, we think
we are bound to correct the excess of jurisdiction brought to our
notice, and to prohibit the Lord Mayor's Court from proceeding
further in this suit.
“Rule absolute for a prohibition.” 1
1 In Munden v. Duke of Brunswick, 1847, 10 Q. B. 655, it was held insufficient to state
that defendant was sovereign at time of contracting the obligation: it must be stated
that sovereign is sovereign at time of suit filed or of the plea pleaded.
In Strousberg v. Republic of Costa Rica (1881), 44 Law Times, 199, James, L. J., lays
down two exceptions to rule that sovereign may not be sued. “One is that, 'where
a foreign sovereign or state comes into the municipal courts of this country for the
purpose of obtaining a remedy, then by way of defence to that proceeding - by way
of counter claim if necessary to the extent of defeating that claim — the person sued
here may file a cross-claim, or take any other proceeding against that sovereign or
state for the purpose of enabling complete justice to be done between them.' The
other exception is the case in which a foreign sovereign may be named as defendant
for the purpose of giving him notice of the claim which the plaintiff makes to funds in
the hands of a third person or trustee over whom this court has jurisdiction.'” Laur-
ance, .., in Mighell v. Sultan of Jahore, 1 Q. B. 1894, 149. This latter case practically
decides the interesting question of a sovereign sued incognito. If he declares himself
in his sovereign capacity, the suit must drop. In the recent case of So. African Rep. v. ·
La Compagnie Franco-Belge fc., 1898, L. R., 1 Ch. 190, a foreign sovereign brought
suit in England to restrain defendants from using a fund in their hands in certain ways.
Defendants set up a claim for damages, upon which it was held, that while a sovereign
suing in England submits to the jurisdiction for the purposes of allowing discovery in
aid of the defendant in his action he does not submit to what is in its real nature a cross
1
182
[PART I.
TERRITORIAL JURISDICTION.
VAVASSEUR V. KRUPP.
CHANCERY, 1878.
(Law Reports, 9 Chancery Dir., 351.)
Josiah Vavasseur, the plaintiff in this case, had brought an action
against F. Krupp, of Essen, in Germany, Alfred Longsden, his
agent in England, and Ahrens & Co., described as agents for the
Government of Japan, claiming an injunction and damages for the
infringement of the plaintiff's patent for making shells and other
projectiles. The shells in question had been made at Essen, in
Germany, had been there bought for the Government of Japan, had
been brought to this country and landed here in order to be put on
board three ships of war which were being built here for the Govern-
ment of Japan, to be used as ammunition for the guns of those ships.
On the 18th of January, 1878, an injunction was, without prejudice
to any question, granted, restraining the defendants and the owners
of the wharf where the shells lay from selling or delivering the shells
to the Government of Japan, or to any person on their behalf, or
otherwise from parting with, selling, or disposing of the shells and
projectiles.
On the 11th of May an application to the court was inade on be-
half of the Mikado of Japan and his Envoy Extraordinary in this
country, that, notwithstanding the injunction, the Mikado and his
agents might be at liberty to remove the shells, and that if, and so
far as might be necessary, the Mikado and his Envoy should for the
purpose of making and being heard upon such application be added
as defendants in the suit.
Upon this application an order was made by the Master of the
Rolls that on the Mikado by his counsel submitting to the jurisdic-
tion of this court and desiring to be made a defendant, and on pay-
ment into court by the Mikado of £100 as security for costs the
name of the Mikado be added as a party defendant in the action.
Notice of motion was then given on the part of the Mikado that
action. Another claim arising from another and distinct matter may not be set up.
On this case of first impression, see 11 Harv. Law Rev. 551.
The rule may be thus expressed, once a sovereign, always a sovereign,” at least
for anything done while and in the capacity of a sovereign. See Hatch v. Baez, 1876,
7 Hun, 596, cited ante ini Underhill v. Hernandez, 1895, 26 U. S. Appeals, 573, 578;
Duke of Brunswick v. King of Hưnover, 1848, 2 H. L. Cas. 1-16 cited 577–578 of
same case. – ED.
.
CHAP. II.]
183
VAVASSEUR V. KRUPP.
the injunction might be dissolved, and that the Mikado might be at
liberty to take possession, and remove, out of the jurisdiction of the
court, the shells in question, the property of his Imperial Majesty."
JAMES, L. J., BRETT, L. J., and COTTON, L. J., concurred, each deliver-
ing an opinion.
The following is that of BRETT, L. J.:-“It does not seem to me
that in this case there is any fact whatever in dispute.
" These shells were made by Krupp at Essen. That was no in-
fringement of the plaintiff's patent. In Germany they were sold to
the Mikado and paid for by the agents of the. Mikado. None of
these facts are in dispute; and this purchase and sale was a perfectly
lawful purchase and sale. The Mikado had three ships of war build-
ing in this country, and he desired that these shells should be sent
to this country and put on board these ships. They were sent to
this country by the order and by the authority of the Mikado, through
Ahrens & Co. They were brought into this country, and they were
deposited on a wharf. The plaintiff then finding these shells in this
country, and finding, as he alleges, that they were made according to
the process of his patent, asserts that the bringing them into this
country by Ahrens & Co. is an infringement of his patent by them;
and thereupon he brings an action against Ahrens & Co., for the in-
fringement. In that action he claims an injunction against Ahrens
& Co., and it may be that he claims an order from the court to destroy
those shells because he says they are an infringement of his patent.
In the course of that suit an injunction is obtained against Ahrens &
Co., and against others, which injunction in terms forbids them from
delivering these shells, which with other things are in their pos-
session, to the ships of the Mikado, and in fact forbids them from
sending the shells to Japan. To this action the Mikado was no
party, but he or his agents here come forward and claim to have the
delivery and possession of these shells. The defendants in the
action are not unwilling to give the shells to the Mikado, but they
say, 'If we do so, it may be said that we have broken the injunction,
and we may therefore be liable to certain penalties.' It seems to me
beyond dispute that this was the purpose for which the Mikado
came in and desired to be made a party to the suit, and the Master
of the Rolls thus describes the purpose. [His Lordship then read
the judgment of the Master of the Rolls.] Now it is said that in the
first place there is a dispute whether these shells are the property of
the Mikado. It is argued that if he were a private individual, then,
although he has purchased these shells and paid for them, yet, inas-
1 Short statement substituted for that of reporter. – Ed.
184
TERRITORIAL JURISDICTION.
[PART I.
much as there has been an infringement of the patent, the property
is not in him, because the court may order the shells to be destroyed.
Is that argument good or not? To my mind it is utterly fallacious.
The patent law has nothing to do with the property. The facts here
are undisputed that Krupp made them with his own materials in
Germany, where he had a right to make them; that he entered into
a contract to sell specific shells to the Mikado; that that contract was
performed, and that the shells were paid for, and that they were
delivered in Germany to the Mikado's agent. Well, unless the
patent law prevents the property from passing, nobody can doubt
that the property passed to the Mikado. Therefore the dispute is
not upon facts, but upon a false theory of law, that the patent law
prevented the property from passing. I am clearly of opinion that
the patent law did not prevent the property from passing. The
goods were the property of the Mikado. They were his property as a
sovereign; they were the property of his country; and therefore he
is in the position of a foreign sovereign having property here.
“ Whether the fact of Ahrens & Co. bringing these goods into
England under these circumstances, and with this intention, was
an infringement of the patent, I decline to consider. I shall assume
for this purpose that it was an infringement, and that we have in this
country property of the Mikado which infringes the patent. If it is
an infringement of the patent by the Mikado you cannot sue him for
that infringement. If it is an infringement by the agents, you may
sue the agents for that infringement, but then it is the agents whom
you sue. The injunction is against the agents, the Mikado being then
no party to the action, and not being forbidden to do anything. He
then comes here as a sovereign, and requires the delivery of his own
goods. His only difficulty is the injunction against the agents, and
for the purpose of enabling the court to make an order, he what is
called 'submits himself to the jurisdiction of the court. I think the
interpretation put by the Master of the Rolls upon the order then
made is right, and that it was only an order that the Mikado might
be made a defendant for the purpose of enabling the court to make
the order which the court has made. He now says “I know not,
and I care not, whether my agents have infringed your patent law.
I have property in the country, which property is my own. I
demand that it shall be delivered to me, and I make myself a defendant
in your court merely for the purpose of your modifying the order
which you have made, so that my agents may not be injured in con-
sequence of their delivering to me my own property.'
“ And the only order that the Master of the Rolls has made is that
these goods may be delivered up to the Mikado; the meaning
+
CHAP. II.]
185
VAVASSEUR V. KRUPP.
of which is that the mere fact of the Mikado taking these shells
away shall not be considered as against Ahrens & Co. an infringement
of the injunction. That is the whole effect of this order. The Mikado
has a perfect right to have these goods; no court in this country can
properly prevent him from having goods which are the public prop-
erty of his own country. Therefore it seems to me that this order
which is really made for the benefit of Ahrens & Co., was an order
rightly made, and that this appeal cannot be sustained.”
In regard to the point of submission to the jurisdiction, COYTON, L.
J., said :-" It is said that although under ordinary circumstances
there is no jurisdiction as against a foreign sovereign, yet that in
this particular case there is jurisdiction in consequence of the
Mikado having come in and obtained the order of the 11th of May. It
is said that a sovereign suing submits himself to the court as an
ordinary plaintiff, and that the Mikado, in consequence of having
obtained this order and acted upon it, puts himself in the position
of an ordinary plaintiff. In the first place, there is this fallacy: the
Mikado is not now in any way suing in the ordinary sense of
the word, nor has he come to the court to establish as against an
adverse claim his title to the property, which is really what is meant
by a foreign sovereign coming here to sue to establish his rights. He
is simply coming, and saying, The order of the court, possibly in-
advertently, interferes with my sovereign rights. To prevent any
question as to the defendants' committing a breach of the injunction
by allowing me to remove the property, make an order that they be
at liberty, notwithstanding the injunction, to hand them over to me!
“So that, in my opinion, the very foundation for the suggestion
fails.
“But again, even if the Mikado had brought himself into court as
an ordinary defendant, that, in my opinion, would not give the court
jurisdiction as against the subject-matter, namely, jurisdiction to in-
terfere with the public property of Japan, which is represented here
by the Mikado. But when one comes to look at the form of the order,
the Mikado does not by it come in as an ordinary defendant. By it
he simply says “I wish to bring before the court the facts: that these
are my property, that the defendants were not constructing them
under a contract for me, or using them under a contract with me,
I wish to show that they are my property. I wish to apply for
liberty to remove them as the public property of the state of Japan,
and for that purpose, if necessary, I ask to come in.'
“In my opinion, the order taken fairly must be read with reference
to the purpose for which the Mikado applied, and that being so, al-
though possibly the form is not very happy, it is like a conditional
186
[PART I.
TERRITORIAL JURISDICTION.
appearance entered where a defendant who considers himself improp-
erly served with any proceeding, has entered a conditional appearance,
in order to contest the questions, which he could not do without an
appearance of some sort. It cannot, in my opinion, be said that the
order puts the Mikado in the position of a plaintiff or of a person
who is made simpliciter a defendant. He came in for the particular
purpose of raising this question, and the form of the order, in my
opinion, ought not in any way to prejudice the rights which he would
have had independently of that order."
JAMES, L. J.:—“This appeal is dismissed with costs."
JOSEPH D. BEERS V. THE STATE OF ARKANSAS.
SUPREME COURT OF THE UNITED STATES, 1857.
(20 Howard, 527.)
Mr. Chief Justice TANEY delivered the opinion of the court.2
This was an action of covenant, brought in the Circuit Court for
Pulaski County, in the State of Arkansas, to recover the interest due
on sundry bonds issued by the State, and which the State had failed
to pay according to its contract.
The constitution of the State provides, that “the General Assembly
shall direct by law in what courts and in what manner suits, may be
commenced against the State.” And in pursuance of this provision,
a law was accordingly passed; and it is admitted that the present
suit was brought in the proper court, and in the manner authorized
by that law.
1 In Manning v. Nicaragua, 1857, 14 How. Pr. 517, it was held that although
sovereigns, or sovereign states cannot be sued in the courts of another state or
nation for the purpose of enforcing any remedy against them, yet a state may be
made defenrlant in an action for the purpose of giving it an opportunity to appear,
thus enabling a court to decide more intelligently and equitably, in relation to
demands which are sought to be enforced against other defendants; that states as
well as individuals are the best judges of what affects their own dignity and advan-
tage, and it may be safely left to their sovereign option to determine whether they
will take part or not in a judicial controversy
ED.
2 Only the opinion of the court is given, and of this the last paragraph is omitted.
- ED.
!
CHAP. II.]
187
BEERS V. THE STATE OF ARKANSAS.
وز
The suit was instituted in the Circuit Court on the 21st of Noveni.
ber, 1854. And after it was brought, and while it was pending in
the Circuit Court, the Legislature passed an act, which was approved
on the 7th of December, 1854, which provided, “that in every case in
which suits or any proceedings had been instituted to enforce the
collection of any bond or bonds issued by the State, or the interest
thereon, before any judgment or decree should be rendered, the bonds
should be produced and filed in the office of the clerk, and not with-
drawn until final determination of the suit or proceedings, and full
payment of the bonds and all interest thereon; and might then be
withdrawn, cancelled, and filed with the State treasurer, by order of
the court, but not otherwise. And the act further provided, that
in every case in which any such suit or proceeding had been or might
be instituted, the court should, at the first term after the commence-
ment of the suit or proceeding, whether at law or in equity, or
whether by original or cross bill, require the original bond or bonds
to be produced and filed; and if that were not done, and the bonds
filed and left to remain filed, the court should, on the same day, dis-
miss the suit, proceeding, or cross-bill.
Afterwards, on the 25th of June, 1855, the State appeared to the
suit, by its attorney, and, without pleading to or answering the
declaration of the plaintiff, moved the court to require him to file
immediately in open court the bonds on which the suit was brought,
according to the act of Assembly above mentioned; and if the same
were not filed, that the suit be dismissed.
Upon this motion, after argument by counsel, the court passed an
order directing the plaintiff to produce and file in court, forth with,
the bonds mentioned and described in the declaration. But he
refused to file them, and thereupon the court adjudged that the suit
be dismissed, with costs.
This judgment was afterwards affirmed in the Supreme Court of the
State, and this writ of error is brought upon the last-mentioned
judgment.
The error assigned here is, that the act of Dec. 7, 1854, impaired
the obligations of the contracts between the State and the plaintiff in
error, evidenced by and contained in each of the said bonds, and the
indorsement thereon, and was therefore null and void, under the
Constitution of the United States.
The objection taken to the validity of the act of Assembly cannot
be maintained. It is an act to regulate the proceedings and limit the
jurisdiction of its own courts in suits where the State is a party
defendant, and nothing more.
It' is an established principle of jurisprudence in all civilized
188
[PART I.
TERRITORIAL JURISDICTION.
nations that the sovereign cannot be sued in its own courts, or in
any other, without its consent and permission; but it may, if it
thinks proper, waive this privilege, and permit itself to be made
defendant in a suit by individuals, or by another state. And as this
permission is altogether voluntary on the part of the sovereignty,
it follows that it may prescribe the terms and conditions on which it
consents to be sued, and the manner in which the suit shall be con-
ducted, and may withdraw its consent whenever it may suppose that
justice to the public requires it.
Arkansas, by its Constitution, so far waived the privilege of
sovereignty as to authorize suits to be instituted against it in its own
courts, and delegated to its General Assembly the power of directing
in what courts, and in what manner, the suit might be commenced.
And if the law of 1854 had been passed before the suit was instituted,
we do not understand that any objection would have been made to it.
The objection is that it was passed after this suit was instituted, and
contained regulations with which the plaintiff could not conveniently
comply. But the prior law was not a contract. It was an ordinary
act of legislation, prescribing the conditions upon which the State
consented to waive the privilege of sovereignty. It contained no
stipulation that these regulations should not be modified afterwards,
if, upon experience, it was found that further provisions were neces-
sary to protect the public interest; and no such contract can be im-
plied from the law, nor can this court inquire whether the law
operated hardly or unjustly upon the parties whose suits were then
pending. That was a question for the consideration of the Legisla-
ture. They might have repealed the prior law altogether, and put an
end to the jurisdiction of their courts in suits against the State, if
they had thought proper to do so, or prescribe new conditions upon
which the suits might still be allowed to proceed. In exercising this
latter power, the State violated no contract with the parties; it
merely regulated the proceedings in its own courts, and limited the
jurisdiction it had before conferred in suits when the State consented
to be a party defendant.
Nor has the State court, in the judgment brought here for review,
decided anything but a question of jurisdiction. It has given no deci.
sion in relation to the validity of the contract on which the suit is
brought, nor the obligations it created, or the rights of parties under
it. It has decided, merely, that it has no right under the laws of the
State to try these questions, unless the bonds given by the State are
filed. The plaintiff refused to file them pursuant to the order of
the court, and the case was thereupon dismissed, for want of juris-
diction in the court to proceed further in the suit. There is evi-
CHAP. II.]
189
HEATHFIELD V. CHILTON.
dently nothing in the decision, nor in the act of Assembly under
which it was made, which in any degree impairs the obligation of the
contract, and nothing which will authorize this court to reverse the
judgment of the State court.
The writ of error must therefore be dismissed, for want of jurisdic-
tion in this court."
SECTION 8.-IMMUNITIES OF DIPLOMATIC AGENTS.
HEATHFIELD v. CHILTON
COURT OF KING's BENCH, 1767.
(4 Burrow, 2015.)
On showing cause why the defendant should not be discharged out
of the custody of the marsha) (upon 7 Ann. C. 12) as a domestic ser-
vant to Paul Pierre Russell, minister from the Prince Bishop of
Liege - he swore himself to be bona fide English secretary to him;
and to have been bona fide hired by him as such; and to have bona
fide received wages as they became due, at the rate of £30 per annum.
1 See the very valuable note to this case in Lawyer's edition of Sup. Ct. Reports, 2d
ed., in which the learning on this subject is wellnigh exhausted. “ This principle of
immunity from suit," it is there said, “ applies to every sovereign power, whether the
form of government is monarchical or republican. It is essential to the common
defence and general welfare. Briggs v. The Light Boats, 11 Allen, 162; The Siren, 7
Wall. 152; U. S. v. Lee, 106 U. S. 196. And but for the protection which it affords
the Government would be unable to perform the various duties for which it was
created. Nicholas v. U. S., 7 Wall. 122, 126." See, also, an instructive note in.
15 Harv. Law Rev. 59. In the United States this imnunity from suit is, however,
subject to the constitutional provision by which States in certain cases are made
suable (Art. III. sect. 2). This is the familiar and elementary doctrine of the Supreme
Court on this subject. A recent statement of it follows: "It is a fundamental prin-
ciple of public law, affirmed by a long series of decisions of this court,
that no
suit can be maintained against the United States or against their property, in any court,
without express authority of Congress, 147 U. S. 512. See, also, Belnap v. Schild, 161
U. S. 10. The United States, by various acts of Congress, have consented to lie sued
in their own courts in certain classes of cases; but they have never consented to lie
sued in the courts of a State in any case. Neither the Secretary of War nor the
Attorney-General, nor any subordinate of either, has been authorized to waive the
exeniption of the United States from judicial process, or to submit the United States,
or their property, to the jurisdiction of the court in a suit brought against their officers.
Case v. Terrell, 11 Wall. 199, 202; Carr v. U.S., 98 U. S. 433, 438; U. S. v. Lee, 106
U. S. 196, 205.” (Mr. Justice Gray in Stanley v. Schwalby, 1895, 162 U. S. 270.).- Ed.
190
(PART 1.
TERRITORIAL JURISDICTION.
Both the minister himself and the relation of this man to him were
objected to.
But Chilton's own affidavit was positive, as to the service, and that
it was real and pot colorable; and it was confirmed by a Mr. Chamber-
layne, who called himself Secretary. He also swore that he was not
an object of the bankrupt laws. He had been house-steward to Lord
Northington. No certificate was produced, under the hand and seal
of the minister; though the present application was made (as the
attorney alleged) on the part of the minister; nor was it sufficiently
sworn that the defendant was in the service of the minister, at the
time when he was arrested.
Lord MANSFIELD. — The privileges of public ministers and their
retinue depend upon the law of nations; which is part of the com-
mon law of England. And the act of Parliament of 7 Ann. C. 12 did
not intend to alter, nor can alter the law of nations. His lordship
recited the history of that act, and the occasion of it, and referred
to the annals of that time. He said there is not one of the provi-
sions in that act which is not warranted by the law of nations.
The law of nations will be carried as far in England as anywhere,
because the Crown can do no particular favors, affecting the rights of
suitors, in compliment to public ministers, or to satisfy their points
of honor.
The law of nations, though it be liberal, yet does not give protec-
tions to screen persons who are not bona fide servants to public min-
isters, but only make use of that pretence in order to prevent their
being liable to pay their just debts.
The law of nations does not take in consuls, or agents of commerce;
though received as such by the courts to which they are employed.
This was determined in Barbuit's Case in Canc. which was solemnly
argued before and determined by Lord Talbot on considering and
well-weighing Barbeyrac, Binkershoek, Grotius, Wincquefort, and
all the foreign authorities (for there is little said by our own
writers on this subject). In that case several curious questions were
debated.
If I did not think there was enough in the present case, already
appearing to the court, to enable us to form an opinion, I should
desire to know in what manner this minister was accredited. Cer-
tainly he is not an ambassador, which is the first rank. Envoy,
indeed, is a second class; but he is not shown to be even an envoy.
He is called “minister," 't is true, but minister (alone) is an equivo-
cal term.
I find this is not an application by the attorney-general by the
direction and at the expense of the Crown. That, indeed, would have
i
CHAP. II.]
191
HEATHFIELD V. CHILTON.
shown that the Crown thought this person entitled to the character
of a public minister. It now remains uncertain what his proper
character is.
But supposing him to be a minister of such a kind as entitles him
to privilege; yet I think this is not a case of privilege by the law of
nations, for the defendant does not appear to have been in the service
of the minister at the time of the arrest.
A public minister shall not take a man from the custody of the
law; though the process of the law shall not take his menial servant
out of his service.
Here it is not sworn when the defendant came into the service.
And upon the manner of swearing here used, the court must take it
"that he was not in the minister's service at the time of the arrest."
i
Mr. Justice YATES was not in court.
Mr. Justice ASHTON concurred. The rule laid down by Lord
MANSFIELD is a very right one. The process of the law shall not,
indeed, take a person out of the service of a public minister; but, on
the other hand, a public minister cannot take a person out of the
custody of the law. If a man has no such privilege at the time of
his being arrested, no subsequent privilege can be given him, by being
afterwards taken into the service of a public minister.
Therefore, as it does not appear here that the defendant was then
in the service, he cannot be entitled to this privilege.
This is a true and right principle, and the establishing it may pre-
vent many of these applications.
Mr. Justice HEWITT concurred, and repeated and confirmed the
principle; and agreed that it does not here appear that the defend-
ant was, at the time of the arrest, in the service of this minister.
Lord MANSFIELD took occasion to observe that the registering the
name of the defendant in the Secretary of State's office, and transmit-
ting it to the sheriff's office (mentioned in the fifth section), relates
only to the bailiff who arrested him and is no condition precedent to
the being entitled to the privilege of a public minister's servant. In
this, Mr. Justice Ashton also concurred.
Per cur. unanimously.
Rule discharged.
1 See the early case of Cross v. Talbot, 10 Geo. 1, 8 Mod. 288; and see § 1, ante, for
Triquet v. Bath, 1764, 3 Burr. 1478. The following are famous cases from the text-
books, cited incidentally, but not decided in the law reports : A. Cases of criminal juris-
diction : Case of Leslie, Bishop of Ross, 1571, to the effect that the ambassador of a
deposed sovereign is entitled to diplomatic immunity, 2 Ward's Law of Nations,
486; Mendoza's Case, 1584, holding that an ambassador should not be punished,
but' may be sent out of the country, ib., 522; Case of Da Sa, 1663, in which the
1
192
(PART 1.
TERRITORIAL JURISDICTION:
PARKINSON V. POTTER.
QUEEN'S BENCH, 1885.
(Law Reports, 16 Queen's Bench Div., 152.)
WILLS, J.1 The plaintiff in this case sues the defendant for paro-
chial rates which he has paid, and which he contends he is entitled
to be repaid by virtue of the defendant's covenant with him. The
plaintiff is the owner and the defendant the lessee of a house, in
respect of the occupation of which the rates were assessed. The
defendant has assigned or sublet to Senhor Pinto de Basto, who is
said to be an attaché of the Portuguese embassy and who has on that
ground refused to pay them. Under a local act the landlord is liable
in such a case; and the first question that arises is whether the per-
son in question was entitled to the immunity which he has claimed.
The evidence that Senhor Pinto de Basto is an attaché to the
Portuguese legation is slight, but I think there is evidence of the
fact. It seems that he is known at the embassy as an attaché, and
is there spoken to and spoken of as an attaché, and treated as an
attaché. It seems that there is no salary attached to the post, but
that the government of his country can exact from him certain small
services; and that he has in fact been employed by the minister occa-
sionally to write letters and to take messages, and to help in the
translation of documents connected with the diplomatic work of
the einbassy, and that he goes often to the einbassy and places him-
self at the disposal of the ambassador.
brother of an ambassador and a member of his suite was executed for sedition and
murder, ib: 537; Gyllenborg's Case, 1717, deciding that an ambassador who conspires
to overthrow the government to which he is accredited may be arrested and his
papers seized, ib. 548; Prince Cellamare's Case, 1718, where an ambassador was
arrested and conducted across the frontiers into his own country for conspiring against
the accrediting state, 1 Martens' Causes Célèbres, 149. B. Civil jurisiliction : Case of
Peter the Great's Ambassador, 1708, § 1, arte, and 1 Black. Com. Ch. VIII; Case of
Baron de Wrech, 1772, in which the French Government withheld a minister's pass-
ports until his debts were paid, 2 Martens' Causes Célèbres, 282; Wheaton's Case,
18:39, Dana's Wheaton, 307–318; 5 Martens' C. C. 295; Byrne v. llerran, 1863, 1 Daly
(N. Y.), 314, 346; Dillon's Case, 1854, holding that a treaty stipulation exempting
consul from appearing as witness in court, yields to constitutional privilege of com-
pulsory process to compel presence of witnesses, 1 Wharton's Digest, 665; (In Re
Dillon, 1854, 7 Sawyer, 561, same case, 7 Fed. Cases, 10); Case of Dubois, 1856,
recognizing that a foreign minister cannot be compelled to appear in court as a
witness, Sen. Ex. Doc. No. 21, 34th Cong., 3d Sess. - Ed.
1 The statement of the case and the opinion of Mathews, J., are omitted. In addi-
tion to cases cited by Wills, J., see Hopkins v. De Robeck, 1789, 3 T. R. 79. - Ed.
CHAP. II.]
193
PARKINSON V. POTTER.
I think this is evidence upon which the county court judge might
fairly find that he was an attaché. If it be once ascertained that he
was a person treated at the embassy as a meinber of the legation,
possessing in diplomatic matters more or less of the confidence of
the minister and employed from time to time by him in the work of
the legation, I think it is not for us to measure the quantum of the
services either required from or rendered by him. If there were any
reason to suppose that the so-called appointment was a sham, as in a
case reported in the books, in which a Christian clergyman was sup-
posed to be domestic chaplain to the ambassador of the Emperor of
Morocco; if he were one of an inordinate number of idlers nominally
attached to the embassy and not wanted there, or there were any other
circumstances from which it might be gathered that the appointment
was not bona fide, the case would be otherwise. But I can very well
understand that, seeing the close connection between diplomatic busi-
ness and some of the matters which it falls to a consul-general to
transact, there may be a convenience in clothing the consul-general
with the additional character of an attaché, which may explain and
justify his appointment in that capacity, although his services in a
diplomatic character may be only slight and occasional.
An attaché is a well-known term in the diplomatic service. He
forms part of the regular suite of an ambassador. He is classed by
Calvo, the author of an elaborate French work on international law,
published in 1880, and written with admirable clearness and with a
copiousness of historical illustration which makes his treatise most
interesting as weil as instructive, along with “Conseillers et Sécré-
taires,” and he gives a common description of the functions of all
three classes of officers as consisting in supporting the minister in
all things, in preparing and forwarding official despatches, in carry-
. ing out communications by word of mouth with the public adminis-
trative authorities of the country to which the minister is accredited,
in classifying and keeping charge of the archives of the mission, in
ciphering and deciphering despatches, in making minutes of the
letters which the minister may have to write, and similar services;
and he treats the attaché as undoubtedly entitled to all the immuni-
ties accorded to the suite of an ambassador: Calvo, International
Law, Vol. I., p. 486.
One of these immunities, insisted upon by all writers on interna-
tional law with whose works I have any acquaintance, as beyond
question, is the complete exemption from the jurisdiction of the
courts of the country to which the minister is accredited. They
are all, so far as I have been able to ascertain, equally clear in
the opinion that the exemption extends to the family and suite of
13
194
[PART I.
TERRITORIAL JURISDICTION.
66 The per-
the ambassador. “This immunity," says Wheaton, "extends not
only to the person of the minister but to his family and suite,
secretaries of legation and other secretaries, his servants, inovable
effects, and the house in which he resides”: International Law, Ed.
1863, p. 394. Again, "the wife and family, servants, and suite of
the minister participate in the inviolability attached to his public
character": Ibid. 397. For these propositions he quotes Grotius,
Bynkershoek, Vattel, and Martens, and he treats these privileges as
essential to the dignity of his sovereign and to the duties he is bound
to perform. Martens says, "The exemption from civil jurisdiction,
contentious and voluntary alike, is general, and belongs to ministers
throughout the whole extent of the country in which they reside.
They enjoy it for themselves, for their suite, and for their effects, in
as far, be it always understood, as they do not travel out of their
diplomatic character”: Guide Diplomatique, Vol. I., p. 81. To the
same effect is the statement by Calvo: “The staff of the mission,
the wife and family of the diplomatic agent, participate in these pre-
rogatives," and amongst the prerogatives there enumerated is that
"he is exempt from the local jurisdiction of the country into which
he is sent; no legal process can be brought against him before the
tribunals of the place of his residence”: Vol. I., p. 381.
son who enjoys exterritoriality," says the German Bluntschli, "can-
not be subjected to any impost" : International Law Codified, art.
138. “The family, the staff, the suite, and the servants of him who
has the right of exterritoriality," says the same writer, "enjoy the
same immunity as himself. His suite have the right but indirectly
and on account of him to whom they are attached”: Art. 145. “ Such
persons are exempt from jurisdiction”: Art. 147. “The immunity of
the person exempted extends to the members of his suite”: Heffter,
International Law of Europe, sec. 42, VI. These are amongst the most
recent French and German authorities upon the subject, and are for
the most part subsequent to those cited in the elaborate arguments in
Taylor v. Best, 14 C. B. 487, and Magdalena Steam Navigation Co.
v. Martin, 2 E. & E. 94; and, so far as I have been able to ascertain,
no writer on international law appears to entertain any doubt upon
this point.
It was urged for the defendant that there are English authorities
conflicting with these propositions. I do not think it is so, if they
are carefully considered. It was said that in Fisher v. Begrez, 1 C.
& M. 117, it was held that the goods of a chorister to the Bavarian
embassy were not privileged from execution under a fi. fa.; but in
that case the sheriff had not executed the fi. fą.; nor was the protec-
tion of the court claimed by the ambassador or his servant. The
'
CHAP. II.]
195
PARKINSON V. POTTER.
sheriff claimed to be exempt from the duty of levying. The defend-
wüt had allowed himself to be sued and the action to proceed to
judgment and execution without claiming the privilege, and the
sheriff applied to the court upon affidavits which were quite insuffi-
cient to show, and failed to satisfy the court, that there was any
foundation for the allegation that the defendant was then in the
service of the Bavarian minister.
In Novello v. Toogood, 1 B. & C. 554, it was held that the goods
of a chorister in the service of the Portuguese ambassador were not
privileged from distress for poor-rates. But in that case the servant
was carrying on the business of a lodging-house keeper in the house
in question. Most writers on international law say that with regard
to an ambassador even, although he does not lose his privileges as an
ambassador by engaging in trade in the country to which he is accred-
ited, yet the immunity of his goods does not extend to protect his
stock in trade. The ratio decidendi in Novello v. Toogood, supra, is
that the plaintiff Novello, who claimed exemption from poor-rate, was
carrying on the business of a lodging-house keeper in the house in
question.
Au exception from the privilege of being exempt from jurisdiction is,
by the statute of 7 Ann., c. 12, sec. 5, specifically applied to the case
of an ambassador's servant carrying on a trade; and in Novello v.
Toogood, supra, Abbott, C. J., so far from hinting a doubt as to the
general principle that the immunity from process extends to the ser-
vant of the ambassador, observes, “I do not say that he may not have
a house fit and convenient for his situation as the servant of an am-
bassador, nor that the furniture in such a house will not be privi-
leged." It may be added that Novello was a British-born subject,
and that most writers on international law are of opinion that a
subject of the country in which the ambassador is resident remains
subject to the law of his country, and that in respect of hiin the
immunity which would be afforded to a foreigner cannot be claimed.
Poitier v. Croza, 1 Wm. Bl. 48, was cited, but in that case the court
was convinced that the alleged service was a sham.
Reliance was placed on Taylor v. Best, 14 C. B. 487, 490. But the
substance of the decision in that case was that, where the ambassador
had voluntarily appeared as one of several defendants, and defended
the action up to judgment, he had waived his privilege, and it was
too late for him to apply to have all further proceedings stayed or to
have his own name struck out of the record. It is true that Maule,
J., expressed doubts as to whether an ambassador in England could
claim a complete immunity from all English process. But that doubt
was removed and pronounced to be ill-founded in the considered and
196
[PART 1.
TERRITORIAL JURISDICTION.
1
elaborate judgment of the court of Queen's Bench in Magdalena
Steam Navigation Co. v. Martin, 2 E. & E. 94, in which it was held
that the minister of a foreign country cannot be sued against his will
in this country, although the action may arise out of commercial trans-
actions carried on by him here. There is, therefore, nothing in the
current of English authorities to contravene the doctrine of exemp-
tion from process -- a part of the privileges which constitute the
“exterritoriality" of foreign jurists - as laid down by the writers on
international law: and there is nothing in the circumstances of this
case to prevent its application to Senhor de Basto. He is not carry-
ing on trade nor letting lodgings; and the house in question is simply
the private residence of himself and his family, and I am of opinion
that he was not liable to pay the rates assessed upon him in respect.
of his occupation.
It follows that under s. 190 of the local act the plaintiff, as the
landlord of his house, was liable to pay them; and, having paid
them, it is clear that, under the covenant sued upon, the defendant is
bound to recoup him. The judgment of the county court judge was .
right, therefore, and the appeal must be dismissed with costs.
Appeal dismissed.
1 In Macartney v. Garbutt, 1890, 24 Q. B. D. 368, it was held that this immunity
extended to a diplomatic agent, although a subject of the receiving county, unless the i
inmunity were specifically limited before receiving such agent.
Where, however, a British subject in debt was appointed honorary attaché of the
Persian embassy for the purpose of escaping bankruptcy, diplomatic immunity from.
suit was disallowed. (In Re Cloete, 1891, 65 L. T. 102, 7 Times R., 565.)
In other words, for the immunity to attach, the claimant must be actually and bona
fide in the diplomatic service, either as agent or servant; if the claim be colorable
merely it will be rejected. On this point the authorities are numerous and unanimous:
Lockwood v. Dr. Coysgarne, 1765, 3 Burr. 1676; Fisher v. Begrez, 1832, 1 C. & M. 117;
same case, 2 C. & M. 240, and cases cited in argument of case as reported in 1 C. &
M. While the diplomatic agent may waive immunity of his servant, he cannot in
the United States waive his own immunity, as this is the privilege of his State, not
a personal privilege. (U. S. v. Benner, 1830, Bald. 234.)
In Guiteau's Trial (1881), 1 Wharton's Digest, 669, Señor Camacho, minister from
Venezuela, who was present at President Garfield's assassination, was called as a wit-
ness for the prosecution,
Before he was sworn the following statement was made by the district attorney :
“If your honor please, before the gentleman is sworn, I desire to state, or rather I
think it due to the witness to state, that he is the minister from Venezuela to this
Government, and entitled under the law governing diplomatic relations to be relieved
from service by subpæna or sworn as a witness in any case.
“Under the instructions of his government, owing to the friendship of that
government for the United States, and the great respect for the memory of the man
who was assassinated, they have instructed him to waive his rights and appear as a
witness in the case, the same as any witness who is a citizen of this country."
Respublica v. De Longchamps, 1 Dallas, 110 (1784):--- The defendant threatened to:
CHAP. II.]
197
IN RE BAIZ.
IN RE BAIZ.
5
SUPREME COURT OF THE UNITED STATES, 1889.
(135 United States, 403.)
Mr. Chief Justice FULLER delivered the opinion of the court.1
The judicial power of the United States extends to "all cases affect-
ing ambassadors, other public ministers, and consuls.” Const. Art.
III, sec. 2.
By section 687 of the Revised Statutes, it is provided that the
Supreme Court "shall have exclusively all such jurisdiction of suits
or proceedings against ambassadors, or other public ministers, or their
domestics, or domestic servants, as a court of law can have consistently
assault the Secretary of the French Legation, the threats being made in the house of
the French minister. The defendant was fined $500 and imprisoned two years.
United States v. Liddle, 2 Wash. Circ. Ct. 205 (1808): – Indictment for assault and
battery on a member of the Spanish Legation. The law is the same whether the
attacked is a private party or an ambassador, viz., if the ambassador was the prior
assaulting party, the defendant is excused for his subsequent assault.
The law of nations identifies the property of the foreign minister, attached to his
person or in his use, with his person. To insult them is an attack on the minister, and
his sovereign; but to constitute an offence against a foreign minister, the defendant
must have known that the house attacked was the domicile of a minister, for other-
wise it is only an offence against the municipal laws of the state, U. S. v. Hand, 1810,
2 Wash. C. C. 435.
United States v. Ortega, 4 Wash. Circ. Ct. 531 (1825): - Indictment for an assault
on the Spanish Chargé d'Affaires. Cites Liddle's case and affirms it: “A foreign
minister, by committing the first assault, so far loses his privilege, that lie cannot
coniplain of an infraction of the law of nations ; if, in his turn, he should be assaulted
by the party aggrieved.”
Nitchencoff's Case, 1865, 10 Solic. Law Journal, 56: “ The French Court of Cassation
has quashed the appeal of Nitchencoff, the Russian sentenced to imprisonment for life
for a murderous attack upon M. de Balsh, in the house of the Russian Ambassador in
Paris. It will be remembered that this case gave rise to a diplomatic correspondence,
the Russian Government liaving disputed the right of the French courts to try the
murderer, and claimed a right to have him given up for trial in Russia. The court
laid down the law that "the fiction of the law of nations, according to which the
house of an ambassador is reputed to be a continuation of the territory of his
sovereign, only protects diplomatic agents and their servants, and does not exclude
the jurisdiction of French courts, in case of a crime committed in such a locality by a
person not belonging to the embassy, even although he is a subject of the nation from
which the ambassador is accredited."
On the subject generally see the excellent note to Dana's Wheaton, 303-307;
5 Op. Att. Gen. 76; U. S. Rev. St. 1875, $$ 4062-4065. — ED.
1 Only so much of the opinion is given as' relates to the claim of diplomatic im-
munity. - ED.
198
TERRITORIAL JURISDICTION.
[PART I.
with the law of nations; and original, but not exclusive, jurisdiction
of all suits brought by ambassadors, or other public ministers, or in
which a cousul or a vice-consul is a party." By section 563 it is pro-
vided that “the District Courts shall have jurisdiction as follows: ***
Seventeenth. Of all suits against consuls or vice-consuls,” except for
certain offences. The petitioner has been, since July, 1887, the con-
sul general of the Republic of Guatemala, and therefore the District
Court had jurisdiction of the action in question, unless he belonged to
tle class of official personages subject to suits or proceedings only in
this court. This he insists was the fact, and avers in his petition, as
he did in his plea in the District Court, that at the time of the com-
mencement of the action and until and including the 10th day of July,
1889, which was the eighth day after service of process upon him, he
was "the acting minister and sole representative of said republic (of
Guatemala] in the United States," and for that reason came within
the words of sectiou 687, “other public ministers.”
Tbe exemption asserted ceased on the 10th of July, 1889, and on the
17th of July the petitioner gave a general notice of appearance in the
action, but did not set up the want of jurisdiction until the 25th of
the following September. Suit could have been brought in that court
against him on the 11th day of July, but as in his view this could not
have been done on the 29th of June or the 2d of July, he contends
that the District Court should be ordered to dismiss the suit, though
it could at once be recommenced therein. But it is said that the
appearance did not waive the right to be sued in this court rather than
in the District Court, because that was the privilege of the country or
government which he represented. Without pausing to inquire how
far this is a correct application of the international privilege of not
being sued at all, its assertion, even in this restricted form, serves to
emphasize petitioner's.contention that he was at that time the minister
or diplomatic agent of the republics of Guatemala, Salvador and Hon-
duras in the United States, intrusted by virtue of his office with
authority to represent those republics in their negotiations and to
vindicate their prerogatives. Under section 2, Art. II., of the Consti-
tution, the President is vested with power to appoint ambassadors,
other public ministers and consuls," and by section 3 it is provided
that " he shall receive ambassadors and other public ministers."
These words are descriptive of a class existing by the law of nations,
and apply to diplomatic agents whether accredited by the United
States to a foreign power or by a foreign power to the United States,
and the words are so used in section 2 of Art. III. These agents may
be called ambassadors, envoys, ministers, commissioners, chargés
d'affaires, agents, or otherwise, but they possess in substance the
CHÁP. II.
199
IN RE BAIZ.
same functions, rights and privileges as agents of their respective
governments for the transaction of its diplomatic business abroad.
Their designations are chiefly significant in the relation of rank, prec-
edence or dignity. 7 Opinions Atty. Gen. (Cushing), 186.
Hence, when in subdivision fifth of section 1674 of the Revised
Statutes we find "diplomatic officer" defined as including "ambas-
sadors, envoys extraordinary, ministers plenipotentiary, ministers
resident, commissioners, chargés d'affaires, agents and secretaries of
legation, and none others,” we understand that to express the view of
Congress as to what are included within the term "public ministers,
although the section relates to diplomatic officers of the United States.
But the scope of the words “public ministers ” is defined in the
legislation embodied in Title XLVII., “Foreign Relations," Rev. Stat.,
2d Ed. 783. Section 4062 provides that “every person who violates
any
safe conduct or passport duly obtained and issued under authority
of the United States; or who assaults, strikes, wounds, imprisons or
in any other manner offers violence to the person of a public ininister,
in violation of the law of nations, shall be imprisoned for not more
than three years, and fined, at the discretion of the court.” Section
4063 enacts that whenever any writ or process is sued out or prosecuted
by any person in any court of the United States, or of a State, or by
any judge or justice, whereby the person of any public minister of
any foreign prince or state, authorized and received as such by the
President, or any domestic or domestic servant of any such minister,
is arrested or imprisoned, or his goods or chattels are distrained,
seized or attached, such writ or process shall be deemed void. Section
4064 imposes penalties for suing out any writ or process in violation
of the preceding section; and section 4065 says that the two preceding
sections shall not apply to any case where the person against whom
the process is issued is a citizen or inhabitant of the United States
“in the service of a public minister," and process is founded upon a
debt contracted before he entered upon such service; nor shall the
preceding section apply to any case where the person against whom
the process is issued is a “domestic servant of a public minister,"
unless the name of the servant has been registered and posted as
therein prescribed.
Section 4130, which is the last section of the title, is as follows:
“ The word 'minister,' when used in this title, shall be understood to
mean the person invested with, and exercising, the principal diplo-
matic functions. The word 'consul' shall be understood to mean any
person invested by the United States with, and exercising, the func-
tions of consul general, vice-consul general, consul or vice-consul.”
Sections 4062, 4063, 4064 and 4065 were originally sections 25, 26,
200
[PART 1.
TERRITORIAL JURISDICTION.
27 and 28 of the Crimes Act of April 30, 1790, Ch. 9, 1 Stat. 118; and
these were drawn from the statute 7 Anne, c. 12, which was declaratory
simply of the law of nations, which Lord Mansfield observed, in Heath-
field v. Chiton,' 4 Burr, 2015, 2016, the act did not intend to alter and
could not alter.
In that case, involving the discharge of the defendant from custody,
as a domestic servant to the ininister of the Prince Bishop of Liège,
Lord Mansfield said: “I should desire to know in what manner this
minister was accredited - certainly, he is not an ambassador, which
is the first rank envoy, indeed, is a second class; but he is not
shown to be even an envoy. He is called minister,' 't is true ; but
minister (alone) is an equivocal term.” The statute of Anne was
passed in consequence of the arrest of an ambassador of Peter the
Great for debt, and the demand by the Czar that the sheriff of Middle-
sex and all others concerned in the arrest should be punished with
instant death, 1 Bl. Com. 254; and it was in reference to this that
Lord Ellenborough, in Viveash v. Becker, 3 M. & S. 284, where it was
held that a resident merchant of London, who is appointed and acts
as consul to a foreign prince, is not exempt from arrest on mesne
process, remarked: “I cannot help thinking that the act of Parlia-
ment, which mentions only ambassadors and public ministers,' and
which was passed at a time when it was an object studiously to com-
prehend all kinds of public ministers entitled to these privileges, must
be considered as declaratory, not only of what the law of nations is,
but of the extent to which that law is to be carried."
Three cases are cited by counsel for petitioner arising under or in-
volving the act of 1790. In United States v. Liddle, 2 Wash. C. C.
205, in the case of an indictment for an assault and battery on a mem-
ber of a foreign legation, it was held that the certificate of the Secre-
tary of State, dated subsequently to the assault and battery, is the
best evidence to prove the diplomatic character of a person accredited
as a minister by the government of the United States. The certificate
from the Secretary of State, Mr. Madison, stated that “when Mr.
Feronda produced to the President his credentials as chargé des affaires
of Spain, he also introduced De Lima, as a gentleman attached to the
legation and performing the duties of secretary of legation," and the
certificate was held to be the best evidence to prove that Feronda was
received and accredited, and that at the same time De Lima was pre-
sented and received as secretary attached to the legation. In United
States v. Ortega, 4 Wash. C. C. 531, there was produced in court an
official letter from the Spanish minister to the Secretary of State,
informing him that he had appointed Mr. Salmon charge d'affaires; a
letter from the minister to Mr. Salmon; a letter from the Secretary
CHAP. II.]
201
IN RE BAIZ.
of State addressed to the Spanish minister, recognizing the character
of Mr. Salmon; two letters from the Secretary of State addressed to
Mr. Salmon as chargé d'affaires ; and the deposition of the chief clerk
of the State Department that Mr. Salmon was recognized by the Presi-
dent as chargé d'affaires, and was accredited by the Secretary of State.
In United States v. Benner, Baldwin, 234, the court was furnished with
a certificate from the Secretary of State that the Danish minister had
by letter informed the department that Mr. Brandis had arrived in
this country in the character of attaché to the legation, and that said
Brandis had accordingly, since that date, been recognized by the
department as attached to the legation in that character.
These cases clearly indicate the nature of the evidence proper to
establish whether a person is a public minister within the meaning of
the Constitution and the laws, and that the inquiry before us may be
answered by such evidence, if adduced.
Was Consul General Baiz a person "invested with and exercising
the principal diplomatic functions," within section 4130, or a "diplo-
matic officer," within section 1674 ? His coursel claim in their motion
that he was "the acting minister or chargé d'affaires of the Republics
of Guatemala, Salvador and Honduras in the United States," and so
recognized by the State Departinent, and that he exercised diplomatic
functions as such, and therefore was a public minister, within the
statute.
By the Congresses of Vienna and Aix-la-Chapelle four distinct kinds
of representation were recognized, of which the fourth comprised
chargés d'affaires, who are appointed by the minister of foreign affairs,
and not as the others, nominally or actually by the sovereign. Under
the regulations of this Government the representatives of the United
States have heretofore been ranked in three grades, the third being
chargés d'affaires. Secretaries of legation act ex officio as chargés
d'affaires ad interim, and in the absence of the secretary of legation
the Secretary of State may designate any competent person to act ad
interim, in which case he is specifically accredited by letter to the
minister for foreign affairs.
Wheaton says: “Chargés d'affaires, accredited to the ministers of
foreign affairs of the court at which they reside, are either chargés
d'affaįres ad hoc, who are originally sent and accredited by their gov-
ernments, or chargés d'affaires ad interim, substituted in the place of
the minister of their respective nations during his absence.” Elements
Int. Law (8th Ed.), $ 215.
..Ch. de Martens explains that " chargés d'affaires ad hoc on perma-
nent mission are accredited by letters transmitted to the minister of
foreign affairs. Chargés d'affaires ad interim are presented as such
202
[PART 1.
TERRITORIAL JURISDICTION.
by the minister of the first or second class when he is about to leave
his position temporarily or permanently." Guide Diplomatique, Vol. I,
p. 61, $ 16.
“ They," observes Twiss in his Law of Nations, 192, "are orally
invested with the charge of the embassy or legation by the ambassador
or minister himself, to be exercised during his absence from the seat
of his mission. They are accordingly announced in this character by
him before his departure to the minister of foreign affairs of the court
to which he is accredited."
Diplomatic duties are sometimes imposed upon consuls, but only in
virtue of the right of a government to designate those who shall
represent it in the conduct of international affairs, 1 Calvo, Droit Int.
586, 2d Ed., Paris, 1870, and among the numerous authorities on inter-
national laws, cited and quoted from by petitioner's counsel, the atti-
tude of consuls, on whom this function is occasionally conferred, is
perhaps as well put by De Clercq and De Vallat as by any, as follows:
“There remains a last consideration to notice, that of a consul who
is charged for the time being with the management of the affairs of
the diplomatic post; he is accredited in this case in his diplomatic
capacity, either by a letter of the minister of foreign affairs of France
to the minister of foreign affairs of the country where he is about to
reside, or by a letter of the diplomatic agent whose place he is about
to fill, or finally by a personal presentation of this agent to the min-
ister of foreign affairs of the country." Guide Pratique des Consulats,
Vol. I., p. 93.
That it may sometimes happen that consuls are so charged is rec-
ognized by section 1738 of the Revised Statutes, which provides:
“No consular officer shall exercise diplomatic functions, or hold any
diplomatic correspondence or relation on the part of the United States,
in, with, or to the government, or country to which he is appointed,
or any other country or government when there is in such country any
officer of the United States authorized to perform diplomatic functions
therein; nor in any case, unless expressly authorized by the President
so to do."
But in such case their consular character is necessarily subordinated
to their superior diplomatic character. "A consul," observed Mr.
Justice Story, in The Anne, 3 Wheat. 435, 445, “though à public
agent, is supposed to be clothed with authority only for commercial
purposes. He has an undoubted right to interpose claims for the
restitution of property belonging to the subjects of his own country;
but he is not considered as a ministèr, or diplomatic agent of his
sovereign, intrusted by virtue of his office, with authority to represent
him in his negotiations with foreign states, or to vindicate his prerog.
33
CHAP. II.]
203
IN RE BAIZ,
atives. There is no doubt that his sovereign may specially intrust him
with such authority; but in such case his diplomatic character is
superadded to his ordinary powers, and ought to be recognized by the
government within whose dominions he assumes to exercise it."
When a consul is appointed chargé d'affaires, he has a double
political capacity; but though invested with full diplomatic privileges,
he becomes so invested as chargé d'affaires and not as consul, and
though authorized as consul to communicate directly with the govern-
ment in which he resides, he does not thereby obtain the diplomatic
privileges of a minister. Atty. Gen. Cushing, 7 Opinions, 342, 345.
This is illustrated by the ruling of Mr. Secretary Blaine, April 12,
1881, that the Consul General of a foreign government was not to be
regarded as entitled to the immunities accompanying the possession of
diplomatic character, because he was also accredited as the "
“political
agent” so-called of that government, since he was not recognized as
performing any acts as such, which he was not equally competent to
perform as Consul General. 1 Whart. Dig. Int. Law, 2d Ed., ch. 4,
§ 88, p. 624.
We are of opinion that Mr. Baiz was not, at the time of the com-
mencement of the suit in question, chargé d'affaires ad interim of
Guatemala, or invested with and exercising the principal diplomatic L
functions, or in any view a "diplomatic officer." He was not a pub-
lic minister within the intent and meaning of $ 687; and the District
Court had jurisdiction.
Mr. Baiž was a citizen of the United States and a resident of the
city of New York. In many countries it is a state maxim that one of
its own subjects or citizens is not to be received a foreign diplo-
matic agent, and a refusal to receive, based on that objection, is always
regarded as reasonable. The expediency of avoiding a possible con-
flict between his privileges as such and his obligations as a subject or
citizen, is considered reason enough in itself. Wheaton, 8th Ed., $ 210;
2 Twiss, Law of Nations, 276, $ 186; 2 Phill. Int. Law, 171. Even
an appointment as consul of a native of the place where consular ser-
vice is required, is, according to Phillimore, "perhaps, rightfully pro-
nounced, by a considerable authority, to be objectionable in principle.”
Vol. II., p. 291, citing De Martens & De Cussey, Recueil des Traités,
Index Explicatif, p. XXX., Tit. “ Consuls.”
“Other powers," says Calvo, Vol. I., p. 559, 2d Ed., "admit without
difficulty their own citizens as representatives of foreign states, but
imposing on them the obligation of amenability to the local laws as to
their persons and property. These conditions, which, nevertheless,
ought never to go so far as to modify or alter the representative char-
acter, ought always to be defined before or at the time of receiving the
204
[PART I.
TERRITORIAL JURISDICTION.
1
9
agent; for otherwise, the latter might find it impossible to claim the
honors, rights and prerogatives attached to his employment." See
also Heffter, 3d Fr. Ed., 387.
In the United States, the rule is expressed by Mr. Secretary Evarts,
under date of Sept. 19, 1879, thus: “This Government objects to
receiving a citizen of the United States as a diplomatic representa-
tive of a foreign power. Such citizens, however, are frequently rec-
ognized as consular officers of other nations, and this policy is not
known to have hitherto occasioned any inconvenience.” And again,
April 20, 1880, while waiving the obstacle in the particular instance,
he says: "The usage of diplomatic intercourse between nations is
averse to the acceptance, in the representative capacity, of a person
who, while native born in the country which sends him, has yet ac-
quired lawful status as a citizen by naturalization of the country to
which he is sent." 1 Wharton Dig. Int. Law, 2d Ed., § 88a, p. 628.
Of course the objection would not exist to the same extent in the case
of designation for special purposes or temporarily, but it is one purely
for the receiving government to insist upon or waive at its pleasure.
The presumption, therefore, would ordinarily be against Mr. Baiz's
contention, and, as matter of fact, we find that when, in 1886, he was
appointed chargé d'affaires of the Republic of Honduras to the Govern-
ment of the United States, Mr. Secretary Bayard declined receiving
him as the diplomatic representative of the government of that coun-
try, because of his being a citizen of the United States, and advised
him that: “It has long been the almost uniform practice of this Gov-
ernment to decline to recognize American citizens as the accredited
diplomatic representatives of foreign powers. The statutory and juris-
dictional immunities and the customary privileges of right attaching
to the office of a foreign minister make it not only inconsistent, but
at times even inconvenient, that a citizen of this country should enjoy
so anomalous a position." And in a subsequent communication ren-
dered necessary by a direct question of Mr. Baiz, the Secretary informs
him " that it is not the purpose of the department to regard the sub-
stitutionary agency, which it cheerfully admits in your case, as con-
ferring upon you personally any diplomatic status whatever." This
correspondence disposes of the question before us. The objection
which existed in 1886 to the reception of Mr. Baiz as chargé d'affaires
ad hoc or ad interim, or according to him any diplomatic status what-
ever, whether temporary or otherwise, existed in 1889; and it is out
of the question to assume that the State Department intended to con-
cede the diplomatic status between January 16 and July 10, 1889,
upon the request of Señor Lainfiesta that Consul General Baiz might
be allowed to be a medium of communication during his absence, which
CHAP. II.]
205
IN RE BAI.
it had refused to accord to the Republic of Honduras itself. It is
evident that the statement of the Assistant Secretary, October 4, 1889,
was quite correct, that “the business of the legation [of Guatemala]
was conducted by Consul General Baiz, but without diplomatic
character."
Regarding the matter in hand as, in its general nature, one of
delicacy and importance, we have not thought it desirable to discuss
the suggestions of counsel in relation to the remedy, but have pre-
ferred to examine into and pass upon the merits.
We ought to add that while we have not cared to dispose of this
case upon the mere absence of technical evidence, we do not assume
to sit in judgment upon the decision of the executive in reference to
the public character of a person claiming to be a foreign minister, and
therefore have the right to accept the certificate of the State Depart-
ment that a party is or is not a privileged person, and cannot properly
be asked to proceed upon argumentative or collateral proof.
Our conclusion is, as already stated, that the District Court had
jurisdiction, and we accordingly discharge the rule and
Deny the writs. 1
1 Until recently the United States had no diplomatic representatives of the rank of
ambassadors. The right to appoint such was conferred by act of Mch. 1, 1893 (27 St. L.
497). "Whenever the President shall be advised that any foreign government is, or
is about to be, represented in the United States by an ambassador he is author-
ized, iņ his discretion, to direct that the representative of United States to such gov-
ernment shall bear the same designation. This provision shall in nowise affect the
duties, powers, or salary of such representative." See elaborate opinions by C.
Cushing in 7 Op. Atty. Gen. 186-229; 582-594.
A consul is a commercial, not a diplomatic agent, and has no claim under interna-
tional law to immunity from the civil or criminal jurisdiction of the country in which
he is stationed, Barbuit's Case, 1737, Cas. Temp. Talbot, 231 ; Clarke v. Cretico, 1808,
1 Taunt. 106; Viveash v. Becker, 1814, 3 M. & S. 284; Commonwealth v. Kosloff, 1816,
5 Serg. & Rawle (Pa.), 545. Consuls," said Mr. Justice Swayne, in Coppell v. Hall,
1868, 7 Wall. 542, 553, are approved and admitted by the local sovereign. If guilty
of illegal or improper conduct, the exequatur which has been given may be revoked,
and they may be punished, or sent out of the country, at the option of the offended
government. . In civil and criminal cases, they are subject to the local law in the
same manner with other foreign residents owing a temporary allegiance to the state
(Dana's Wheaton, $ 249 ; 1 Kent's Commentaries, 53). A trading consul, in all that
concerns his trade, is liable in the same way as a native merchant (2 Phillimore's
International Law, ccli.) The character of consul does not give any protection to that
of merchant when they are united in the same person. (The Indian Chief, 3 C.
Robinson, 27 ; Arnold v. The U. S. Insurance Co., 1 Johnson's Cases, 363).” See also
opinion of C. Cushing, 8 Op. Atty. Gen. 169.
American consuls are forbidden in a large number of places to trade (11 U. S.,
St. L. c. 127, p. 55, § 5). And such seems also to be the modern English policy
(Abdy's Kent, 131, note 1).
While consuls are and always have been liable to suit in the United States, they,
206
[PART J.
TERRITORIAL JURISDICTION.
GEORGE WILSON V. GUZMAN BLANCO.
SUPERIOR COURT OF THE CITY OF NEW YORK, 1889.
(56 New York Superior Court, 582.)
Appeal from an order of the special term vacating the judgment in
this action and setting aside the service of the suminons therein upon
Guzman Blanco.
The following opinion was delivered by the court at special term:
O'GORMAN, J. Guzman Blanco, being an envoy extraordinary and
minister plenipotentiary, duly accredited from Venezuela to France,
and recognized as such by the Government of the United States, and
while in the City of New York, waiting to take early means of convey-
ance from this city to France, was served with a summons in this
action. Failing to make any appearance in the action, judgment was
recovered against him for the sum of $2,194,536.
A motion is now made to set aside the judgment, and vacate the
service of summons upon him, on the ground that he was, when so
served, an ambassador, and as such, not amenable to any civil suit
brought against him in this city or State.
It is conceded for the purposes of this motion that he could not
lawfully have been arrested, while thus in the City of New York, and
this concession is in accordance with the judgment of this court in
Holbrook v. Henderson, 4 Sand. Super. Ct. 626. The court there,
however, went farther, and expressed the opinion that the privilege
of an ambassador extended to immunity against all civil suits sought
to be instituted against him in the courts of the country to which he
was accredited, as well as in those of a friendly country through
which he was passing on his way to the scene of his diplomatic
labors, and to this privilege the learned court held that he was en-
titled, as representative of his sovereign, and also because it was
necessary for his free and unimpeded exercise of his diplomatic
duties.
This, opinion of the Superior Court is in accord with that of
might only be sued in the Federal courts, act of 1789. (Rev. St. § 711, cl. 8); but
this clause was repealed by act of Congress, Feb. 18, 1875, 18 St. L., p. 318, with the
result that State and Federal courts now exercise concurrent jurisdiction in suits
against consuls and vice-consuls as appears from an excellent opinion of Mr. Justice
Harrison, in the recent case of Wilcox v. Luco, 1898, 118 Cal. 639. In a note to this
case in 45 Lawyer's Reports Annotated, 579, the exemptions and privileges of consuls
are learnedly treated. - ED.
CHAP. II. GEORGE WILSON V. GUZMAN BLANCO.
207
Wheaton, as set forth in his book on the Law of Nations, in which
he has collected and condensed the views of numerous jurists' of rec-
ognized authority on the subject. Wheaton's Law of Nations, p. 240
et seq.
This rule of international law derives support from the legal fic-
tion that an ambassador is not an inhabitant of the country to which
he is accredited, but of the country of his origin and whose sovereign
he represents, and within whose territory.he, in contemplation of law,
always abides.
When, therefore, a claim is made against him in the country to
which he is sent, for payment of a debt incurred by him, the creditor
must proceed against him exactly as if he were not resident there,
and as if he had not contracted the debt there, and as if he had no
property there, in his quality of ambassador. Wheaton's Law of
Nations, p. 242.
If he has contracted debts, and has no real property in the country
to which he is sent, he should be requested to make payment, and,
in case of refusal, application should be made to his sovereign; and as
a necessary consequence of this rule of extraterritorial residence, he
is always considered as retaining his original domicil, and may be
proceeded against in the competent court of his own country, and
he cannot set up the plea of absence in the service of the State as a
bar to a suit in the domestic forum, since the law supposes him still
to be present there.
From these views, I am led to the conclusion that the service made
on Guzinan Blanco in this case, and the judgment entered against
him, are of no force and void.
The fact, rather suggested than positively averred in the complaint,
that he was connected as a partner in a mercantile business in New
York, is not material.
It does not appear that the cause of action arose out of that mer-
cantile relation, or business, or out of any contract or transaction
which arose in the State of New York, or the United States.
The motion to vacate the judgment against Guzman Blanco, and to
set aside the service of the summons upon him, is granted, with ten
dollars costs. 1
1 The arguments of counsel on rehearing are omitted: at the conclusion of these
the order appealed from was affirmed in the following sentence: "Per Curiam.- Order
affirmed with $10 costs, for the reasons assigned by Judge O'Gorman for grarting
the motion."
In the case of the New Chili Gold Mining Co. v. Blanco g. Another, 1888, 4 Times
Law, 346, the court took time to consider their judgment and delivered it in favor of
the defendants, on the ground that, in the exercise of their judicial discretion, they
did not consider it right to allow a foreign minister (Blanco), resident at a foreigo
208
[PART I.
TERRITORIAL JURISDICTION.
SECTION 9.
IMMUNITIES OF PUBLIC SHIPS,
1
(a) Ships of War.
THE SCHOONER 66 EXCHANGE” V. M'FADDON & OTHERS.
SUPREME COURT OF THE UNITED STATES, 1812.
(7 Cranch, 116.)
Appeal from the sentence of the circuit court of the United States
for the district of Pennsylvania.
The schooner Exchange, owned by John M'Faddon and William
Greetham, sailed from Baltimore, October 27, 1809, for St. Sebastians,
in Spain. On the 30th of December, 1810, she was seized by the
order of Napoleon Bonaparte; and was then armed and commis-
sioned as a public vessel of the French government, under the name
of Balaou. On a voyage to the West Indies, she put into the port
of Philadelphia, in July, 1811, and on the 24th of August was libelled
by the original owners. As no claimant appeared, Mr. Dallas, the
attorney of the United States for the district of Pennsylvania filed
(at the suggestion of the executive department of the United States,
it is believed) a suggestion that inasmuch as there was peace between
France and the United States, the public vessels of the former may
enter into the ports and harbors of the latter and depart at will
without seizure or detention in any way.
The district judge dismissed the libel, on the ground that a public
armed vessel of a foreign power, at peace with the United States, is
not subject to the ordinary judicial tribunals of the country, so far
as regards the question of title, by which the foreign sovereign
claims to hold her.
The libellants appealed to the circuit court, where the sentence
court (France), to be sued in the courts of this country, at all events on a cause of
action not arising in this country. The case was however, decided on another point.
The immunity of a diplomatic agent continues for a reasonable time after recall,
Dupont v. Pichon, 1805, 4 Dall. 321; Torladé v. Burrozo, 1830, 1 Miles, Pa. 366; Musurus
Bey v. Gadbun, 1 Q. B. 533 (1894); same case on appeal, 2 Q. B. 352 (1894).
The authorities on this question are collected and analyzed in a note to U. S. v.
Ortega, 1826, 11 Wheat. 467 as reported in 6 Lawyer's, Co-operative Ed. 522. – ED.
.
CHAP. II.]
THE SCHOONER
EXCHANGE V. M'FADDON. 209
was reversed from the sentence of reversal, the district attorney
appealed to this court.
MARSHALL, C. J.:-“This case involves the very delicate and impor-
tant inquiry, whether an American citizen can assert, in an American
court, a title to an armed national vessel, found within the waters
of the United States.
“The question has been considered with an earnest solicitude,
that the decision may conform to those principles of national and
municipal law by which it ought to be regulated.
“In exploring an unbeaten path, with few, if any aids, from pre-
cedents or written law, the court has found it necessary to rely
much on general principles, and on a train of reasoning, founded on
cases in some degree analogous to this.
“The jurisdiction of courts is a branch of that which is possessed
by the nation as an independent sovereign power.
“The jurisdiction of the nation within its own territory is neces-
sarily exclusive and absolute. It is susceptible of no limitation not
imposed by itself. Any restriction upon it, deriving validity from
an external source, would imply a diminution of its own sovereignty
to the extent of the restriction, and an investment of that sovereignty
to the same extent in that power which could impose such restric-
tions.
“ All exceptions, therefore, to the full and complete power of a
nation within its own territories, must be traced up to the consent
of the nation itself. They can flow from no other legitimate source.
“ This consent may be either express or implied. In the latter
case, it is less determinate, exposed more to the uncertainties of
construction; but, if understood, not less obligatory.
“ The world being composed of distinct sovereignties, possessing
equal rights and equal independence, whose mutual benefit is pro-
moted by intercourse with each other, and by an interchange of
those good offices which humanity dictates and its wants require,
all sovereigns have consented to a relaxation in practice, in cases under
certain peculiar circumstances, of that absolute and complete juris-
diction within their respective territories which sovereignty confers.
“ This consent may, in some instances, be tested by common
usage, and by common opinion, growing out of that usage.
“A nation would justly be considered as violating its faith, al-
though that faith might not be expressly plighted, which should
suddenly and without previous notice, exercise its territorial powers
in a manner not consonant to the usages and received obligations of
the civilized world.
“This full and absolute territorial jurisdiction being alike the at-
14
210
TERRITORIAL JURISDICTION.
[PART I..
tribute of every sovereign, and being incapable of conferring extra-
territorial power, would not seem to contemplate foreign sovereigns
nor their sovereign rights as its objects. One sovereign being in no
respect amenable to another, and being bound by obligations of the
highest character not to degrade the dignity of his nation, by placing
himself or its sovereign rights within the jurisdiction of another,
can be supposed to enter a foreign territory only under an express
license, or in the confidence that the immunities belonging to his in-
dependent sovereign station, will be extended to him.
s. This perfect equality and absolute independence of sovereigns,
and this common interest impelling them to mutual intercourse, and
an interchange of good offices with each other, have given rise to a
class of cases in which every sovereign is understood to waive the
exercise of a part of that complete exclusive territorial jurisdiction,
which has been stated to be the attribute of every nation.
“ 1st. One of these is admitted to be the exemption of the person
of the sovereign from arrest or detention within a foreign territory.
"If he enters that territory with the knowledge and license of its
sovereign, that license, although containing no stipulation exempt
ing his person from arrest, is universally understood to imply
such stipulation.
Why has the whole civilized world concurred in this construc-
tion? The answer cannot be mistaken. A foreign sovereign is not
understood as intending to subject himself to a jurisdiction incom-
patible with his dignity and the dignity of his nation, and it is to
avoid this subjection that the license has been obtained. The char-
icter to whom it is given, and the object for which it is granted,
equally require that it should be construed to impart full security
to the person who has obtained it. This security, however, need
· 110t be expressed ; it is implied from the circumstances of the case.
Should one sovereign enter the territory of another, without the
consent of that other, expressed or implied, it would present a ques-
tion which does not appear to be perfectly settled, a decision of
which is not necessary to any conclusion to which the court may
come in the cause under consideration. If he did not thereby
expose himself to the territorial jurisdiction of the sovereign, whose
dominions he had entered, it would seem to be because all sovereigns
impliedly engage not to avail themselves of a power over their
equal, which a romantic confidence in their magnanimity has placed
in their hands.
“2d. A second case, standing on the same principles with the
first, is the immunity which all civilized nations allow to foreign
ministers.
WI
CHAP. II.]
211
THE SCHOONER
M'FADDON.
EXCHANGE” V. v.
“Whatever may be the principle on which this immunity is
established, whether we consider him as in the place of the sovereign
he represents, or by a political fiction suppose him to be extra-
territorial, and therefore, in point of law, not within the jurisdiction
of the sovereign at whose court he resides; still the immunity
itself is granted by the governing power of the nation to which the
minister is deputed, his fiction of extra-territoriality could not be
erected and supported against the will of the sovereign of the terri-
tory. He is supposed to assent to it.
“This consent is not expressed. It is true that in some countries,
and in this among others, a special law is enacted for the case. But
the law obviously proceeds on the idea of prescribing the punishment
of an act previously unlawful, not of granting to a foreign minister
a privilege which he would not otherwise possess.
“The assent of the sovereign to the very important and extensive
exemptions from territorial jurisdiction which are admitted to attach
to foreign ministers, is implied from the considerations that, without
such exemption, every sovereign would hazard his own dignity by
employing a public minister abroad. His minister would owe tem-
porary and local allegiance to a foreign prince, and would be less
competent to the objects of his mission. A sovereign committing
the interests of his nation with a foreign power, to the care of a
person whom he has selected for that purpose, cannot intend to
subject his minister in any degree to that power; and therefore a
consent to receive him, implies a consent that he shall possess those
privileges which his principal intended he should retain, privileges
which are essential to the dignity of his sovereign, and to the duties
he is bound to perform.
“In what cases a minister, by infracting the laws of the country
in which he resides, may subject himself to other punishment than
will be inflicted by his own sovereign, is an inquiry foreign to the
present purpose. If his crimes be such as to render him amenable
to the local jurisdiction, it must be because they forfeit the priv-
ileges annexed to his character; and the minister, by violating the
conditions under which he was received as the representative of a
foreign sovereign, has surrendered the immunities granted on those
conditions ; or, according to the true meaning of the original assent,
has ceased to be entitled to them.
"3d. A third case in which a sovereign is understood to cede a
portion of his territorial jurisdiction is, where he allows the troops
of a foreign prince to pass through his dominions.
“In such case, without any express declaration waiving jurisdic-
tion over the army to which this right of passage has been granted,
212
[PART 1.
TERRITORIAL JURISDICTION.
the sovereign who should attempt to exercise it would certainly be
considered as violating his faith. By exercising it, the purpose for
which the free passage was granted would be defeated, and a por-
tion of the military force of a foreign independent nation would be
diverted from those national objects and duties to which it was
applicable, and would be withdrawn from the control of the sover-
eign whose power and whose safety might greatly depend on retain-
ing the exclusive command and disposition of this force. The grant
of a free passage, therefore, implies a waiver of all jurisdiction over
the troops during their passage, and permits the foreign general to
use that discipline, and to inflict those punishments which the
government of his army may require.
“But if, without such express permit, an army should be led
through the territories of a foreign prince, might the jurisdiction of
the territory be rightfully exercised over the individuals composing
this army?
6 Without doubt a military force can never gain immunities of
any other description than those which war gives, by entering a
foreign territory against the will of its sovereign. But if his consent,
instead of being expressed by a particular license, be expressed by a
general declaration that foreign troops may pass through a specified.
tract of country, a distinction between such general permit and a
particular license is not perceived. It would seem reasonable that
every immunity which would be conferred by a special license,
would be, in like inanner conferred by such general permit. We
have seen that a license to pass through a territory implies immu-
nities not expressed, and it is material to inquire why the license
itself may not be presumed ?
"It is obvious that the passage of an army through a foreign terri-
tory will probably be at all times inconvenient and injurious, and
would often be imminently dangerous to the sovereign through whose
dominion it passed. Such a practice would break down some of the
most decisive distinctions between peace and war, and would reduce
1 In Neal Dow v. Johnson, 1879, 100 U. S. 158, at 170, Field, J., speaking
for the court, said: “The question here is, what is the law which goverus an army
invading an enemy's country? It is not the civil law of the invaded country; it is
not the civil law of the conquering country; it is military law the law of war
and its supremacy for the protection of the officers and soldiers of the army, when in
service in the field in the enemy's country, is as essential to the efficiency of the
army as the supremacy of the civil law at home, and, in time of peace, is essential to
the preservation of liberty." To the same effect, Coleman v. Tennessee, 1876, 97 U. S.
509, per Field, J. In like manner, a State court may not exercise jurisdiction for
violation of a State statute in a military reservation, Wills v. State, 1871, 3 Heisk..
(Tenn.), 141. - ED.
i
1
CHAP. II.
213
THE SCHOONER
.
EXCHANGE” V. M'FADDON,
a nation to the necessity of resisting by war an act not absolutely
hostile in its character, or of exposing itself to the stratagems and
frauds of a power whose integrity might be doubted, and who might
enter the country under deceitful pretexts. It is for reasons like
these that the general license to foreigners to enter the dominions
of a friendly power, is never understood to extend to a military
force; and an army marching into the dominions of another sover-
eign, may justly be considered as committing an act of hostility;
and if not opposed by force, acquires no privileges by its irregular
and improper conduct. It may, however, well be questioned whether
any other than the sovereign power of the state be capable of decid-
ing that such military commander is without a license.
“But the rule which is applicable to armies, does not appear to be
equally applicable to ships of war entering the ports of a friendly
power. The injury inseparable from the march of an army through
an inhabited country and the dangers often, indeed generally, at-
tending it, do not ensue from admitting a ship of war, without a
special license, into a friendly port. A different rule, therefore, with
respect to this species of military force has been generally adopted.
If, for reasons of state, the ports of a nation generally, or any par-
ticular ports be closed against vessels of war generally, or the vessels
of any particular nation, notice is usually given of such determina-
tion. If there be no prohibition, the ports of a friendly nation are
considered as open to the public ships of all powers with whom it
is at peace, and they are supposed to enter such ports and to re-
main in them while allowed to remain, under the protection of the
government of the place.
“In almost every instance, the treaties between civilized nations
contain a stipulation to this effect in favor of vessels driven in by
stress of weather or other urgent necessity. In such cases the
sovereign is bound by compact to authorize foreign vessels to enter
his ports. The treaty bids him to allow vessels in distress to find
refuge and asylum in his ports, and this is a license which he is not
at liberty to retract. If would be difficult to assign a reason for
withholding from a license thus granted, any immunity from local
jurisdiction which would be implied in a special license.
“ If there be no treaty applicable to the case, and the sovereign,
from motives deemed adequate by himself, permits his ports to re-
main open to the public ships of foreign friendly powers, the con-
clusion seems irresistible, that they enter by his assent. And if
they enter by his assent necessarily implied, no just reason is per-
ceived by the court for distinguishing their case from that of vessels
which enter by express assent. In all the cases of exemption which
have been reviewed, much has been implied; but the obligation of
1
214
[PART I.
TERRITORIAL JURISDICTION.
1
what was implied has been found equal to the obligation of that
which was expressed. Are there reasons for denying the applica-
tion of this principle to ships of war ?
“ In this part of the subject a difficulty is to be encountered, the
seriousness of which is acknowledged, but which the court will not
attempt to evade.
“These treaties which provide for the admission and safe depart-
ure of public vessels entering a port from stress of weather, or other
urgent cause, provide in like manner for the private vessels of the
nation; and where public vessels enter a port under the general
license which is implied merely from the absence of a prohibition,
they are, it may be urged, in the same condition with merchant
vessels entering the same port for the purposes of trade who cannot
thereby claim any exemption from the jurisdiction of the country.
It may be contended, certainly with much plausibility if not cor-
rectness, that the same rule, and same principle are applicable to
public and private ships; and since it is admitted that private ships,
entering without special license become subject to the local juris-
diction, it is demanded on what authority an exception is made in
favor of ships of war.
“It is by no means conceded, that a private vessel really availing
herself of an asylum provided by treaty, and not attempting to
trade, would become amenable to the local jurisdiction unless she
committed some act forfeiting the protection she claims under com-
pact. On the contrary, motives may be assigned for stipulating
and according immunities to vessels in cases of distress, which would
not be demanded for, or allowed to those which enter voluntarily,
and for ordinary purposes. On this part of the subject, however,
the court does not mean to indicate any opinion. The case itself
may possibly occur, and ought not to be prejudiced.
“Without deciding how far such stipulations in favor of distressed
vessels, as are usual in treaties, may exempt private ships from the
jurisdiction of the place, it may safely be asserted that the whole
reasoning upon which such exemption has been implied in other
cases, applies with full force to the exemption of ships of war in
this.
“It is impossible to conceive,' says Vattel, 'that a prince who sends
an ambassador or any other minister can have any intention of sub-
jecting him to the authority of a foreign power, and this considera-
tion furnishes an additional argument, which completely establishes
the independency of a public minister. If it cannot be reasonably
presumed that his sovereign means to subject him to the authority
of the prince to whom he is sent, the latter, in receiving the minis.
CHAP. 11.] THE SCHOONER EXCHANGE” V. M'FADDON. 215
ter, consents to admit him on the footing of independency; and thus
there exists between the two princes a tacit convention, which gives
a new force to the natural obligation.'
“Equally impossible is it to conceive, whatever may be the con-
struction as to private ships, that a prince who stipulates a passage
for his troops, or an asylum for his ships of war in distress, should
mean to subject his army or his navy to the jurisdiction of a foreign
sovereign. And if this cannot be presumed, the sovereign of the
port must be considered as having conceded the privilege to the ex-
tent in which it must have been understood to be asked.
“To the court, it appears, that where, without treaty, the ports
of a nation are open to the private and public ships of a friendly
power, whose subjects have also liberty without special license, to
enter the country for business or amusement, a clear distinction is
to be drawn between the rights accorded to private individuals or
trading vessels, and those accorded to public armed ships which
constitute a part of the military force of the nation.
“The preceding reasoning, has maintained the propositions that
all exemptions from territorial jurisdiction must be derived from the
consent of the sovereign of the territory; that this consent may be
implied or expressed; and that, when implied, its extent must be
regulated by the nature of the case and the views under which the
parties requiring and conceding it must be supposed to act.
“When private individuals of one nation spread themselves through
another as business or caprice may direct, mingling indiscriminately
with the inhabitants of that other, or when merchant vessels
enter for the purposes of trade, it would be obviously inconvenient
and dangerous to society, and would subject the laws to continual
infraction, and the government to degradation, if such individuals or
merchants did not owe temporary and local allegiance, and were not
amenable to the jurisdiction of the country. Nor can the foreign
sovereign have any motive for wishing such exemption. His sub-
jects thus passing into foreign countries, are not employed by him,
nor are they engaged in national pursuits. Consequently there are
powerful motives for not exempting persons of this description from
the jurisdiction of the country in which they are found, and no one
motive for requiring it. The implied license, therefore, under
which they enter, can never be construed to grant such exemption.
But in all respects different is the situation of a public armed ship.
She constitutes a part of the military force of her nation; acts under
the immediate and direct command of the sovereign; is employed by
him in national objects. He has many and powerful motives for
preventing those objects from being defeated by the interference of
216
TERRITORIAL JURISDICTION.
[PART 1.
i
a foreign state. Such interference cannot take place without affect-
ing his power and his dignity. The implied license, therefore, under
which such vessel enters a friendly port, may reasonably be construed,
and, it seems to the court, ought to be construed, as containing an
exemption from the jurisdiction of the sovereign, within whose ter-
ritory she claims the rites of hospitality.
“Upon these principles, by the unanimous consent of nations, a
foreigner is amenable to the laws of the place; but certainly in
practice, nations have not yet asserted their jurisdiction over the
public armed ships of a foreign sovereign, entering a port open for
their reception.
"Bynkershoek, a jurist of great reputation, has indeed maintained
that the property of a foreign sovereign is not distinguishable by any
legal exemption from the property of an ordinary individual, and
has quoted several cases in which courts have exercised jurisdiction
over causes in which a foreign sovereign was made a party defend-
ant.
“Without indicating any opinion on this question, it may safely
be affirmed, that there is a manifest distinction between the private
property of the person who happens to be a prince, and that mili-
tary force which supports the sovereign power, and maintains the
dignity and the independence of a nation. A prince, by acquiring
private property in a foreign country, may possibly be considered as
subjecting that property to the territorial jurisdiction; he may be
considered as so far laying down the prince, and assuming the char-
acter of a private individual; but this he cannot be presumed to do
with respect to any portion of that armed force, which upholds his
crown, and the nation he is intrusted to govern.
“The only applicable case cited by Bynkershoek, is that of the
Spanish ships of war, seized in Flushing for a debt due from the
King of Spain. In that case the states generally interposed; and
there is reason to believe, from the manner in which the trans-
action is stated, that, either by the interference of government, or
the decision of the court, the vessels were released. This case of
the Spanish vessels is, it is believed, the only case furnished by the
history of the world, of an attempt made by an individual to assert
a claim against a foreign prince, by seizing the armed vessels of the
nation. That this proceeding was at once arrested by the govern-
ment, in a nation which appears to have asserted the power of pro-
ceeding in the same manner against the private property of the
prince, would seem to furnish no feeble argument in support of the
universality of the opinion in favor of the exemption claimed for
ships of war. The distinction made in our own laws between public
and private ships would appear to proceed from the same opinion.
CHAP. II.]
217
THE SCHOONER,
66 EXCHANGE” V. M'FADDON.
“It seems, then, to the court, to be a principle of public law, that
national ships of war, entering the port of a friendly power open
for their reception, are to be considered as exempted by the con-
sent of that power from its jurisdiction.
“Without doubt, the sovereign of the place is capable of destroy-
ing this implication. He may claim and exercise jurisdiction,
either by employing force, or by subjecting such vessels to the ordi-
nary tribunals. But, until such power be exerted in a manner not
to be misunderstood, the sovereign cannot be considered as having
imparted to the ordinary tribunals a jurisdiction, which it would be
a breach of faith to exercise. Those general statutory provisions,
therefore, which are descriptive of the ordinary jurisdiction of the
judicial tribunals, which give an individual whose property has been
wrested from him, a right to claim that property in the courts of
the country in which it is found, ought not, in the opinion of this
court, to be so construed as to give them jurisdiction in a case in
which the sovereign power has impliedly consented to waive its juris-
diction.
“ The arguments in favor of this opinion which have been drawn
from the general inability of the judicial power to enforce its decis-
ions in cases of this description, from the consideration that the
sovereign power of the nation is alone competent to avenge wrongs
committed by a sovereign, that the questions to which such wrongs
give birth are rather questions of policy than of law, that they are
for diplomatic, rather than legal discussion, are of great weight, and
merit serious attention. But the argument has already been drawn
to a length which forbids a particular examination of these points.
“ The principles which have been stated will now be applied to the
case at bar.
“In the present state of the evidence and proceedings, the Ex-
change must be considered as a vessel which was the property of
the libellants, whose claim is repelled by the fact, that she is now
a national armed vessel, commissioned by, and in the service of the
Emperor of France. The evidence of this fact is not controverted.
But it is contended that it constitutes no bar to an inquiry into the
validity of the title, by which the emperor holds this vessel. Every
person, it is alleged, who is entitled to property brought within the
jurisdiction of our courts, has a right to assert his title in those
courts, unless there be some law taking his case out of the general
rule. It is therefore said to be the right, and if it be the right, it is
the duty of the court, to inquire whether this title has been ex-
tinguished by an act, the validity of which is recognized by national
or municipal law.
218
[PART 1.
TERRITORIAL JURISDICTION.
“If the preceding reasoning be correct, the Exchange, being a
public armed ship, in the service of a foreign sovereign, with whom
the government of the United States is at peace, and having entered
an American port open for her reception, on the terms on which ships
of war are generally permitted to enter the ports of a friendly power,
must be considered as having come into the American territory,
under an implied promise, that while necessarily within it, and de-
meaning herself in a friendly manner, she should be exempt from
the jurisdiction of the country.” 1
:
THE “CONSTITUTION.”
HIGH COURT OF ADMIRALTY, 1879.
(48 Law Journal, P. D. & A. 13.)
The facts are sufficiently stated in the opinion.
Sir Robert PHILLIMORE :—“In this case an application was made to
the court to allow a warrant to issue of a peculiar character-a
warrant which was to be served upon a ship of war belonging to an
independent state at amity with Her Majesty. The court directed
the case to stand over, and suggested that it would be proper that
notice should be given to his Excellency, the American Minister in
London, and to Lord Salisbury, as Secretary for Foreign Affairs.
The court has reason to congratulate itself that it took that step,
for the result has been that it has had the advantage of hearing the
opinion of counsel on behalf of the United States and of the learned
gentleman representing the Crown. It appears from telegrams which
have passed in the case that a claim has been made by the owner of
the tug for 1,5001., but that the American Consul at Portsmouth has
forwarded simply a cheque for 2001., in recognition of the services
which the tug has rendered. The owner of the tug was dissatisfied
with that amount; and consequently made an application to this
court for an order to issue a warrant to arrest the Constitution and
her cargo.
1 See the Sitka, 1855 (C. Cushing), 7 Op. Atty.-Gen. 122. For a technical definition
of a ship of war, and for the exact moment when a vessel in construction becomes a
warship and entitled to rights, privileges, and inmunities thereof, see Tucker v.
Alexundoff, 1901, 183 U. S. 424, which is, broadly speaking, a commentary on the
judgment and dicta of the principal case. For criticism on the case see 15 Harv,
Law Rev. 657. - ED.
CHAP. II.]
219
66
THE
CONSTITUTION.”
“ The question, therefore, which is raised under these proceedings
is whether I have any jurisdiction to permit the arrest of a foreign
ship of war belonging to an independent state in amity with our
sovereign, and I hardly think that it can be denied that if I were
to exercise the jurisdiction which is craved in the present case, I
should be doing that for which there exists no direct precedent.
On the contrary, I have no doubt as to this general proposition—that
ships of war belonging to another nation with whom we are at peace
are exempt from the civil jurisdiction of the courts of this country;
and I have listened in vain for any peculiar circumstances which
would take this case out of that general proposition. It has happened
to me more than once to have been requested by foreign states to
sit as arbitrator, and to make awards in differences which had arisen
between them and British subjects. Had such an application
been made in the present instance I would have gladly undertaken
the duty sought to be imposed upon me; but that is not the state of
matters I have now to consider. All that I have now to determine
is the simple question of jurisdiction. Various cases have been
cited before me in argument, all of which, with one exception, were
discussed in the case of the Charkieh, but that was a wholly different
case because the Khedive of Egypt was not an independent sovereign,
and the Charkieh herself formed one of a fleet of merchantmen. I
may in the lengthy judgment which I delivered in that cause, have
let drop some expression which may have given rise to an impression
that a foreign ship of war is liable to arrest, but, in that case this
question, as it is here raised, had not to be decided. Now that it
comes before me in this plain and simple form, I feel no doubt that
it would be improper for me to accede to the request of the owner
of the steam-tug, nor do I think, as I have said above, that the
Constitution is liable to the process of this court. In regard to the
question of the liability of the cargo, I must say I see no distinction
between the issue of a warrant in the case of the ship and in the
case of this cargo; it is on board a foreign vessel of war, and is
under the charge of a foreign government for public purposes.
So that, having no authority to issue either of the warrants prayed
for, and as no precedent exists for such a course, I must dismiss this
motion with costs.1"
1Mr. Cobbett (Cases on International Law, 35,) says: "Before the decision in the
case of the Constitution, some doubt seems to have existed as to whether salvage
proceedings might not be instituted in the English Court of Admiralty against a
public vessel. In the case of the Charlieh, Sir R. Phillimore had said, It is by
no means clear that a ship of var tu which salvage services have been rendered, may
not. jure gentium, be liable to 1. roceeded against in the Court of Admiralty for
the remuneration due for sucl, services.'
220
(PART I.
TERRITORIAL JURISDICTION.
(6) Other Public Ships.
THE “PARLEMENT BELGE."
COURT OF APPEALS, 1878.
(Law Reports, 5 Probate Div., 197.)
On an appeal on behalf of the Crown from a decision of Sir Robert
Phillimore, the judgment of the court, JAMES, BAGGALLAY, and
BRETT, Lord Justices, by BRETT, L. J.1:-"In this case proceedings
in rem on behalf of the owners of the Daring were instituted in the
Admiralty Division, in accordance with the forms prescribed by the
Judicature Act, against the Parlement Belge, to recover redress in
respect of a collision. A writ was served in the usual and prescribed
manner on board the Parlement Belge. No appearance was entered,
but the Attorney-General, in answer to a motion to direct that judg-
"In a much earlier case, of 1.lin Prins Frederik (2 Dods., 451), a Dutch man-of-
war, whilst on a voyage from Patavia to the Texel, was partially disabled by stress
of weather off the Scilly Isles, and was brought into Mount's Bay with the assist-
ance of the master and crew of a British brig, belonging to the port of Penzance.
The Prins Frederilc was at the time employed in bringing home a cargo of spice
belonging to the Dutch Government, and for this purpose some of her guns bad
been removed. The salvors instituted salvage proceedings against the vessel, on
the ground that she had for the time being, at least, lost the character and privileges
of a public vessel, and also on the further ground that such proceedings being in
rem, and not against the King of the Netherlands personally, were under any cir-
cumstances admissible. According to Lord Campbell, who quoted this case, in 1851
(17 Q. B., 212), Lord Stowell took a strong view against the asserted jurisdiction.
To avoid difficulty, Lord Stowell caused a representation to be made to the Dutch
government, who consented to his disposing of the matter as arbitrator. Acting
under this authority, Lord Stowell awarded the sum of £800 and costs to the
salvors."
Mr. Dana, in his note, No. 63, says : "It may be considered as established law,
now, that the public vessels of a foreign state, coming within the jurisdiction of a
friendly state, are exempt from all forms of process in private suits. Nor will
such ships be seized, or in any way interfered with, by judicial proceedings in the
name and by the authority of the state, to punish violations of public laws. In
such cases, the offended state will appeal directly to the other sovereign. Any
proceedings against a foreign public ship would be regarded as an unfriendly if
not hostile act, in the present state of the law of nations."
It may be of interest to know that this is the frigate Constitution, so justly
famous for its exploits in the war of 1812. See Hollis, The Frigate Constitution (1901),
pp. 237-239. — Ed.
i Statement of the Editor.
!!!
CHAP. II.]
221
66
THE
PARLEMENT BELGE.
ment with costs should be entered for the plaintiffs, and that a war-
rant :should be issued for the Parlement Belge, filed an information
and protest, asserting that the court had no jurisdiction to entertain
the suit. Upon the hearing of the motion and protest the learned
judge of the Admiralty Division overruled the protest and allowed
the warrant of arrest to issue. The Attorney-General appealed. The
protest alleged that the Parlement Belge was a mail packet running
between Ostend and Dover, and one of the packets mentioned in
article 6 of the convention of the 17th of February, 1876, made be-
tween the sovereigns of Great Britain and Belgium; that she was
and is the property of his Majesty the King of the Belgians, and in
his possession, control and employ as reigning sovereign of the state,
and was and is a public vessel of the sovereign and state, carrying
his Majesty's royal pennon, and was navigated and employed by
and in the possession of such government, and was officered by
officers of the Royal Belgian navy, holding commissions, etc. In
answer it was averred on affidavits, which were not contradicted,
that the packet boat, besides carrying letters, carried merchandise
and passengers and their luggage for hire. ***
“ The proposition raised by the first question seems to be as
follows: Has the Admiralty Division jurisdiction in respect of a
collision to proceed in rem against, and in case of non-appearance or
omission to find bail, to seize and sell, a ship present in this
country, which ship is at the time of the proceedings the property
of a foreign sovereign, is in his possession, control, and employ as
sovereign by means of his commissioned officers, and is a public
vessel of his state, in the sense of its being used for purposes treated
by such sovereign and his advisers as public national services, it
being admitted that such ship, though commissioned, is not an armed
ship of war or employed as a part of the military force of his
country ? ***
“It is admitted that neither the sovereign of Great Britain nor any
friendly sovereign can be adversely personally impleaded in any
court of this country. It is admitted that no armed ship of war of
the sovereign of Great Britain, or of a foreign sovereign can be seized
by any process whatever, exercised for any purpose by any court of
this country. But it is said that this vessel, though it is the property
of a friendly sovereign in his public capacity and is used for pur-
poses treated by him as public national services, can be seized and
sold under the process of the Admiralty Court of this country,
because it will, if so seized and sold, be so treated, not in a suit
brought against the sovereign personally, but in a suit in rem against
the vessel itself. This contention raises two questions ; first, sup-
222
[PART 1.
TERRITORIAL JURISDICTION.
1
posing that an action in rem is an action against the property only,
meaning thereby that it is not a legal proceeding at all against the
owner of the property, yet can the property in question be subject
to the jurisdiction of the court ?
Secondly, is it true to say that an action in rein is only and solely
a legal procedure against the property, or is it not rather a procedure
indirectly, if not directly, impleading the owner of the property to
answer to the judgment of the court to the extent of his interest in
the property? ***
“Having carefully considered the case of the Charkieh, we are
of opinion that the proposition deduced from the earlier cases in an
earlier part of this judgment is the correct exposition of the law of
nations, viz., that as a consequence of the absolute independence of
every sovereign authority and of the international comity which
induces every sovereign state to respect the independence of every
other sovereign state, each and every one declines to exercise by
means of any of its courts, any of its territorial jurisdiction over the
person of any sovereign or ambassador of any other state, or over
the public property of any state which is destined to its public
use, or over the property of any ambassador, though such sovereign,
ambassador or property be within its territory, and therefore, but
for the common agreement, subject to its jurisdiction.
“ This proposition would determine the first question in the present
case in favor of the protest, even if an action in rem were held to be
a proceeding solely against property, and not a procedure directly
or indirectly impleading the owner of the property to answer to the
judgment of the court. But we cannot allow it to be supposed that
in our opinion the owner of the property is not indirectly impleaded.
The course of proceeding, undoubtedly, is first to seize the property.
It is undoubtedly, not necessary, in order to enable the court to pro-
ceed further, that the owner should be personally served with any
process. In the majority of cases, brought under the cognizance
of an Admiralty Court, no such personal service could be effected.
Another course was therefore taken from the earliest times. The
seizure of the property was made by means of a formality which was
as public as could be devised. That formality of necessity gave
notice of the suit to the agents of the owner of the property, and so,
in substance, to him. Besides which, by the regular course of the
admiralty, the owner was cited or had notice to appear to show
cause why his property should not be liable to answer to the com-
plainant. The owner has a right to appear and show cause, a right
which cannot be denied. It is not necessary, it is true, that the
notice or citation should be personally served. But unless it were
CHAP. II.]
223
THE " PARLEMENT BELGE."
considered that, either by means of the publicity of the manner of
arresting the property, or by means of the publicity of the notice or
citation, the owner had an opportunity of protecting his property
from a final decree by the court, the judgment in rem of a court
would be manifestly contrary to natural justice. In a claim made
in respect of a collision the property is not treated as the delinquent
per se. Though the ship has been in collision, and has caused injury
by reason of the negligence or want of skill of those in charge of her,
yet she cannot be made the means of compensation if those in charge
of her were not the servants of her then owner, as if she was in
charge of a compulsory pilot. This is conclusive to show that the
liability to compensate must be fixed not merely on the property,
but also on the owner through the property.
“If so, the owner is at least indirectly impleaded to answer to, that
is to say, to be affected by, the judgment of the court. It is no
answer to say that if the property be sold after the maritime lien
has accrued, the property may be seized and sold as against the
new owner.
“This is a severe law, probably arising from the difficulty of other-
wise enforcing any remedy in favor of an injured suitor. But the
property cannot be sold as against the new owner, if it could not
have been sold as against the owner at the time when the alleged
lien accrued. This doctrine of the Courts of Admiralty goes only
to the extent, that the innocent purchaser takes the property sub-
ject to the inchoate maritime lien which attached to it as against
him who was the owner at the time the lien attached. The new
owner has the same public notice of the suit and the same oppor-
tunity and right of appearance as the former owner would have had.
He is impleaded in the same way as the former owner would have
been. Either is affected in his interests by the judgment of a court
which is bound to give him the means of knowing that it is about
to proceed to affect those interests, and that it is bound to hear him
if he objects. That is, in our opinion, an impleading .
“ The case of The Bold Buccleugh does not decide to the contrary
of this. It decides that an action in ren is a different action from
one in personam and has a different result. But it does not decide
that a court which seizes and sells a man's property does not assume
to make that man subject to its jurisdiction. To implead an inde-
pendent sovereign in such a way is to call upon him to sacrifice
either his property or his independence. To place him in that
position is a breach of the principle upon which his immunity from
jurisdiction rests. We think that he cannot be so indirectly impleaded
any more than he could be directly impleaded. The case is, upon
224
[PART 1.
TERRITORIAL JURISDICTION.
this consideration of it, brought within the general rule that a
sovereign authority cannot be personally impleaded in any court.
“But it is said that the immunity is lost by reason of the ship
having been used for trading purposes. As to this, it must be
maintained either that the ship has been so used as to have been
employed substantially as a mere trading ship and not substantially
for national purposes, or that a use of her in part for trading pur-
poses takes away the immunity, although she is in possession of the
sovereign authority by the hands of commissioned officers, and is
substantially in use for national purposes. Both these propositions
raise the question of how the ship must be considered to have been
employed.
“ As to the first, the ship has been by the sovereign of Belgium,
by the usual means, declared to be in his possession as sovereign,
and to be a public vessel of the state. It seems very difficult to
say that any court can inquire by contentious testimony whether
that declaration is or is not correct. To submit to such an inquiry
before the court is to submit to its jurisdiction. It has been held
that if the ship be declared by the sovereign authority by the usual
means to be a ship of war, that declaration cannot be inquired into.
That was expressly decided under very trying circumstances in the
case of the Exchange. Whether the ship is a public ship used for
national purposes seems to come within the same rule. But if
such an inquiry could properly be instituted it seems clear that in
the present case the ship has been mainly used for the purpose
of carrying the mails, and only subserviently to that main object
for the purposes of trade. The carrying of passengers and merchan-
dise has been subordinated to the duty of carrying the mails. The
ship is not, in fact, brought within the first proposition. As to the
second, it has been frequently stated that an independent sovereign
cannot be personally sued, although he has carried on a private trad-
ing adventure. It has been held that an ambassador cannot be
personally sued, although he has traded; and in both cases because
such a suit would be inconsistent with the independence and equality
of the state which he represents. If the remedy sought by an action
in rem against public property is, as we think it is, an indirect mode
of exercising the authority of the court against the owner of the
property, then the attempt to exercise such an authority is an at-
tempt inconsistent with the independence and equality of the state
which is represented by such owner. The property cannot, upon
the hypothesis, be denied to be public property; the case is within
the terms of the rule; it is within the spirit of the rule; therefore,
we are of opinion that the mere fact of the ship being used subor-
1:1
CHAP. II.
225
WILDENHUS' CASE.
dinately and partially for trading purposes does not take away the
general immunity. For all these reasons, we are unable to agree
with the learned judge, and have come to the conclusion that the
judgment must be reversed.” i
SECTION 10. — MERCHANT VESSELS.
WILDENHUS' CASE.
SUPREME COURT OF THE UNITED STATES, 1886.
.
(120 United States, 1.)
While the Belgian steamer Noordland was moored to a dock in
Jersey City, New Jersey, an affray arose between decks in which
Joseph Wildenhus killed one Fijeus. Wildenhus was arrested by the
Jersey City authorities; whereupon the Belgian consul applied to
the U. S. Circuit Court for New Jersey, for his release upon a writ of
habeas corpus.
The court refused to deliver the prisoner and to reverse that deci.
sion. An appeal is taken to the U. S. Supreme Court.?
Mr. Chief Justice WAITE delivered the opinion of the court.
It is part of the law of civilized nations that when a merchant vessel
of one country enters the ports of another for the purposes of trade,
1 In the case of Briggs v. Light-Boats in the Supreme Court of Massachusetts, 1865
(11 Allen, 157), the plaintiff had built some floating lights for the United States
government, and had delivered them and received the contract price; and the title to
them had vested in the United States, subject to the builder's lien. The plaintiff now
sought to enforce his lien.
Gray, J., says, in the course of his judgment, "wherever the question has been
raised, courts of admiralty have generally declined to take jurisdiction of a libel in
rem against a public ship, without the consent of the government. In every aspect in
which we can look at these suits, in the lights of principle or of authority, we cannot
escape the conclusion that the state courts have no jurisdiction or right to entertain
them."
Mr. Justice Gray's opinion, from which the above extracts are taken, gives a
learned and exhaustive account of the origin and development of the doctrine that
the sovereign may not be sued without his consent (pp. 166–186). – ED.
2 A short statement is substituted for that of the reporter, and part of the opinion
is omitted. - ED.
a
15
226
[PART 1.
TERRITORIAL JURISDICTION.
it subjects itself to the law of the place to which it goes, unless by
treaty or otherwise the two countries have come to some different
understanding or agreement; for, as was said by Chief Justice
Marshall in The Exchange, 7 Cranch, 116, 144, "it would be obvi-
ously inconvenient and dangerous to society, and would subject the
laws to continual infraction, and the Government to degradation, if
such * * * merchants did not owe temporary and local allegiance, and
were not amenable to the jurisdiction of the country." United States
v. Diekelman, 92 U. S. 520; 1 Phillimore's International Law, (3d
Ed.) 483, $ 351; Twiss' Law of Nations in Time of Peace, 229,
$ 159; Creasy's International Law, 167, § 176; Halleck's Interna-
tional Law, (1st Ed.) 171. And the English judges have uniformly
recognized the rights of the courts of the country of which the port
is part to punish crimes committed by one foreigner on another in
a foreign merchant ship. Regina v. Cunningham, Bell. C. C. 72;
S.C. 8 Cox C. C. 104; Regina v, Anderson, 11 Cox C. C. 198, 204;
S. C. L. R. 1 C. C. 161, 165; Regina v. Keyn, 13 Cox C. C. 403,
486, 525, s. c. 2 Ex. Div. 63, 161, 213. As the owner has volunta-
ríly taken his vessel for his own private purposes to a place within the
dominion of a government other than his own, and from which he
seeks protection during his stay, he owes that government such alle-
giance for the time being as is due for the protection to which he
becomes entitled.
From experience, however, it was found long ago that it would be
beneficial to commerce if the local government would abstain from
interfering with the internal discipline of the ship, and the general
regulation of the rights and duties of the officers and crew towards
the vessel or among themselves. And so by comity it came to be
generally understood among civilized nations that all matters of disci-
pline and all things done on board which affected only the vessel or
those belonging to her, and did not involve the peace or dignity of
the country, or the tranquillity of the port, should be left by the local
government to be dealt with by the authorities of the nation to which
the vessel belonged as the laws of that nation or the interests of its
commerce should require. But if crimes are committed on board of a
character to disturb the peace and tranquillity of the country to which
the vessel has been brought, the offenders have never by comity or
usage been entitled to any exemption from the operation of the local
laws for their punishment, if the local tribunals see fit to assert their
authority. Such being the general public law on this subject, treaties
and conventions have been entered into by nations having commercial
intercourse, the purpose of which was to settle and define the rights
CHAP. II.]
WILDENHUS' CASE.
227
and duties of the contracting parties with respect to each other in
these particulars, and thus prevent the inconvenience that might arise
from attempts to exercise conflicting jurisdictions.
The first of these conventions entered into by the United States
after the adoption of the Constitution was with France, on the 14th of
November, 1788, 8 Stat. 106, "for the purpose of defining and estab-
lishing the functions and privileges of their respective consuls and
vice-consuls,” Art. VIII. of which is as follows:
“The consuls or vice-consuls shall exercise police over all the
vessels of their respective nations, and shall have on board the said
vessels all power and jurisdiction in civil matters, in all the disputes
which may there arise; they shall have an entire inspection over the
said vessels, their crew, and the changes and substitutions there to be
made; for which purpose they may go on board the said vessels when-
ever they may judge it necessary. Well understood that the func-
tions hereby allowed shall be confined to the interior of the vessels,
and that they shall not take place in any case which shall have any
interference with the police of the ports where the said vessels shall
be."
It was when this convention was in force tliat the cases of The
Sally and The Newton arose, an account of which is given in
Wheaton's Elements of International Law (3d ed.), 153, and in 1
Phillimore's International Law (3d ed.), 484 and (2d ed.), 407. The
Sally was an American merchant vessel in the port of Marseilles, and
The Newton a vessel of a similar character in the port of Antwerp,
then under the dominion of France. In the case of The Sally, the
mate, in the alleged exercise of discipline over the crew, had inflicted
a severe wound on one of the seamen, and in that of The Newton
one seaman had made an assault on another seaman in the vessel's
boat. In each case the proper consul of the United States claimed
exclusive jurisdiction of the offence, and so did the local authorities
of the port; but the Council of State, a branch of the political de-
partment of the government of France, to which the matter was re-
ferred, pronounced against the local tribunals, "considering that one
of these cases was that of an assault committed in the boat of the
American ship Newton, by one of the crew upon another, and the
other was that of a severe wound inflicted by the mate of the Ameri-
can ship Sally upon one of the seamen for having made use of the
boat without leave." This was clearly because the things done were
not such as to disturb “the peace or tranquillity of the port.”
Wheaton's Elements of International Law (3d ed.), 154. The case of
The Sally was simply a quarrel between certain of the crew while con-
228
TERRITORIAL JURISDICTION.
[PART I.
1
structively on board the vessel, and that of The Newton grew out of a
punishment inflicted by an officer on one of the crew for disobedience
of orders. Both were evidently of a character to affect only the
police of the vessel, and thus within the authority expressly granted
the consul by the treaty.
The treaty [with Belgium, 1881] is part of the supreme law of the
United States, and has the same force and effect in New Jersey that
it is entitled to elsewhere. If it gives the consul of Belgium exclu-
sive jurisdiction over the offence which it is alleged has been com-
mitted within the territory of New Jersey, we see no reason why he
may not enforce his rights under the treaty by writ of habeas corpus
in any proper court of the United States. This being the case, the
only important question left for our determination is whether the
thing which has been done - the disorder that has arisen
on board
this vessel is of a nature to disturb the public peace, or, as some
writers term it, the "public repose ” of the people who look to the
State of New Jersey for their protection. If the thing done - "the
disorder," as it is called in the treaty - is of a character to affect
those on shore or in the port when it becomes known, the fact that.
only those on the ship saw it when it was done is a matter of no
moment. Those who are not on the vessel pay no special attention to
the mere disputes or quarrels of the seamen while on board, whether
they occur under deck or above. Neither do they as a rule care for
anything done on board which relates only to the discipline of the
ship, or to the preservation of order and authority. Not so, however,
with crimes which from their gravity awaken a public interest as
soon as they become known, and especially those of a character which
every civilized nation considers itself bound to provide a severe
punishment for when committed within its own jurisdiction. In
such cases inquiry is certain to be instituted at once to ascertain how
or why the thing was done, and the popular excitement rises or falls
as the news spreads and the facts become known. It is not alone the
publicity of the act, or the noise and clamor which attends it, that
fixes the nature to the crime, but the act itself. If that is of a char-
acter to awaken public interest when it becomes known, it is a "dis-
order” the nature of which is to affect the community at large, and
consequently to invoke the power of the local government whose peo-
1 A murder was committed by one Frenchman upon another, on board a French
merchant vessel, at anchor in a Mexican port; held that it is not necessarily a disturb-
ance of the peace of the port, and therefore the Mexican courts would not assume juris-
diction of the case, L'Anemone, Supreme Ct. of Mexico, 1875 (Journal de Droit.
International Privé, 1876, p. 413).- Ed.
CHAP. II.]
WILD'ENAUS? CASE:
229
ple have been disturbed by what was done. The very nature of such
an act is to disturb the quiet of a peaceful community, and to create,
in the language of the treaty, a "disorder” which will "disturb tran-
quillity and public order on shore or in the port.” The principle
which governs the whole matter is this: Disorders which disturb only
the peace of the ship or those on board are to be dealt with exclu-
sively by the sovereignty of the home of the ship, but those which
disturb the public peace may be suppressed, and, if need be, the
offenders punished, by the proper authorities of the local jurisdiction.
It may not be easy at all times to determine to which of the two
jurisdictions a particular act of disorder belongs. Much will un-
doubtedly depend on the attending circumstances of the particular
case, but all must concede that felonious homicide is a subject for the
local jurisdiction, and that if the proper authorities are proceeding
with the case in a regular way, the consul has no right to interfere to
prevent it. That, according to the petition for the habeas corpus, is
this case.
This is fully in accord with the practice in France, where the
governinent has been quite as liberal towards foreign nations in this
particular as any other, and where, as we have seen in the cases of
The Sally and The Newton, by a decree of the Council of State,
representing the political department of the government, the French
courts were prevented from exercising jurisdiction. But afterwards,
in 1859, in the case of Jally, the mate of an American merchantman
wlio had killed one of the crew and severely wounded another on
board the ship in the port of Havre, the Court of Cassation, the
highest judicial tribunal of France, upon full consideration bield,
while the Convention of 1853 was in force, that the French courts
had rightful jurisdiction, for reasons which sufficiently appear in the
following extract from its judgment:
"Considering that it is a principle of the law of nations that every
state has sovereign jurisdiction throughout its territory;
“Considering that by the terms of Article 3 of the Code Napoleon
the laws of police and safety bind all those who inhabit French terri-
tory, and that consequently foreigners, even transeuntes, find them-
selves subject to those laws;
“Considering that merchant vessels entering the port of a nation
other than that to which they belong cannot be withdrawn from the
territorial jurisdiction, in any case in which the interest of the state
of which that port forms part finds itself concerned, without danger
to good order and to the dignity of the government;
" Considering that every state is interested in the repression of
1
1 Usually cited as the case of the Tempest.
Ep.
1
230
[PART I.
TERRITORIAL JURISDICTION.
crimes and offences that may be committed in the ports of its terri-
tory, not only by the men of the ship's company of a foreign mer-
chant vessel towards men not forming part of that company, but even
by men of the ship's company among themselves, whenever the act is
of a nature to compromise the tranquillity of the port, or the inter-
vention of the local authority is invoked, or the act constitutes a
crime by common law," (droit commun, the law common to all civil-
ized nations), “the gravity of which does not permit any nation to
leave it unpunished, without impugning its rights of jurisdictional
and territorial sovereignty, because that crime is in itself the most
manifest as well as the most flagrant violation of the laws which it is
the duty of every nation to cause to be respected in all parts of its
territory." 1 Ortolan Diplomatie de la Mer (4th ed.), pp. 455, 456;
Sirey (N. S.), 1859, p. 189.
The judgment of the Circuit Court is affirmed.
THE “RELIANCE."
U. S. CIRCUIT COURT FOR So. Dist. OF N. Y., 1848.
1 Abbott's Adm. Rep., 317.)
This was a libel in rem filed by the owner, master and crew of the
bark Reliance against One Hundred and Ninety-four shawls salved
by the libellants from the wreck of the Lady Kenneway to recover
salvage compensation.
The Reliance was a British vessel which left Liverpool bound to
New York. Near the coast of England, she fell in with the Lady
Kenneway and boarded her, finding no person on board.
The Lady Kenneway was a British East Indiaman, owned in
London, on her way to London from Bombay. The master of the
Reliance ordered several cases containing shawls to be taken from
her, and then abandoned her. The Reliance pursued her way to
New York, where she arrived December 1, 1847.
A libel was filed against the chief part of the articles brought
from the Lady Kenneway. The British consul, by leave of the court,
intervened in behalf of the unknown British owners, praying the
court to order restitution for their benefit of the property attached,
after allowing the libellants a reasonable salvage, if, in the judg-
ment of the court, “they proved a case of derelict, and their conse-
quent right to salvage.”
CHAP. II. ]
THE
231
RELIANCE.”
The individual claimants, as well as the consul, set up defenses
against the award of salvage, charging waste, damage, and destruc-
tion of the apparel and stores of the vessel.
It is insisted that the court should decline jurisdiction in the
case, because the Lady Kenneway was an English vessel, then on a
homeward voyage, with her cargo for an English market, and the
Reliance at the time, was an English vessel, with a British crew on
board, who had signed British articles and that accordingly both
vessels and libellants were bound to return to terminate the voyage
at a British port..
BETTS, J.-"*** As a general principle, the citizens or subjects
of the same nation have no right to invoke a foreign tribunal to
adjudicate between them, as to matters of tort or contract solely
affecting themselves. It rests in the discretion of the court, whose
authority is invoked, to determine whether it will take cognizance
of such matters or not. * * *
“As maritime courts proceed upon a common rule of right and
compensation in salvage cases, the question of jurisdiction in that
class of actions will seldom be raised or regarded before them.
“ The courts will take cognizance of those cases as matters of
course, if either party is territorially within the jurisdiction of the
court; and the property being brought within their jurisdiction,
although the salvors and claimants may be citizens or subjects of
different nations, the court will unhesitatingly dispose of the sub-
ject, if satisfied that the whole right is before it,--salvage being
essentially a question of the jus gentiun. * * *
"I find no authority of weight which imposes on the courts of our
country the necessity of determining controversies between for-
eigners resident abroad, either in common-law actions, transitory in
their nature, or maritime proceedings when the remedy is in rem.
“If the doctrine were peremptory, imparting to suitors the right
to such aid, and imposing on courts the obligation to afford it,
actions for supplies and materials, on charter-parties and bills of
lading, or by mechanics for labor, would be comprehended within
the class, equally with suits for wages on bottomry bonds or for
salvage compensation.
“I am satisfied the law is not so. In my judgment it would be
lamentable if courts were compelled to defer the business of the
citizens of the country to bestow their time in litigation between
parties owing no allegiance to its laws, and contributing in no way
to its support. Should it transpire, in the progress of the litigation,
i Statement of the case is shortened. - ED.
232
[PART 1.
TERRITORIAL JURISDICTION.
that the law of the domicile of the parties must be ascertained in
order to adjudge rightly on their claims, or that witnesses must be
examined there to fix the facts in controversy, the court might be
compelled to suspend its movement and wait until these cardinal
particulars could be supplied from abroad. Every tribunal expe-
riences the inconvenience and unsatisfactoriness of so settling con-
troversies between those even who can have no other means of re-
dress, and will recognize the value of the principle which enables
them, in regard to foreigners, to remit their controversies to their
home tribunals, where the law is known, and the facts can be inore
surely determined. This court has, in repeated instances, acted
upon this acceptation of the law; and believing it to be the sound
and safe rule, I shall adhere to it in all cases authorizing that exer-
cise of diseretion.
“The question to be considered is, whether, in this case, the rights
of parties would be best promoted by retaining the case and dispos-
ing of the subject here, or by remitting it to the home courts of the
salvors and claimants.
“The answer advances many grave imputations against the con-
duct of the master and seamen on board the wreck and after the
property came into their possession, and these charges are not with-
out color of proof to support them. Their case does not; accord-
ingly, come before the court with the most persuasive claims to its
interposition and favor. When salvage services are eminently mer-
itorious, and the only inquiry to be made is the rate of award to be
allotted, Admiralty Courts would be solicitous to give every practi-
cable despatch to suits by the salvors, and relieve them both from
delay and expense in obtaining their just reward. It would scarcely
occur that any court would withhold its áid from such suitors. It
is quite different when the foreign owner of the property charges
his fellow-subject with embezzlement and spoliation, and other
wanton misconduct in respect to it, and prays the privilege to con-
test his claim to compensation before the authorities of their com.
mon country. * **
“ The termination of the voyage of the Reliance was in England,
where it is to be presumed she would arrive within a short period
after leaving this port, and it is most fitting that the question of the
obligations and privileges of her master and crew, in respect to serv-
ices rendered a British vessel, a wreck or in distress on the English
coast, should be determined in the courts of that nation. *
“As the libellants may not réclaim the property attached in their
behalf, the decree will make provision enabling the claimants who
have intervened in their own right, and the British Consul in behalf
*
CHAP. II.]
233
THIS
RELIANCE.''
19
of unknown owners, to take the goods out of court and ship them to
their port of destination." 1
1 In the case of Aertsen v. Ship Aurora (1800), Bee's Adm. Reports, 161, the
suit was brought for seamen's wages and to obtain a discharge on account of the
captain's ill treatment. In the course of the judgment the judge said : “From
this evidence I do not find sufficient evidence to entitle these three men to their
discharge (from the completion of the voyage).
(1) Because no unlawful weapon was used.
(2) Sufficient provocation for the captain's acts.
" This is the case of a neutral vessel, the crew of which are bound by their arti,
cles to return to Hamburgh, before they are entitled to receive their wages, and the
12th of those articles stipulates that everything not specified therein shall be regu-
lated according to the marine law of Hamburgh for regulating the conduct of
officers and seamen aboard vessels belonging to that place."
The suit was dismissed with costs.
In Willendson' ý. The Försöket, 1 Peter's Adm., 197, the plaintiff, a sailor' on a
Danisli ship, cited his captain on a claim for wages. The judge, in the course of
his opinion, says that his general rule has been not to take cognizance of disputes
between masters and crews of foreign ships.
'I have,” said he, "*
"** * in peculiar cases *** compelled the payment of
wages * * * assisted in recovering deserters * ** (and in) reducing to obedience
perverse and rebellious mariners.
“In the case now before me I see no cause to warrant my taking cognizance.
It is the duty of the master to return the seaman to his own country. This he
offers to do. *** He must give the sailor a certificate of forgiveness of past
offenses, to avail him in his own country. *** If*** there shall appear no
deception in the present offer (to carry the seaman home) I shall not further inter-
fere, but dismiss the suit."
Mr. Hamilton Fish, Secretary of State, in a dispatch: to General Schenck, United
States Minister in London (November 8, 1873), said : “ Referring to the case of
Albert Allen Gardner, master of the American ship Anna Camp, tried in the
County Court at Liverpool, in May last, copies of certain papers relating to which
were forwarded to you by General Badeau, I desire to call your attention to the
claim of jurisdiction put forth by the local common-law courts of Great Britain in
this and other similar cases.
“It seems to be claimed by the courts in question that their jurisdiction extends
to the hearing and determining of causes arising upon complaints between masters
and mariners of vessels of the United States, not only where the occurrences upon
which the complaint may be founded took place within British ports or waters,
but also when the offense which is made the ground of action was committed on
board the vessel on the high seas.
The exercise of this jurisdiction by the common-law courts at Liverpool has
already been the cause of much annoyance and in some instances serious incon-
venience to masters and owners of American vessels, and if persisted in may affect
injuriously the interests of American shipping.'
Mr. Fish proceeds to qnote from the decision of Judge BETTS, in the case of the
Reliance, and to commend the principles there set forth as the only proper rule to
be followed.
Compare the following two decisions in cases of merchant ships for alleged in-
fringements of patent rights : Caldwell v. Van Vlissengen, 1851, 9 Hare, 415, in which
the vessel was restrained from using the patent, and Broren v. Duchesnė, 1857, 19
How. 183, in which the court refused its aid to the American patentee. –
-ED.
77
70
234
(PART I.
TERRITORIAL JURISDICTION.
ELLIS V. MITCHELL.
SUPREME COURT OF HONG KONG, 1874.
(U.S. Foreign Relations, 1875, 600.)
Judgment, SMALL, C. J.:-
“Our decision in this appeal having been for some time come to,
we handed to the registrar our concluded judgment and by our direc-
tion he gave it out on the 7th of November last. That decision was
in the following terms: 'We have fully considered all the facts in
this case and the very able arguments which, on the part of the
appellant, Mr. Kingsmill submitted to us. The respondent did not
appear. We are of opinion that the appellant has failed to show
that the decision in the summary branch of this court is wrong. It
is our duty, therefore, to dismiss this appeal.' The respondent has
incurred no costs; we say nothing as to costs. Some questions as
to the duties and jurisdiction of consuls have arisen in this case to
which we should wish to advert, but as these questions arise out of
this case, rather than lead up to our decision, we purpose at a more
convenient opportunity to refer to them. It seems to us that a some-
what exaggerated notion as to the duties and jurisdiction of consuls
in this colony is prevalent.
“ The grounds and reasons for the decision in this case were very
carefully considered and conferred on between us. We were agreed
in the conclusion that the appeal must be dismissed. In order that
the parties might not be kept longer in suspense, we directed the
decision which I have just read to be given out by the registrar on the
7th day of November, as I have already said. There seems to have
been a grave misapprehension that this case came before Mr. Justice
Snowden as an appeal from the decision of the consul of the United
States.
" It was not so. From the first it was treated by the learned judge
as being untouched by decision, and, indeed, as a matter entirely
ultrci vires the consul of the United States. True it is that a dis-
charge of the plaintiff from the ship, and an account taken in the
presence of the consul of wages earned, were produced and relied on
by the defendant, the master of the ship, as an answer to the plaint-
iff's claim; but it was held in the summary branch of this court,
upon the evidence before it, that in no way was the consul acting or
intervening judicially, either as to the discharge, or as to the account.
No claim for unlawful dismissal had been raised before the consul.
CHAP. II.
ELLIS V. MITCHELL.
235
It might have been properly raised before the proper judicial tribunal
of and within the United States; but no evidence was adduced to
show that that authority was vested by the law of the United States
in the consul here. Even if it had been so vested by any such law of
the Union, it required the force of a treaty, and an act of Parliament,
or local ordinance, to enable the consulto exercise any extra-territorial
judicial power within British territory. Although some instructions
to the consuls were produced to the court, no act of Congress was
produced, nor was there any evidence that there was any such act,
or common-law power in a consul. According to Chancellor Kent's
Commentaries, vol. I., p. 50, et seq., consuls are commercial agents.
* * * In some places they have been invested with judicial powers
over disputes between their own merchants in foreign ports ; but in
the commercial treaties made by Great Britain there is rarely any
stipulation for clothing them with judicial authority, except in
treaties with the Barbary powers. And in England it has been held
that a consul is not strictly a judicial officer, and they have there no
judicial power. He cites Waldron v. Combe, 3 Taunton, 162. The
words of the Chief Justice MANSFIELD there are, “The vice consul is
no judicial officer. At page 51 the very learned chancellor proceeds:
'No government can invest its consuls with judicial power over their
own subjects in a foreign country without the consent of the foreign
government, founded on treaty.' At page 52, he says: "It is likewise
made their duty (i. e. of consuls), where the laws of the country per-
mit, to administer on the personal estates of American citizens dying
within their consulates, etc. And in note (6) he says, American
consuls cannot take cognizance of the offenses of seamen in foreign
ports, nor exempt the master from his own responsibility. He cites
Ware's Reports (American), 367. And to conclude all, he says at page
53: The consular convention between France and this country (i. e.
the United States) in 1778 allowed consuls to exercise police over all
vessels of their respective nations within the interior of the vessels,
and to exercise a species of civil jurisdiction by determining disputes
concerning wages, and between the master and crews of vessels
belonging to their own country. The jurisdiction claimed under the
consular convention with France was merely voluntary, and although
exclusive of any coercive authority, and we (i. e. the United States)
have no treaty at present which concedes even such consular func-
tions. We quote the 9th edition of Kent's Commentaries (1858).
We have before us the valuable work of Judge Bouvier, the law-
dictionary, the 4th edition of 1872, and in it we find nothing to vary
all that Chancellor Kent asserts. Parsons' Law of Shipping, pub-
236
[PART I.
TERRITORIAL JURISDICTION.
lished in 1869, is to the same effect. One quotation from Parsons,
vol. II., p. 56.
“ He there says, 'a discharge (i. e. of a seaman,) when made in a
foreign port, is required to be made before the consul; but the pay-
ment of wages already due is not. And this to such an extent that
the learned author adds, and the consul has no right to charge a com-
mission for witnessing the settlement,' in other words, he has nothing
to do withithe settlement of the wages due; a fortiori he has no author-
ity in reference to damages for breach of contract, or otherwise, be-
tween the master and the seaman. Now, if the consul has no such au-
thority, the authority must be somewhere, and it cannot be con-
tended, upon any grounds of which we are aware, that this court has
not the fullest authority over all such disputes. It is quite clear that
the legislature of this country can, by statute or ordinance, give extra-
territorial powers to consuls, but as all such powers are in derogation
of the royal prerogative all such laws must be construed strictly. It
appears to us that ordinance No. 4, of 1850, has no bearing on the ques-
tion before us. It relates to cases of desertion from ships, and to
nothing else. Ordinance No. 6, of 1862, is prohibitory. It says that
no British seaman sball be discharged elsewhere than at the harbor-
master's office, and that every seaman discharged from a foreign
ship, represented by a consul here, 'shall, within twenty-four hours
of being discharged at the office of his consul, or vice-consul, pro-
duce at the harbor-master's office a certificate of his discharge.?
Now, this is not an enabling statute, and it gives no power
to any consul which he had not before. All it does is to assume
that every discharge of a foreign seaman will have been given at the
office of the consulate of his country. But for legislation the dis-
charge of a seaman is a matter between master and seaman only.
No treaty has been produced, no act of Parliament or ordinance other
than those above cited, has been brought to the notice of this court.
In the absence of any such we are driven back to the international
law, as laid down by Chancellor Kent, page 51, that the consul of
the United States is not a judicial officer, “that they have no judicial
power' and, page 53, that there is no treaty with the United States
which authorizes consuls to exercise a species of jurisdiction by de.
termining disputes concerning wages between masters and crews
belonging to their own country in this colony. We conclude, there-
fore, that the consul of the United States has no judicial powers or
authority whatever in this colony as to wages or damages for wrongs,
between United States masters and seamen, which the judicial
authorities here can recognize, but that this court must decide such
questions when brought before it.
$
CHAP. II.]
237
ELLIS V. MITCHELL.
“What we have said as to the consul of the United States applies
to consuls from all other foreign states. No such claim is, we
believe, set up in any other part of the British dominions. In China,
every consul of every foreign power has judicial authority over its
own subjects; but this extra-territorial jurisdiction is the result of
express treaty, and is conferred on them by the enactments of the
legislative authority of each foreign state. The exaggerated notion
as to consular authority here has probably arisen from the powers
conceded to them in China, but which are not conceded here.
“In a colony so distant as Hong-Kong is from London, convenience
has rendered direct communication between the colonial government
and consuls here on many subjects properly diplomatic, convenient
for all parties. This has probably tended to induce an overestimate
of the position of consuls here in reference to judicial authority. We
feel great respect for the consuls in this colony, both officially and
personally, but we must see that the authority of this court is not
curtailed beyond what the law permits. If circumstances render it
proper or convenient that judicial authority should in this colony
vest in consuls, it must be obtained by treaty and legislation. This
court has no power to concede it.” 1
1 “As a matter of law, foreign consuls have no jurisdiction within the territory of
the United States, except by force of treaty stipulations. See Wheat. Int. Law, 217.
The judicial power of a consul depends upon the treaties between the nations con-
cerned and the laws of the nation the consul represents. Dainese v. Hale, 91 U. S. 13.
See the Elwine Kreplin, 9 Blatchf. 438. Consular jurisdiction depends on the general
law of nations subsisting treaties between the two governments affected by it, and
upon the obligatory force and activity of the rule of reciprocity. 2 Op. Atty.-Gen.
378.
We conclude, therefore, that neither under international law, nor under the statute
law of the United States, has a consular officer of a foreign government a right to sit
as judge or arbitrator within our territory, and render decrees or orders cting
personal liberty, which orders or decrees the courts of the United States are authorized
or required to enforce, unless the consent of the United States to such jurisdiction
has been given either by express statute or treaty stipulation. Pardee, J., in Re
Aubrey, 1885, 26 Fed. 848, 851.
For the jurisdiction exercised by consuls in semi-civilized and non-christian
countries, see Dainese v. U. S., 1879, 15 Ct. Cl. 64 (an elaborate discussion of the
question); and the following valuable opinions of C. Cushing : 7 Op. Atty.-Gen. 18,
342. See also U.S. Rev. St. $8.4083-4086; 4087–4089. — ED.
238
(PART I.
TERRITORIAL JURISDICTION.
IN RE ROSS.
UNITED STATES SUPREME COURT, 1890.
(140 United States, 453.)
One John M. Ross served in 1880 as seaman on board the American
ship Bullion, in the waters of Japan. While the vessel lay at anchor
in the harbor of Yokohama, he assaulted Robert Kelley, second mate
of the Bullion, with a knife, inflicting in his neck a mortal wound of
which he died in a few minutes, on the deck of the ship. Ross was
arrested by direction of the master of the vessel, placed in
irons, taken ashore, and confined in jail at Yokohama. The master
filed a complaint with the American Consul General of Yokohama,
charging Ross with murder, and he was tried and convicted thereof
in the American Consular Court of Japan. His sentence was com-
muted by the President of the United States to life imprisonment in
the Penitentiary at Albany. In 1890 he applied to the United States
Circuit Court for the Northern District of New York for a writ of
habeas corpus for his discharge, which was duly issued. On hearing,
the court denied the motion of the prisoner for his discharge and
remanded him to the penitentiary. From that order, an appeal was
taken to the Supreme Court.1
Mr. George W. Kirchwey, for appellant.
Mr. Assistant Attorney-General Parker, for appellee.
Mr. Justice FIELD delivered the opinion of the court.2
The Circuit Court did not refuse to discharge the petitioner upon
any independent conclusion as to the validity of the legislation of
Congress establishing the consular tribunal in Japan, and the trial
of Americans for offences committed within the territory of that coun-
try, without the indictment of a grand jury, and without a trial by a
petit jury, but placed its decision upon the long and uniform acquies-
cence by the executive, administrative, and legislative departments of
the government in the validity of the legislation. Nor did the Cir-
cuit Court consider whether the status of the petitioner as a citizen
of the United States, or as an American within the meaning of the
treaty with Japan, could be questioned, while he was a seaman of an
American ship, under the protection of the American flag, but simply
stated the view taken on that subject by the minister to Japan, the
1 Shortened statement substituted for that of the original report. — ED.
2 Part of the judgment is omitted. — ED.
.
CHAP. II.]
239
IN RE ROSS.
State Department, and the President. Said the court: “During the
thirty years since the statutes conferring the judicial powers on min-
isters and consuls, which have been referred to, were enacted, that
jurisdiction has been freely exercised. Citizens of the United States
have been tried for serious offences before these officers, without pre-
liminary indictment or a common-law jury, and convicted and pun-
ished. These trials have been authorized by the regulations, orders,
and decrees of ministers, and it must be presumed that the regula-
tions, orders, and decrees of ministers prescribing the mode of trial
have been transmitted to the Secretary of the State, and by him been
laid before Congress for revision, as required by law. Unless the
petitioner was not properly subject to this jurisdiction because he was
not a citizen of the United States, his trial and sentence were in all
respects modal, as well as substantial, regular, and valid under the
laws of Congress, according to the construction placed upon these
statutes by the acquiescence of the executive, administrative, and leg-
islative departments of the government for this long period of time.”
Under these circumstances the Circuit Court was of opinion that it
ought not to adjudge that the sentence imposed upon the petitioner
was utterly unwarranted and void, when the case was one in which
his rights could be adequately protected by this court, and when a
decision by the Circuit Court setting him at liberty, although it might
be reversed, would be practically irrevocable.
The Circuit Court might have found an additional ground for not
calling in question the legislation of Congress, in the uniform prac-
tice of civilized governments for centuries to provide consular tribu-
nals in other than Christian countries, or to invest their consuls with
judicial authority, which is the same thing, for the trial of their own
subjects or citizens for offences committed in those countries, as well
as for the settlement of civil disputes between them; and in the uni-
form recognition, down to the time of the formation of our govern-
ment, of the fact that the establishment of such tribunals was among
the most important subjects for treaty stipulations. This recognition
of their importance has continued ever since, though the powers of
those tribunals are now more carefully defined than formerly. Dainese
v. Hale, 91 U. S. 13.
The practice of European governments to send officers to reside in
foreign countries, authorized to exercise a limited jurisdiction over
vessels and seamen of their country, to watch the interests of their
countrymen and to assist in adjusting their disputes and protecting
their commerce, goes back to a very early period, even preceding what
are termed the Middle Ages. During those ages these commercial
magistrates, generally designated as consuls, possessed to some extent
240
[PART 1.
TERRITORIAL JURISDICTION.
a representative character, sometimes discharging judicial and diplo-
matic functions. In other than Christian countries they were, by
treaty stipulations, usually clothed with authority to hear complaints
against their countrymen and to sit in judgment upon them when
charged with public offences. After the rise of Islamism, and the
spread of its followers over eastern Asia and other countries border-
ing on the Mediterranean, the exercise of this judicial aạthority be-
.came a matter of great concern. The intense hostility of the people
of Moslem faith to all other sects, and particularly to Christians,
affected all their intercourse, and all proceedings had in their tribn-
nals. Even the rules of evidence adopted by them placed those of
different faith on unequal grounds in any controversy with them. For
this cause, and by reason of the barbarous and cruel punishments in-
flicted in those countries, and the frequent use of torture to enforce
confession from parties accused, it was a matter of deep interest to
Christian governments to withdraw the trial of their subjects, when
charged with the commission of a public offence, from the arbitrary
and despotic action of the local officials. Treaties conferring such
jurisdiction upon these consuls were essential to the peaceful resi-
dence of Christians within those countries and the successful prosecu-
tion of commerce with their people.
The treaty-making power vested in our government extends to all
proper subjects of negotiation with foreign governments.
equally with any of the former or present governments of Europe,
make treaties providing for the exercise of judicial authority in other
countries by its officers appointed to reside therein.
We do not understand that any question is made by counsel as to
its power in this respect. His objection is to the legislation by which
such treaties are carried out, contending that, so far as crimes of a
felonious character are concerned, the same protection and guarantee
against an undue accusation or an unfair trial, secured by the Consti-
tution to citizens of the United States at home, should be enjoyed by
thein abroad. In none of the laws which have been passed by Con-
gress to give effect to treaties of the kind has there been any attempt
to require indictment by a grand jury before one can be called upon
to answer for a public offence of that grade committed in those coun-
tries, or to secure a jury on the trial of the offence. Yet the laws on
that subject have been passed without objection to their constitution-
ality. Indeed, objection on that ground was never raised in any
quarter, so far as we are informed, until a recent period.
It is now, however, earnestly pressed by.counsel for the petitioner;
but we do not think it tenable. By the Constitution a government is
ordained and established "for the United States of America," and not
It can,
CHAP. II.]
241
IN RE ROSS.
for countries outside of their limits. The guarantees it affords against
accusation of capital or infamous crimes, except by indictment or pre-
sentment by a grand jury, and for an impartial trial by a jury when
thus accused, apply only to citizens and others within the United
States, or who are brought there for trial for alleged offences com-
mitted elsewhere, and not to residents or temporary sojourners
abroad. Cook v. United States, 138 U, S. 157, 181. The Constitu-
tion can have no operation in another country. When, therefore, the
representatives or officers of our government are permitted to exercise
authority of any kind in another country, it must be on such condi-
tions as the two countries may agree, the laws of neither one being
obligatory upon the other. The deck of a private American vessel,
it is true, is considered for many purposes constructively as territory
of the United States, yet persons on board of such vessels, whether
officers, sailors, or passengers, cannot invoke the protection of the
provisions referred to until brought within the actual territorial boun-
daries of the United States. And, besides, their enforcement abroad
in numerous places, where it would be highly important to have con-
suls invested with judicial authority, would be impracticable from the
impossibility of obtaining a competent grand or petit jury. The re-
quirement of such a body to accuse and to try an offender would, in
a majority of cases, cause an abandonment of all prosecution. The
framers of the Constitution, who were fully aware of the necessity of
having judicial authority exercised by our consuls in non-Christian
countries, if commercial intercourse was to be had with their people,
never could have supposed that all the guarantees in the administra-
tion of the law upon criminals at home were to be transferred to such
consular establishments, and applied before an American who had
coinmitted a felony there could be accused and tried. They must have
known that such a requirement would defeat the main purpose of in-
vesting the consul with judicial authority. While, therefore, in one
aspect the American accused of crime committed in those countries is
deprived of the guarantees of the Constitution against unjust accusa-
tion and a partial trial, yet in another aspect he is the gainer, in being
withdrawn from the procedure of their tribunals, often arbitrary and
oppressive, and sometimes accompanied with extreme cruelty and tor-
ture. Letter of Mr. Cushing to Mr. Calhoun of Sept. 29, 1844, accom-
panying President's message communicating abstract of treaty with
China, Senate Doc. 58, 28th Cong. 2d Sess.; Letter on Judicial Ex-
territorial Rights by Secretary Frelinghuysen to Chairman of Senate
Committee on Foreign Relations of April 29, 1882, Senate Doc. 89,
47th Cong. 1st Sess.; Phillimore on Int. Law, Vol. 2, part 7; Halleck
on Int. Law, c. 41.
16
212
[PART 1.
TERRITORIAL JURISDICTION.
22
We turn now to the treaties between Japan and the United States.
The treaty of June 17, 1857, executed by the consul general of the
United States and the governors of Simoda, is the one which first con-
ceded to the American consul in Japan authority to try Americans
con mitting offences in that country. Article IV. of that treaty is as
follows:
"ART. IV. Americans committing offences in Japan shall be tried
by the American consul general or consul, and shall be punished
according to American laws. Japanese committing offences against
Americans shall be tried by the Japanese authorities and punished
according to Japanese laws." 11 Stat. 723.
Our government has always treated Article IV. of the treaty of 1857
as continuing in force, and it is published as such in the United States
Consular Regulations, issued in 1888. Appendix No. 1, p. 313. Its
official interpretation is found in Article 71 of those regulations,
which declares that “consuls have exclusive jurisdiction over crimes
and offences committed by citizens of the United States in Japan.”
Mr. Bingham, our minister to that country for several years after the
treaty of 1858, always assumed the incorporation into that treaty of
all the provisions of the treaty of 1857, or that they were saved by it.
When the prisoner reached San Francisco, on his way from Japan to
Albany, he applied to the Circuit Court of the United States for a
writ of habeas corpus, and cited the sixth article of the treaty of 1858,
insisting that it only provided for the trial of Americans by American
Consular Courts in Japan for offences committed against Japanese,
and therefore he could not be held to answer for the murder of the
second officer of the American ship Bullion, when in Japanese waters,
because he was not a Japanese subject. In a communication made
under date of June 8, 1881, by the minister to the Secretary of State,
reference is made to this position, and the following language is used:
“Nothing, in my opinion, could more strongly testify to the utter
weakness of the claim made for Ross against the government than
this attempt to limit the jurisdiction of our consuls in Japan over
Ainericans, guilty of crimes by them committed within this empire,
to such crimes only as they should commit upon the persons of Jap-
anese subjects. According to this logic, Americans may in Japan
murder each other and the citizens or subjects of all lands save the
subjects of Japan with impunity-as it is admitted by this govern-
ment that it cannot try an American for any offence whatever - and
it must also be conceded that the tribunals of no other government
than our own can try Americans for crimes by them committed within
this empire. In giving my reasons to the department for sustaining
the jurisdiction of the United States in this case, and for approving
CHẠP. II.]
243
IN RE ROSS.
as I did the conviction of Ross, in which the consul general and the
four associates who sat with him had concurred, I cited Article IV.
of our convention of 1857 with Japan, to wit: “That Americans com-
mitting offences in Japan shall be tried by the American consul gen-
eral or consul, and shall be punished according to American law.
This provision of the convention of 1857 and all other provisions
thereof were saved and incorporated in our treaty of 1858 with Japan,
Article XII. [quoted above). You will observe that Mr. Townsend
Harris was the consul general of the United States who negotiated
both of these treaties with Japan, and that the treaty of 1858 was
ratified April 12, 1860, and that thereafter, to wit, June 22, 1860,
Congress passed the act to carry into effect this treaty with Japan,
and provided that the minister and consuls of the United States in
Japan be fully empowered to arraign and try in the manner (in said
statute provided) all citizens of the United States charged with
offences against law committed’ (by them in Japan); [sec. 4084,
Rev. Stat.]; and also by section 4086 provided that the jurisdiction
in both civil and criminal matters in Japan shall in all cases be
exercised and enforced in conformity with the laws of the United
States, which so far as necessary to execute such treaty are extended
over all citizens of the United States therein, and over all others to
the extent the terms of the treaty justify or require.' Here was the
construction above stated by me asserted by the same Senate which
ratified the treaty, and by the same President who approved both the
treaty and the act of Congress. The President and the department
have always construed the treaty of 1858 as carrying with it and in-
corporating therein the fourth article and all other provisions of the
convention of 1857."
The legislation of Congress to carry into effect the treaty with
Japan is found in the Revised Statutes, in sections most of which
apply equally to treaties with China, Siam, Egypt, and Madagascar
(secs. 4083-4091). Confining ourselves to the treaty with Japan
only, we find that the legislation secures a regular and fair trial to
Americans committing offences within that empire.
It enacts that the minister and consuls of the United States, ap-
pointed to reside there, shall, in addition to other powers and duties
imposed upon them respectively, be invested with the judicial author-
ity therein described, which shall appertain to their respective offices
and be a part of the duties belonging thereto, so far as the same is
allowed by treaty; and empowers them to arraign and try, in the
manner therein provided, all citizens of the United States chargeil
with offences against law committed in that country, and to sentence
such offenders as therein provided, and to issue all suitable and neces-
:244
[PART I.
TERRITORIAL JURISDICTION.
sary process to carry their authority into execution. It declares that
their jurisdiction in both criminal and civil matters shall in all cases
be exercised and enforced in conformity with the laws of the United
States, which, so far as necessary to execute the treaty and suitable
to carry it into effect, are extended over all citizens of the United.
States in Japan, and over all others there to the extent that the terms ·
of the treaty justify or require. It also provides that where such
laws are not adapted to the object, or are deficient in the provisions
necessary to furnish suitable remedies, the common law and the law
of equity and admiralty shall be extended in like manner over such
citizens and others; and that if neither the common law, nor the law
of equity, or admiralty, nor the statutes of the United States, furnish.
appropriate and sufficient remedies, the minister shall, by decrees and
regulations, which shall have the force of law, supply such defects
and deficiencies. Each of the consuls is authorized, upon facts within
his own knowledge, or which he has good reason to believe true, or
upon complaint made or information filed in writing and authenti-
cated in such way as shall be prescribed by the minister, to issue his
warrant for the arrest of any citizen of the United States charged
with committing in the country an offence against law; and to arraign
nd try any such offender; and to sentence him to punishment in the
manner therein prescribed.
The legislation also declares that insurrection or rebellion against
the government, with intent to subvert the same, and murder, shall
be punishable with death, but that no person shall be convicted
thereof unless the consul and his associates in the trial all concur
in the opinion, and the minister approves of the conviction. It also
provides that whenever in any case the consul is of opinion that, by
reason of the legal questions which may arise therein, assistance will
be useful to him, or that a severer punishment than previously speci-
fied in certain cases will be required, he shall summon to sit with
him on the trial one or more citizens of the United States, not ex-
ceeding four, and in capital cases not less than four, who shall be
taken by lot from a list which has been previously submitted to and
approved by the minister, and shall be persons of good repute and
competent for the duty.
The jurisdiction of the consular tribunal, as is thus seen, is to be
exercised and enforced in accordance with the laws of the United
States; and of course in pursuance of them the accused will have an
opportunity of examining the complaint against him, or will be pre-
sented with a copy stating the offence he has committed, will be
entitled to be confronted with the witnesses against him and to cross-
examine them, and to have the benefit of coupsel; and, indeed, will
CHAP, II.]
IN RE ROSS.
245
have the benefit of all the provisions necessary to secure a fair trial
before the consul and his associates. The only complaint of this leg-
islation made by counsel is that, in directing the trial to be had be-
fore the consul and associates summoned to sit with him, it does not
require a previous presentment or indictment, by a grand jury, and
does not give to the accused a petit jury. The want of such clauses,
as affecting the validity of the legislation, we have already consid-
ered. It is not pretended that the prisoner did not have, in other
respects, a fair trial in the Consular Court.
It is further objected to the proceedings in the consular court that
the offence with which the petitioner was charged, having been coin-
mitted on board of a vessel of the United States in Japanese waters,
was not triable before the Consular Court; and that the petitioner,
being a subject of Great Britain, was not within the jurisdiction of
that court. These objections we will now proceed to consider.
The argument presented in support of the first of these positions is
briefly this. Congress has provided for the punishment of murder
committed upon the high seas, or any arm or bay of the sea within
the admiralty and maritime jurisdiction of the United States, and out
of the jurisdiction of any particular State; and has provided that the
trial of all offences committed upon the high seas, out of the juris.
diction of any particular State, shall be in the district where the
offender is found or into which he is first brought. The term “high
» includes waters on the sea coast without the boundaries of low-
water mark; and the waters of the port of Yokohama constitute,
within the meaning of the statute, high seas. Therefore it is con-
tended that, although the ship Bullion was at the time lying in those
waters, the offence for which the appellant was tried and convicted
was committed on the high seas and within the jurisdiction of the
domestic tribunals of the United States, and is not punishable else-,
where. In support of this position it is assumed that the jurisdic-
tion of the Consular Court is limited to offences committed on land,
within the territory of Japan, to the exclusion of offences committed
on waters within that territory.
There is, as it seems to us, an obvious answer to this argument.
The jurisdiction to try offences committed on the high seas in the
district where the offender may be found, or into which he may be
first brought, is not exclusive of the jurisdiction of the consular tribu-
nal to try a similar offence when committed in a port of a foreign
country in which that tribunal is established, and the offender is not
taken to the United States. There is no law of Congress compelling
the master of a vessel to carry or transport him to any home port
when he can be turned over to a Consular Court having jurisdiction of
seas
246
TERRITORIAL JURISDICTION.
[PART I.
similar offences committed in the foreign country. 7 Opinions Attys.-
Gen. 722. The provisions conferring jurisdiction in capital cases
upon the consuls in Japan, when the offence is committed in that
country, are embodied in the Revised Statutes, with the provisions
as to the jurisdiction of domestic tribunals over such offences com-
mitted on the high seas; and those statutes were re-enacted together,
and, as re-enacted, went into operation at the same time. To both
effect must be given in proper cases, where they are applicable. We
do not adopt the limitation stated by counsel to the jurisdiction of
the consular tribunal, that it extends only to offences committed on
land. Neither the treaty nor the Revised Statutes to carry them into
effect contain any such limitation. The latter speak of offences com-
mitted in the country of Japan - meaning within the territorial juris-
diction of that country — which includes its ports and navigable
waters as well as its lands.
The position that the petitioner, being a subject of Great Britain,
was not within the jurisdiction of the Consular Court, is more plau-
sible, but admits, we think, of a sufficient answer. The national
character of the petitioner, for all the purposes of the consular juris-
diction, was determinable by his enlistment as one of the crew of
the American ship Bullion. By such enlistment he becomes an
American seaman one of an American crew on board of an Ameri-
can vessel - and as such entitled to the protection and benefits of all
the laws passed by Congress on behalf of American seamen, and sub-
ject to all their obligations and liabilities. Although his relations to
the British Government are not so changed that, after the expiration
of his enlistment on board of the American ship, that government
may not enforce his obligation of allegiance, and he on the other
hand may not be entitled to invoke its protection as a British sub-
ject, that relation was changed during his service of seaman on board
of the American ship under his enlistment. He could then insist
upon treatment as an American seaman, and invoke for his protec-
tion all the power of the United States which could be called into
exercise for the protection of seamen who were native born. He
owes for that time to the country to which the ship on which he is
serving belongs, a temporary allegiance, and must be held to all its
responsibilities. The question has been treated more as a political
one for diplomatic adjustment, than as a legal one to be determined
by the judicial tribunals, and has been the subject of correspondence
between our government and that of Great Britain.
The position taken by our government is expressed in a communi-
cation from the Secretary of State, to the British Government, under
date of June 16, 1881. It was the assertion of a principle which the
CHAP. II.]
IN RE ROSS.
247
1
Secretary insisted “is in entire conformity with the principles of
English law as applied to a mercantile service almost identical with
our own in its organization and regulation. That principle is that,
when a foreigner enters the mercantile marine of any nation and be-
comes one of the crew of a vessel having undoubtedly a national char-
acter, he assumes a temporary allegiance to the flag under which he
serves, and in return for the protection afforded him becomes subject
to the laws by which that nation in the exercise of an unquestioned
authority governs its vessels and seamen. If, therefore," he con-
tinued, “the government of the United States has by treaty stipula-
tion with Japan acquired the privilege of administering its own laws
upon its own vessels and in relation to its own seamen in Japanese
territory, then every American vessel and every seaman of its crew
are subject to the jurisdiction which by such treaty has been trans-
ferred to the government of the United States."
“If Ross had been a passenger on board of the Bullion, or if, resid-
ing in Yokohama, he had come on board temporarily and had then
committed the murder, the question of jurisdiction would have been
very different. But, as it was, he was part of the crew, a duly en-
rolled seaman under American laws, enjoying the protection of this
government to such an extent that he could have been protected from
arrest by the British authorities; and his subjection to the laws of
the United States cannot be avoided just at the moment that it suits
his convenience to allege foreign citizenship. The law which he vio-
lated was the law made by the United States for the government of
United States vessels; the person murdered was one of his own supe-
rior officers whom he had bound himself to respect and obey, and it
is difficult to see by what authority the British Government can as-
sume the duty or claim the right to vindicate that law or protect that
officer."
“The mercantile service is certainly a national service, although
not quite in the sense in which that term would be applied to the
national navy. It is an organized service, governed by a special and
complex system of law, administered by national officers, such as col-
lectors, harbor masters, shipping masters and consuls, appointed by
national authority. This system of law attaches to the vessel and
crew when they leave a national port and accompanies them round
the globe, regulating their lives, protecting their persons and punish-
ing their offences. The sailor, like the soldier during his enlistment,
knows no other allegiance than to the country under whose flag he
serves. This law may be suspended while he is in the ports of a
foreign nation, but where such foreign nation grants to the country
which he serves the power to administer its own laws in such for-
218
[PART I.
TERRITORIAL JURISDICTION.
eign territory, then the law under which he enlisted again becomes
supreme.
The Secretary concluded his communication with the following
expression of the determination of our government:
“So impressed is this government with the importance and pro-
priety of these views, that while it will receive with the most re-
spectful consideration the expression of any different conviction
which her Britannic Majesty's government may entertain, it will
yet feel bound to instruct its consular and diplomatic officers in the
East, that in China and Japan the judicial authority of the consuls
of the United States will be considered as extending over all persons
duly shipped and enrolled upon the articles of any merchant vessel
of the United States, whatever be the nationality of such person.
And all offences which would be justiciable by the Consular Courts of
the United States, where the persons so offending are native born or
naturalized citizens of the United States, employed in the merchant
service thereof, are equally justiciable by the same Consular Courts
in the case of seamen of foreign nationality.”
The determination thus expressed was afterwards carried out by in-
corporating the doctrine into the permanent regulations of the depart-
ment for the guide of the consuls of this country. 72d regulation.
The views thus forcibly expressed present in our judgment the true
status of the prisoner while an enlisted seaman on the American
vessel, and give effect to the purpose of the treaty and the legisla-
tion of Congress. The treaty uses the term "Americans” in speak-
ing of those who may be brought within the jurisdiction of the
Consular Court for offences committed in Japan. The statute desig-
nates them as "citizens of the United States," and yet extends the,
laws of the United States, so far as they may be necessary to execute
the treaty and are suitable to carry the same into effect, not only over
all citizens of the United States in Japan, but also over "all others
to the extent that the terms of the treaty justify or require."
Reading the treaty and statute together in view of the purpose de-
signed to be accomplished, we are satisfied that it was intended by
them to bring within our laws all who are citizens, and also all who,
though not strictly citizens, are by their service equally entitled to
the care and protection of the government. It is a canon of inter-
pretation to so construe a law or a treaty as to give effect to the
object designed, and for that purpose all of its provisions must be
examined in the light of attendant and surrounding circumstances.
To some terms and expressions a literal meaning will be given, and
to others a larger and more extended one. The reports of adjudged
cases and approved legal treatises are full of illustrations of the ap-
CHAP. II.]
249
IN RE ROSS.
zens.
plication of this rule. The inquiry in all such cases is as to what
was intended in the law by the legislature, and in the treaty by the
contracting parties:
In Geofroy v. Riggs, 133 U. S. 258, which was before this court at
the last term, it was held that the District of Columbia, as a political
community, is one of “the States of the Union,” within the meaning
of that term as used in the consular convention of 1853 with France;
such construction being necessary to give consistency to the provi-
sions of the convention, and not defeat the consideration given by
France for her concession of certain rights to citizens of the United
States. And in the present case, to carry out the intention of the
treaty and statute in question, they will be construed to apply to all
parties who are by public law, or the law of the country, entitled to
be treated for the time, from their employment and service, as citi-
There are many adjudications to the effect that such character
will be ascribed to parties and they be held liable to all its conse-
quences, and entitled to all its benefits, on other grounds than birth
or naturalization.
A statute of Henry VIII. enacted that if anybody should rob or take
"the goods of the King's subjects within this realm,” and be found
guilty, the party robbed should have restitution of the goods. Of this
statute Sir Matthew Hale said that "though it speaks of the King's
subjects, it extends to aliens robbed; for though they are not the
King's natural born subjects, they are the King's subjects when in
England, by local allegiance." 1 Hale's Pleas of the Crown, p. 542.
In United States v. Holmes, 5 Wheat. 412, which is in point in
the case before us, certain parties were indicted in the Circuit Court
of the United States for the District of Massachusetts and convicted
of murder on the high seas. It appeared that a vessel, apparently
Spanish, was captured by privateers from Buenos Ayres, and a prize
crew was put on board, of whom the prisoners were a part. One of
them was a citizen of the United States and the others were for-
eigners. The crime was committed by drowning the person, whose
death was charged, by the prisoners driving or throwing him over-
board. On motion for a new trial certain questions arose on which
the judges were divided in opinion. One of these was, whether it
made any difference as to the point of jurisdiction, whether the pris.
oners or any of them were citizens of the United States, or that the
offence was committed, not on board of any vessel, but on the high
The court said that the question contained two propositions ;
one as to the national character of the offender and the person against
whom the offence was committed; and second as to the place where
it was committed. In respect to the first the court was of the opin-
seas.
250
[PART 1.
TERRITORIAL JURISDICTION.
1
ion that it made no difference whether the offender was a citizen of
the United States or not; adding, "if it (the offence) be committed
on board of a foreign vessel by a citizen of the United States, or on
board of a vessel of the Untied States by a foreigner, the offender is
to be considered, pro hâc vice, and in respect to this subject, as be-
longing to the nation under whose flag he sails.”
The views expressed by the Department of State, quoted above, are
in harmony with the doctrine uniformly asserted by our government
against the claim by England of a right to take its countrymen from
the deck of an American merchant vessel and press them into its
naval service. It is a part of our history that the assertion of this
claim, and its enforcement in many instances, caused a degree of irri-
tation among our people which no conduct of any other country has
ever produced. Its enforcement was deemed a great indignity upon
this country and a violation of our right of sovereignty, our vessels
being considered as parts of our territory. It led to the war of 1812,
and although that war closed without obtaining a relinquishment of
the claim, its further assertion was not attempted. At last, in a
communication by Mr. Webster, then Secretary of State, to Lord
Ashburton, the special British minister to this country, on the 8th
of August, 1842, the claim was repudiated, and the announcement
made that it would no longer be allowed by our government and must
be abandoned. The conclusion of Mr. Webster's communication
bears upon the question before us. After referring to the claim of
Great Britain, and demonstrating the injustice of the position and
its violation of national rights, he said: "In the early disputes be-
tween the two governments, on this so long-contested topic, the dis-
tinguished person to whose hands were first intrusted the seals of this
department declared, that the simplest rule will be, that the vessel
being American shall be evidence that the seamen on board are such.'
Fifty years' experience, the utter failure of many negotiations, and a
careful reconsideration now had of the whole subject at a moment
when the passions are laid, and no present interest or emergency
exists to bias the judgment, have convinced this government that
this is not only the simplest and best, but the only rule which can
be adopted and observed consistently with the rights and honor of
the United States, and the security of their citizens. That rule an-
nounces, therefore, what will hereafter be the principle maintained
by their government. In every regularly documented American mer-
chant vessel, the crew who navigate it will find their protection in the
flag which is over them." Webster's Works, Vol. VI. p. 325.
This rule, that the vessel being American is evidence that the sea-
men on board are such, is now an established doctrine of this country;
!
CHAP. II.]
251
IN RE ROSS.
and in support of it there is with the American people no diversity of
opinion and can be no division of action.
We are satisfied that the true rule of construction in the present
case was adopted by the Department of State in the correspondence
with the English Government, and that the action of the consular
tribunal in taking jurisdiction of the prisoner Ross, though an Eng-
lish subject, for the offence committed, was authorized. While he
was an enlisted seaman on the American vessel, which floated the
American flag, he was, within the meaning of the statute and the
treaty, an American, under the protection and subject to the laws of
the United States equally with the seaman who was native born. As
an American seaman he could have demanded a trial before the Con-
sular Court as a matter of right, and must therefore be held subject
to it as a matter of obligation.
It is true that the occasion for consular tribunals in Japan may
hereafter be less than at present, as every year that country pro-
gresses in civilization and in the assimilation of its system of judi-
cial procedure to that of Christian countries, as well as in the
improvement of its penal statutes; but the system of consular tribu-
nals which have a general similarity in their main provisions, is of
the highest importance, and their establishment in other than Chris-
tian countries, where our people may desire to go in pursuit of com-
merce, will often be essential for the protection of their persons and
property.
We have not considered the objection to the discharge of the pris-
oner on the ground that he accepted the conditional pardon of the
President. If his conviction and sentence were void for want of
jurisdiction in the consular tribunal, it may be doubtful wbether he
was estopped, by his acceptance of the pardon, from assailing their
validity; but into that inquiry we need not go, for the Consular Court
having had jurisdiction to try and sentence him, there can be no ques-
tion as to the binding force of the acceptance.
Order affirmed.1
1 By Treaty of Nov. 22, 1894 (Articles 17, 19), the United States consented to the
abrogation of consular jurisdiction in Japan, and on July 17, 1899, such Consular
Courts ceased to exist.
As regard to the nationality of a merchant vessel and the proof necessary to estab-
lish its national character, it was said in The Brig Juno, 1901, 36 Ct. Cl. : “The proof is
sufficient to show that the brig was duly registered, and the register sufficiently estab-
lishes the nationality of the vessel.”
As to the papers carried by vessels as evidence of their nationality, see Hall, Int.
Law (30 ed.), Appendix II; 4th ed. 756; note 1; Taylor's Int Law, $ 552; 3 Wharton's
Digest, S$ 408-410. – ED.
252
[PART I.
TERRITORIAL JURISDICTION.
« THE CREOLE."
COMMISSION OF CLAIMS UNDER CONVENTION BETWEEN UNITED STATES
AND GREAT BRITAIN, FEBRUARY 8, 1853.
(Report of Commission, 241.)
This case was submitted to the umpire under the circumstances
named in the preceding case of the Hermosa, to which reference is
made.
The facts in the case are briefly set forth above, and are also stated
at length in the opinion of the umpire, so that further statement of
them is unnecessary.
Thomas, agent and counsel for the United States. Hannen, agent
and counsel for Great Britain. Bates, uinpire :
This case having been submitted to the umpire for his decision, he
hereby reports that the claim has grown out of the following circum-
stances :
The American brig, Creole, Captain Ensor, sailed from Hampton
Roads, in the State of Virginia, on the 27th of October, 1841, having on
board one hundred and thirty-five slaves, bound for New Orleans. On
the 7th of November, at nine o'clock in the evening, a portion of the
slaves rose against the officers, crew, and passengers, wounding severely
the captain, the chief mate, and two of the crew, and murdering one of
the passengers; the mutineers, having got complete possession of the
vessel, ordered the mate, under threat of instant death should be
disobey or deceive them, to steer for Nassau, in the island of New
Providence, where the brig arrived on the 9th of November, 1841.
The American consul was apprised of the situation of the vessel, and
requested the governor to take measures to prevent the escape of the
slaves, and to have the murderers secured. The consul received reply
from the governor, stating that under the circumstances he would
comply with the request.
The consul went on board the brig, placed the mate in command in
place of the disabled master, and found the slaves all quiet.
About noon twenty African soldiers, with an African sergeant and
corporal, commanded by a white officer, came on board. The officer
was introduced by the consul to the mate as commanding officer of the
vessel.
The consul, on returning to the shore, was summoned to attend the
governor and council, who were in session, who informed the consul
that they had come to the following decision :
CHAP. II.]
(6
253
THE CREOLE.”
"1st. That the courts of law have no jurisdiction over the alleged
offences.
“ 2d. That, as an information had been lodged before the governor,
charging that the crime of murder had been committed on board said
vessel while on the high seas, it was expedient that the parties, impli-
cated in so grave a charge, should not be allowed to go at large, and
that an investigation ought therefore to be made into the charges, and
examinations taken on oath; when, if it should appear that the original
information was correct, and that a murder had actually been com-
mitted, that all the parties implicated in such crime, or other acts of
violence, should be detained here until reference could be made to the
Secretary of State to ascertain whether the parties should be delivered
over to the United States Government; if not, how otherwise to dispose
of them.
663d. That as soon as such examinations should be taken, all persons
on board the Creole, not implicated in any of the offences alleged to
have been committed on board that vessel, must be released from
further restraint."
Then two magistrates were sent on board. The American consul
went also. The examination was commenced on Tuesday, the 9th, and
was continued on Wednesday, the 10th, and then postponed until
Friday, on account of the illness of Captain Ensor. On Friday morning
it was abruptly and without any explanation, terminated. On the same
day, a large number of boats assembled near the Creole, filled with
colored persons armed with bludgeons. They were under the immediate
command of the pilot who took the vessel into the port, who was an
officer of the government, and a colored man. A sloop or larger launch
was also towed from the shore and anchored near the brig. The sloop.
" was filled with men armed with clubs, and clubs were passed from her
to the persous in the boats.
A vast concourse of people were collected on the shore opposite the
brig.
During the whole time the officers of the government were on board
they encouraged the insubordination of the slaves.
The Americans in port determined to unite and furnish the necessary
aid to forward the vessel and negroes to New Orleans. The consul
and the officers and crews of two other American vessels had, in fact,
united with the officers, men, and passengers of the Creole to effect
this. They were to conduct her first to Indian quay, Florida, where
there was a vessel of war of the United States.
On Friday morning, the consul was informed that attempts would be
made to liberate the slaves by force, and from the mate he received
information of the threatening state of things. The result was, the
254
(PART I.
TERRITORIAL JURISDICTION.
attorney-general and other officers went on board the Creole. The
slaves identified as on board the vessel concerned in the mutiny, were
sent on shore, and the residue of the slaves were called on deck by
direction of the attorney-general, who addressed them in the following
terms: “My friends," or my inen, you have been detained a short
time on board the Creole for the purpose of ascertaining what indi-
viduals were concerned in the murder. They have been identified,
and will be detained. The rest of you are free, and at liberty to go
on shore, and wherever you please.”
The liberated slaves, assisted by the magistrates, were then taken
on board the boats, and when landed were conducted by a vast assem-
blage to the superintendent of police, by whom their names were
registered. They were thus forcibly taken from the custody of the
master of the Creole, and lost to the claimants.
I need not refer to authorities to show that slavery, however odious
and contrary to the principles of justice and humanity, may be estab-
lished by law in any country; and, having been so established in many
countries, it cannot be contrary to the law of nations.
The Creole was on a voyage, sanctioned and protected by the laws of
the United States, and by the law of nations. Her right to navigate
the ocean could not be questioned, and as growing out of that right, the
right to seek shelter or enter the ports of a friendly power in case of
distress or any unavoidable necessity.
A vessel navigating the ocean carries with her the laws of her own
country, so far as relates to the persons and property on board, and
to a certain extent retains those rights even in the ports of the
foreign nations she may visit. Now, this being the state of the law of
nations, what were the duties of the authorities at Nassau in regard to
the Creole? It is submitted the mutineers could not be tried by the
courts of that island, the crime having been committed on the high
All that the authorities could lawfully do, was to comply with
the request of the American consul, and keep the mutineers in custody
until a conveyance could be found for sending them to the United
States.
The other slaves, being perfectly quiet, and under the command of
the captain and owners, and on board an American ship, the authorities
should have seen that they were protected by the law of nations; their
rights under which cannot be abrogated or varied, either by the Eman-
cipation act or any other act of the British Parliament. Blackstone,
4th volume, speaking of the law of nations, states : " Whenever any
question arises which is properly the object of its jurisdiction, such
law is here adopted in its full extent by the common law."
The municipal law of England cannot authorize a magistrate to.
seas.
CHAP. II.]
255
THE CREOLE.'
violate the law of nations by invading with an armed force the vessel
of a friendly nation that has committed no offence, and forcibly dis-
solving the relations which by the laws of his country the captain is
bound to preserve and enforce on board.
These rights, sanctioned by the law of nations - viz. : the right to
navigate the ocean, and to seek shelter in case of distress or other
unavoidable circumstances, and to retain over the ship, her cargo, and
passengers, the laws of her own country — must be respected by all
nations; for no independent nation would submit to their violation.
Having read all the authorities referred to in the arguments on both
sides, I have come to the conclusion that the conduct of the authorities
at Nassau was in violation of the established law of nations, and that
the claimants are justly entitled to compensation for their losses. I
therefore award to the undermentioned parties, their assigns, or legal
representatives, the sums set opposite their names, due on the 15th of
January, 1855.1
1 See elaborate opinion on the same subject in the brig Enterprise, pp. 187-237,
and the shorter one in the Hermosa, pp. 238-240, Report of the Commission. Compare
In re Moncan, 1882, 14 Fed. 44, and In re Ah Kee, 1884, 22 Fed. 519.
In speaking of the umpire, Professor J. B. Moore says (1 International Arbitration
1898, 399-400): “In more than one conjuncture his position, due not only to his exten-
sive connections in business, but also to his high personal character, enabled him to con-
tribute to the good relations between the country of his birth and that of his adoption.
In 1852 he gave the first effective impulse" to the foundation on a broad basis of the
Boston Public Library by a gift of fifty thousand dollars, which he afterwards more
than doubled by the purchase and donation of books." The reading room in the new
Boston Public Library, as was that in the old, is called Bates Hall, in memory of
Joshua Bates. ...
'As umpire, Mr. Bates, if possible, more than fulfilled the expectations formed of
him, and materially contributed to the happy results of the commission. On niany of
the most important and delicate questions before the board it became his duty to give
the final decision. Though this circunstance rendered his labors arduous and his
responsibility great, he decided all questions that came before him with promptitude,
and with a sound, impartial, independent judgment, and although provision was made
by the convention for the compensation of the umpire, he declined to receive for his
services any remuneration whatever."
In an action to recover insurance effected on the slaves and cargo of the Creole, the
same doctrine was enforced. The Supreme Court of Louisiana held inter alia that
where slaves were shipped from one part of the United States to another, and they
rose against the officer of the vessel, and took it into a British port, they were still
slaves, though in a state of insurrection; that they did not cease to be the property of
their owners, though the right of property could not be asserted in a British court, nor
enjoyed within the exclusive influence of British law. McCargo v. N. 0. Ins. Co.,
1845. 10 Rob. (La.), 202, 312–332.
Mr. Dana criticises the decision of Mr. Bates in this case. "It may be conceded, as
a general statement,” he says, “that local authorities ought to give active aid to a
master in defending and enforcing, against the inmates of his vessel, the rights with
which his own nation has intrusted him, if these rights are of a character generally
16
256
[PART 1.
TERRITORIAL JURISDICTION.
:
SECTION 11. – RIGHT OF ASYLUM.
(a) In Legations.
UNITED STATES V. JEFFERS.
UNITED STATES CIRCUIT COURT FOR DISTRICT OF WASHINGTON, 1836.
(4 Cranch, Circuit Court, 704.)
Francis S. Key, Attorney of the United States for the District of
Columbia, having laid before the court a letter to him from the Sec-
retary of State, wherein it appeared that a constable, Madison Jeffers,
had removed from the house of Mr. Bankhead, the British Secretary of
Legation, a colored lad employed for hire in his family in order to
restore the said lad to his master; it was, on the motion of said
attorney of the United States, ordered, that the said Madison Jeffers
be removed from the office of constable, of the County of Washing-
ton, unless he show cause to the contrary on the thirty-first day of
May instant, provided, etc. “By order of the court, May 30th, 1836."
The rule having been duly served, the said Madison Jeffers appeared
on the 31st of May and, by way of showing cause, filed his affidavit
admitting the facts, but alleging his ignorance of the diplomatic
privileges, and his belief that he was executing his duty lawfully,
in arresting a fugitive slave, and disclaiming all intentional disre-
spect to Mr. Bankhead.
recognized amoag all nations, and not prohibited by the law of the place. But it may
well admit of doubt, whether the local authorities must give active aid to the master
against persons on board his vessel who are doing no more than peacefully and quietly
dissolving, or refusing to recognize, a relation which exists only by force of the law of
the nation to which the vessel belongs, if the law is peculiar to that nation, and one
which the law of the other country regards as against common right and public
morals. The local authorities might not interfere to dissolve such relations, where
the peace of the port or the public murals are not put in peril; but they might, it
would seem, decline to lend force to compel their continuance.” See, also, the adverse
criticism of Hall (Int. Law. 209).
In the case of the Fortuna, 1803, 5 C. Rob. 27, the ship was proceeded against for a
violation of the blockade of the Weser. The master of the captured vessel gave as an
excuse for entering the blockaded place, the want of provisions, and a strong westerly
wind. Sir W. Scott held that“ want of provisions " was not such an "imperative
and overruling compulsion" as, to excuse a breach of blockade. But on the other
ground, after further proof, the vessel was restored. See United States v. Dickelman,
1876, 92 U. S. 320, infra. – ED.
.
1 Better known as author of "The Star Spangled Banner," 1814. - Ed.
CHAP. II.]
257
UNITED STATES V. JEFFERS.
His counsel, Mr. W. L. Brent, contended that Jeffers, as the agent
of the owner of the slave, had a right to take him anywhere; and
also that, as a constable, he had a right to take up a runaway, that
the diplomatic privilege extends only to foreign ministers and upon
certains terms; and not to servants of a secretary of legation.
That the servant had not been registered according to the Act of
Congress of 30th of April, 1790, $ 26 (Stat. at Large, 112), and there-
fore Jeffers had a right to arrest him; because the act of Congress
for punishing the violation of privilege does not extend to those who
may arrest a servant not registered. By not registering his servant,
the minister has waived his privilege, Seacourt v. Bowlney, 1 Wils., 20.
The court stopped Mr. Key in reply. THURSTON, J., said he wished
no further time or argument. He was of opinion that Jeffers should
be dismissed from office.
MORSELL, J., concurred
CRANCH, C. J., would have taken time to consider; but said that
his present opinion coincided with that of the court.
Whereupon the court passed the following order:
“ Madison Jeffers, upon whom a rule was laid on the 30th of May
last, to show cause why he should not be removed from the office of
constable for the county of Washington, upon the grounds therein
stated, appeared and filed his affidavit, and the same was read and
heard, and he was further heard by his counsel whereupon
“It is considered by the court, that the said Madison Jeffers was
guilty of a violation of the privileges of His Britannic Majesty's
Envoy Extraordinary and Minister Plenipotentiary, as stated,
in his letter to the Secretary of State referred to in the said
rule; and the said Madison Jeffers, having shown no sufficient
cause to the contrary, it is thereupon considered by the Court,
this 7th day of June, 1836, that the said Madison Jeffers be,
and he is hereby, removed from his said office of constable for the
county aforesaid.” 1
1 In 1726, the Duke of Ripperda, Spanish Minister of Finance and Foreign Affairs
accused of favoring the interests of Holland and England, took refuge in the British
legation in Madrid. The Spanish government demanded delivery of his person and
papers, on refusal of which the Spanish authorities forced an entrance and arrested
the Duke. This proceeding naturally added to the hard feeling already existing be-
tween the two countries, and two years later war broke out between them (Martens,
Causes Célèbres, I. 178).
Vattel, writing thirty years later, says of the opinion of the Council of Castile, “ On
ne peut rien dire de plus vrai et de plus judicieux sur cette matière.”
Merlin said, "On voit par ces détails, que le droit d'asyle est, à l'égard des hôtels
des ambassadeurs, une source perpetuelle de dissensions et de querelles. Le bien des
nations demanderait, sans doute, qu'on l'abolît tout-à-fait: et cela paraît d'autant plus
raisonable, qu'il y a plusieurs états dans lesquels il n'est point connu."
17
258
[PART I.
TERRITORIAL JURISDICTION.
(6) On Board Ships of War.
FORBES V. COCHRANE.
KING's BENCH, 1824.
(2 Barnwell & Cresswell, 448.)
The declaration stated that the plaintiff was lawfully possessed of
a certain cotton plantation, situate in parts beyond the seas, to wit,
in East Florida, of large value, and on which plantation he employed
divers persons, his slaves or servants. The first count charged the
defendants with enticing the slaves away. The second count stated
that the slaves or servants having wrongfully and against the plain-
A
In 1747, a Swedish merchant of the name of Springer, accused of high treason, took
refuge in the hotel of the English Ambassador, Colonel Guideckens, at Stockholm. ·
The ambassador refused to surrender him; the Swedish government surrounded his
house with troops, searched everybody who entered it, and caused the carriage of the
ambassador, when he left the hotel, to be followed by a guard. Guideckens surren-
dered Springer under a protest as to the violence done to his ambassadorial privilege:
England demanded reparation, and Sweden steadily refused to give it, and the ambas-
sadors from the two courts were mutually withdrawn.
Ripperda's case seems to have settled the law as regards asylum, and it is held as
well established that a diplomatic agent has and can have the immunity only for him-
self and his diplomatic or personal household, and that he cannot use his individual
and official right to immunity to receive and protect from arrest citizens of the country
to which he is accredited.
In South America it is a general practice to claim and exercise the right and privi-
lege as stated in above note, but the practice is had, unreasonable, and so obviously a
violation of local sovereignty that it cannot claim recognition as a principle of inter-
national law. It is tolerated, rather than justified, by the exceptional circumstances
in Central and South American republics.
“ In the United States," says Mr. J. B. Moore, " where the supremacy of the local
law is rigorously maintained, diplomatic asylum has never existed. With this excep-
tion, it is believed that examples may be found in every independent American state.
In the countries that were formerly Spanish colonies, the practice may be said to have
been inherited; and in some of them it has been so far extended to include persons
resting under civil and commercial responsibilities. The principal excuse for its con-.
tinnance has been found in the constantly recurring tumults which fill so many pages
in the history of American republics, and which, by reason of their partisan complexion,
Mr. Seward once described as representing a chronic revolutionary condition.'
The vexed question of asylums in legations and consulates and in vessels has
been treated historically and logically in three articles by Mr. Moore, published in
Political Science Quarterly for 1892.
See, also, the more recent article by Mr. Barry Gilbert on The Right of Asylum in
the Legations of the United States in Central and South America, 15 Harvard Law
Review, 118-140. -ED.
CHAP. II.]
FORBES V. COCHRANE.
259
tiff's will quitted and left the plantation and the plaintiff's service,
and gone into the power, care, and keeping of the defendants; they,
knowing them to be the slaves or servants of the plaintiff, wrongfully
received the slaves into their custody, and harbored, detained, and
kept them from the plaintiff's service. The last count was for wrong-
fully harboring, detaining, and keeping the slaves or servants of the
plaintiff after notice given to the defendants that the slaves were the
plaintiff's property, and request made to the defendants by the plain-
tiff to deliver them up to him: plea, not guilty. At the trial before
Abbott, C. J., at the London sittings after Trinity term, 1822, a
verdict was found for the plaintiff, damages £3,800, subject to the
opinion of the court on the following case. .
The plaintiff was a British merchant in the Spanish provinces of
East and West Florida, where he had carried on trade for a great
many years, and was principally resident at Pensacola in West
Florida. East and West Florida were part of the dominions of the
king of Spain, and Spain was in amity with Great Britain. The
plaintiff, before and at the time of the alleged grievances, was
the proprietor and in the possession of a cotton plantation, called San
Pablo, lying contiguous to the river St. John's, in the province of
East Florida, and of about one hundred negro slaves whom he had
purchased, and who were employed by him upon his plantation. The
river St. John's is about thirty or forty miles from the confines of
Georgia, one of the United States of America, which is separated
from East Florida by the river St. Mary, and Cumberland Island is at
the mouth of the river St. Mary on the side next Georgia, and forms
part of that State. During the late war between Great Britain and
America, in the month of February, 1815, the defendant, Vice-
Admiral Sir Alexander Inglis Cochrane, was commander-in-chief of
His Majesty's ships and vessels on the North American station. The
other defendant, Rear-Admiral Sir George Cockburn, was the second
in command upon the said station, and his flag-ship was the Albion.
The British forces had taken possession of Cumberland Island, and at
that time occupied and garrisoned the same. The Albion, Terror
Bomb, and others of His Majesty's ships of war, formed a squadron
under Sir George Cockburn's immediate command off that island,
where the headquarters of the expedition were.
In the night of the 23d February, 1815, a number of the plaintiff's
slaves deserted from his said plantation, and on the following day
thirty-eight of them were found on board the Terror Bomb, part of
the squadron at Cumberland Island, and entered on her muster-books
as refugees from St. John's. On the 26th of the same month of Feb-
i The statement is condensed by omitting unnecessary facts. — ED.
1
260
[PART I.
TERRITORIAL JURISDICTION.
ruary, Sir George Cockburn received from the plaintiff a memorial.
The plaintiff prayed "that the defendant, Sir G. Cockburn, would
order the said thirty-eight slaves to be forthwith delivered to him,
their lawful proprietor.” Sir G. Cockburn told him he might see
his slaves, and use any arguments and persuasions he chose to in-
duce them to return. The plaintiff accordingly endeavored to per-
suade them to go back to his plantation, and no restraint was put
upon them, but they refused to go. The plaintiff then urged his claim
very strongly to Sir G. Cockburn, and said he must get redress if he
did not succeed in prevailing upon Sir G. Cockburn to order them
back again, which Sir G. Cockburn said he could not do, because they
were free agents and might do as they pleased, and that he could not.
force them back.
HOLROYD, J.: I am also of opinion that the plaintiff is not entitled
to maintain the present action. The declaration alleges that the
plaintiff was the proprietor, and in the possession of a cotton planta-
tion lying contiguous to the river St. John's, in East Florida, on
which land he employed divers persons, his slaves or servants. The
plaintiff therefore claims a general property in them as his slaves.
or servants, and he claims this property, as founded, not upon any
municipal law of the conntry where he resides, but upon a general
right. This action is therefore founded upon an injury done to that
general right. Now it appears, from the facts of the case, that the
plaintiff had no right in these persons, except in their character of
slaves, for they were not serving him under any contract; and, accord-
ing to the principles of the English law, such a right cannot be con-
sidered as warranted by the general law of nature. I do not mean to
say that particular circumstances may not introduce a legal relation
to that extent; but assuming that there may be such a relation, it can
only have a local existence, where it is tolerated by the particular law
of the place, to which law all persons there resident are bound to sub-
mit. Now if the plaintiff cannot maintain this action under the gen-
eral law of nature, independently of any positive institution, then his
right of action can be founded only upon some right which he has
acquired by the law of the country where he is domiciled. If he,
being a British subject, could show that the defendant, also a British
subject, had entered the country where he, the plaintiff, was domi-
ciled, and had done any act amounting to a violation of that right to
the possession of slaves which was allowed by the laws of that coun-
try, I am by no means prepared to say that an action might not be
maintained against him. The laws of England will protect the rights
1 The arguments of counsel, the opinion of Bayley, J., and part of the opinion of
Best, J., are omitted. -ED.
CHAP, II.]
261
FORBES V. OOOHRANE.
و
of British subjects, and give a remedy for a grievance committed by
one British subject upon another, in whatever country that may be
done. That, however, is a very different case from the present.
Here, the plaintiff, a British subject, was resident in a Spanish
colony, and perhaps it may be inferred, from what is stated in the
special case, that, by the law of that colony, slavery was tolerated.
I am of opinion, that, according to the principles of the English law,
the right to slaves, even in a country where such rights are recognized
by law, must be considered as founded not upon the law of nature,
but upon the particular law of that country. And, supposing that
the law of England would give a remedy for the violation of such a
right by one British subject to another (both being resident in and
bound to obey the laws of that country) still the right to these slaves
being founded upon the law of Spain, as applicable to the Floridas,
must be co-extensive with the territories of that State. I do not
mean to say, that if the plaintiff having the right to possess these
persons as his slaves there, had taken them into another place, where,
by law, slavery also prevailed, his right would not have continued in
such a place, the laws of both countries allowing a property in slaves.
The law of slavery is, however, a law in invitum ; and when a party
gets out of the territory where it prevails, and out of the power of
his master, and gets under the protection of another power, without
any wrongful act done by the party giving that protection, the right
of the master, which is founded on the municipal law of the particu-
lar place only, does not continue, and there is no right of action
against a party who merely receives the slave in that country, with-
out doing any wrongful act. This has been decided to be the law
with respect to a person who has been a slave in any of our West
India colonies and comes to this country. The moment he puts his
foot on the shores of this country his slavery is at an end. Put the
case of an uninhabited island discovered and colonized by the sub-
jects of this country the inhabitants would be protected and governed
by the laws of this country. In the case of a conquered country,
indeed, the old laws would prevail, until altered by the King in coun-
cil; but in the case of the newly discovered country, freedom would
be as much the inheritance of the inhabitants and their children as
if they were treading on the soil of England. Now, suppose a person
who had been a slave in one of our own West India settlements, es-
caped to such a country, he would thereby become as much a freeman
as if he had come into England. He ceases to be a slave in England
only because there is no law which sanctions his detention in slavery;
for the same reason he would cease to be a slave the moment he
landed in the supposed newly discovered island.
In this case,
262
[PART I.
TERRITORIAL JURISDICTION.
indeed, the fugitives did not escape to any island belonging to Eng-
land, but they went on board an English ship (which for this purpose
may be considered a floating island), and in that ship they became
subject to the English laws alone. They then stood in the same
situation in this respect as if they had come to an island colonized by
the English. It was not a wrongful act in the defendants to receive
them, quite the contrary. The moment they got on board the Eng-
lish ship there was an end of any right which the plaintiff had by the
Spanish laws acquired over them as slaves. They had got beyond the
control of their master, and beyond the territory where the law recog-
nizing them as slaves prevailed. They were under the protection of
another power. The defendants were not subject to the Spanish law,
for they had never entered the Spanish territories, either as friends
or enemies. The plaintiff was permitted to see the men, and to en-
deavor to persuade them to return; but in that he failed. He never
applied to be permitted to use force; and it does not appear that he
had the means of doing so. I think that Sir G. Cockburn was not
bound to do more than he did; whether he was bound to do so much
it is unnecessary for me to say. It was not a wrongful act in him, a
British officer, to abstain from using force to compel the men to
return to slavery. It does not appear that he prevented force being
used. I do not say that he might not have refused, but in fact there
was no refusal. I have given my opinion upon this question, suppos-
ing that there would be a right of action against these defendants, if
a wrong had actually been done by them, but I am by no means clear
that, even under such circumstances, any action would have been
maintainable against them by reason of their particular situation
as officers acting in discharge of a public duty, in a place flagrante
bello. I doubt whether the application ought not to have been made
in such a case to the governing powers of this country for redress.
The cases from the admiralty courts are distinguishable from the
present, upon the grounds already stated by my Brother Bayley. In
Madrazo v. Willes, 3 B. & Ald. 353, the plaintiff was a Spanish sub-
ject, and by the law of Spain slavery and the trade in slaves being
tolerated, he had a right, by the laws of his own country, to exercise
that trade. The taking away the slaves was an active wrong done in
aggression upon rights given by the Spanish law. That is very dif-
ferent from requiring, as in this case, an act to be done against the
slaves, who had voluntarily left their master. When they got out of
the territory where they became slaves to the plaintiff and out of his
power and control, they were, by the general law of nature, made
free, unless they were slaves by the particular law of the place where
the defendant received them. They were not slaves by the law which
CHAP: I.]
FORBES V. COCHRANE.
263.
prevailed on board the British ship of war. I am, therefore, of opin-
ion that the defendants are entitled to the judgment of the court.
BEST, J. The question is, were these persons slaves at the time
when Sir G. Cockburn refused to do the act which he was desired to
do? I am decidedly of opinion that they were then no longer slaves.
The moment they put their feet on board of a British man-of-war, not
lying within the waters of East Florida (where, undoubtedly, the laws
of that country would prevail), those persons who before had been
slaves were free. The defendants were not guilty of any act prejudi-
cial to the rights which the plaintiff alleges to have been infringed.
Those rights were at an end before the defendants were called upon
to act. Slavery is a local law, and, therefore, if a man wishes to pre-
serve his slaves, let him attach them to him by affection, or make fast
the bars of their prison, or rivet well their chains, for the instant
they get beyond the limits where slavery is recognized by the local
law, they have broken their chains, they have escaped from their
prison, and are free. These men, when on board an English ship,
had all the rights belonging to Englishmen, and were subject to all
their liabilities. If they had committed any offence they must have
been tried according to English laws. If any injury had been done
to them they would have had a reinedy by applying to the laws of
this country for redress. I think that Sir G, Cockburn did all that
he lawfully could do to assist the plaintiff; he permitted him to en-
deavor to persuade the slaves to return; but he refused to apply
force. I think that he might have gone further, and have said that
force should not be used by others; for if any force had been used by
the master or any person in his assistance, can it be doubted that the
slaves might have brought an action of trespass against the persons
using that force? Nay, if the slave, acting upon his newly recovered
right of freedom, had determined to vindicate that right, originally
the gift of nature, and had resisted the force, and his death had
ensued in the course of such resistance, can there be any doubt that
every one who had contributed to that death would, according to our
laws, be guilty of murder? Tbat is substantially decided by Som-
mersett's case, from which, it is clear, that such would have been the
consequence had these slaves been in England; and so far as this
question is concerned, there is no difference between an English ship
and the soil of England; for are not those on board an English ship
as much protected and governed by the English laws as if they stood
upon English land?
Judgment for the defendants.
1
1 The case usually cited on this subject is The Schooner Exchange v. McFaddon,
(supra), which has been repeatedly affirmed and followed by the Supreme Court.
The Santissima Trinidad, 1822, 7 Wheat. 352, infra, places the exemption that public
264
[PART I.
TERRITORIAL JURISDICTION.
(c) On Board Merchant Ships.
UNITED STATES V. DIEKELMAN.
SUPREME COURT OF THE UNITED STATES, 1875.
(92 United States, 520.)
Mr. Chief Justice WAITE delivered the opinion of the court.
This suit was brought in the Court of Claims under the authority
of a joint resolution of both houses of Congress, passed May 4, 1870,
as follows:
ships do undoubtedly enjoy upon the ground of comity, which explanation is more in
accordance with the facts and the inherent reason of the thing than the fiction of
extraterritoriality. In the case of John Brown, 1820, Sir William Scott (Lord
Stowell), wrote an elaborate opinion for the British foreign office, in which he
vigorously maintained that the right of asylum, as regards political refugees, does not
properly belong to ships of war. 1 Halleck, 228.
On the other hand, a directly opposite view was expressed by Lord Palmerston, in
1849. Mr. Addington, writing to the Secretary of the Admiralty, August 4th, said :-
“ Viscount Palmerston directs me to request that you will acquaint the Board of
Admiralty that his Lordship is of the opinion that it would not be right to receive and
harbor on board a British ship of war any person flying from justice on a criminal
clarge, or who was escaping from the sentence of a court of law. But a British man-
of-war has always and everywhere been considered a safe place of refuge for persons
of whatever country or party who had sought shelter under the British flag from
persecution on account of their political conduct or opinions; and this protection has
been equally offered, whether the refugee was escaping from the arbitrary acts
of a monarchical government, or from the lawless violence of a revolutionary com-
mittee. * * *
Although the commander of a ship of war should not seek out or invite political
refugees, yet he ought not to turn away or give up any who may reach his ship and
have obtained admittance on board. Such officer must of course take care that such
refugees shall not carry on from on board his ship any political correspondence with
their partisans on shore, and he ought to avail himself of the earliest opportunity to
send them to some place of safety elsewhere." Rep. of Royal Comm. on Fug.
Slaves, p. 155.
For a full discussion of the question of the extraterritoriality of ships of war, see the
separate reports of Lord Chief Justice Cockburn, and Mr. Rothery, in the Report
of the Royal Commission on Fugitive Slaves, 1876. Mr. Rothery takes 'strong
ground against the riglit of asylum on such ships.
Sir James Fitzjames Stephen, another meniber of the commission, takes similar
ground. Stephen's History of the Criminal Law, II., 43-58.
As to American practice, Attorney-General Bradford held, in 1794, that a writ of
habeas corpus may be awarded to bring up an American subject unlawfully detained
on board a foreign ship of war, the commander being amenable to the usual jurisdic-
tion of the state where he happens to be, and not entitled to claim the extraterritoriality
which is annexed to a foreign minister and his domicil.” Wharton's Digest, I., 138.
But in 1855, Attorney-General Cushing - a high authority — held that a "prisoner
CHAP. II.]
265
UNITED STATES V. DIEKELMAN.
"That the claim of E. Diekelman, a subject of the King of Prussia,
for damages for an alleged detention of the ship Essex by the military
authorities of the United States at New Orleans, in the month of
September, 1862, be and is hereby referred to the Court of Claims for
its decision in accordance with law, and to award such damages as
may be just in the premises, if he may be found to be entitled to any
damages.”
Before this resolution was passed, the matter of the claim had been
the subject of diplomatic correspondence between the governinents of
the United States and Prussia.
The following article, originally adopted in the treaty of peace
between the United States and Prussia, concluded July 11, 1799 (8
Stat. 168), and revived by the treaty concluded May 1, 1828 (8 Stat.
384), was in force when the acts complained of occurred, to wit: –
Art. XIII. And in the same case, if one of the contracting parties,
being engaged in war with any other power, to prevent all the diffi-
culties and misunderstandings that usually arise respecting merchan-
dise of contraband, such as arms, ammunition, and military stores of
every kind, no such articles carried in the vessels, or by the subjects
or citizens of either party, to the enemies of the other, shall be
deemed contraband so as to induce confiscation or condemnation, and
a loss of property to individuals. Nevertheless, it shall be lawful to
stop such vessels and articles, and to detain them for such length of
time as the captors may think necessary to prevent the inconvenience
or damage that might ensue from their proceeding; paying, however,
a reasonable compensation for the loss such arrest shall occasion to
the proprietors; and it shall further be allowed to use in the service
of the captors the whole or any part of the military stores so detained,
paying the owners the full value of the same, to be ascertained by the
current price at the place of its destination. But in the case sup-
posed of a vessel stopped for articles of contraband, if the master of
the vessel stopped will deliver out the goods supposed to be of contra-
band nature, he shall be admitted to do it, and the vessel shall not,
in that case, be carried into any port, nor further detained, but shall
be allowed to proceed on her voyage."
When the Essex visited New Orleans, the United States were en-
of war on board a foreign ship of war, or of her prize, cannot be released by habeas'
corpus issuing from courts of the United States or of a particular State.” And again,
in 1856, “ships of war enjoy the full rights of extraterritoriality in foreign ports and
territorial waters." (Wharton's Digest, I., 138.) It would seem to follow, therefore,
that right of asylum could be granted on American ships of war. In South American
ports it has frequently been done.
In 1 Halleck, 216, note 2, the various instances are enumerated in which a foreign
ship of war is subject to jurisdiction of the port. – ED.
266
[PART 1.
TERRITORIAL JURISDICTION.
gaged in the war of the rebellion. The port of that city was, at the
very commencement of the war, placed under blockade, and closed
against trade and commercial intercourse; but, on the 12th of May,
1862, the President, having become satisfied that the blockade might
“be safely relaxed with advantage to the interests of commerce,” is-
sued his proclamation, to the effect that from and after June 1 "com-
mercial intercourse, * * * except as to persons, things, and informa-
tion contraband of war,” might“ be carried on subject to the laws of the
United States, and to the limitations, and in pursuance of the regula-
tions * * *
prescribed by the Secretary of the Treasury," and appended
to the proclamation. These regulations so far as they are applicable
to the present case, are as follows:
.."1. To vessels clearing from foreign ports and destined to
New Orleans, * * * licenses will be granted by consuls of the United
States upon satisfactory evidence that the vessels so licensed will con-
vey no persons, property, or information contraband of war either to
or from the said ports; which licenses shall be exhibited to the col-
lector of the port to which said vessels may be respectively bound,
immediately on arrival, and, if required, to any officer in charge of
the blockade; and on leaving either of said ports every vessel will be
required to have a clearance from the collector of the customs accord-
ing to law, showing no violation of the conditions of the license."
12
Stat. 1264.
The Essex sailed from Liverpool for New Orleans June 19, 1862,
and arrived August 24. New Orleans was then in possession of the
military forces of the United States, with General Butler in com-
mand. The city was practically in a state of siege by land, but open
by sea, and was under martial law.
The commanding general was expressly enjoined by the government
of the United States to take measures that no supplies went out of the
port which could afford aid to the rebellion; and, pursuant to this
injunction, he issued orders in respect to the exportation of money,
goods, or property, on account of any person known to be friendly to
the Confederacy, and directed the custom-house officers to inform him
whenever an attempt was made to send anything out which might be
the subject of investigation in that behalf.
In the early part of September, 1862, General Butler, being still in
command, was informed that a large quantity of clothing had been
bought in Belgium on account of the Confederate government, and was
lying at Matamoras awaiting delivery, because that government had
failed to get the means they expected from New Orleans to pay for it
and that another shipment, amounting to a half million more, was
delayed in Belgium from coming forward because of the non-payment
2.
CHAP. II.] UNITED STATES V. DIEKELMAN.
267
of the first shipment. He was also informed that it was expected the
first payment would go forward through the agency of some foreign
consuls; and this information afterwards proved to be correct.
He was also informed early in September by the custoin-house offi
cers that large quantities of silver-plate and bullion were being
shipped on the Essex, then loading for a foreign port, by persons, one
of whom had declared himself an enemy of the United States, and
none of whom would enroll themselves as friends; and he thereupon
gave directions that the specified articles should be detained, and
their exportation not allowed until further orders.
On the 15th September, the loading of the vessel having been
completed, the master applied to the collector of the port for his
clearance, which was refused in consequence of the orders of General
Butler, but without any reasons being assigned by the collector. The
next day, he was informed, however, that his ship would not be
cleared unless certain specified articles which she had on board were
taken out and landed. Much correspondence ensued between General
Butler and the Prussian consul at New Orleans in reference to the
clearance, in which it was distinctly stated by General Butler that the
clearance would not be granted until the specified goods .were landed,
and that it would be granted as soon as this should be done. Almost
daily interviews took place between the inaster of the vessel and the
collector, in which the same statements were made by the collector.
The master refused to land the cargo, except upon the return of his
bills of lading. Some of these bills were returned, and the property
surrendered to the shipper. In another case, the shipper gave an
order upon the master for his goods, and they were taken away, by
force. At a very early stage in the proceeding, the master and the
Prussian consul were informed that the objection to the shipment of
the articles complained of was that they were contraband.
A part only of the goods having been taken out of the vessel, a
clearance was granted her on the 6th of October, and she was per-
mitted to leave the port and commence her voyage.
Upon this state of facts, the Court of. Claims gave judgment for
Diekelman, from which the United States took an appeal.
One nation treats with the citizens of another only through their
government. A sovereign cannot be sued in his own courts without
his consent. His own dignity, as well as the dignity of the nation he
represents, prevents his appearance to answer a suit against him in
the courts of another sovereignty, except in performance of his obli-
gations, by treaty or otherwise, voluntarily assumed. Hence, a citi-
zeu of one nation wronged by the conduct of another nation, must
seek redress through his own government. His sovereign must
268
[PART 1.
TERRITORIAL JURISDICTION. ·
assume the responsibility of presenting his claim, or it need not be
considered. If this responsibility is assumed, the claim may be
prosecuted as one nation proceeds against another, not by suit in the
courts, as of right, but by diplomacy, or, if need be, by war. It rests
with the sovereign against whom the demand is made to determine
for himself what he will do in respect to it. He may pay or reject
it; he may submit to arbitration, open his own courts to suit, or con-
sent to be tried in the courts of another nation. All depends upon
himself.
In this case, Diekelman, claiming to have been injured by the
alleged wrongful conduct of the military forces of the United States,
made his claim known to his government. It was taken into con-
sideration, and became the subject of diplomatic correspondence
between the two nations. Subsequently, Congress, by joint resolu-
tion, referred the matter to the Court of Claims “for its decision
according to law.” The courts of the United States were thus opened
to Diekelman for this proceeding. In this way the United States
have submitted to the Court of Claims, and through that court upon
appeal to us, the determination of the question of their legal liability
under all the circumstances of this case for the payment of damages
to a citizen of Prussia upon a claim originally presented by his sover-
eign in his behalf. This requires us, as we think, to consider the
rights of the claimant under the treaty between the two governments,
as well as under the general law of nations. For all the purposes of
its decision, the case is to be treated as one in which the government
of Prussia is seeking to enforce the rights of one of its citizens against
the United States in a suit at law, which the two governments have
agreed might be instituted for that purpose. We shall proceed upon
that hypothesis.
1. As to the general law of nations.
The merchant vessels of one country visiting the ports of another
for the purposes of trade subject themselves to the laws which govern
the port they visit, so long as they remain; and this as well in war as
in peace, unless it is otherwise provided by treaty. The Exchange v.
McFaddon, 7 Cranch, 316. When the Essex sailed from Liverpool,
the United States were engaged in war. The proclamation under
which she was permitted to visit New Orleans made it a condition of
her entry that she should not take out goods contraband of war, and
that she should not leave until cleared by the collector of customs
according to law. Previous to June 1 she was excluded altogether
from the port by the blockade. At that date the blockade was not
removed, but relaxed only in the interests of commerce.
The war
still remained paramount, and commercial intercourse subordinate
CHAP. II.]
269
UNITED STATES V. DIEKELMAN.
He was
only When the Essex availed herself of the proclamation and
entered the port, she assented to the conditions imposed, and cannot
complain if she was detained on account of the necessity of enforcing
er obligations thus assumed.
The law by which the city and port were governed was martial law.
This ought to have been expected by Diekelman when he despatched
his vessel from Liverpool. The place had been wrested from the
possession of the enemy only a few days before the issue of the proc-
lamation, after a long and desperate struggle. It was, in fact, a
garrisoned city, held as an outpost of the Union army, and closely
besieged by land. So long as it remained in the possession of the
insurgents, it was to them an important blockade-running point, and
after its capture the inhabitants were largely in sympathy with the
rebellion. The situation was, therefore, one requiring the most
active vigilance on the part of the general in command.
especially required to see that the relaxation of the blockade was not
taken advantage of by the hostile inhabitants to promote the inter-
ests of the enemy. All this was matter of public notoriety; and
Diekelman ought to have known, if he did not in fact know, that
although the United States had to some extent opened the port in the
interests of commerce, they kept it closed to the extent that was
necessary for the vigorous prosecution of the war. When he entered
the port, therefore, with his vessel, under the special license of the
proclamation, he became entitled to all the rights and privileges that
would have been accorded to a loyal citizen of the United States
under the saine circumstances, but no more.
Such restrictions as were
placed upon citizens, operated equally upon him. Citizens were gov-
erned by martial law. It was his duty to submit to the same
authority.
Martial law is the law of military necessity in the actual presence
It is administered by the general of the army, and is in fact
his will. Of necessity it is arbitrary; but it must be obeyed. New
Orleans was at this time the theatre of the most active and important
military operations. The civil authority was overthrown. General
Butler, in command, was the military ruler. His will was law, and
necessarily so. His first great duty was to maintain on land the
blockade which had theretofore been kept up by sea.
The partial
opening of the port toward the sea made it all the more important
that he should bind close the military lines on the shore which he
held.
To this law and this government the Essex subjected herself when
she came into port. She went there for gain, and voluntarily as-
sumed all the chances of the war into whose presence she came.
By
of war.
270
(PART I.
TERRITORIAL JURISDICTION.
availing herself of the privileges granted by the proclamation, she,
in effect, covenanted not to take out of the port "persons, things, or
information contraband of war." What is contraband depends upon
circumstances. Money and bullion do not necessarily partake of that
character; but, when destined for hostile use or to procure hostile
supplies, they do. Whether they are so or not, under the circum-
stances of a particular case, must be determined by some one when a
necessity for action occurs. At New Orleans, when this transaction
took place, this duty fell upon the general in command. Military
commanders must act to a great extent upon appearances. As a rule,
they have but little time to take and consider testimony before decid-
ing. Vigilance is the law of their duty. The success of their opera-
tions depends to a great extent upon their watchfulness.
General Butler found on board this vessel articles which he had
reasonable cause to believe, and did believe, were contraband, because
intended for use to promote the rebellion. It was his duty, there-
fore, under his express instructions, to see that the vessel was not
cleared with these articles on board; and he gave orders accordingly.
It matters not now whether the property suspected was in fact con-
traband or not. It is sufficient for us that he had reason to believe,
and in fact did believe, it to be contraband. No attempt has been
made to show that he was not acting in good faith. On the contrary,
it is apparent, from the finding of the court below, that the existing
facts brought to his knowledge were such as to require his prompt
and vigorous action in the presence of the imminent danger with
wbich he was surrounded. Certainly enough is shown to make it
necessary for this plaintiff to prove the innocent character of the
property before he can call upon the United States to respond to him
in damages for the conduct of their military commander, upon whose
vigilance they relied for safety.
Believing, then, as General Butler did, that the property was con-
traband, it was his duty to order it out of the ship, and to withhold
her clearance until his order was complied with. He was under no
obligation to return the bills of lading. The vessel was bound not to
take out any contraband cargo. She took all the risks of this obliga-
tion when she assumed it, and should have protected herself in her
contracts with shippers against the contingency of being required to
unload after the goods were on board. If she failed in this, the con-
sequences are upon her, and not the United States.
She was operat-
ing in the face of war, the chances of which might involve her and
her cargo in new complications. She voluntarily assumed the risks of
her hazardous enterprise, and must sustain the losses that follow.
Neither does it affect the case adversely to the United States that
1
CHAP. II.]
271
UNITED STATES V. DIEKELMAN.
the property had gone on board without objection from the custom-
house officers or the military authorities. It is not shown that its
character was known to General Butler or the officers of the custom-
house before it was loaded. The engagement of the vessel was not to
leave until she had been cleared according to law, and that her clear-
ance might be withheld until with reasonable diligence it could be
ascertained that she had no contraband property on board. This is
the legitimate effect of the provisions of the treasury regulations,
entitling her to a license" upon satisfactory evidence" that she would
"convey no persons, property, or information contraband of war,
either to or from " the port; and requiring her not to leave until she
had "a clearance from the collector of customs, according to law,
showing no violation of the license.' Her entry into the port was
granted as a favor, not as a right, except upon the condition of assent
to the terms imposed. If the collector of customs was to certify that
the license she held had not been violated, it was his duty to inquire
as to the facts before he made the certificate. Every opportunity for
the prosecution of this inquiry must be given. Under the circum-
stances, the closest scrutiny was necessary. If, upon the examination
preliminary to the clearance, prohibited articles were found on board,
there could be no certificate such as was required, until their removal.
It would then be for the vessel to determine whether she would re-
move the goods and take the clearance, or hold the goods and wait for
some relaxation of the rules which detained her in port as long as she
had them on board. General Butler only insisted upon her remain-
ing until she removed the property. She elected to remain. There
was no time when her clearance would not have been granted if the
suspected articles were unloaded.
We are clearly of the opinion that there is no liability to this
plaintiff resting upon the United States under the general law of
nations.
2. As to the treaty.
The vessel was in port when the detention occurred. She had not
broken ground, and had not commenced her voyage. She came into
the waters of the United States while an impending war was flagrant,
under an agreement not to depart with contraband goods on board.
The question is not whether she could have been stopped and detained
after her voyage had been actually commenced, without compensation
for the loss, but whether she could be kept from entering upon the
voyage and detained by the United States within their own waters,
held by force against a powerful rebellion, until she had complied
with regulations adopted as a means of safety, and to the enforcement
of which she had assented, in order to get there. In our opinion, 1:0
272
[PART 1.
TERRITORIAL JURISDICTION.
provision of the treaties in force between the two governments inter-
feres with the right of the United States, under the general law of
nations, to withhold a custom-house clearance as a means of enforcing
port regulations.
Art. XIII. of the treaty of 1828 contemplates the establishment of
blockades, and makes special provision for the government of the
respective parties in case they exist. The vessels of one nation are
bound to respect the blockades of the other. Clearly the United
States had the right to exclude Prussian vessels, in common with
those of all other nations, froin their ports altogether, by establishing
and maintaining a 'blockade while subduing a domestic insurrection.
The right to exclude altogether necessarily carries with it the right
of admitting through an existing blockade upon conditions, and of
enforcing in an appropriate manner the performance of the conditions
after adinission has been obtained. It will not be contended that a
condition which prohibits the taking out of contraband goods is un-
reasonable, or that its performance may not be enforced by refusing
a clearance until it has been complied with. Neither, in the absence
of treaty stipulations to the contrary, can it be considered unreason-
able to require goods to be unloaded, if their contraband character is
discovered after they have gone on board. In the existing treaties
between the two governments there is no such stipulation to the con-
trary. In the treaty of 1799, Art. VI. is as follows: “That the ves-
sels of either party, loading within the ports or jurisdiction of the
other, may not be uselessly harassed or detained, it is agreed that all
examinations of goods required by the laws shall be made before they
are laden on board the vessel, and that there shall be no examination
after.” While other articles in the treaty of 1799 were revived and
kept in force by that of 1828, this was not. The conclusion is irre-
sistible, that the high contracting parties were unwilling to continue
bound by such a stipulation, and, therefore, omitted it from their new
arrangement. It would seem to follow, that, under the existing
treaty, the power of search and detention for improper practices con-
tinued, in time of peace even, until the clearance had been actually
perfected and the vessel had entered on her voyage. If this be the
rule in peace, how much more important is it in war for the preven-
tion of the use of friendly vessels to aid the enemy.
Art. XIII. of the treaty of 1799, revived by that of 1828, evidently
has reference to captures and detentions after a voyage has com-
menced, and not to detentions in port, to enforce port regulations.
The vessel must be "stopped” in her voyage, not detained in port
alone. There must be "captors; " and the vessel must be in a con-
dition to be carried into port” or detained from "proceeding" after
CHAP. II.] UNITED STATES V. DIEK ELMAN.
273
she has been "stopped," before this article can become operative.
Under its provisions the vessel "stopped” might "deliver out the
goods supposed to be contraband of war," and avoid further “deten-
tion.” In this case there was no detention upon a voyage, but a
refusal to grant a clearance from the port that the voyage might be
commenced. The vessel was required to "deliver out the goods sup-
posed to be contraband” before she could move out of the port. Her
detention was not under the authority of the treaty, but in conse-
quence of her resistance of the orders of the properly constituted port
authorities, whom she was bound to obey. She preferred detention
in port to a clearance on the conditions imposed. Clearly her case is
not within the treaty. The United States, in detaining, used the
right they had under the law of nations and their contract with the
vessel, not one which, to use the language of the majority of the Court
of Claims, they held under the treaty "by purchase” at a stipulated
price.
As we view the case, the claimant is not "entitled to any damages"
as against the United States, either under the treaty with Prussia or
by the general law of nations.
The judgment of the Court of Claims is, therefore, reversed, and the
cause remanded with directions to dismiss-the petition.
1
1 See, also, the Kestor, 1901, 110 Fed. 432.
In Sotelo's Case, 1840, 1 Calvo, 569, M. Sotelo, an ex-Spanish Minister of State,
was taken off the French merchant vessel L'Océan on reaching Alicante, a Spanish
port.
To the same effect was the opinion of Lord Aberdeen, as appears from the following:
"I am directed by Lord Aberdeen to acquaint you, for the information of the Lords
Commissioners of the Admiralty, that there is no stipulation in the existing treaties
between this country and Spain which can be deemed sufficient to debar the Spanish
government from exercising the right which, in his lordship's opinion, appertains to
that government of claiming its own subjects when they may be found in a Spanish
port as passengers on board vessels hired to convey the mails between this country
and the Peninsula.” Viscount Canning to the Secretary of the Admiralty, Marchi
20, 1844; Rep. of Royal Comm, on fugitive slaves, 154.
The better American precedents are in accord :
"Sir,—I have to acknowledge the receipt of your No. 316, of the 10th ultimo, in
which you inclose copies of the correspondence between the legation at Guatemala
and Mr. Leavitt, the United States consul at Managua, respecting the case of José
Dolores Gomez, and request more definite instructions for such cases.
• It appears that Mr. Gomez, who is said to be a political fugitive from Nicaragua,
voluntarily took passage at San José de Guatemala for Punta Arenas, Costa Rica, on
board the Pacific Mail steamship Honduras with the knowledge that the vessel would
enter en route the port of San Juan del Sur, Nicaragua.
“The government of Nicaragua upon learning of this fact ordered the commandant
of the port of San Juan del Sur to arrest Gomez upon the arrival of the Honduras at
that port.
18
274
[PART I.
TERRITORIAL JURISDICTION.
SECTION 12. – EXTRADITION
- EXTRADITION - INTERSTATE RENDITION.
UNITED STATES V. RAUSCHER.
SUPREME COURT OF THE UNITED STATES, 1886.
(119 United States, 407.)
Mr. Justice MILLER delivered the opinion of the court.
“This case comes before us on a.certificate of division of opinion
between the judges holding the Circuit Court of the United States
“The minister for foreign affairs of Nicaragua informed Mr. Leavitt, United States
consul at Managua, of the action of the government by a telegram, as follows:
« Government has ordered the commander of port San Juan del Sur to arrest José
Dolores Gomez, a fugitive prisoner, who is on board of the steamer Honduras, now en
route to that port. I suppose the captain will not interfere with the action of the
commander, but to avoid whatever difficulties likely to arise I suggest you to send a
telegraphic message to the captain of the Honduras, at San Juan del Sur, stating that
the order has been issued by the government and recommending him to support the
commander, as there is no ground on the part of the captain to hinder the execution
of the government order.'
It appears that, before Mr. Leavitt had an opportunity to act upon this request, ,
you telegraphed him as follows:
Reported here arrest of a transit passenger bound to Panama on board steamer
Honduras at San Juan del Sur. Say respectfully to Nicaraguan minister of foreign
affairs that our Government never has consented and never will consent to the arrest
and removal from an American vessel in a foreign port, of any passenger in transit,
much less if offense is political.'
It appears that Mr. Leavitt declined to comply with the request of the minister of
foreign affairs, and followed your instructions by submitting a copy in writing to the
minister.
“From the brief outline given by the consul of the subsequent proceedings, it
appears that, the government authorities at San Juan del Sur, upon the arrival of the
Honduras at that port, requested the captain to deliver up Mr. Gomez. This he
declined to do and set sail without proper clearance papers.
“ The consul reports that for these offenses the captain has been tried by the
Nicaraguan government and found guilty, and although he has not been able to learn
the nature of the sentence, he is convinced, from the present attitude of the govern-
ment, that the sentence will be executed in case of the return of the captain or the
vessel within the jurisdiction of the government of Nicaragua.
“ As the nature and character of the proceedings against the captain of the
Honduras are not known to this department, a full and detailed report should be
made as early as practicable. It is clear that Mr. Gomez voluntarily entered the
jurisdiction of a country whose laws he had violated. . .
"It may be safely affirmed that when a merchant vessel of one country visits the
CHAP. II.]
275
UNITED STATES V. RAUSCHER.
for the Southern District of New York arising after verdict of guilty,
and before judgment, on a motion in arrest of judgment.
“The prisoner, William Rauscher, was indicted by a grand jury,
for that on the 9th day of October, 1884, on the high seas, out of the
jurisdiction of any particular state of the United States, and within
the admiralty and maritime jurisdiction thereof, he, the said William
Rauscher, being then and there second mate of the ship J. F. Chap-
man, unlawfully made an assault upon Janssen, one of the crew of
the vessel of which he was an officer, and unlawfully inflicted upon
said Janssen cruel and unusual punishment. This indictment was
found under & 5347 of the Revised Statutes of the United States. * * *
“The prisoner having been extradited upon a charge of murder on
the high seas of one Janssen, under $ 5339 Rev. Stat., had the Circuit
Court of the Southern District of New York jurisdiction to put him
to trial upon an indictment under $ 5347 Rev. Stat., charging him with
cruel and unusual punishment of the same man, he being one of the
crew of an American vessel of which the defendant was an officer, and
ports of another for the purposes of trade, it owes temporary allegiance and is
amenable to the jurisdiction of that country, and is subject to the laws which govern
the port it visits so long as it remains, unless it is otherwise provided by treaty.
Any exemption or immunity from local jurisdiction must be derived from the
consent of that country. No such exemption is made in the treaty of commerce and
navigation concluded between this country and Nicaragua on the 21st day of June,
1867.” (Bayard, Sec. of St., to Hall, March 12, 1884, in the case of Gomez, U. S.
Foreign Relations, 1885, p. 82.)
In the similar case of Barrundia, 1890, the government of the United States set up
a different rule. Barrundia was a political refugee from Guatemala who took
passage at a Mexican port, on the Pacific Mail Steamship Acapulco (American) for
Salvarlor. The steamer was to call on the way at several ports of Guatemala ; and
on learning of the movements of Barrundia, the government of Guatemala proposed
to arrest him. That it could legally do so was the opinion of the American Minister,
Mizner, and the American Consul-General Hosmer, and they so advised the captain of
the Acapulco, and the authorities of Guatemala. In the attempt to arrest Barrundia
on board the steamship, he resisted and was killed.
For his part in the affair, Mr. Mizner was severely censured, and recalled from his
post. Commander Reiter of the U. S. ship of war Ranger, who was present in the
port at the time, was also sent into disgrace for not interfering to prevent the arrest.
In his dispatch to Mr. Mizner of Nov. 18, 1890, Mr. Blaine reviews the facts
and the law of the case ; much of his argument has no bearing on the case, niany
of his citations go to disprove his own view of it. It is hardly too much to say that
there is no foundation in international law for the position of the United States
in this affair. The only possible excuse for it is the assertion that the Spanish-
American states do not possess all the rights of sovereign states, and that there
should be an exceptional rule adopted in their case, in regard to asylum on merchant
ships, as there is in the case of legations.
In addition to the authorities cited in note to U. S. v. Jeffers, ante, see 1 Wharton's
Digest, $ 104. — Ed.
case, and
276
[PART I.
TERRITORIAL JURISDICTION.
such punishment consisting of the identical acts proved in the extra-
dition proceedings ?
“ The treaty with Great Britain, under which the defendant was sur-
rendered by that government to ours upon a charge of murder, is that
of August 9, 1842. * * * The tenth article of the treaty is as follows:
"It is agreed that the United States and her Britannic Majesty shall,
upon mutual requisitions by them, or their ministers, officers, or au-
thorities, respectively made, deliver up to justice all persons who,
being charged with the crime of murder, or assault with intent to
commit murder, or piracy, or arson, or robbery, or forgery, or the
utterance of forged paper, committed within the jurisdiction of either,
shall seek an asylum, or shall be found, within the territories of the
other: provided that this shall only be done upon such evidence of
criminality as, according to the laws of the place where the fugitive
or person so charged shall be found, would justify his apprehension
and commitment for trial, if the crime or offense had there been com-
mitted ; and the respective judges and other magistrates of the two
Governments shall have power, jurisdiction, and authority, upon com-
plaint made under oath, to issue a warrant for the apprehension of
the fugitive or person so charged, that he may be brought before such
judges or other magistrates, respectively, to the end that the evidence
of criminality may be heard and considered ; and if, on such hearing,
the evidence be deemed sufficient to sustain the charge, it shall be
the duty of the examining judge or magistrate to certify the same to
the proper executive authority, that a warrant may issue for the
surrender of such fugitive.'
“Not only has the general subject of the extradition of persons,
charged with crime in one country, who have fled to and sought
refuge in another, been matter of much consideration of late years by
the executive departments and statesmen of the governments of the
civilized portion of the world, by various publicists and writers on
international law, and by specialists on that subject, as well as by the
courts and judicial tribunals of different countries, but the precise
questions arising under this treaty, as presented by the certificate of
the judges in this case, have recently been very much discussed in
this country, and in Great Britain.
“It is only in modern times that the nations of the earth have im-
posed upon themselves the obligation of delivering up these fugitives
from justice to the states where their crimes were committed, for
trial and punishment. This has been done generally by treaties made
by one independent government with another. Prior to these trea-
ties, and apart from them, it may be stated as the general result of
· the writers upon international law, that there was no well-defined
CHAP. II.]
277
UNITED STATES V, RAUSCHER.
obligation on one country to deliver up such fugitives to another, and
though such delivery was often made, it was upon the principle of
comity, and within the discretion of the government whose action
was invoked'; and it has never been recognized as among those obli-
gations of one government towards another which rest upon estab-
lished principles of international law.
“Whether in the United States, in the absence of any treaty on
the subject with a foreign nation from whose justice a fugitive may
be found in one of the states, and in the absence of any act of Con-
gress upon the subject, a state can, through its own judiciary or execu-
tive, surrender him for trial to such foreign nation, is a question
which has been under consideration by the courts of this country
without any very conclusive result.
“In the case of Daniel Washburn, 4 Johns. Ch. 106; S. C. 8 Ain.
Dec. 548, who was arrested on a charge of theft committed in Canada,
and brought before Chancellor Kent upon a writ of habeas corpus, that
distinguished jurist held that, irrespective of all treaties, it was the
duty of a state to surrender fugitive criininals. The doctrine of this
obligation was presented with great ability by that learned jurist; but
shortly afterward Chief Justice Tilghman, in the case of Short v.
Deacon, 10 S. & R. 125, in the Supreme Court of Pennsylvania, held
the contrary opinion that the delivery up of a fugitive was an affair
of the executive branch of the national Government, to which the
demand of the foreign power must be addressed ; that judges could
not legally deliver up, nor could they command the executive to do so;
and that no magistrate in Pennsylvania had the right to cause a person
to be arrested in order to afford the President of the United States an
opportunity to deliver him up, because the President had already
declared he would not do so. .)
"There can be little doubt of the soundness of the opinion of
Chief Justice Taney, that the power exercised by the governor of
Vermont is a part of the foreign intercourse of this country, which
has undoubtedly been conferred upon the Federal government; and
that it is clearly included in the treaty making power and the cor-
responding power of appointing and receiving ambassadors and other
public ministers. There is no necessity for the states to enter upon
the relations with foreign nations which are necessarily implied in
the extradition of fugitives from justice found within the limits of
the state, as there is none why they should, in their own name, make
demand upon foreign nations for the surrender of such fugitives.
“At this time of day, and after the repeated examinations which
have been made by this court into the powers of the Federal govern-
ment to deal with all such international questions exclusively, it can
278
TERRITORIAL JURISDICTION.
[PART 1.
cases.
hardly be admitted that, even in the absence of treaties or acts of
Congress on the subject, the extradition of a fugitive from justice
can become the subject of negotiation between a state of this Union
and a foreign government.
" Fortunately, this question, with others which might arise in the
absence of treaties or acts of Congress on the subject, is now of
very little importance, since, with nearly all the nations of the
world with whom our relations are such that fugitives from justice
may be found within their dominions or within ours, we have trea-
ties which govern the rights and conduct of the parties in such
These treaties are also supplemented by acts of Congress,
and both are in their nature exclusive.
- The case we have under consideration arises under one of these
treaties made between the United States and Great Britain, the
country with which, on account of our intimate relations, the cases
requiring extradition are likely to be most numerous. This treaty
of 1842 is supplemented by the acts of Congress of August 12, 1848,
9 Stat., 302, and March 3, 1869, 15 Stat., 337, the provisions of which
are embodied in $$ 5270, 5272 and 5275 of the Revised Statutes;
under Title LXVI., Extradition.* * *
“The treaty of 1842 being, therefore, the supreme law of the land,
which the courts are bound to take judicial notice of and to enforce
in any appropriate proceeding the rights of persons growing out of
that treaty, we proceed to inquire, in the first place, so far as per-
tinent to the question certified by the circuit judges, into the true
construction of the treaty. We have already seen that, according:
to the doctrine of publicists and writers on international law, the
country receiving the offender against its laws from another country
had no right to proceed against him for any other offense than that
for which he had been delivered up. This is a principle which com-
mends itself as an appropriate adjunct to the discretionary exercise
of the power of rendition because it can hardly be supposed that
a government which was under no treaty obligation nor any absolute
obligation of public duty to seize a person who had found an asy-
lum within its bosom and turn him over to another country for trial,
would be willing to do this, unless a case was made of some spe-
cific offense, of a character which justified the government in depriv-
ing the party of his asylum. It is unreasonable that the country of
the asylum should be expected to deliver up such person to be dealt
with by the demanding government without any limitation, implied
or otherwise, upon its prosecution of the party. In exercising its
discretion, it might be very willing to deliver up offenders against.
such laws as were essential to the protection of life, liberty and
+)
CHAP. II.]
UNITED STATES V. RAUSCHER,
279
person, while it would not be willing to do this on account of minor
misdemeanors or of a certain class of political offenses in which it
would have no interest or sympathy. Accordingly, it has been the
policy of all governments to grant an asylum to persons who have
fled froin their homes on account of political disturbances and who
might be there amenable to laws framed with regard to such sub-
jects, and to the personal allegiance of the party. In many of the
treaties of extradition between the civilized nations of the world,
there is an express exclusion of offenders against such laws, and in
none of them is this class of offenses mentioned as being the founda-
tion of extradition proceedings. Indeed, the enumeration of offenses
in most of these treaties, and especially in the treaty now under con-
sideration, is so specific, and marked by such a clear line in regard
to the magnitude and importance of those offenses, that it is impos-
sible to give any other interpretation to it than that of the exclusion
of the right of extradition for any others.
“ It is, therefore, very clear that this treaty did not intend to depart
in this respect from the recognized public law which had prevailed
in the absence of treaties, and that it was not intended that this
treaty should be used for any other purpose than to secure the trial
of the person extradited for one of the offenses enumerated in the
treaty. This is not only apparent from the general principle that
the specific enumeration of certain matters and things implies the
exclusion of all others, but the entire face of the treaty, including
the processes by which it is to be carried into effect, confirms this
view of the subject. It is unreasonable to suppose that any demand
for rendition framed upon a general representation to the govern-
ment of the asylum (if we may use such an expression) that the
party for whom the demand was made was guilty of some violation
of the laws of the country which demanded him, without specifying
any particular offense with which he was charged, and even without
specifying an offense mentioned in the treaty, would receive any
serious. attention; and yet such is the effect of the construction that
the party is properly liable to trial for any other offense than that
for which he was demanded, and which is described in the treaty.
There would, under that view of the subject, seem to be no need of
a description of a specific offense in making the demand. But, so
far from this being admissible the treaty not only provides that the
party shall be charged with one of the crimes mentioned, to wit,
murder, assault with intent to commit murder, piracy, arson, rob-
bery, forgery or the utterance of forged paper, but that evidence
shall be produced to the judge or magistrate of the country of which
such demand is made, of the commission of such an offense, and
:
280
TERRITORIAL JURISDICTION.
[PART 1.
that this evidence shall be such as according to the law of that
country would justify the apprehension and commitment for trial of
the person so charged. If the proceedings under which the party is
arrested in a country where he is peaceably and quietly living, and
to the protection of whose laws he is entitled, are to have no influ.
ence in limiting the prosecution in the country where the offense is
charged to have been committed, there is very little use for this par.
ticularity in charging a specific offense, requiring that offense to be
one mentioned in the treaty, as well as sufficient evidence of the
party's guilt to put him upon trial for it. Nor can it be said that,
in the exercise of such a delicate power under a treaty so well
guarded in every particular, its provisions are obligatory alone on
the State which makes the surrender of the fugitive, and that that
fugitive passes into the hands of the country which charges him with
the offense, free from all the positive requirements and just impli-
cations of the treaty under which the transfer of his person takes
place. A moment before he is under the protection of a govern-
ment which has afforded himn an asylum from which he can only be
taken under a very limited form of procedure, and a moment after
he is found in the possession of another sovereignty by virtue of
that proceeding, but divested of all the rights which he had the
moment before, and of all the rights which the law governing that
proceeding was intended to secure.
“If upon the face of this treaty it could be seen that its sole object
was to secure the transfer of an individual from the jurisdiction of
one sovereignty to that of another, the argument might be sound;
but as this right of transfer, the right to demand it, the obligation
to grant it, the proceedings under which it takes place, all show
that it is for a limited and defined purpose that the transfer is made,
it is impossible to conceive of the exercise of jurisdiction in such a
case for any other purpose than that mentioned in the treaty, and
ascertained by the proceedings under which the party is extradited,
without an implication of fraud upon the rights of the party extra-
dited, and of bad faith to the country which permitted his extra-
dition. No such view of solemn public treaties between the great
nations of the earth can be sustained by a tribunal called upon to
give judicial construction to them.
“ The opposite view has been attempted to be maintained in this
country upon the ground that there is no express limitation in the
treaty of the right of the country in which the offense was com-
mitted to try the person for the crime alone for which he was ex-
tradited, and that once being within the jurisdiction of that country,
no matter by what contrivance or fraud or by what pretense of
A
CHAP. II.]
UNITED STATES V. RAUSCHER.
281
establishing a charge provided for by the extradition treaty he may
have been brought within the jurisdiction, he is, when here, liable
to be tried for any offense against the laws as though arrested here
originally. This proposition of the absence of express restriction in
the treaty of the right to try him for other offenses than that for
which he was extradited, is met by the manifest scope and object of
the treaty itself. The caption of the treaty, already quoted, declar-
ing that its purpose is to settle the boundary line between the two
governments ; to provide for the final suppression of the African
slave trade; adds, and for the giving up of criminals, fugitive froin
justice, in certain cases.' The treaty, then, requires, as we have
already said, that there shall be given up, upon requisitions respect-
ively made by the two governments, all persons charged with any
of the seven crimes enumerated, and the provisions giving a party
an examination before a proper tribunal, in which, before he shall
be delivered up on this demand, it must be shown that the offense
for which he is demanded is one of those enumerated, and that the
proof is sufficient to satisfy the court or magistrate before whom
this examination takes place that he is guilty and such as the law
of State of the asylum requires to establish such guilt, leave no rea-
son to doubt that the fair purpose of the treaty is, that the person
shall be delivered up to be tried for that offense and for no other.
“ If there should remain any doubt upon this construction of the
treaty itself, the language of two acts of Congress, heretofore cited,
incorporated in the Revised Statutes, must set this question at rest.
Rev. Stat. $$ 3272, 3275. * * *
“ The obvious meaning of these two statutes, which have reference
to all treaties of extradition made by the United States, is that the
party shall not be delivered up by this government to be tried for
any other offense than that charged in the extradition proceedings ;
and that, when brought into this country upon similar proceedings,
he shall not be arrested or tried for any other offense than that with
which he was charged in those proceedings, until he shall have had
a reasonable time to return unmolested to the country from which he
was brought. This is undoubtedly a congressional construction of the
purpose and meaning of extradition treaties such as the one we have
under consideration, and whether it is or not, it is conclusive upon
the judiciary of the right conferred upon persons bought from a for-
eign country into this under such proceedings.
“ That right, as we understand it, is that he shall be tried only for
the offense with which he is charged in the extradition proceedings,
and for which he was delivered up, and that if not tried for that, or
after trial and acquittal, he shall have a reasonable time to leave the
282
TERRITORIAL JURISDICTION.
[PART I.
country before he is arrested upon the charge of any other crime
committed previous to his extradition. * * *
Upon a review of these decisions of the Federal and State courts,
to which may be added the opinions of the distinguished writers
which we have cited in the earlier part of this opinion, we feel author-
ized to state that the weight of authority and of sound principle are
in favor of the proposition, that a person who has been brought
within the jurisdiction of the court by virtue of proceedings under
an extradition treaty, can only be tried for one of the offenses de-
scribed in that treaty, and for the offense with which he is charged in
the proceedings for his extradition, until a reasonable time and oppor-
tunity have been given him, after his release or trial upon such .
charge, to return to the country from whose asylum he had been for-
cibly taken under those proceedings.” 1
i
1 Waite, C. J., dissented from the opinion of the court.
The decision in Rauscher's Case put an end to a controversy between the United
States anil England, of some years' stanıding, as to the interpretation of the extradi-
tion clause of the treaty of 1842. England had contended that a person surrendered
under the treaty could be tried for no offence except the specific one for whichi
extradition was accorded. The government of the United States had insisted, on the
other hand, that a person once extradited could he indicted and tried for offences other
than that charged in the demand for extradition. (See the cases of Lawrence and
Winslow, Moore's Extradition, I., 196-219; Wharton's Digest, II., $ 270; U. S.
Foreign Relations, 1876.) · For English practice, see In re Windsor, 1865, B. & S. 52;
Rex v. Dix, 1902, 18 T. L. 231 (K. B.), and a note to this case in 15 Harv. Law Rev. i
674.
The Supreme Court, in Rauscher's Case, upholds the English view of the question.
Previous to this authoritative decision. judicial opinion had been divided. In accord
with this decision: Com. v. Hawes, 1877, 13 Bush, 697; Blanford v. The State, 1881,
10 Texas App. 627; Watt's Case, 1882, 14 Fed. Rep. 139; State v. Vanderpool, 1881,
39 Ohio State, 237. Contra : Coldwell's Crise, 1871, 8 Biatch. .131; Lugarre's Case,
1873, 14 Alib. Pr. (N. S.), 333; In re Miller, 1885, 23 Fed. Rep. 32; Ex parte Hibbs,..
1886, 26 Fed. Rep. 422.
The decisions of the French Court of Cassation are in accord with that of the
United States Supreme Court: Dalloz, 1867, p. 281, No. 6, and ib, 1874, p. 502 and
notes.
i
::
In Rauscher's Case, the Supreme Court expressed the opinion that, in the absence::
of treaty, there was under international law no right of extradition.
And further that, in the United States, extradition is a matter exclusively in the
control of the Federal Government. See Ex parte Holmes, 1840, 12 Vt. 631 ; Holmes
v. Jennison, 1840. 14 Peters, 540; People v. Curtis, 1872, 50 N. Y. 321.
In 1864 President Lincoln surrendered to the Spanish authorities one Arguëlles, an
alleged fugitive from justice, without any treaty stipulation. The case was unfavor::.
ably criticised at the time and since, so that it has not been followed as a precedent.---
ED.
!
:
:
CHAP. II.]
283
STATE V. PATTERSON.
STATE V. PATTERSON.
SUPREME COURT OF Missouri, 1893.
1
(116 Missouri, 505.)
i
1
SHERWOOD, J. The third question presented by the record is that
in relation to the jurisdiction of the court to try defendant on the third
count of the indictment; and this contention is inade because it is said
the affidavit of Huston, on which the requisition was based, was not
sufficiently comprehensive to embrace the charge contained in that
count, and this contention was set forth in the trial court by a
plea to'
the jurisdiction. The decided cases show some divergence of opinion
on the questiou whether a fugitive from justice, when brought back
to the State where the alleged crime occurred, can be tried for crimes
other than the one for which he was extradited, some authorities hold-
ing that the fugutive cannot be tried except for the offence' named in
the warrant of extradition; others that when a person is properly.
charged with crime in the courts of the State to which he is brought
they will not inquire into the means whereby his extradition was
affected. 8 American and English Encyclopædia of Law, pp. 648 et
seg. As sustaining the latter view, a view entertained by the great
preponderance and a majority of the authorities, are: Ham v. State, 4
Tex, App. 645; State v. Ross, 21 Iowa, 467; State ex rel. v. Stewart, 60
Wis. 587; Waterman v. State, 116 Ind. 51; People v. Rowe, 4 Park.
Cr. 253; Ker v. People, 110 Ill. 627; LaGrave's Case, 59 N. Y. 110;
People ex rel. v. Cross, 135 N. Y. 536; In re Miles, 52 Vt. 609, State v.
Smith, 1 Bail. (So. Ca.), 283; Dows' Case, 18 Pa. St. 37 ; Harland v.
Territory, 3 Strune (Wash.), 131; Commonwealth v. Wright, 158 Mass.
149; Kentucky v. Dennison, 24 How. (U. S.), 66; In re Noyes, 17 Alb.
L. J. 407; Ker v. Illinois, 119 U. S. 436; Mahon v. Justice, 127 U: S.
700; Cook v. Hart, 146 U. S: 183; 1 Bishop Crininal Procedure [3d Ed.],
sec. 224 6; 2 Moore on Extradition, sec. 643 et seq...
In the recent case of Lascelles v. State, 16 S. E. Rep. 945.(1892), the
Supreme Court of the State of Georgia, per Lumpkin, J., ruled that
the defendant, though indicted for the offence of being a common cheat
and swindler, and for larceny after trust, and extradited from the
State of New York on those charges, could be indicted and tried for a
forgery committed in that State prior to his extradition. This case
!
1 Only the opinion on this third point is given. - ED.
284
[PART I.
TERRITORIAL JURISDICTION.
was brought on error to the Supreme Court of the United States,
Lascelles v. Georgia, 148 U. S. 537, where, after a review of the au-
thorities, the judgment was affirmed. In that case, decided April 13,
1893, the Supreme Court of the United States, as did the Supreme
Court of Georgia, clearly pointed out the distinction which should be
taken between those cases of extradition arising between the several
States of the Union under the Constitution and laws of Congress and
those cases where a prisoner has been extradited from a foreign country
under treaty stipulations, in which latter cases it has been ruled that
a person thus extradited could only be tried for the specific offence
which caused his extradition. United States v. Rauscher, 119 U.S. 407.
In Ker v. People, 110 Ill. 627, the defendant was kidnapped in Peru,
and brought over to the State of California, where he was extradited
on a requisition from the State of Illinois, on a charge of larceny, and
returned to the State of Illinois whence he had fled, and there tried on
a charge of embezzlement, and it was held that defendant had no valid
ground of objection to the jurisdiction of the court which tried him.
Carried on error to the Supreme Court of the United States, the judg-
ment was affirmed. 119 U. S. 436.
In Muhon v. Justice, 127 U. S. 700, the defendant was kidnapped in
West Virginia and forcibly carried back to Kentucky and held for trial
of a crime alleged to have been committed in that State. The Governor
of West Virginia demanded that defendant be restored, and meeting
with refusal, resorted to habeas corpus in order to affect his restoration.
The Circuit Court of the United States refused to discharge the defen-
dant, and on appeal to the Supreme Court this judgment was affirmed.
In that case it was contended that a right of asylumn in the State to
which he had fled, was possessed by the fugitive, which the Federal
courts should enforce; but this right was declared in that case to have
no existence under the laws of the United States, nor did they make
any provision for the return of parties who without lawful authority
had been abducted from another State; and that such forcible abduc-
tion from another State did not affect or in pair the jurisdiction of the
State to which they were brought, to try them for crimes committed
therein.
That the jurisdiction of the court in which the indictment is found
is not impaired by the method used to bring the accused before it, was
the rule at common law and was declared in the early case of Ex parte
Scott, 9 B. & C. 446. The result of the authorities heretofore cited is
in the same direction.
There are a few others opposed to this view; among them are State
v. Hall, 40 Kan. 338; Ex parte McKnight (Ohio), 28 N. E. Rep. 1034;
Cannon's Case, 47 Mich. 481; but we are quite satisfied, both upon reason
CHAP. II.]
285
IN RE CASTIONI.
and authority, that the rule announced in the former cases is the correct
one and should prevail.
Therefore judgment affirmed. All concur.1
In Re CASTIONI.
QUEEN'S BENCH, 1890.
(L. R. Queen's Bench Div. 149.)
On an application for a writ of habeas corpus, the motion was made
on behalf of Angelo Castioni, for an order nisi calling upon the solic-
itor to the Treasury, Franklin Lushington, Esq., a metropolitan
police magistrate, and the consul-general of Switzerland, as repre-
sentative of the Swiss Republic, to show cause why a writ of habeas
corpus should not issue to bring up the body of Castioni in order
that he might be discharged from custody.
The prisoner Castioni had been arrested in England on the requi-
sition of the Swiss Government, and brought before the magistrate
at the police court at Bow Street, and by him committed to prison
for the purpose of extradition, on a charge of willful murder, alleged
to have been committed in Switzerland.
The facts, which were contained in depositions sent from Switzer-
land, in the depositions taken before the magistrate at Bow Street,
and in affidavits used on the hearing of the motion were shortly as
follows:
The prisoner was charged with the murder of Luigi Rossi, by shoot-
ing him with a revolver on September 11, 1890, in the town of Bel-
linzona, in the canton of Ticino, in Switzerland. The deceased, Rossi,
was a member of the State Council of the canton of Ticino, and was
about twenty-six years of age. The prisoner, Castioni, was a citizen
of the same canton ; he had resided for seventeen years in England,
and arrived at Bellinzona on September 10, 1890. For some time
previous to this date much dissatisfaction had been felt and expressed
by a large number of the inhabitants of Ticino at the mode in which
1 The leading cases on interstate rendition are: kentucky v. Dennison, 1860, 24 How.
66; Ex parte Reggel, 1885, 114 U. S. 642; Mahon v. Justice, 1887, 127 U. S. 700; Las-
celles v. Georgia, 1892, 148 U. S. 537. State v: Patterson, supra, states the law more
briefly and cites authorities. As to the legal meaning of the phrase "fugitive from
justice," see Kingsbury's Case, 1870, 106 Mass. 2:23, and Jones v. Leonard, 1878, 50 Ia.
106, and see valuable notes in 8 Harv. Law Rev. 494. On the subject in general, in
addition to Moore's masterly treatise, see a brief note in 8 Harv. Law. Rev. 416. — Ed.
286
[PART I.
TERRITORIAL JURISDICTION.
the political party then in power were conducting the government
of the canton. A request was presented to the Governinent for a
revision of the constitution of the canton, under art. 15 of the consti-
tution, which provides that “The constitution of the canton may be
revised wholly or partially. *** (b) at the request of 7,000 citizens
presented with the legal formalities. In this case the council shall
within one month submit to the people the question whether or not
they wish to revise the constitution," and a law of May 9, 1877,
prescribes the course to be adopted for the execution of letter (b) of
art. 15.
The Government having declined to take a popular vote on the
question of the revision of the constitution, on September 11, 1890,
a number of the citizens of Bellinzona, ainong whom was Castioni,
seized the arsenal of the town, from which they took rifles and am-
munition, disarmed the gendarmes, arrested and bound or handcuffed
several persons connected with the Government, and forced them
to march in front of the armed crowd to the municipal palace. Ad-
mission to the palace was demanded in the name of the people, and
was refused by Rossi and another member of the Government,
who were in the palace. The crowd then broke open the outer gate
of the palace, and rushed in, pushing before them the Government
officials whom they had arrested and bound; Castioni, who was
armed with a revolver was among the first to enter. A second door,
which was locked, was broken open, and at this time, or immediately
after, Rossi, who was in the passage, was shot through the body
with a revolver, and died very soon afterwards. Some other shots
were fired, but no one else was injured. Two witnesses, who were
present when the shot was fired, and were called before the magis-
trate at Bow Street, identified Castioni as the person who fired the
shot. One of the witnesses called for the prisoner was an advocate
named Bruni, who had taken a leading part in the attack on the
municipal palace. In cross-examination he said: “The death of
Rossi was a misfortune, and not necessary for the rising." There
was no evidence that Castioni had any previous knowledge of
Rossi. The crowd then occupied the palace, disarmed the gendarmes
who were there, and imprisoned several members of the Government.
A provisional Government was appointed, of which Bruni was à
member, and assumed the Government of the canton, which it re-
tained until dispossessed by the armed intervention of the Federal
Government of the Republic.
The magistrate was of opinion that the identification of Castioni
was sufficient, and held upon the evidence that the bar to extradition
specified in § 3 of the Extradition Act, 1870: “A fugitive criminal
C}AP. II.]
287
IN RE CASTIONI.
i
shall not be surrendered if the offence in respect, of which his sur-
render is demanded is oue of a political character, or if he prove to
the satisfaction of the police magistrate, or the court before whom
he is brought on habeurs-corpus, or to the Secretary of State, that the
requisition for his surrender has in fact been made with a view to
try or punish him for an offence of a political character," did not
exist, and committed Castioni to prison. By the extradition treaty
with Switzerland, dated Nov. 26, 1880, article 11: "A fugitive crim-
inal shall not be surrendered if the offence in respect of which his
surrender is demanded is one of a political character, or if he prove
that the requisition for his surrender has in fact been made with a
view to try and punish him for an offence of a political character."
Sir Charles Russell, for the prisoner; the Attorney-General, for the
Crown.
DENMAN, J.:-“ Looking at the extreme importance of this case,
I should have been disposed, if I had felt any serious doubt as to the
course we ought to pursue, to have taken time, not so much to con-
sider what our judgment should be, as to take care to put it in the
best possible shape, or even to reduce it to writing. But there are
many considerations which apply to cases of this sort. One is, that
here is a man in custody who has been in custody for a considerable
time, and no greater delay than is reasonably necessary ought to be
interposed if our decision should be one to the effect that he ought
not to be in custody any longer. I am unable to entertain a doubt
that this is a case in which we ought to order that the prisoner be
discharged.
“There has been no legal decision as yet upon the meaning of
the words contained in the act of 1870, upon the true meaning of
which this case mainly depends. We have had many definitions sug-
gested, and great light has been thrown upon the possible and prob-
able meaning of the words by the arguments that have been ad-
dressed to us, applying not only the language of judges, but language
used in text-books, language used by great political authorities, and in
one case by a most learned philosopher. I think it has been useful
in such a case as this that we should hear a discussion as to the pos-
sible meaning of the words, as it has occurred that they ought to be
construed to people such as those whose opinions have been cited,
and especially I may apply that observation to the case of my
very learned brother whose assistance we have on this occasion
in deciding the present case. I do not think it is necessary or de-
sirable that we should attempt to put into language, in the shape of
an exhaustive definition, exactly the whole state of things, or every
state of things which bring a particular case within the description
.
288
(PART I.
TERRITORIAL JURISDICTION.
of an offence of a political character. I wish, however, to express
an opinion as to one matter upon which I entertain a very strong
opinion. That is, that if the description given by Mr. John Stuart
Mill, Any offence committed in the course of or furthering of civil
war, insurrection, or political commotion,' were to be construed in
the sense that it really means any act which takes place in the
course of a political rising without reference to the object and inten-
tion of it, and other circumstances connected with it, I should say
that it was a wrong definition and one which could not be legally ap-
plied to the words in the Act of Parliament. Sir Charles Russell
suggested that in the course of' was to be read with the words fol-
lowing, ‘or in furtherance of,' and that in furtherance of' is equiv-
alent to 'in the course of. I cannot quite think that this was the
intention of the speaker, or is the natural meaning of the expression;
but I entirely concur with the observation of the Solicitor-General
that in the other sense of the words, if they are not to be construed
as merely equivalent expressions, it would be a wrong definition.
I think that in order to bring the case within the words of the Act
and to exclude extradition for such an act as murder, which is one
of the extradition offences, it must at least be shown that the act
is done in furtherance of, done with the intention of assistance, as a
sort of overt act in the course of acting in a political matter, a polit-
ical rising, or a dispute between two parties in the state as to which
is to have the government in its hands, before it can be brought
within the meaning of the words used in the act.
“Sir Charles Russell has argued that in every case it is for the
party seeking extradition to bear the onus of affirmatively bringing
it within the meaning of those words. On the other hand, it has
been contended that if there be an extraditable offence, the onus is
upon the person seeking the benefit of those words to show i case
in which extradition can be avoided: I do not myself think that it
is possible to decide a case such as this, or the true meaning of those
words, by applying any such test as on whom is the onus. I do not
think it is intended that a scrap of a prima facie case on the one
side should have the effect of throwing upon the other side the onus
of proving or disproving his position. I look at the words of the
act themselves and I think that they are against any such narrow
technical mode of dealing with the case. The words of s. 3, subd.
1, are 'a fugitive criminal shall not be surrendered if the offence in
respect of which his surrender is demanded is one of a political
character. The section itself begins: “The following restrictions
shall be observed with respect to the surrender of fugitive criminals.'
There is nothing said as to upon whom is the onus probandi, or that
CHAP. II.]
289
IN RE CASTIONI.
it shall be made to appear by one side or the other in such a case.
It is a restriction upon the surrender of a fugitive criminal, and
however it appears, if it does appear, that the act was, in the judg-
ment of the court, an offence which would otherwise be an offence
according to the laws of this country, but an offence of a political
character, then wholly irrespective of any doctrine of onus on the one
side or the other, that is within the jurisdiction, and he cannot be
surrendered. It was at first contended, in opposition to the application
for a habeas corpus, that if the magistrate upon this question once
made up his mind, the court had no jurisdiction to deal with it.
It appears to me that this proposition cannot be maintained on the
very face of the act itself, which requires by s. 11 that the magistrate
shall inform the prisoner that he may apply for a habeas corpus, and
if he is entitled to apply for a habeas corpus, I think it follows that
this court must have power to go into the whole matter, and in
some cases, certainly if there be fresh evidence, or perhaps upon the
same evidence, might take a different view of the matter from that
taken by the magistrate.
“It seems to ine that it is a question of mixed law and fact,
mainly indeed of fact-as to whether the facts are such as to bring
the case within the restriction of s. 3, and to show that it was an
offence of a political character. I do not think it is disputed, or that
now it can be looked upon as in controversy, that there was at this
time existing in Ticino a state of things which would certainly show
that there was more than a mere small rising of a few people against
the law of the State. I think it is clearly made out by the facts of
this case, that there was something of a very serious character going
on-amounting, I should go so far as to say, in that small com-
munity, to a state of war. There was an armed body of men who
had seized arms from the arsenal of the State; they were rushing
into the municipal council chamber in which the government of the
State used to assemble; they demanded admission; admission was
refused; soine firing took place; the outer gate was broken down;
and I think it also appears perfectly plain from the evidence in the
case that Castioni was a person who had been taking part in that
movement at a much earlier stage. He was an active party in the
movement; he had taken part in the binding of one member of the
government. Some time before he arrived with his pistol in his
hand at the seat of government, he had gone with multitudes of men,
armed with arms from the arsenal, in order to attack the seat
of government, and I think it must be taken that it is quite clear
that from the very first, he was an active party, one of the rebellious
party who was acting and in the attack against the government.
19
290
TERRITORIAL JURISDICTION.
[PART 1.
Now, that being so, it resolves itself into a small point, depending
on the evidence which was taken before the magistrate, and any.
thing that we can collect from the evidence that we have before us
and from the whole circumstances of the case.
“Before dealing with the evidence, I will say one thing about the
message which was objected to and which was read after a slight
discussion, upon the understanding that we were not going to use
that document as evidence of any particular fact, but that it would
be only used as an important document showing that the govern-
ment of the country had themselves looked upon this as a serious
political rising, and a serious state of violence by a very large body
of the people against the government. I mean so to use it, and I
have never thought of using it in any other way. I think that was
the understanding upon which we allowed it to be read, and I feel
that I am not justified in using it for any other purpose. Then it is
reduced to the question of whether, upon the depositions sent over,
and upon the depositions before the magistrate and upon the fresh
facts, if there be any, which are brought before us on the affidavits,
we think that this was an act done, not only in the course of a po-
litical rising, but as part of a political rising. Here I must say at
once that I assent entirely to the observation that we cannot decide
that question merely by considering whether the act done at the
moment at which it was done was a wise act in the sense of being
an act which the man who did it would have been wise in doing with
the view of promoting the cause in which he was engaged. I do
not think it would be at all consistent with the real meaning of the
words of the statute if we were to attempt so to limit it. I mean,
I do not think it would be right to limit it in the way suggested by
the cross-examination of Bruni, namely, by considering whether it
was necessary at that time that the act should be done. The ques-
tion really is whether, upon the facts, it is clear that the man was
acting as one of a number of persons engaged in acts of violence of
a political character with a political object, and as part of the
political movement and rising in which he was taking part. Now,
the only shadow of a suggestion of evidence to the contrary, I
think, is the suggestion which appears on the face of some of
the documents that he said something about his brother having
been assassinated some years before. It was said in the message,
which I have already said I do not rely upon as a statement of fact,
that he did at the time he fired use the expression, My brother's
death cries for vengeance!' That is in the document, and is a
statement of fact which I do not rely upon, and I do not think that
I am justified in relying upon it, though if I commented on that, I
!
CHAP. II.]
291
IN RE CASTIONI.
should certainly say it was quite as capable of the construction
put upon it by Sir Charles Russell, that he was not intending to
murder Rossi, of whom he knew nothing, and of whose connection
with any injury towards his brother there is not the slightest par-
ticle of evidence, as that it means anything of the kind suggested.
Then it amounts to a very little, and it comes to discussion as to the
facts of the case, and as to what was taking place at the exact mo:
ment at which the shot was fired. I have carefully followed the
discussion as to the facts of the case, and if it were necessary I
could go through them all one by one, and point out, I think, that,
looking at the way in which that evidence was given, and at the
evidence itself, there is nothing in my judgment to displace the
view which I take of the case, that at the moment at which Castioni
fired the shot, the reasonable presumption is not that it is a matter
of absolute certainty (we cannot be absolutely certain about anything
as to men's motives) but the reasonable assumption is that he, at
the moment knowing nothing about Rossi, having no spite or ill-
will against Rossi, as far as we know, fired that shot; that he
fired it thinking it would advance, and that it was an act which was
in furtherance of, and done intending it to be in furtherance of the
very object which the rising had taken place in order to promote,
and to get rid of the Government, who, he might, until he had ab-
solute y got into the place, have supposed were resisting the en-
trance of the people to that place. That, I think, is the fair and rea-
sonable presumption to draw from the facts of the case. I do not
know that it is necessary to give any opinion as to the exact mo-
ment when the shot was fired; there is some conflict about it. There
is evidence that there was great confusion; there is evidence of
shots fired after the shot which Castioni fired; and all I can say is,
that looking at it as a question of fact, I have come to the conclu-
sion that at the time at which that shot was fired he acted in the fur-
therance of the unlawful rising to which at that time he was a party,
and an active party—a person who had been doing active work from
a very much earlier period, and in which he was still actively en-
gaged. That being so, I think the writ ought to issue, and that we
should be acting contrary to the spirit of this enactment, and to the
fair meaning of it, if we were to allow him to be detained in cus-
tody longer."
HAWKINS, J., said, among other things, “Now what is the meaning
of crime of a political character? I have thought over this matter
very much indeed, and I have thought whether any definition can
be given of the political character of the crime-I mean to say, in
language which is satisfactory. I have found none at all, and I can
292
TERRITORIAL JURISDICTION.
(PART I.
imagine for myself none so satisfactory, and to my mind so complete,
as that which I find in a work which I have now before me, and the
language of which for the purpose of my present judgment I en-
tirely adopt, and that is the expression of my brother Stephen in his
History of the Criminal Law of England in vol. ii., pp. 70, 71. I will
not do more than refer to the interpretations, other than those with
which he agrees, which have been given upon this expression,
political character'; but I adopt his definition absolutely. The
third meaning which may be given to the words, and which I take
to be the true meaning, is somewhat more complicated than either
of those I have described. An act often falls under several differ-
ent definitions. For instance, if a civil war were to take place, it
would be high treason by levying war against the Queen. Every
case in which a man was shot in action would be murder. When-
ever a house was burnt for military purposes arson would be com-
mitted. To take cattle, etc., by requisition would be robbery. Ac-
cording to the common use of language, however, all such acts would
be political offences, because they would be incidents in carrying on
a civil war.
I think, therefore, that the expression in the Extradi-
tion Act ought (unless some better interpretation of it can be
suggested) to be interpreted to mean that fugitive criminals are
not to be surrendered for extradition crimes, if those crimes were
incidental to and formed a part of political disturbances. I do not
wish to enter into details beforehand on a subject which might at
any moment come under judicial consideration. The question has
come under judicial consideration, and having had the opportunity
before this case arose of carefully reading and considering the views
of my learned brother, having heard all that can be said upon the
subject, I adopt his language as the definition that I think is the
most perfect to be found or capable of being given as to what is the
meaning of the phrase which is made use of in the Extradition
Act. * * *
“I cannot help thinking that everybody knows there are many
acts of a political character done without reason, done against all
reason; but at the same time, one cannot look too hardly and weigh
in golden scales the acts of men hot in their political excitement.
We know that in heat and in heated blood men often do things which
are against and contrary to reason; but none the less an act of this
description may be done for the purpose of furthering and in further-
ance of a political rising, even though it is an act which may be de-
plored and lamented, as even cruel and against all reason, by those
who can calmly reflect upon it after the battle is over.
“For the reasons I have expressed, I am of opinion that this rule
CHAP. II.]
IN RE CASTIONI.
293
ought to be made absolute, and that the prisoner ought to be dis-
charged.” 1
1 In Re Ezeta, 1894, 62 Fed. Reporter, 972, the court says: "In the Castioni Case,
supra, decided in 1891, the question was discussed by the most eminent counsel at the
English bar, and considered by distinguished judges, without a definition being found
that would draw a fixed and certain line between a municipal or common crime and
one of a political character. ... Applying, by analogy, the action of the English court
in that case to the four cases now before me, under consideration, the conclusion tol-
lows that the crimes charged here, associated as they are with the actual conflict of
armed forces, are of a political character,” pp. 998–999.
For further illustrations of political and non-extraditable offences see Cazo's Case,
1887, in 1 Moore on Extradition, 324; The St. Alban's Raid, 1864, ib. 322; Burley's
Case, 1864, ib. 319.
Political offences : “ Most codes extend their definitions of treason to acts not
really against one's country. They do not distinguish between acts against the
government and acts against the oppressions of the government. The latter are virtues,
yet have furnished more victims to the executioner than the former. * * * The
unsuccessful strugglers against tyranny have been the chief martyrs of treason laws
in all countries. *** Treasons, then, taking the simulated with the real, are sufficiently
punished by exile.” Jefferson to Carmichael and Short, 1792. 1 Am. St. Pap. For.
Rel., 258.
In recent years there has been much discussion as to the nature of the crime com-
mitted in the assassination of the head of a government and of other public officials;
whether it is to be put upon the footing of ordinary murder, or whether it shall be
classed among those political offences which are exempt from extradition proceedings.
Is it possible to make a distinction, as Mr. Jefferson suggests, between acts directed
against tyranny, and those of a mere common-law character? Some such distinction
has probably influenced statesmen in their dealings with the question of extradition.
But as offences of this class have become more common and have invaded the domin-
ions of the most liberal governments, public opinion would seem to be undergoing a
change in regard to them.
Soon after the assassination of President Garfield, the United States Government
entered into two treaties of extradition — that with Belgium of 1882, and that with
Luxembourg of 1883 – in which it is stipulated that “an attempt against the life of
the head of a foreign government or against that of any member of his family, when
such attempt comprises the act either of murder or assassination or of poisoning,
shall not be considered a political offence or an act connected with such an offence."
An extradition treaty between the United States and Russia, 1893, contains a similar
clause.
By an agreement between the governments of Russia and Prussia in 1888, for the
basis of an extradition convention, attempts against the life of the Emperor of Russia
or the members of his family are to be considered as 'extraditable offences. And
further, “the fact that the crime or offence, in respect whereof extradition is demanded,
has been committed for a political object, shall in no case be a reason for refusing
extradition.” Lowe's Life of Bismarck, II, 19.
On this subject, see Moore's Extradition, I., 303–326.
It is not usual for nations to surrender their own subjects even although they may
be guilty of the crime with which they are charged. To prevent disputes of this na-
ture it is customary to exclude such citizens from the operation of the treaty, by an
express clause to that effect. See Trimble's Case, 1884, 1 Moore on Extradition, 166.
Å
.
294
[PART 1.
TERRITORIAL JURISDICTION.
;
SECTION 13. - JURISDICTION OF OFFENCES COMMITTED ABROAD.
UNITED STATES V. DAVIS.
UNITED STATES CIRCUIT COURT, DISTRICT OF MASSACHUSETTS, 1873.
(2 Sumner, 482.)
On an indictment for manslaughter it appeared that a gun was fired
by defendant Davis, master of an American whale ship lying in the
harbor of one of the Society Isles, by which a person on board a schooner
(belonging to the natives and likewise lying within the same harbor)
was killed.1
STORY, J. We are of the opinion that, under the circumstances
established in evidence, there is no jurisdiction in this cause. The
« The exemption of citizens from extradition has been maintained on various
grounds. The only one which need seriously be noticed is that by the laws of most
countries provision is made for the trial and punishment of their citizens for offences
committed abroad, and that a state should not deliver up one of its citizens to be
tried before a foreign tribunal when he can be punished at home under its own
laws. By England and the United States alone are offences, even when committed
by their citizens or subjects, treated as entirely local.” Moore's Extradition,
I., 153.
In negotiating extradition treaties these two states have therefore been willing to
stipulate for the rendition of their own subjects or citizens. Indeed, the United States
for a time refused to enter into extradition treaties on any other basis; but since 1852
this objection appears to have been waived, and a large nuniber of our treaties of
.extradition, as that with Mexico, exempts each party from the obligation to surrender
its own citizens.
But as this exemption from the obligation to surrender citizens was doubtless
inserted in these treaties in deference to the opinion of other states, it is not probable
that it was intended as an absolute prohibition upon the President of the United States ;
indeed, the wording of the clause would seem to imply a discretion on the part of the
contracting parties.
In 1880, the Institute of International Law, after an exhaustive discussion of the
subject of extradition, adopted a series of resolutions, the sixth of which was as
follows:-
“Between countries whose criminal legislation rests on similar foundations, and
which have confidence in each other's judicial institutions, the extradition of their own
citizens would be a means of securing the good administration of criminal justice,
because it ought to be desirable that the authorities of the forum delicti commissi should,
if possible, be called upon to try the case.”
See on this subject: Moore's Extradition, I., 152; Dana's Wheaton, pp. 189–191,
notes. ED.
i Short statement substituted for that of the original report: - ED.
CHAP. II.]
UNITED STATES V. DAVIS.
295
ונס
Crimes Act of 1790, ch. 36, $ 12, on which this indictment is founded
gives to this court jurisdiction of the crime of manslaughter only when
committed "on the high seas." We do not absolutely decide, whether
the place where this offence, if any, was committed, was the high
seas or not; because that night be affected by considerations of a very
delicate and difficult nature, as whether it was high or low tide ; for a
place may at high water be the high seas, and yet at low water be
strictly a part of the land, as is the case on our seashore, according to
the well-known doctrine in Constable's Case, 5 Co. R. 106 a. In the
present case, at high water the tide of the ocean had full sweep over
the place in question; and it may be matter of grave consideration,
whether, if the whole . reef was at the time covered with water', the
whole, including the place where the schooner lay, ought not to be
deemed the high seas. But on this we give no opinion.
What we found ourselves upon in this case is, that the offence, if
any, was committed, not on board of the American ship Rose ; but on
board of a foreign schooner belonging to inhabitants of the Society Isl-
ands, and, of course, under the territorial government of the king of
the Society Islands, with which kingdom we have trade, and friendly
intercourse, and which our Government may be presumed (since we
have a consul there) to recognize as entitled to the rights and sover-
eignty of an independent nation, and of course entitled to try offences
committed within its territorial jurisdiction. I say the offence was
committed on board of the schooner; for although the gun was fired
from the ship Rose, the shot took effect and the death happened
on board of the schooner; and the act was, in contemplation of
law, done where the shot took effect. So the law was settled in the
case of Rex v. Coombs, 1 Leach. Cr. Cas. 432, where a person on the ligh
seas was killed by a shot fired by a person on shore, and the offence
was held to be coininitted on the high seas, and to be within the ad-
miralty jurisdiction. Of offences committed on the high seas on board
of foreign vessels (not being a piratical vessel), but belonging to per-
sons under the acknowledged government of a foreign country, this
court has no jurisdiction under the Act of 1790, ch. 36, § 12. That
was the doctrine of the Supreme Court in United States v. Palmer, 3
Wheat. R. 610, and United States v. Klintock, 5 Wheat. R. 144, and
United States v. Holmes, 5 Wheat. R. 412 ; applied, it is true, to another
class of cases, but in its scope embracing the present. We lay 10
stress on the fact, that the deceased was a foreigner. Our judgment
would be the same, if he had been an American citizen. We decide the
case wholly on the ground, that the schooner was a foreign vessel, be-
longing to foreigners, and at the time under the acknowledged jurisdic-
tion of a foreign government. We think, that under such circumstances,
296
[PART 1.
TERRITORIAL JURISDICTION.
the jurisdiction over the offence belonged to the foreign government,
and not to the courts of the United States under the act of Congress.
The jury immediately returned a verdict of not guilty.
STATE Y. CHARLES WYCKOFF.
SUPREME COURT OF NEW JERSEY, 1864.
(2 Vroom, 65.)
BEASLEY, C. J. The defendant was convicted before the Court of
Oyer and Terminer, on an indictment containing two counts, the first
of which charges him with the larceny of certain goods of a value
exceeding twenty dollars, and the other with receiving goods know-
ing them to be stolen.
It appeared that the defendant was in New York at the time of the
theft, and while in that State he made an arrangement with one Kelly
to come into this State and steal the articles in question and to bring
and deliver them to him in New York. This arrangement was car-
ried into effect. The articles being stolen by Kelly and delivered to
the defendant in New York. The defendant was not in this State at
any time, from the inception to the conclusion of the transaction.
The Court of Oyer and Terminer have asked the advisory opinion of
this court upon two points.
First. Whether proof of the above stated facts will support the
indictment.
Second. Has the defendant committed any offence indictable by
the laws of this State?
In regard to the first point. The circumstances proved on the trial
established the fact that Kelly was guilty of the crime of grand lar-
ceny
in this State. Kelly. therefore committed a felony, and conse-
quently, as the defendant was not present, either actually or
constructively, at the commission of the offence, he could not be
a principal therein, but was an accessory before the fact. Kelly did
the act and the defendant's will contributed to it, but it was co!!-
mitted while he was too far from the act to constitute him a principal.
The distinction in felonies between the principal and accessories
before and after the fact, is certainly technical, and has been some-
times regarded as untenable, but it is too firmly established to be
exploded by judicial authority. It has always been regarded, in its
essential features, as a part of the criminal law of this State, and its
CHAP. II.]
STATE V. WYCKOFF.
297
existence is recognized both in our statutes and in a number of the
reported decisions. State v. Cooper, 1 Green, 373, Johnson v. State, 2
Ducther, 324; Cook v. State, 4 Zab. 845.
The first count, therefore, charging the defendant as a principal in
the larceny, is not sustained by the evidence. The crime of the acces-
sory being dissimilar from that of the principal in its fundamental
characteristics, must be distinctly charged in the pleadings. It has
never been supposed that a count containing a statement of facts
evincive of the fault of the party accused as a principal in a felony,
was sufficient to warrant the conviction of such party as an accessory.
1 Chit. Crim. Law, 271, 2 id. 4; Wharton's Prec. of Indict. 97; State
v. Seran, 4 Dutcher, 519. In the case of Rex v. Plant, 7 Car. & P.
575, it was expressly held that one indicted as principal in a felony
could not be convicted of being an accessory before the fact. See,
also, Whart. C. L. 115.
Neither will the second count of the indictment sustain the convic-
tion. The evidence shows that the stolen goods were received by the
defendant, with guilty knowledge, in the State of New York. But
this was no offence against the laws of this State. The defendant
therefore cannot be legally sentenced upon the conviction founded on
the present indictment.
The remaining question is, has the defendant committed any offence
indictable by the laws of this State?
His act was to incite and procure his agent or accomplice to enter
this State and commit the felony. If the defendant had been in this
State at the time of such procurement and indictment, he would have
been gụilty as an accessory before the fact; but what he did was done
out of the State. Did he thereby become amenable to our criminal
jurisdiction?
As the defendant did not act within this State in his own person,
the point to be decided is, Did he do such act in this State by con-
struction or in contemplation of law?
It is undoubtedly true that personal presence within the jurisdiction
in which the crime is committed is not in all cases requisite to confer
cognizance over the person of the offender, in the tribunals of the
government whose laws are violated. In some cases the maxim ap-
plies, Crimen trahit personam. Thus, where a person being within
one jurisdiction, inaliciously fires a shot which kills a man in another
jurisdiction, it is murder in the latter jurisdiction, the illegal act
being there consummated. So in the case of The United States v.
Davies, 4 Sumner, 485, the defendant was accused of shooting from
an American ship and killing a man on board a foreign schooner.
Chief Justice Story said, "the act was, in contemplation of law, done
298
[PART I.
TERRITORIAL JURISDICTION.
where the shot took effect. He would be liable to be punished by the
foreign government." The same principle was recognized by this
court in the case of The State v. Carter, 1 3 Dutcher, 499. So when a
crime is committed by an innocent living agent, the projector of such
criine being absent from the country whose laws are infringed. Such
was the case of The People v. Adams, 3 Denio, 190. In this latter
case the facts were these: the defendant was indicted in the City of
New York for obtaining money from a firm of commission merchants
in that city, by the exhibition of fictitious receipts. The defendant
pleaded that he had never been in the State of New York - that the
receipts were drawn and signed in Ohio, and that the offence was
committed by their being presented to the firm in New York by inno-
cent agents employed by the defendant in Ohio. It was held that
such plea was bad and disclosed no defence. A number of authori-
ties maintaining the same view will be found collected in the opinion
of the judge who delivered the decision of the court in the case last
cited.
The rule, therefore, appears to be firmly established, and upon very
satisfactory grounds, that where the crime is committed by a person
absent from the country in which the act is done, through the means
of a merely material agency or by a sentient agent who is innocent, in
such cases the offender is punishable where the act is done. The law
implies a constructive presence from the necessity of the case; other-
wise the anomaly would exist of a crime but no responsible criminal.
But the more difficult question remains to be considered, which is
- in case of a felony committed here by a responsible agent, who is
therefore the principal felon and punishable by our laws -- cần the
1 In this case it was held that an indictment charging a felonious assault and
battery in New York, and that the party injured came into and died from its effects
in New Jersey, charges no crime against this State; that the New Jersey statute can-
not embrace cases where the act complained of has been wholly done within the
territorial limits of another State ; that in such a case the State (New York) in which
the crime was committed has jurisdiction and a New Jersey statute to punish a New
York crime is necessarily void. It should be noted, however, that when the offence
is committed in both States, as in shooting and killing across the line, for instance,
either or both States might take cognizance of the act and punish the crime, or to cite
the exact language of the case, at p. 500: “ This is not the case where a man stands on
the New York side of the line, and shooting across the border, kills one in New Jersey.
When that is so, the blow is in fact struck in New Jersey. It is the defendant's actin
this State. The passage of the ball, after it crosses, the boundary, and its actual
striking, is the continuous act of the defendant. In all cases the criminal act is the
impinging of the weapon, wherever it may be, on the person of the party injured, and
that must necessarily be where the impingement happens. Whether the sword, the
ball, or any other missile, passes over a boundary in the act of striking, is a matter of
no consequence. The act is where it strikes, as much where the party who strikes
stands out of the State, as where he stands in it." - ED.
CHAP. II.]
STATE v. WYCKOFF.
299
procurer, who is an accessory before the fact and whose acts of pro-
curement have been done in a foreign jurisdiction, be indicted and
punished for such procurement in this State?
The general rule of the law has always been that a crime is to be
tried in the place in which the criminal act has been committed. It
is not sufficient that part of such act shall have been done in such
place, but it is the completed act alone which gives jurisdiction. So
far has this strictness been pushed that it has been uniformly held,
that if a felony was committed in one county, the accessory having
incited the principal in another county, such accessory could not be
indicted in either. This technicality, which, when applied to the
several counties of the same kingdom or state, appears to have little
to recommend it, was nevertheless so firmly established that it re-
quired the statute of 2 and 3 Ed. VI., c. 24, to abolish it, and this
statute has been re-enacted in this State. Nix. Dig. 199. Rev., p. 282,
sect. 78. And so in like manner the same rigor existed in cases in
which death ensued out of the kingdom from a felonious stroke inflicted
within it, it being decided that neither the principal nor accessory
was, under such circumstances, indictable. This imperfection in the
criminal system was removed by the statute of 2 Geo. II., c. 21, and
which has been substantially copied in the third section of the act of
this State before referred to in Nix. Dig. 200, supra. For the rules
of law which were thus modified by statute, see 3 Inst. 48; Lacye's
Case, 1 Leo. 270; 2 Rep. 93.
If, then, the accessory by the common law was answerable only in
the county in which he enticed the principal, and that, too, when the
criminal act was consuinmated in the same county, it would seem to
follow necessarily in the absence of all statutory provision, that he is
wholly dispunishable when the enticement to the commission of the
offence has taken place, out of the State in which the felony has been
perpetrated. Under such a condition of affairs it is not easy to see
how the accessory has brought himself within the reach of the laws
of the offended State. His offence consists in the enticement to com-
mit the crime; and that enticement, and all parts of it, took place in
a foreign jurisdiction. As the instrumentality employed was a con-
scious guilty agent, with free will to act or to refrain from acting, there
is no room for the doctrine of a constructive presence in the procurer.
Applying to the facts of this case the general and recognized princi-
ples of law, it would seem to be clear that the offence of which the
defendant has been guilty is not such as the laws of this State can
take cognizance of. We must be satisfied to redress the wrong which
has been done to one of our citizens, and to vindicate the dignity of
our laws by the punishment of the wrongdoer who came within our
*
300
[PART I.
TERRITORIAL JURISDICTION.
territorial limits. As for the defendant, who has never been, either
in fact or by legal intendment, within our jurisdiction, he can be only
punished by the authority of the State of New York, to whose sover-
eignty alone he was subject at the time he perpetrated the crime in
question.
The principle involved in this case has not often been the subject
of judicial consideration, nor has it received much attention from the
text writers. But in the few cases to be found in the reports upon
the point, a view similar to the above has been expressed. The case
of The State v. Moore, 6 Foster, 448, was, in all its features, identical
with that now before this court, and the result was a discharge of the
prisoner, on the ground that the crime of the accessory had not been
committed within the jurisdiction of New Hampshire.
The case Ex parte Smith, 6 Law Reporter, 57, was to the same
effect. The same principle was again considered, though in a some-
what different aspect, in the case of The State v. Knight,' 1 Taylor's
1 By a North Carolina statute of 1784, Ch. 25, § 4, counterfeiting and passing in a
foreign or neighboring State such counterfeit bills of North Carolina was made punishable
as if committed in North Carolina. A Virginian named Knight was convicted under
this statute, and on appeal the court said: “This State cannot declare that an act done
in Virginia by a citizen of Virginia, shall be criminal and punishable in this State: our
penal laws can only extend to the limits of this State, except as to our own citizens ;
but granting that our Legislature could enact laws for the punishment of offences com-
mitted in Virginia, still this clause only extends by implication to acts done in
Virginia ; and no penal law can be construed by implication nor otherwise than by the
express letter.” Defendant was therefore discharged.
In Commonwealth v. Macloon, 1869, 101 Mass. 1, it was held in an elaborate opinion
by Mr. Justice Gray that a citizen of another state or of a foreign country may be con-
victed, under a statute of Massachusetts, of the manslaughter of a person who died
within Massachusetts, from injuries inflicted upon him by the accused in a foreign
merchant vessel upon the high seas; that in such a case the “mortal wound given or
other violence or injury inflicted” took effect within and was therefore punishable in
Massachusetts. See the adverse criticisms of this case and its doctrine in 1 Bishop's
New Criminal Law, $$ 115-116, note 1, pp. 60-66. In illustrating the doctrine that
acts done out of the country but taking effect here may rightly be punished where they
take effect, Bishop says (8 110 of the same work): “Where a man, standing beyond
the outer line of our territory, by discharging a ball over the line kills another within
it; or, himself being abroad, circulates libels here; or in like manner obtains here
goods by false pretences; or does any other crime in our own locality against our
law; he is punishable, though absent, the same as if he were present.”
Thus, in the thoroughly excellent case of Commonwealth v. Blanding, 1825, 3 Pick.
Mass. 304, it was proved that the defendant delivered the writing set forth in the
indictment to the printer of the Providence Gazette, at Providence, in the State of
Rhode Island, and that it was published in that paper at the request of the defendant,
who acknowledged that he was the author of it; it was likewise proved that the paper
circulates in Rehoboth in the county of Bristol, Mass.), and has so circulated previ-
ously to such publication; and that the number containing this writing was received
and circulated in that town. On this statement of facts, the defendant was convicted
.
CHAP. II.]
301
STATE V. WYCKOFF.
Rep. (N. C.), 65, and the opinion intimated by the court entirely
accorded with those expressed in the two cases first above cited.
These are the only judicial examinations of the matter now in hanc
which I have met with in the course of my research.
Upon authority, then, as well as upon principle, I think the present
indictment cannot be sustained, and that the defendant has not com-
mitted any offence which is indictable by force of the laws of this State.
Let the Court of Oyer and Terminer be advised accordingly.
A
for libel and conviction was affirmed on appeal. See, also, Rex v. Johnson, 1804,
7 East, 65.
Cutting's Case, which excited so much interest and comment in international circles
was on all fours with this. One Cutting, an American citizen, published a libel in a
Texan paper reflecting on the character of one Medina, a Mexican. The paper cir-
culated in Mexico, as in the case of Commonwealth v. Blanding the paper circulated in
Massachusetts, and on being found in Mexico, Cutting was apprehended, tried and
sentenced to fine and imprisonment. The American Government demanded an
indemnity for Cutting's imprisonment. See report on Cutting's Case by J. B. Moore,
1887.
The position of the United States in Cutting's Case, that the Mexican law giving to
its courts the jurisdiction of extraterritorial offences, is contrary to custom and inter-
national law, and that the principles involved in it are practically obsolete in practice,
would seem not to be borne out by facts. Aside from the question whether the com-
mon-law doctrine of territorial jurisdiction is the more expedient practical rule, it
may at least be said that it is by no means so universally prevalent as to warrant the
assertion that it has become a rule of international law. Not only are there many
codes which go quite as far in the direction of extraterritorial jurisdiction as that of
Mexico, but there is probably not a state which adheres strictly to the territorial theory.
In the first place, practically all states punish their own citizens for offences of one
kind or another committed in foreign countries. Even England punishes not only for
treasonable acts, but also for bigamy, murder, manslaughter committed abroad by
her subjects. The laws of the United States, too, provide for the punishment of cer-
tain offences committed abroad by their citizens. Revised Statutes, § 5335; and see
acts of August 18, 1856, and February 25, 1863.
Secondly, in regard to foreigners, there are a large number of codes which take juris-
diction of offences against the state committed by then in foreign states; and a lesser
number which go farther, and extend their jurisdiction to offences against indi-
viduals. Of this number are Austria, Hungary, Italy, Norway, Sweden, Russia,
Greece, and Brazil, as well as Mexico.
As previously said, the Cutting Case is similar to that of Commonwealth v. Blanding,
being a libel uttered in Texas, but circulated and having its effect in Mexico; is the
offence different in principle from that of wounding a man in one state by firing across
the boundary from another state?
Among jurists there is a wide difference of opinion in regard to the merits of the
two systems — the “territorial” and the “personal” theories of jurisdiction. (T. E.
Holland, Jurisprudence, 9th ed., pp. 400-405; F. Wharton, Philosophy of Criminal
Law, p. 309. et seq. ; L. v. Bar, Private International Law, Translation by G. R.
Gillespie, p. 620 et seq.; Wharton's Conflict of Laws, § 1810 ; “ Case of A. K. Cutting,
by the Minister of Foreign Relations of the Republic of Mexico," 1888; Hall's Foreign
Powers and Jurisdiction of the British Crown, 1-15.) - Ed.
302
(PART 1.
TERRITORIAL JURISDICTION.
THE UNITED STATES V. THOMAS J. L. SMILEY et al.
UNITED STATES CIRCUIT COURT, DISTRICT OF CALIFORNIA, 1864.
(6 Sawyer, 640.)
The steamer Golden Gate left San Francisco for Panama on July
21, 1862, and had on board "treasure” amounting to $1,450,000. On
July 27, when three miles and a half from the Mexican shore, fire broke
out, the steamer headed for the shore and went to pieces about two
hundred and fifty feet from the shore, at a point fifteen miles north of
Manzanillo, in Mexico. Of the money on board $1,200,000 were
ultimately recovered in port by Smiley and his associates. The ship-
pers and Smiley disagreeing about his share of the recovered treasure,
he was indicted in March, 1864, in U. S. Circuit Court for plundering
and stealing the treasure from the Golden Gate, under the ninth sec-
tion of act of Congress of March 3, 1825 (4 St. L., 116) which provides
" that if any person
... shall plunder, steal or destroy any money,
goods, merchandise or other effects froin or belonging to any. ship or
vessel or boat or raft, which shall be wrecked, lost, stranded, or cast
away upon the sea, or upon any reef, shore, bank, or rocks of the sea,
or in any other place within the admiralty and maritime jurisdiction
of the United States," he “shall be deemed guilty of a felony,” &c.
By the court, Mr. Justice FIELD. We are not prepared to decide
that the statute does not apply to a case where the vessel has gone
to pieces, to which the goods belonged of which larceny is alleged. It
would fail of one of its objects if it did not extend to goods, which the
officers and men of a stranded or wrecked vessel had succeeded in
getting ashore, so long as a claim is made by them to the property,
though before its removal the vessel may have been broken up. We
are inclined to the conclusion that, until the goods are removed from
the place where landed, or thrown ashore, from the stranded or wrecked
vessel, or cease to be under the charge of the officers or other parties
interested, the act would apply if a larceny of them were committed,
even though the vessel may in the mean time have gone entirely to
pieces and disappeared from the sea. But in this case the treasure
taken had ceased to be under the charge of the officers of the Golden
Gatė, or of its underwriters, when the expedition of Smiley was fitted
out, and all efforts to recover the property had been given up by them.
The treasure was then in the situation of derelict or abandoned prop-
1 This statement is substituted for that of the report. — ED.
.
CHAP. II.]
303
UNITED STATES V. SMILEY.
erty, which could be acquired by any one who might have the energy
and enterprise to seek its recovery. In our judgment the act was
no more intended to reach cases where property thus abandoned is
recovered, than it does to reach property voluntarily thrown into the
sea, and afterwards fished from its depths.
But if the act covered a case where the property was recovered after
its abandonment by the officers of the vessel and others interested in
it, we are clear that the circuit court has not jurisdiction of the offence
here charged. The treasure recovered was buried in the sand several
feet under the water, and was within one hundred and fifty feet from
the shore of Mexico. The jurisdiction of that country over all offences
committed within a marine league of its shore, not ou a vessel of
another nation, was complete and exclusive.
Wheaton, in his treatise on International Law, after observing that
"the maritime territory of every state extends to the ports, harbors,
bays, and mouths of rivers and adjacent parts of the sea inclosed by
headlands, belonging to the same state," says: “The general usage of
nations superadds to this extent of territorial jurisdiction a distance
of a marine league, or as far as a cannon-shot will reach from the
shore, along all the coasts of the state. Within these limits its rights
of property and territorial jurisdiction are absolute, and exclude those
of every other nation." (Pt. 2, c. 4, sec. 6.)
The criminal jurisdiction of the government of the United States -
that is, its jurisdiction to try parties for offences committed against
its laws may in some instances extend to its citizens everywhere.
Thus, it may punish for violation of treaty stipulations by its citizens
abroad, for offences committed in foreign countries where, by treaty,
jurisdiction is conceded for that purpose, as in some cases in China and
in the Barbary states; it may provide for offences committed on de-
serted islands, and on an uninhabited coast, by the officers and seamen
of vessels sailing under its flag. It may also punish derelictions of
duty by its ministers, consuls, and other representatives abroad. But
in all such cases it will be found that the law of Congress indicates
clearly the extraterritorial character of the act at which punishment
is aimed. Except in cases like these, the criminal jurisdiction of the
United States is necessarily limited to their own territory, actual or
constructive. Their actual territory is coextensive with their posses-
sions, including a marine league from their shores into the sea.
This limitation of a marine league was adopted because it was
formerly supposed that a cannon-shot would only reach to that extent.
It is essential that the absolute domain of a country should extend
into the sea so far as necessary for the protection of its inhabitants
against injury from combating belligerents while the country itself is
304
[PART I.
TERRITORIAL JURISDICTION.
neutral. Since the great improvement of modern times in ordnance,
the distance of a marine league, which is a little short of three English
miles, may, perhaps, have to be extended so as to equal the reach of
the projecting power of modern artillery. The constructive territory
of the United States embraces vessels sailing under their flag; wher-
ever they go they carry the laws of their country, and for a violation
of them their officers and men may be subjected to punishment. But
when a vessel is destroyed and goes to the bottom, the jurisdiction of
the country 'over it necessarily ends, as much so as it would over an
island which should sink into the sea.
In this case it appears that the Golden Gate was broken up; not a
vestige of the vessel remained. Whatever was afterwards done with
reference to property once on board of her, which had disappeared
under the sea, was done out of the jurisdiction of the United States
as completely as though the steainer had never existed.
We are of opinion, therefore, that the Circuit Court has no jurisdic-
tion to try the offence charged, even if, under the facts admitted by
the parties, any offence was committed. According to the stipulation,
judgment sustaining the demurrer will be, therefore, entered and the
defendants discharged.
1“ In England and America, the jurisdiction is generally assumed over its citizens
in respect to all civil acts, transactions, rights, or duties done or arising abroad. This
is true, even though the act be a tort, and though it amount to a breach of the peace.
Thus a British subject is liable to a civil action in England for an assault and battery
committed by him, say in Italy. The same would be true in the United States. But
by a very ancient principle of the English common law, adopted in this country, all
crimes are strictly local, and the offenders are justiciable only in the countries where
the criminal act is done." Pomeroy's Int. Law, 205.
It is, however, true that in a few instances English and American courts take jurisdic-
tion of crimes committed by their respective subjects and citizens beyond their terri-
torial limits, other than on the high seas, but they do not, as is commonly the case
on the Continent, try foreigners for offences against their municipal laws.
In Mucleod v. Atty.-Gen., 1891, A. C. 455, Halsbury, L. C., laid down as English law
that “all crime is local. The jurisdiction over the crime belongs to the country where
the crime is committed, and, except over her own subjects, Her Majesty and the
Imporial Legislature has no power whatever.”
“ It is, however, a decided and settled principle in the English and American law,
that the penal laws of a country do not reach in their disabilities or penal effects, beyond
the jurisdiction where they are establislied. Folliott v. Ogden, 1 H. Black. 123, 135;
Lord Ellenborough, Wolff v. Oxholm, 6 M. & S. 99; Commonwealth of Massachusetts v.
Green, 17 Mass. 514, 539-543; Scoville v. Canfield, 14 Johns. 338, 440” (1 Kent, Com.
38, note b). See also, U. S. v. Pelican Ins. Co., 1887, 127 U. S. 265, 289-91 and Hall,
Int. Law, 218–222. – ED.
t
CHAP. II.]
305
BURON Y. DENMAN.
SECTION 14. - EXTRATERRITORIAL ACTS BY ORDER OF THE STATE,
BURON V. DENMAN.
COURT OF EXCHEQUER, 1848.
(2 Exchequer, 167.)
PARKE, B. (in summing up). -With respect to the issue, whether
the plaintiff was possessed of these slaves, your verdict must be for
the plaintiff. The law on the subject of slaves has been settled by the
case of Le Louis, 2 Dod. 210, which has been referred to.
That case
was decided, in the year 1817, by Sir William Scott, who went fully
into the question of the legality of the slave trade, and laid down cer-
tain positions, which have since been acquiesced in, both in this country
and abroad. Those positions are, first, that dealers in slaves are not
pirates by the law of nations, and can only be made so by and accord-
ing to the terms of a treaty with the country to which they belong
prohibiting the slave trade secondly, that trading in slaves is not a
crime by the law of nations thirdly, that the right of stopping and
searching ships in time of peace is not a right which can belong to any
nation except by contract with the nation to which such ships belong
and, fourthly, Ithat if there be a law in a particular country prohibiting
the slave trade, it is not open to every one to punish the offender
against that law, but proceedings must be taken in the tribunals of his
own country. Those propositions being clear, a question arises,
whether the plaintiff. can maintain this action for taking away his
slaves. It is not pecessary to decide whether, if he had been simply
in the actual possession of slaves, using them as slaves, he could have
recovered against any person who took them away: on that point it is
not necessary to give an opinion, because, according to the evidence
on both sides, he was living at Gallinas, where it was lawful to possess
slaves. It is contended that, by the law of Spain, the plaintiff cannot
possess a property in slaves for the purpose of exporting them, as
slaves, to the West Indies. However, there is no evidence of such
law, and we are all, therefore, of opinion that the second and four-
teenth issues, both as to the slaves and the goods, must be found
for the plaintiff.
The principal question is, whether the conduct of the defendant, in
carrying away the slaves, and committing the other alleged trespasses,
1 Statement of the case is omitted. -ED.
20
906
TERRITORIAL JURISDICTION.
[PART 1.
can be justified as an act of state, done by authority of the Crown. It
is not contended that there was any previous autbority. If the
defendant had merely instructions according to the terms of the treaty
set out in the act of Parliament, those instructions would only have
extended to the stopping of ships on the high seas, within the limits
agreed to by the treaty with the Spanish crown. Therefore the justi-
fication of the defendant depends upon the subsequent ratification of
his acts. A well-known maxim of the law between private individuals
is, “Omnis ratihabitio retrotrahitur et mandato æquiparatur.” If, for
instance, a bailiff distrains goods, he may justify the act either by a
previous or subsequent authority from the landlord; for, if an act be
done by a person as agent, it is in general immaterial whether the
authority be given prior or subsequent to the act. If the bailiff so
authorized be a trespasser, the person whose goods are seized has his
remedy against the principal. Therefore, generally speaking, between
subject and subject, a subsequent ratification of an act done as agent is
equal to a prior authority. That, however, is not universally true. In
the case of a tenant from year to year, who has, by law, a right to a
half-year's notice to quit, if such notice be given by an agent, without
the authority of the landlord, the tenant is not bound by it. Such
being the law between private individuals, the question is whether the
act of the sovereign, ratifying the act of one of his officers, can be
distinguished. On that subject I have conferred with my learned
brethren, and they are decidedly of opinion that the ratification of the
Crown, communicated as it has been in the present case, is equivalent
to a prior command. I do not say that I dissent; but I express my
concurrence in their opinion with some doubt, because on reflection
there appears to me a considerable distinction between the present case
and the ordinary case of ratification by subsequent authority between
private individuals. If an individual ratifies an act done on his
behalf, the nature of the act remains unchanged, it is still a mere
trespass, and the party injured has his option to sue either; if the
Crown ratifies an act, the character of the act becomes altered, for
the ratification does not give the party injured the double option of
bringing his action against the agent who committed the trespass or
the principal who ratified it, but a remedy against the Crown only
(such as it is), and actually exempts froin all liability the person who
commits the trespass. Whether the remedy against the Crown is to
be pursued by petition of right, or whether the injury is an act of
state without remedy, except by appeal to the justice of the state
which inflicts it, or by application of the individual suffering to the
government of his country, to ipsist upon compensation from the
government of this — in either view, the wrong is no longer action-
CHAP. II.]
307
BURON V. DENMAN.
able. I do not feel so strong upon the point as to say that I dis-
sent from the opinion of my learned brethren; therefore, you have
to take it as the direction of the court, that if the Crown, with
knowledge of what has been done, ratified the defendant's act by
the Secretaries of State or the Lords of the Admiralty, this action
cannot be maintained. In the documents which bave been read there
is ample evidence of ratification, for the Secretary of State for Foreign
Affairs, the Lords of the Admiralty, and the Secretary of State for
the Colonial Department, on receiving the report of the Governor of
Sierra Leone, and the account of the transactions given by the defend-
ant himself, expressed their approbation of what he had done. The
acts, indeed, have never been published, and that is one of the cir-
cumstances which created a doubt in my mind. But, although the
ratification was not known before this action was commenced, that
fact makes no difference in the opinion of the court. A previous
command would be unknown, if given verbally; and a subsequent
ratification, though unknown, will have the same effect.
It is argued, on the part of the plaintiff, that the Crown can only
speak by an authentic instrument under the Great Seal, and that,
therefore, the ratification ought to have been under the Great Seal.
We are clearly of opinion, that, as the original act would have been
an act of the Crown, if communicated by a written or parol direction
from the Board of Admiralty, so this ratification, communicated in
the way it has been, is equally good. I should observe that the
court 'are of opinion that it is not necessary for the defendant to
prove the pleas which expressly state the authority of the Crown;
for if this act, by adoption, becomes the act of the Crown, the
seizure of the slaves and goods by the defendant is a seizure by the
Crown, and an act òf state for which the defendant is irresponsible,
and, therefore, entitled to a verdict on the plea of "Not guilty."
The jury found that the Crown had ratified the act of the defendant,
with full knowledge of what he had done, whereupon a verdict was
taken for him on the 4th, 9th, and 16th pleas. A verdict was found
for the plaintiff on the pleas of not possessed of the slaves and goods ;
and the plea of “Not guilty ” was entered, by consent, for the
plaintiffs.
F. Robinson tendered a bill of exceptions to the above ruling ; but
the plaintiff afterwards obtained an order to discontinue, certain terms
of settlement of this and other similar actions having been agreed to.
1
1 In speaking of acts of state, Sir James Stephen uses the following well-chosen
language: “The leading case on this subject is Buron v. Denman. ** * This principle
has been asserted and acted upon in many later cases. One of the most pointed is
The Secretary of State for India v. Kumachee Baye Sahiba. In this case the Rajah of
308
(PART I.
TERRITORIAL JURISDICTION.
SECTION 15.
EXTRATERRITORIAL ACTS DONE' BY A STATE, IN SELF-
DEFENCE.
COMMONWEALTH V. BLODGETT AND ANOTHER.
H
SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1846.
(12 Metcalf, 56).
Səaw, C. J. The great Rhode Island controversy, threatening, and
at one time involving, the dangers and troubles of insurrection and
Tanjore, having died without issue wale, the East India Company seized the Rajah on
the ground that the dignity was extinct for want of a male heir, and that the property
lapsed to the British Government. The judicial committee of the Privy Council held,
or a full examination of the facts, that the property claimed by the Rajah's widow
“had been seized by the British Government, acting as a sovereigu power, through its
delegate, the East India Company, and that the act so done, with its consequences,
was an act of state over which the Supreme Court of Madras had no jurisdiction.
* * * Even if a wrong had been done, it is a wrong for which no municipal court can
afford a remedy."
“In order to avoid misconception it is necessary to observe that the doctrine as to
acts of state can apply only to acts which affect foreigners, and which are done by the
orders or with the ratification of the sovereign. As between the sovereign and
his subjects there can be no such thing as an act of state. Courts of law are
established for the express purpose of limiting public authority in its conduct towards
individuals. If one British gubject puts another to death or destroys his property by
the express command of the King, that command is no protection to the person who
executes it unless it is in itself lawful, and it is the duty of the proper courts of justice
to determine whether it is lawful or not. On this ground the courts were prepared to
examine into the legality of the acts done under Governor Eyre's authority in the sup-
pression of the insurrection in Jamaica. The acts affected British subjects only. But
as between British subjects and foreigners, the orders of the Crown justify what they
command so far as British courts of justice are concerned. In regard to civil rights,
this, as I have shown, has been established by express and solemn decisions; and it is im-
possible to suppose that a man should be a criminal when he is not even a wrongdoer,"
(Stephen's History of Criminal Law, Vol. II., pp. 64–65.) See, also, Pollock's Torts,
8th ed., pp. 110-113. Dicey (Law of the Constitution, 5th ed., p. 287) says:
Denman, 2 Ex., 167, is sometimes cited as showing that obedience to the orders of the
Crown is a legal justification to an officer for committing a breach of law, but the
decision in that case does not, in any way, support the doctrine erroneously grounded
upon it. What the judgment in Buron v. Denman shows is that an act done by an
English military or naval officer in a foreign country to a foreigner in discharge of
66 Buron v.
1 Statement of the case, as well as part of the opinion, omitted. For a detailed
statement of the rebellion out of which the case iọ the text arose, see A. M. Mowry's
Dorr War, 1901. – Ed.
..
CHAP. II.]
309
COMMONWEALTH V. BLODGETT.
civil war, out of which this case grew, having happily passed away
the case itself has lost much of the interest with which it was once
invested. It presents questions of unusual magnitude and importance,
lying beyond the scope of those investigations with which the adminis-
tration of the criininal law is usually conversant; but happily they are
questions of rare occurrence. We shall allude to the facts, very briefly,
to make the points intelligible.
The indictment was originally returned against three persons, of
whom one was acquitted and the others convicted. It was founded on
the provisions of the Rev. Sts., c. 125, $ 20, which prohibit the unlaw-
ful and forcible seizure, imprisonment, or abduction of persons.
The proof, on the part of the prosecution, tended to show that the
orders received from the Crown may be an act of war, but does not constitute any
breach of law for which an action can be brought against the officer in an English
court. Compare Feather v. The Queen, 6 B. & S., 257, 295, per curium.” See further,
Dobrée v. Napier, 1836, 2 Bingham's 'New Cases, 781, in which the command of the
Queen of Portugal was held sufficient justification for seizure of plaintiff's véssel by
a British officer serving temporarily in the Portuguese Navy; Underhill v. Her-
nandez, 1897, 168 U. S. 250, in which the same doctrine was applied. McLeod's Case,
famous in the annals of diplomacy, is the best known Anierican case on this subject.
The account in Underhill v. Hernandez, 1895, 25 U. S. Appeals, 573, ante, 67, briefly
states the facts and decision. See, also, People v. McLeod, 1841, 25 Wend. 483,
1 Hill, 376.
In speaking of the New York court, Mr. Webster said: “I was utterly surprised at the
decision of the court on the habeas corpus. On the peril and risk of my professional
reputation, I now say that the opinion of the court of New York is not a respectable
opinion, either on account of the result at which it arrives, or the reasoning on which
it proceeds." Webster's Works, Vol. V., p. 129. See, also, 26 Wend. App. and 3 Hill,
App., for criticism and defence of Justice Cowen's opinion in 25 Wenı. 483, 560.
In the above instances the ratification of the agent's act was express, but it neeil not
be so; tacit acquiescence is under certain circumstances sufficient. In the Rollin, 1807,
6 Rob. 364, Sir William Scott said: “It has been also farther contended that the com-
mander, in this expedition particularly, did not possess this authority ; because it has
appeared from the result of a subsequent inquiry into his conduct that he had acted
irregularly in entering into it without orders. But however irregularly he may have
acted towards his own government the subsequent conduct of government in adopting
that enterprise, by directing a further extension of that conquest, will have the effect
of legitimating the acts done by him, so far at least as the subjects of other countries
are concerned. The government has not disclaimed the acquisitions as obtained wrong.
fully; on the contrary they have recognized his acts by seizing Maldonado, and by
retaining the footing which had been acquired for them in that country, thereby ex-
pressing their recognition of the seizure, as a seizure made by the forces of this
country validly applied. I am therefore of opinion that the blockade is not to be im-
peached on the ground of want of regular authority; and I have no hesitation in pro-
nouncing that, however irregularly Sir Home Popham may be deemed to have acted
towards his own government, it is that for which he is in no manner answerable to
other states ; and that it is not open to the individual subjects of other countries
to dispute the validity of the blockade on that account." - ED.
310
[PART I.
TERRITORIAL JURISDICTION.
defendants, with about twenty other persons, armed with military
weapons, about the hour of one o'clock at night, broke and entered the
house of Jeremiah Crooks, who kept a tavern in Bellinghain, in this
county, and there seized and bound the four persons named in the in-
dictment, to wit, William T. Olney, Oliver Ballou, Arnold Whipple,
and Timothy Walker, kept them there some hours in custody, and then
carried them bound to Rhode Island. Some circumstances of aggrava-
tion, in the conduct of the defendants, are stated in the bill of excep-
tions, which seem not material to any principle involved in the case.
It will not be necessary to recapitulate or even make a summary of
the facts. They are fully detailed in the bill of exceptions. Those
that concern these defendants more particularly are as follows: That
an organized attempt was made to overthrow the existing government
of the State, by force of arms; that the Legislature had, by an act in
due form, declared the State to be under martial law; that William G.
McNeill, Esq., had been appointed major-general and coinmander in
chief of the forces raised by the State to oppose the insurrection; that
the insurgents, organized and in military array, were stationed, in
some force, at Chepachet and Woonsocket, villages bordering on the
line of Massachusetts. It further appears, that on the evening of the
27th of June, the cainp of the insurgents, at Chepachet, and other per-
sons there assembled, were advised to disperse; that they did not
afterwards appear in any considerable force, but that fears were enter-
tained, by the people of Rhode Island, that they would again assemble
within the limits of Connecticut or Massachusetts, and again annoy
the people of Rhode Island; that on the 29th, an order was published,
stating that there was no longer a necessity for the continuance of the
troops in general in the field, and that they might return to their
several homes; that various orders were given, with a view to arresting
the fugitives, whether within the limits of the State or not, to the
extent of fifty miles from Chepachet; that by order of Major Martin,
the defendant Blodgett, who was in the military service of the State,
with the other defendant, Hendrick, as a guide, with about twenty
men, proceeded, as before stated, to Crooks's tavern in Bellingham,
and there found and arrested the four persons named, who had been
in arms against the State, but were not then in arms, or engaged
with others in any military operation; that the neighborhood was
peaceful and quiet, the house was fastened, and the inmates asleep.
Upon these facts, stated more at large in the bill of exceptions, the
counsel for the defendants prayed the court to instruct the jury, that
if they found that the said Olney and others were citizens of Rhode
Island, and had been in arms as insurgents, as aforesaid, against said
State, and, upon the approach of the troops of said State, had fresh
CHAP. II.]
311
COMMONWEALTH V. BLODGETT.
fled from the insurgent camp to Massachusetts, for refuge from the
authorities and troops of Rhode Island merely, they were not in the
peace of Massachusetts, etc. The court declined so to instruct, but did
instruct the jury, that if Rhode Island was in a state of civil war, and
said Olney and others stood in the relation contemplated, yet, upon
crossing the lines of Massachusetts, they were in the peace of the Com-
monwealth, and within the protection of her laws, exempt from the
pursuit of the authorities and troops of Rhode Island; and that the
defendants were criminally responsible for capturing the said Olney
and others, within the boundaries of Massachusetts.
The court are of opinion that this instruction was correct. It has
been argued that the State of Rhode Island, and the other States, under
the circumstances in which she was placed, stood in the relation of
foreign sovereign States, one of which was at war, and the other neu-
tral; and we were referred to authorities from the laws of nations, to
ascertain their respective rights and duties. It would be dangerous,
perhaps impracticable, to adopt this reasoning to its full extent, and
carry it out into all its consequences.
The relations of the States of
the Union to each other are very peculiar, and give rise to questions
of great delicacy and difficulty. If the States, and the citizens of States,
are to be placed in the relations of belligerents and neutrals, and bound
by the laws of nations, then they must have the power of regulating
their duties and obligations by negotiations and treaties, and thus be
enabled more effectually to provide for the performance of their relative
duties, and the security of their respective rights. But the States are
expressly prohibited from entering into any treaty, alliance or confed-
eration, or, without the consent of Congress, to enter into any agree-
ment or compact with another State, or engage in war, unless actually
invaded, or in such imminent danger as will not admit of delay.
They are, therefore, in the condition of States sovereign to some
purposes, but who have by compact renounced and relinquished their
sovereign powers, in regard to war and peace, and, of course, to the
regulation and control of the incidents to war and peace, except the
power of taking warlike measures, strictly and purely defensive, in
case of an exigency, which will admit of no delay. In all other
respects, the power of making war and peace, of treaties and alli-
ances, is vested absolutely and exclusively in the general government,
with their incidents. But as a compensation for this surrender, the
general governmerit of the United States is bound to protect each
State against invasion, and against domestic violence. The Constitu-
tion of the United States is to be taken as a whole; and whilst it
restrains the States from making war and peace, and exercising pow-
ers incidental thereto, it assumes that the general government will
312
[PART I.
TERRITORIAL JURISDICTION.
do its duty, and effectually secure to each State that immunity from
all violence, foreign and domestic, which was the obvious considera-
tion for the surrender of these great powers. It is useless to specu-
late upon the contingency, as to what would be the rights of the
States in case the general government should fail to afford that pro-
tection to States which the Constitution guarantees to them. Such a
state of things is not to be supposed. It would be one of revolution
and anarchy, in which a regard to self-defence and public safety
would constitute an exigency that would warrant such measures as
the necessity of the case might require, under the maxiın salus populi
suprema est lex. The necessity, which would create such an exi-
gency, must limit and direct the means of meeting it.
But supposing, for the purpose of the argument, that the relations
of the States to each other were those of sovereign States, in one of
which an insurrection against the government existed; we think the
instructions given in this case, upon the facts stated in the bill of
exceptions, were correct. The exclusive right of every sovereign
State to its own territory, and to the regulation and government of
it, is absolute and inviolable, and extends to all persons within it.
Every person entering the territory owes allegiance to the govern-
ment, temporary indeed, but absolute. Whilst he continues within
it, he is bound, like any other subject, by the laws of the State, owes
it obedience, and is liable to the operation of its criminal laws; and
as a correlative right, he is regarded as a subject, for the purpose of
protection and immunity from arrest, and all forcible invasion of his
liberty or property, by any other State, except so far as the exercise
of such right by foreign authority is stipulated for, by treaty,
amongst sovereign states, or, amongst the States of this Union, by
the Constitution of the United States, and the laws and treaties made
under it. According to these principles, which seem to us plain and
well settled, Olney and the other persons, found at Crooks's tavern
in Bellingham, owed allegiance to Massachusetts, whilst they re-
mained within the limits of the State; they were subject to its laws,
would have been responsible for any violation of them, and, for the
time being, were in the peace of the Commonwealth.
We do not mean to be understood as holding that soldiers and
subordinate military officers, who are ordered by their sovereign to
enter the territory of another State to pursue an enemy, and for any
other purpose, may not rightfully claim impunity from the animad-
version of the criminal laws of the country invaded. Such an inva-
sion, however, must be deemed to be made flagrante bello, whether
war have been declared or not, because it is in itself an act of war.
But this could not be justified by an order of the subordinate military
CHAP. II.]
313
COMMONWEALTH V: BLODGETT.
The wrong
authorities of a State, in the exercise of their ordinary functions in
the defence of a State. Nothing but the sovereign power of the
State, by a previous order, directing such invasion, or by a subse-
quent ratification, when done in its name, will warrant such invasion,
and excuse the subordinates engaged in it; because it emanates from
the sovereign authority having the power to make war.
done by such an invasion then becomes a question of negotiation
between sovereigns, and the subordinate agents are entitled to
immunity. .
The court, in saying that in their judgment the instruction to the
jury was correct, in charging them that Olney, Ballou, Whipple and
Walker, upon crossing the lines of Massachusetts, were in the peace
of the Commonwealth, and within the protection of her laws, against
the pursuit of the authorities and troops of Rhode Island, and that
the defendants were criminally liable for capturing the said Olney
and others, have done so on the facts stated, and in connection with
the qualifying instruction given at the same time. It was this:
That if there existed a necessity, for the defence or protection of
the lives and property of the citizens of Rhode Island, or for the
defence of the State of Rhode Island, that the defendants should do
the acts complained of in the indictment, or if there was probable
cause to suppose, at the tiine, the existence of such a necessity, and
the jury found such necessity or probable cause, they were to acquit
them. And much evidence was given on both sides upon this ques-
tion of fact. This instruction gave the defendants the full benefit
of any excuse, arising from the use of force in the necessary defence
of the State and its citizens, in whose service they were engaged;
leaving a great latitude as to the means necessary to such defence.
It is not requisite, we think, in the present case, to attempt drawing
any exact line of distinction as to the measures which such necessary
defence would warrant, nor, perhaps, would it be practicable; because
it must depend much on the circumstances of each case.
ent case, it appears that the arrest of Olney and others was made at
midnight, in a dwelling-house and common tavern, nearly three miles
from the State line, the men not being in arms or in military array,
or in such numbers as to be immediately formidable; and it is diffi-
cult to perceive how such act could be considered as done in the
necessary defence of the territory of Rhode Island. The men had
been in arms, and probably had rendered themselves amenable to the
laws of Rhode Island; and it might be a prudent precaution, on the
part of that State, to discover, pursue and arrest them, as suspicious
persons, of which they had no right to complain; and if it could have
been done without violating the laws, the peace, or the rights of this
In the pres-
314
[PART I.
TERRITORIAL JURISDICTION.
Commonwealth, it would have been quite excusable. But the ques-
tion was rightly submitted to the jury, as one of strictly necessary
defence.
This instruction the court refused to give, but instructed the jury,
that in the case supposed, the State of Rhode Island had no such
rights as above claimed, within the territory of Massachusetts, to
capture her own rebel citizens; and that such captures were unlaw-
ful, unless necessary in the defence of the lives and property of the
citizens of Rhode Island, at the time; of which necessity, or prob-
able cause, or supposed probable cause, the jury, and not the State
of Rhode Island, was the proper judge; and that the orders of the
State of Rhode Island could not shield her citizens and soldiers from
being criminally responsible in the courts of Massachusetts, for acts
done in the territory of Massachusetts, under and in compliance with
such orders, in time of civil war and domestic insurrection, and
whilst such citizens and soldiers were subject to martial law.
We are of opinion, that the court below decided correctly in refus-
ing to give the instruction prayed for. That instruction assumes
matters both as to the relations of the States to each other, and as to
the authority under which the acts proposed to be excused or justified
were done, and as to the condition of the persons arrested, at the
time and place of arrest.
As to the relations in which the States stood to each other, which
we have already partly considered: Suppose that the State of Massa-
chusetts was ultimately bound to render aid to Rhode Island against
domestic violence; some competent power must judge and decide
upon tlie existence of the casus fæderis; and it cannot be possible
that Massachusetts, and all the other States in the Union, are to be
placed in a state of war, by the sole judgment of the acting govern-
ment of the State of Rhode Island. It must be authoritatively deter-
mined and made known, that domestic violence, and actual insurrection
against the government of the State, exist, and that the acting govern-
inent, resisting such violence and insurrection, by force of arms, is the
true and legitimate government of the State, and entitled to the aid
and assistance intended to be secured by the Constitution of the
United States to the respective States. If the State of Massachusetts
retains her sovereign power to this extent, then it is for the govern-
ment of Massachusetts, by some authentic act, to declare or recognize
such state of civil war, and such duty of Massachusetts as an ally;
or, if this portion of the sovereignty of the State is delegated to the
general government, then it is further to recognize and declare the
casus foederis, and by ordering out regular troops, and the ships of
war, or by drafts of militia from other States, or otherwise, to direct
CHAP. II.]
31.3
COMMONWEALTH V. BLODGETT.
the measures to be pursued. If it were true, as claimed by the
defendants, that one State is the sole and exclusive judge of the
necessity for waging war against its rebel subjects, and thereupon to
confer on their troops an authority to make an unlimited use of the
territories of all other States, it would be placing such States in
a state of war, without their own consent, or the consent of the gen-
eral government, to whom the power of judging and acting, in the
case supposed, has been confided by the Constitution. Such a state
of things would tend greatly to destroy the peace, and put at hazard
the security, of the States and their citizens. Besides, such a princi-
ple, if admitted, would leave neither to the government of the State,
the use of whose territory is thus claimed for hostile purposes, nor
to the government of the United States, intrusted with that portion
of the sovereign power of the States, the power of deciding whether
the government of a State, at war with its citizens, is the true and
legitimate government, or a mere usurped authority. Such a claim
appears to us to be wholly untenable.
But further; the prayer for instruction assumed that the acts done
by the defendants, with the armed party accompanying them, who
proceeded to Bellingham, entered the house of Crooks, and seized
and carried away Olney and others as rebels against the authority of
the State of Rhode Island, were done under the sovereign authority
of the State, either by a previous order, emanating from the govern-
ment, or that the acts done in their name were subsequently, in due
form, ratified, adopted and expressly sanctioned by the authority of
the State of Rhode Island, so as to transfer the responsibility, what-
ever it was, from the individuals to the State. But so far from this,
the case shows that they acted under the authority of an order, given
by Major Martin, to do the specific duty, in conformity with a more
general direction from the military commanding officer, directing the
officers and soldiers to scour the country, to the distance of fifty
miles, without regard to State lines, in order to secure the insurgents
who had fled. The specific order to cross the lines of Massachusetts
did not emanate from the government; it was an ordinary military
operation, undertaken by the military officers, in pursuance of their
general duty to defend the State against the insurgent forces And
so far from being specifically ratified, sanctioned and adopted, by the
State of Rhode Island, the Governor, when applied to for that pur-
pose by the Governor of Massachusetts, declined so to do, but repudi-
ated it, and denied that it was done by authority of the State. And
the act, stated in the bill of exceptions, passed by the Legislature of
Rhode Island, to indemnify these defendants, against certain ex-
penses occasioned by their prosecution, is far from that express adop-
316
[PART Í.
TERRITORIAL JURISDICTION.
tion which will secure the citizen by taking the responsibility upon
the State.
The other matters assumed in the prayer in question relate to the
particular situation of the men at the time, as being captured just
over the lines, etc. These are not of much importance, but do not
seem to be warranted by the evidencé.
And the court are also of opinion, that the instruction actually
given, under this prayer, viz., that the acts of the defendants were
unlawful, unless done in the necessary defence of the lives and prop-
erty of the citizens of Rhode Island, or in the necessary defence of
the State, was sufficiently favorable to the defendants.
The last prayer for instruction is thus stated: Thé counsel for the
defendants further prayed the court to instruct the jury, that if they
found that the said Blodgett and Hendrick were citizens of Rhode
Island, actually serving as soldiers in the ranks, with the troops of
Rhode Island, under regular military command, in time of civil war
and domestic insurrection in said State, and under martial law, and
were duly ordered by their lawful military superiors, acting under
and by authority of the State of Rhode Island, to cross the lines and
arrest, within the territory of Massachusetts, the said Olney, Ballou,
Whipple and Walker, rebel citizens of Rhode Island, récently fled to
Massachusetts, for refuge merely, from the troops of Rhode Island,
they were not personally liable, in the criminal courts of Massachu-
setts, for executing such orders without excess or unnecessary vio-
lence; but that the State of Rhode Island was alone responsible to
the State of Massachusetts for the violation of her territorial rights.
This instruction the court refused to give, but did instruct the jury
that the defendants were personally liable, in the criminal courts of
this Commonwealth, for the acts done by them as aforesaid, under
the orders of the State of Rhode Island, notwithstanding such orders
given, and only by them faithfully executed.
Upon this ground, the main argument, in justification or excuse of
the defendants, has been placed, We are to presume that the in-
structions and directions asked for were so asked for in reference to
the case stated in the bill of exceptions, and not as mere abstract propo-
sitions; and, as such, their correctness in point of law, and their
adaptation to the case on trial, are to be considered. It was then a
request to the judge to instruct the jury that if the ordinary mili-
tary officers of a State, in the exercise of the military powers vested
in them for the defence and protection of the State against an insur-
rection, after martial law declared by the Legislature, should order
subordinate officers and soldiers to enter a neutral territory, the terri-
tory of another Statė, to arrest and secure the persons of rebel citi-
1
CHAP. II.] COMMONWEALTH V. BLODGETT.
317
.zens, recently in arms, the persons thus ordered, being bound to obey,
under the penalties of disobedience of a military command which
they have no means of resisting, would not subjeet themselves to the
animadversion of the criminal laws of the State whose territory is
thus violated. This proposition, we think, cannot be maintained
upon any well-recognized principle of public law. It would be an
authority to every military officer, superior or subordinate, by means
of orders to those under him, in all cases where military forces are
raised and organized, to extend hostilities indefinitely into the terri-
tories of neutral and independent States, to the imminent danger of
the lives, property and possessions of the subjects of such neutral
State; and the only remedy for the injured party would be by way
of remonstrance to the government of the party doing such wrong.
But, surely, this is not one of the ordinary or incidental powers con-
ferred upon military officers by their own government. They are
indeed to defend the territory and the just rights of their States by
warlike measures; but these must be taken in reference to the just
rights and limited powers of the State itself, under whose authority
they act, and they cannot, by force of such authority, commit hostile
acts against independent States, with whom their own State is at
peace. If such military entry into the territory of a neutral State is
supposed necessary, such act is a high prerogative of sovereignty,
and the necessity of it must be judged of, and the warrant for it must
be given by the express command or direction of the sovereign
authority. Any other principle would make the peace of any State
depend upon the judgment and discretion, or even the rash and ill-
judged act, of every military officer, in time of war.
It has been argued upon the ground that men ought not to be held
responsible for acts done in obedience to orders which they are.com-
pelled to obey, under severe military discipline. But this is not the
true principle; and it would be dangerous in the extreme to carry it
out into its consequences. The more general and the sounder rule is,
that he who does acts injurious to the rights of others can excuse
himself, as against the party injured, by pleading the lawful com-
mands only of a superior, whom he is bound to obey. A man may be
often so placed in civil life, and more especially in military life, as
to be obliged to execute unlawful commands, on pain of severe penal
consequences. As against the party giving such command, he will
be justified; in foro conscientiæ he may be excusable; but towards the
party injured, the act is done at his own peril, and he must stand
responsible.
Had the government of Rhode Island ordered the expedition into
Massachusetts, it would have presented the question argued in the
318
(PART I.
TERRITORIAL JURISDICTION.
present case, viz., whether the men would have been protected by
such order, and the State alone be responsible. War may be made
without being declared; and when it is so made and recognized by
the governments of the respective parties, then the rights belonging
to belligerents, and incident to war, attach to the States and their
respective citizens and subjects, in arms or otherwise. The argument
in excuse of the defendants, to be effectual, must be put upon the
ground, and go to the extent, that in the actual state of things, there
was war de facto, between Rhode Island and Massachusetts. But
this is too extravagant a view to be taken by any aspect in which,
upon the facts, the case can be placed. These facts show that the
proceeding of Blodgett and others, in passing over the lines of Massa-
chusetts, and doing the acts which are the subject of this prosecution,
though ordered by Major Martin, acting under the general authority
of Major-General McNeill, was not the act of the State of Rhode
Island, either by previous special authority, or subsequent ratification
or adoption. The authority of the commanding and other military
officers is prima facie limited to the defence of the territory and terri-
torial rights of the State appointing them, and must stand so limited,
unless it is shown that an authority was specially vested in them by
the State, to enter the territory of another State. In the present
case, if the act itself was equivocal, it was put beyond doubt, by the
answer and denial of the Governor of Rhode Island, that the act was
not authorized or adopted as the act of the State. The acts of the
defendants then, being plainly a violation of the rights and laws of
Massachusetts, and of the legal rights of persons lawfully within its
protection, and being denied and repudiated as an act of the State of
Rhode Island, it follows, as a necessary legal consequence, that it
was a lawless and unjustifiable act of violence on the part of the
defendants, subjecting them, and all who assisted them, to be pun-
ished for such violation, by our laws.
If these States had stood in the relation, in all respects, of foreign
states (which is the supposition in the argument, and the one, per-
haps, most favorable to the defendants), we do not see how they could
make out their justification, since the executive of Rhode Island has
repudiated the act as an act of the State.
Whether, if the measure of sending a military force into Massachu-
setts, being in its nature an act of war, would have justified, and ren-
dered the persons sent free from punishment, the facts of this case do
not require us to consider. It would depend upon questions arising
out of the peculiar relations in which the States stand to each other
and to the general government. The Constitution of the United
States still recognizes that qualified sovereignty of a State, so far as
CHAP. II.]
319
COMMONWEALTH V. BLODGETT.
to raise military forces for their own protection and defence, against
both foreign invasion and domestic insurrection. The first security
of a State against violence is to be sought in the duty imposed on the
United States Government, to take order in that respect. If, for any
cause and by any means, imperious necessity or otherwise, that fails,
and the State in which insurrection arises is left to take care of its
own defence, it may be a grave question, whether such State would
not be remitted to its natural and original rights of sovereignty, with
its recognized incidents, to the extent necessary to meet that exigency,
and for that purpose to issue the necessary declarations, enter into
stipulations with other States, and the like. But even in that case,
,
soldiers and others, acting in the defence of such a State, could have
no higher rights, no higher claim of impunity for acts done to the
injury of others, than the citizens and subjects of a sovereign and
independent State, acting under like circumstances.
On the whole, the court are of opinion that the instructions were
correct and carefully considered, as well as the refusal of instructions
prayed for, and therefore that the exceptions must be overruled.
1
1 The case of the Caroline (the vessel referred to in notice of McLeod's case as
given in Underhill v. Hernandez, ante, 67) is the one generally referred to for the doctrine
that the violation of foreign territory may be justified on the ground of the necessity of
self-defence (1 Wharton's Digest, $ 50 c). Perlaps the most satisfactory as well as
final judicial account of the McLeod and Caroline episodes is to be found in the Deci-
sions of the Conimission of Claims under Convention between U. S. and Gt. Br.,
Feb. 8, 1853, at pp. 314-327. The statements of tlie various transactions attending the
different phases of the cases are here quoted from p. 314 of the report:
“Where a citizen of Canada was arrested in the State of New York, for a criminal
offence against the laws of the State, arising from his being engaged in the destruction
of the steamer Caroline, in New York, with a party from Canada, during an insurrec-
tion in that province, and Great Britain demanded his release on the ground that the
acts complained of were done by the orders of that government, and that the nation
was responsible and not the individual; and where the difficulties arising from these
causes were afterwards adjusted between the two governments, held that such adjust-
ment barred all claims of citizens of either country against the other for individual
damage sustained, and that such cases were not within the provisions for the settle-
ment of outstanding claims,' under the convention of February 8, 1853.
“Where a citizen of another government was arrested in this country for a criminal
offence and claimed his discharge on the ground that the acts complained of were done
under the authority of his government, it does not necessarily entitle him to a release.
Time must be liad for the action of the proper tribunals on such plea, and the ultimate
decision of a court in the last resort, where the same becomes necessary.
“Neither does any claim for damage arise where the means provided by law for the
adjustment of such questions are less speedy than would be desirable, and may require
amendment, or error has arisen, in courts of subordinate jurisdiction, from which appeal
might have been taken or correction had.
Alexander McLeod, a British subject resident in Canada, was arrested in Lewis-
town, in the State of New York, in November, 1840, on a charge of being concerned
320
[PART I.
TERRITORIAL JURISDICTION.
.
SECTION 16,- INJURY TO FOREIGNERS BY MOB VIOLENCE.
THE CITY OF NEW ORLEANS V. ABBAGNATO.
UNITED STATES CIRCUIT COURT OF APPEALS, FIFTH CIRCUIT, 1894.
(62 Federal Reporter, 240.)
PARDEE, Circuit Judge. The treaty between the kingdom of Italy
and the United States proclaimed Nov. 23, 1871, guarantees to the
in the seizure and destruction of the steamer Caroline, attended with loss of life, in
the State of New York, on the 29th of December, 1837.
“During the pendency of the prosecution, Great Britain notified the government of
the United States that the seizure of the Caroline was made under the authority of
Great Britain, and claimed the discharge of McLeod on that ground. He was not dis-
charged, but was tried and acquitted, and now brings his claim before this cominission
for damages and expenses arising from liis detention and trial.”
Further instances are: the seizure of Saint Marks (1 Wharton's Digest, 224) hold-
ing that necessity justifies an invasion of foreign territory so as to subdue an expected
assailant, and the seizure of Amelia Island, in 1817 (1 Wharton's Digest, $ 50 a). In
the technical language of private as distinguished from public law, these transactions
amounted to the abatement of a nuisance, the right to do which exists in the aggrieved
party. Its exercise, however, is decidedly hazardous (3 Black. Com. 5 and Pollock's
Torts, 8th ed. p. 404).
These instances were on land: the case of the Virginius was on the high seas.
The Virginius was registered in the United States and carried the American flag;
but, as it eventually appeared, she was really the property of certain Cuban insurgents,
and was employed in aid of the rebellion in Cuba. On the 9th of July, 1873, she
arrived at Kingston, Jamaica, and on the 23d of October she cleared ostensibly for
Limon Bay in Costa Rica, but really for the coast of Cuba. Being chased by a Span-
ishi warship, she put into Port-au-Prince, Hayti. Thence she proceerled again to thie
coast of Cuba, and was again chased by a Spanish war vessel, the Tornado, and was
captured ten or fifteen miles from the coast of Jamaica, on the 31st of October. She
was taken to Santiago de Cuba, where a court was assembled for the trial of the per-
sons found on board ~ 155 in number. Of these four were tried on the 3d of Novem-
ber, and shot on the 4th, thirty-seven on the 7th, and sixten on the 8th. Among those
executed were nine Americans and sixteen British subjects.
The government of the United States, supposing that its rights on the high seas
had been violated, demanded reparation. And by an agreement of the 29th of Novem-
ber, Spain stipulated to restore the Virginius and the survivors of the passengers and
crew, and to salute the flag of the United States on the 25th of December followiny,
unless Spain should in the mean time prove that the vessel was not entitled to carry
said flag. The matter was submitted to the Attorney-General of the United States,
who, after careful examination, reported on the 12th of December that the registry
of the Virginius was fraudulent, and that she had therefore no right to carry the
American flag. But he added, “I am also of opiniop that she was as much exempt
CHAP. II.]
321
CITY OF NEW ORLEANS V. ABBAGNATO.
citizens of either nation in the territory of the other “the most con-
stant protection and security for their persons and property," and
further provides that "they sball enjoy in this respect the same rights
and privileges as are or shall be granted to the natives on their sub-
mitting themselves to the conditions imposed upon the natives."
from interference on the high seas by any other power, on that ground, as though she
had been lawfully registered. Spain, no doubt, has a right to capture a vessel, with
an American register, and carrying the American flag, found in her own waters assist-
ing, or endeavoring to assist, the insurrection in Cuba, but she has no right to capture
such a vessel on the high seas upon an apprehension that, in violation of the neutrality
or navigation laws of the United States, she was on her way to assist said rebellion.
Spain may defend her territory and people from the hostile attacks of what is, or
appears to be, an American vessel ; but she has no jurisdiction whatever over the ques-
tion as to whether or not such vessel is on the higlı seas in violation of any law of the
United States." Spain having proved her point, the salute to the flag was dispensed
with. The vessel was delivered to the United States authorities on the 16th of De-
cember, 1873; but on her way north, sank, off Cape Fear, on the 26th of that month.
Both the United States and England demanded reparation for the persons of their
respective nationalities who had been executed by the captors of the Virginius; and
this Spain eventually agreed to make. Even assuming that the vessel was lawfully
seized, it was contended that there could be no justification of the summary execution
of foreigners by order of a drum-head court-martial.
The position of the Attorney-General, that Spain had no right to capture such a
vessel on the high seas, etc., has called forth much adverse criticism. Both Woolsey
and Dana justified the capture at the time. “ The register of a foreign nation,” said
Dana, “is not, and by the law of nations is not recognized as being, a national voucher
and guaranty of national character to all the world, and nations having cause to arrest
a vessel, would go behind such a document to ascertain the jurisdictional fact which
gives character to the document, and not the document to the fact." It was the duty
of the Spanish captain, says Woolsey, to defend the coasts of Cuba against a vessel
which was known to be under the control of the insurgents, for which he had been on
the lookout, and against which the only effectual security was capture on the high
seas. Woolsey's International Law, 6th ed., pp. 368, 369.
In a pamphlet on the “Case of the Virginius," Mr. George T. Curtis took similar
ground. “ We rest the seizure of this vessel,” he says, on the great right of self-
defence, which, springing from the law of nature, is as thoroughly incorporated into
the law of nations as any right can be. No state of belligerency is needful to bring
the right of self-defence into operation. It existed at all times — in peace as well
as in war. The only questions that can arise about it relate to the modes and places
of its exercise."
See, also, on the question of self-defence, Great Britain's seizure of Danish Fleet
in 1807, Hall's Int. Law, 285.
The right to visit and search foreign merchant vessels upon the high seas does not
exist in time of peace, otlier than as the result of treaty stipulation. It is essentially
a war power and its exercise is rightly incident thereto, infra, § 47.
Unrecognized insurgents have been and are by a rigid adherence to the traditional
law of nations held and punished as political pirates - subject to universal capture,
and the right of visit and search is necessarily included, indeed it is preliminary to
seizure. In this case, therefore, the Virginius was rightly captured by the Spanish
authorities, provided it was, and such was the fact, in the employ of the Cuban insur-
21
1322
[PART I.
TERRITORIAL JURISDICTION.
*
by *
*
*
Treaty of 1871, Art. 3 (17 Stat. 845). This treaty applies to this case
only so far as to require that the rights of the plaintiff shall be ad-
judicated and determined exactly the same as if she were, and her
deceased son had been, a native citizen of the United States.
The Constitution of the State of Louisiana provides as follows:
“The citizens of the City of New Orleans or any political corpora-
tion which may be created within its limits shall have the right of
appointing the several public officers necessary for the administration
of the police of said city, and pursuant to the mode of election which
shall be provided by the General Assembly." Const. La. 1879, Art. 253.
“ The maintenance and support of persons confined in the parish of
Orleans upon charges or conviction for criminal offences shall be under
the control of the City of New Orleans.” Id. Art. 147.
The charter of the City of New Orleans
“Creates all the inhabitants of the parish of Orleans, as now bounded
as a body corporate, and establishes them as a political
corporation by the name of the City of New Orleans,' with the follow-
ing powers, and no more: It shall have a seal and may sue and be sued.
(Section 1.) The council shall have power, and it shall be
their duty, to pass such ordinances, and to see to their faithful execu-
tion, as may be necessary and proper to preserve the peace and good
order of the city; * to organize and provide an efficient police.
(Section 7.) The council shall also have power *
to
establish jails, houses of refuge and reformation and correction, and
make regulations for their government, and to exercise a general police
power in the City of New Orleans. (Section 8.) The Mayor shall keep
his office at the city hall;
shall see that the laws and ordi-
nances within the limits of the City of New Orleans be properly exe-
cuted;
* shall be ex-officio justice and conservator of the peace.
(Section 19.)" Acts 1882, No. 20, p. 14.
The act of the Legislature of Louisiana (passed in 1888) creating the
police board of the City of New Orleans preserves to the Mayor of the
City of New Orleans the power, as the commander in chief of the police
force, to issue such orders as may be necessary and proper for the pres-
ervation of the peace in the City of New Orleans, and in said act it
was declared that:
“It is hereby made the duty of the police force at all times of the
gents. The justification is therefore twofold: piracy and self-defence, which latter,
if it exists at all, exists as well on sea as on land.
See: The Nereide, 1815, 9 Cr. 388, 427-428; The Marianna Flora, 1826, 11 Wheat.
1; U. S. v. Ambrose Light, 1885, 25 Fed. 408, infra.
No defence or justification is offered for the summary execution of the inmates of
the Virginius ; that is a matter within the peculiar province of the Spanish publicist.
- ED.
*
*
*
*
*
*
*
*
CHAP. II.]
323
CITY OF NEW ORLEANS V. ABBAGNATO.
day and night, and the members of such force are thereunto empowered,
to especially preserve the public peace, to prevent crimes, detect and
arrest offenders, suppress riots, mobs and insurrections, disperse unlaw-
ful or dangerous assemblages which obstruct the free passage of public
streets, sidewalks, squares and places, protect the rights of persons and
property,” &c. Acts 1888, No. 63, p. 64.
The city of New Orleans, by her pleadings, admits the gross negli-
gence charged in the petition in the performance of the duties devolving
upon the municipality under the Constitution and laws of the State
above referred to, whereby Abbagnato lost his life at the hands of a
mob while in the custody of the law; and the question presented in
this case is whether, on such admission of facts, the city can be held
liable in damages. It is well settled that at common law no civil
action lies for injury to a person which results in his death. Insur-
ance Co. v. Braine, 95 U. S. 754-756; Dennick v. Railroad Co. 103 U. S.
11, 21; The Harrisburg, 119 U. S. 199-214, 7 Sup. Ct. 140. The rule
is the same under the civil law, according to the decisions of the Lou-
isiana Supreme Court. Hubgh v. Railroad Co., 6 La. Ann. 495; Her-
mann v. Railroad Co., 11 La. Ann. 5. In the absence of a statute
giving a remedy, public or municipal corporations are under no liability
to pay for the property of individuals destroyed by mobs or riotous
assemblages. Add. Torts, 1305; Dill. Mun. Corp. $ 959.
In the case of State v. Mayor, etc., of New Orleans, 109 U. S. 285, 3
Sup. Ct. 211, the Supreme Court of the United States held that the
right to demand reimbursement from a municipal corporation for
damages caused by a mob is not founded on contract. It is a statutory
right, and may be given or taken away at pleasure. In 'the same case,
Mr. Justice Bradley, concurring said:
“I concur in the judgment of this case, on the special ground that
remedies against municipal bodies for damages caused by mobs or
other violators of law, unconnected with the municipal government,
are purely matters of legislative policy, depending on positive law,
which may at any time be repealed or modified, either before or after
the damage has occurred, and the repeal of which causes the remedy
to cease.
In giving or withholding remedies of this kind, it is simply
a question whether the public shall or shall not indemnify those who
sustain losses from the unlawful acts or combinations of individuals;
and whether it shall or shall not do so is a matter of legislative discre-
tion, just as it is whether the public shall or shall not indemnify those
who suffer losses at the hands of a public enemy, or from intestine
conmotions or rebellion."
If this be the rule with regard to the liability of municipal corpora-
tions for damages to property committed by mobs or riotous assem-
TERRITORIAL JURISDICTION.
[PART 1.
blages, a fortiori it must be the rule with regard to the liability of
municipal corporations for damages resulting in the loss of life from
the acts of mobs or riotous asseinblages. The reason of the rule is
obvious. Actions to recover from municipal corporations damages
resulting from the acts of mobs and riotous assemblages are actions to
hold such corporations liable in damages for a failure to preserve the
public peace. The preservation of the public peace primarily devolves
upon the sovereign. Under our system of government the State is
that sovereign. U. S. v. Cruikshank, 92 U. S. 542-553; Western Col-
lege v. City of Cleveland, 12 Ohio St. 377. When, by the action of the
State, a municipal corporation is charged with the preservation of the
peace, and empowered to appoint police boards and other agencies to
that end, the corporation pro tanto is charged with governmental
functions in the public interest and for public purposes, and is entitled
to the same immunity as the sovereign granting the power for negli-
gence in preserving the public peace, unless such liability is expressly
declared by the sovereign. This proposition is so well recognized that
not a well-considered, adjudicated case can be found in the books where,
in the absence of an express statute, any municipality has been held
liable for the neglect of its officers to preserve the peace. In the case
of Western College v. City of Cleveland, supra, it was said:
- It is the duty of the State government to secure to the citizens of
the State the peaceful enjoyment of their property and its protection
from wrongful and violent acts. For the proper discharge of this
duty, power is delegated in different modes. One of these is the
establishment of municipal corporations. Powers and privileges are
also conferred upon municipal corporations to be exercised for the
benefit of the individuals of whom such corporations are composed,
and, in connection with these powers and privileges, duties are some-
times specifically imposed. It is obvious that there is a distinction
between those powers delegated to municipal corporations to preserve
the peace and protect persons and property when they are to be exer-
cised by legislation or the appointment of proper officers, and those
powers and privileges which are to be exercised for the improvement
of the property comprised within the limits of the corporation and its
adaptation for the purposes of residence and business. As to the first,
the municipal corporation represents the State; as to the second, the
inunicipal corporation represents the pecuniary and proprietary interest
of the individuals. As to the first, responsibility for acts done or
omitted is governed by the same rule of responsibility which applies
to like delegations of power; as to the second, the rules which govern
the responsibility of individuals are properly applicable.”
The exemption of municipalities from liability to suits for damages
CHAP. II.] CITY OF NEW ORLEANS. V, ABBAGNATO.
325
for the negligence of officers and agents in the execution of the gov-
ernmental functions granted by the State, in the public interest, and in
the absence of statutory liability, is recognized in Louisiana, as shown
by the decisions of the Supreme Court of the State in Egerton v. Third
Municipality, 1 La. Ann. 437; Stewart v. City of New Orleans, 9 La.
Ann. 461; Lewis v. New Orleans, 12 La. Ann. 190; Bennett v. New
Orleans, 14 La. Ann. 120; Howe v. New Orleans, 12 La. Ann. 482; Neur
Orleans, etc., R. Co. v. New Orleans, 26 La. Ann. 478, although
Johnson v. Municipality No. 1, 5 La. Ann. 100, Clague v. New Orleans,
13 La. Ann. 275, and Chase v. Mayor, 9. La. 343, are apparently to the
contrary. The Louisiana, cases, as well as those of other States, are
very ably reviewed, and the whole matter discussed, in a well-considered
opinion of the learned judge of the eastern district of Louisiana in the
case of Gianfortone v. City of New Orleans (recently decided), 61 Fed.
64. It follows, therefore, that in order to recover damages against the
city of New Orleans for the taking of human life by a mob id said city,
no matter what the negligence of the city officials may have been, there
must be a statute of the State of Louisiana expressly or by necessary
implication giving a remedy in such cases.
Section 2453 of the Revised Statutes of Louisiana reads as fol-
lows:
"The different municipal corporations in this State shall be liable
for the damages done to property by mobs or riotous assemblages in
their respective limits."
And Article 2315, Rev. Civ. Code, as last amended, reads as fol-
lows:
“Every act whatever of man that causes damage to another obliges
him by whose fault it happened to repair it. The right of this action
shall survive in case of death in favor of the minor children and widow
of the deceased or either of them, and in default of these in favor of
the surviving father or mother, or either of them for the space of one
year from the death. The survivors above mentioned may also recover
the damages sustained by thein by the death of the parent or child or
husband or wife, as the case may be."
Article 2316, id., reads as follows:
“Every person is responsible for the damage he accasions not merely
by his act, but by his negligence, his imprudence or his want of
skill."
And Article 2317 :
“We are responsible not only for the damage caused by our own act,
but for that which is caused by the act of persons for whom we are
answerable, or of the things which we have in our custody."
It is not seriously contended in this case that Article 2453 of the
326
[PART I.
TERRITORIAL JURISDICTION.
t
Revised Statutes of the State warrants the maintenance of the present
suit, or fixes any liability upon the City of New Orleans because of the
death of Abbagnato at the hands of a mob, as recited in the petition.
As consider the statute and the fact of its existence on the statute
book, it goes rather to deny the right to recover in this case than to
support it, for it shows clearly that in the legislative mind the statute
was necessary to fix liability upon municipal corporations for damages
to property done by mobs; and the limitation of the right to recover
damages to property only shows a clear legislative intent that beyond
property, and for life or limb, municipal corporations should not be
responsible. The entire right of the plaintiff in error to recover dam-
ages inust then be based upon Article 2315 and the subsequent articles
of the Civil Code, above quoted. Article 2315, as originally adopted,
was as follows:
“Every act whatever of man that causes damage to another obliges
him by whose fault it happened to repair it."
It was under this article that the decision in Hubgh. v. Railroad Co.,
supra, was rendered, holding that an action for damages caused by the
homicide of a free human being cannot be maintained. In regard to
the article the court says:
“The provisions of this article, however general and comprehensive
its terins may be, are found more than once recited in terms equally
general and comprehensive in the laws of the 15th title of the 7th
Partida. The article was inserted in the Code of 1809, at a time when
the Spanish laws were in force. It was put and retained to this time
in the Code, not for the purpose of making any change in the law, but
because it was a principle which was in its proper place in a Code; a
principle which would be equally recognized as a necessary conservative
element of society, and equally obligatory, whether it was formally en-
acted in a Code or not.
* Merlin, in giving his conclusions
before the Court of Cassation, in the Case of Michel, Reynier et al.,
respecting the Article 1382 of the Code Napoleon, which is identical with
the Article 2294 of our Code, says: "The principle laid down in Article
1382 is not new. It is drawn from the natural law; and, long before
the Napoleon Code, the Roman laws had solemnly proclaimed it.
Long before that Code, the French laws had recognized and assumed
its existence.'"
We understand from this that the article of the Civil Code in ques-
tion was not an innovation of the civil law, in force in the State, intro-
ducing new principles and establishing new duties and responsibilities
which did not before exist. It is a part of a system of laws, and con-
trolling only where, under general principles, it is applicable to the
facts and liabilities of a particular case. We have shown that the article
*
*
CụAP. II.] CITY OF NEW ORLEANS V. ABBAGNATO.
327
!
was not enforceable when the “act whatever of man” resulted in death,
until the statute so declared, and this because of the intervention of
other equally well-recognized principles of law. To make it applicable
in case of death through negligence, the Legislature of 1855 amended
the article by adding thereto as follows:
“ The right of this action shall survive in case of death in favor of
the minor children and widow of the deceased or either of them, and in
default of these in favor of the surviving father and mother or either
of them for the space of one year from the death.” Acts 1855, No. 223,
p. 270.
As thus amended, the scope of the article was still too narrow to per-
mit the recovery of other damages than such as the deceased himself
would have had had he survived the injury (Vredenburg v. Behan, 33
La. Ann. 627); and therefore the article was again amended and re-
enacted, adding thereunto as follows:
“ The survivors above mentioned may also recover the damages sus-
tained by them by the death of the parent or child or husband or wife,
as the case may be.” Acts 1884, p. 94.
Neither the amendment of 1855 nor that of 1884 enlarges the
scope
of the article as to the persons who may be held liable for negligence.
The amendments go no further than to provide for a limited survival
of the action and an enlarged rule of damages. The article is appli-
cable now to the same persons, and to no others, as before amendment;
and if, before amendment, it could not be applied so as to hold a munici-
pal corporation liable for damages resulting from the acts of mobs
and riotous assemblages, it cannot be so applied now. Before this
amendment, it declared well-known principles of the civil law, but not
all of them, and it controlled in cases where the application of other
well-known rules and principles did not deny the action or defeat
recovery. As amended, it should have the same construction and be
given the same force. Before the act of 1855, it was not contended,
nor could it have been successfully contended, that the article was
applicable as against a municipal corporation to recover damages to
either person, life, or property resulting from the acts of mobs and
riotous assemblages. For these reasons, we are clear that neither ex-
pressly nor by implication does it now give a remedy in damages against
a municipal corporation for negligence in preserving the public peace
resulting in the loss of life by the acts of a mob. As we find no law
of the State of Louisiana giving a remedy in damages against a munici-
pal corporation for the acts done by a mob resulting in the loss of
human life, we are compelled to reverse the judgment of the court
below.
The judgment of the circuit court is reversed, and the case is re-
328
[PART I.
TERRITORIAL JURISDICTION.
manded, with instructions to maintain the exception of non-liability,
and dismiss the plaintiff's petition.
1
1 The questions growing out of the New Orleans affair, in 1891, present some pecu-
liar features; and forcibly illustrate certain defects, as regards the conduct of foreign
relations, in the federal system of the United States.
The Chief of Police of New Orleans had been assassinated in a most dastardly man-
ner; and strong suspicions of complicity in the murder rested on the members of an
Italian society called the “Mafia.” A number of Italians were finally arrested and
put upon their trial, but in the end were acquitted by the jury. Believing that the
jury had been tampered with, and that there was, in this case, a signal failure of jus-
tice, a public indignation meeting was held, which was attended by the better class of
citizens; inflammatory addresses were nade, and measures apparently adopted to take
the matter out of the hands of the court. Accordingly, a mob assembled the next
morning, and, as it would appear, without any protest from State or city governments,
broke open the jail where the accused were still incarcerated, and shot or hanged a
number of the suspected Italians. Among this number were several who were not
naturalized, and were, therefore, still citizens of Italy.
The President, by the Secretary of State, expressed regret for the occurrence and
declared his purpose to lay the matter before Congress at its next session, and to
recommend that an indemnity be granted to the families of the murdered men.
The Italian Government was not satisfied with this position of the United States,
but demanded further that the leaders of the mob be criminally prosecuted and pun-
ished according to law.
With this demand the Government of the United States could not comply, however
willing it might be to do so. It is well known that the federal courts have no common-
law jurisdiction in criminal matters; it was impossible, therefore, to institute a criminal
suit against these persons in those courts; and as the States are wholly independent of
the Federal Government in respect of such jurisdiction, it was equally impossible to
compel the government of the State of Louisiana to institute such proceedings. The
government of the United States was therefore quite helpless in this aspect of the
case, and could only listen to the complaints of Italy, and try to explain to her states-
men the intricacies of the United States Constitution.
It is undoubtedly within the competence of Congress to confer upon the federal
courts jurisdiction in this class of cases; but as yet it has not been done.
In regard to the merits of this case, it would seem that the United States should
accept the responsibility, as in fact they have done, for the acts of the mob. In the
first place, these persons were in the custody of the State governmeyt and, for the pur-
poses of international law, in that of the national government, — and therefore entitled
to special protection. In the second place, there was no serious attempt on the part of
the proper authorities to quell the riot; and it is generally understood that a govern-
nient is liable internationally for injuries done to "alien residents by a mob which by
due diligence it could have suppressed.”
The Italian Government eventually withdrew the demand for the punishment of the
actors in the affair, and accepted a money indemnity instead.
For other cases under the subject of this section, see 1 Wharton's Digest, 473,
482-486; Calvo: Droit International, 5th ed., Vol. III., 142–156. And see the case of
Don Parifico, infra, section 26, in which the claim for damages was enforced against
Greece, on the ground that it was impossible to obtain justice through the ordinary
channels — the courts. And on the constitutional difficulty, see an excellent article
CHAPTER III.
JURISDICTION ON THE HIGH SEAS.
SECTION 17. - MERCHANT VESSELS.
WILSON V. MCNAMEE.
v.
SUPREME Court OF THE UNITED STATES, 1880.
(102 United States, 572.)
Mr. Justice SWAYNE delivered the opinion of the court.
The only point argued here was the validity of the pilot law of New
York with reference to the Constitution of the United States.
At the close of the opening argument of the learned counsel for the
plaintiff in error, we announced that the affirinative of the question thus
presented was so well settled by the repeated adjudications of this
court, that we had no desire to hear the counsel for the defendant in
error upon the subject.
Thereafter, the counsel who had been heard submitted a memoran-
dum, in which he called our attention particularly “to the tenth point
of the brief of the plaintiff in error, namely, that the tender took place
outside of the jurisdiction of the State of New York.” He added:
"This question has never yet been passed upon by this court in either
of the other pilot cases."
Our opinion will be confined to that subject.
There are several answers to the suggestion.
by M. Despagnet : Les Difficultés Internationales venant de la Constitution de cer-
tains pays. 2 R. G. D. I., 184–199.
The foreign sojourner is entitled to an equal, not greater, protection than the
native resident. When, therefore, through civil war or mob violence which the au-
thorities cannot control, aliens suffer injury, the state is not responsible to the aliens
for injuries thus received, New Orleans Riot, 1861, 2 Wharton's Digest, 600.
For the seizure of an American steamer within the territorial waters of Colombia,
see Montijo's Case, 1876, 2 Moore's International Arbitrations, 1421–1447. On the
subject of this note, see generally 1 Butler, Treaty-making Power, 149–166.-- ED.
330
JURISDICTION ON THE HIGH SEAS. [PART I.
1. The objection does not appear to have been taken in the circuit
court, and cannot, therefore, be considered here. Edwards v. Elliott,
21 Wall. 532.
2. A vessel at sea is considered as a part of the territory to which it
belongs when at home. It carries with it the local legal rights and
legal jurisdiction of such locality. All on board are endowed and sub-
ject accordingly. The pilot, upon his boat, had the same authority
from the laws of New York to tender and demand employment, and
the same legal consequences, under the circumstances, followed the
refusal of the master as if both vessels had then been infra fauces
terrce, where the municipal jurisdiction of the State was complete and
exclusive. The jurisdiction of the local sovereign over a vessel, and
over those belonging to her, in the home port and abroad on the sea, is,
according to the law of nations, the same. Dana's Wheaton, p. 169,
$ 106; 1 Kent, Com. 27; Vattel, bk. 1, ch. 19, $ 216; 2 Rutherford's
Inst., bk. 2, ch. 9, $$ 8, 19.
The principle here recognized is, of course, subject to the para-
mount authority of the Constitution and laws of the United States
over the foreign and interstate commerce of the country, and the
commercial marine of the country engaged in such commerce, and
subject also to the like power of Congress" to define and punish pira-
cies and felonies committed on the high seas and offences against the
law of nations." See Ex parte McNiel, 13 Wall. 236.
Speaking of the universal law of reason, justice, and conscience, of
which the law of nations is necessarily a part, Cicero said: “ Nor is it
one thing at Rome and another at Athens, one now and another in future,
but among all nations it is, and in all time will be, eternally and immut-
ably the same.” Lactantius Inst. Div., bk. 7, ch. 8.
3. Conceding that the pilot laws of the several States are regula-
tions of cominerce, Mr. Justice Story said, “They have been adopted
by Congress, and without question are controllable by it.” 2 Story,
Const. § 1071.
Mr. Chief Justice Marshall, in Gibbons v. Ogden, said: “When the
government of the Union was brought into existence, it found a sys-
tem for the regulation of pilots in force in every State. The act
which has been mentioned adopts this system, and gives it the same
validity, as if its provisions had been specially made by Congress."
9 Wheat. 1, 207. The long-continued silence of Congress, with its
plenary power, in the presence of such legislation by the States con-
cerned, is itself an implied ratification and adoption, and is equivalent
in its consequences to an express declaration to that effect. Atkins v.
The Disintegrating Company, 18 Wall. 272.
The several acts of Congress bearing on the subject are fully referred
c
CHAP. III.]
331
REGINA V. ANDERSON.
to in Ex parte McNiel, supra. In that, and in the earlier 'and more
elaborate case of Cooley v. Board of Wardens of Port of Philadelphia,
12 How. 299, this subject, in all its aspects, was so fully considered
that further remarks on the present occasion are deemed unueces-
sary.
Judgment affirmed.1
REGINA V. ANDERSON.
COURT FOR CROWN CASE RESERVED, 1868.
(11 Cox C. C. 198.)
i
1
Case reserved by Byles, J., at the October Sessions of the Central
Criminal Court, 1868, for the opinion of this court.
James Anderson, an American citizen, was indicted for murder on
board a vessel, belonging to the port of Yarmouth in Nova Scotia.
1 In Crapo v. Kelly, 1872, 16 Wall. 610, 623, the court said:
“ The question then arises, while thus upon tlie high seas was she in law within the
territory of Massachusetts. If she was, the insolvent title will prevail.
“It is not perceived that this vessel can be said to be upon United States territory,
or within United States jurisdiction, or subject to the laws of the United States regu-
lating the transfer of property, if such laws there may be. Except for the purposes
and to the extent to which these attributes have been transferred to the United States,
the State of Massachusetts possesses all the rights and powers of a sovereign State. By
her own consent, as found in Article 1 of the Constitution of the United States, she has
abandoned her right to wage war, to coin money, to make treaties, and to do certain
other acts therein mentioned. None of the subjects there mentioned affect the ques-
tion before us. The third article of that instrument extends the judicial power of the
United States 'to all cases of admiralty and maritime jurisdiction. This gives the
power to the courts of the United States to try those cases in which are involved ques-
tions arising out of maritime affairs, and of crimes committed on the high seas. To
bring a transaction within that jurisdiction, it must be not simply a transaction which
occurred at sea, as the making of a .contract, but one in which the question itself is of
a maritime nature, or arises out of a maritime affair, or it must be a tort or crime
committed on the high seas. Over such cases the United States courts have jurisdic-
that is, they are authorized to hear and determine them. No rule of property is
thereby established. This remains as it would have been had no such authority been
given to the United States court.
“To Congress is also given power to define and punish piracies and felonies com-
mitted on the high seas, and offences against the law of nations. It will scarcely be
claimed that the title to property could be affected by this provision. Nor does the
circumstance that the Arctic sailed under the flag of the United States and was
entitled to the protection of that government against insult or injury from the citizens
or ships of other nations, touch the present point. None of these instances are like
that of the passage of a bankrupt law by the United States, which acts (lirectly upon
the property of all the citizens of all the States, wherever it may be. Had the clain
tion;
332
(PART I.
JURISDICTION ON THE HIGH SEAS.
She was registered in London, and was sailing under the British
flag.
1
of either party to this vessel been based upon a proceeding under that statute, the title
would have been complete, if the property had been within the territory or jurisdiction
of any of the States of the Union.
" It is not perceived, therefore, that the relation of Massachusetts to the Union has
any effect upon the title to this vessel. It stands as if that State were an independent
sovereign State, unconnected with the other States of the Union. The question is the
same as if this assignment had been made in London by a British insolvent court, ad-
judicating upon the affairs of a British subject.
“ We are of the opinion, for the purpose we are considering, that the ship Arctic
was a portion of the territory of Massachusetts, and the assignment by the insolvent
court of that State passed the title to her, in the same manner and with the like effect
as if she had been physically within the bounds of that State when the assignment was
executed."
In McDonald v. Mallory, 1879, 77 N. Y. 546, 553, 556, it is said: “In respect to
crimes committed on the high seas, the power to provide for their punishment has
been delegated to the Federal Government, and for that reason State laws cannot be
applicable to them; but I cannot escape the conclusion that under the principle of the
case of Crapo v. Kelly civil rights of action, for matters occurring at sea on board of a
vessel belong to one of the States of the Union must depend upon the laws of that
State, unless they arise out of some matter over which jurisdiction has been vested in
and exercised by the government of the United States, or over which the State has
transferred its rights of sovereignty to the United States ; and that to this extent the
vessel must be regarded as part of the territory of the State, while in respect to her
relations with foreign governments, crimes committed on board of her, and all other
matters over which jurisdiction is vested in the Federal Government, she must be re-
garded as part of the territory of the United States and subject to the laws thereof."
“There is nothing in the nature of this action which renders it exclusively the
subject of Federal cognizance. The jurisdiction of the States and of the United
States in the matter of personal torts committed at sea, such as assaults by a master
on his crew, injuries to passengers, and the like, are concurrent, though remedies
by proceedings in rem can be administered only by the courts of admiralty of the
United States. The field of legislation in respect to cases like the present one has not
been occupied by the general government and is therefore open to the States. Steam-
boat Co. v. Chase, 16 Wall. 522, 530, 533. Indeed the United States Court of Admi-
ralty would have no jurisdiction in such a case. Steamboat Co. v. Chase, 16 Wall. 522,
630, 533; Sherlock v, Allen, -93 U. S. 99, and there is no greater objection to extending
the operation of a statute of this description to a vessel at sea than there was to giving
similar operation to a State insolvent law."
Dr. Wharton (Commentaries on American Law, 1884, § 308) says: “A ship at sea
is, by the prevalent opinion, a part of the territory of the State whose flag she bears,
and is consequently governed by the laws of such State. As between the several
States of the American Union, a ship is governed by the law of the State in which
she is registered. A ship in port, however, is governed by port law, though this does
not apply to ships of war.” For ships of war, see Exchange v. McFaddon, 1812, 7 Cr.
116, ante.
In The Lamington, 1898, 87 Fed. 752, Thomas, J., said: “The first question is this:
Did the accident occur on British territory ? Every vessel outside the jurisdiction of
a foreign power is a detached, floating portion of the territory of the country whose
.
CHAP. III.]
333
REGINA V. ANDERSON.
At the time of the offence committed the vessel was in the river
Garonne, within the boundaries of the French empire, on her way up
to Bordeaux, which city is by the course of the river about ninety
iniles from the open sea. The vessel had proceeded about half-way
up the river, and was at the time of the offence about three hundred
yards from the nearest shore, the river at that place being about half
a inile wide.
The tide flows up to the place and beyond it.
No evidence was given whether the place was or was not within the
limits of the port of Bordeaux.
It was objected for the prisoner that the offence having been com-
mitted within the empire of France, the vessel being a colonial vessel,
and the prisoner an American citizen, the court had no jurisdiction to
try him.
I expressed an opinion unfavorable to the objection, but agreed to
grant a case for the opinion of this court.
The prisoner was convicted of manslaughter.
J. BARNARD BYLES.
BOVILL, C. J.1 There is no doubt that the place where the offence
was committed was within the territory of France, and that the pris-
oner was therefore subject to the laws of France, which the local
authorities of that realm might have enforced if so minded; but at the
time, in point of law, the offence was also committed within British ter-
flag it flies, and under whose laws it is registered. The Scotia, 14 Wall. 170, 184;
Crapo v. Kelly, 16 Wall. 610, 624; Wilson v. McNamee, 102 U. S. 572, 574; In re Mon-
can, 14 Fed. 44; In re Ah Sing, 13 Fed. 286; U. S. v. Bennett, 3 Hughes, 466, Fed. Cas.
No. 14,574; McDonald v. Mallory, 77 N. Y. 546, 551, 553; Wheat. Int. Law (Dana's
ed.) § 106; 3 Whart. Int. Law Dig. 228; Whart. Conf. Laws, § 356; 1 Kent, Comm.
26; Vatt. Law Nat. bk. 1, ch. 19, § 216; 1 Calvo, 552; Bluntschli, § 317; 1 Martens
(French Trans. of Leo), 496; Seagrove v. Parks, 1 Q. B. Div. 551. The authorities
noted so perfectly maintain the doctrine stated that quotation, amplification or illus-
tration is unnecessary. The broad and fundamental principle is that the sovereignty
of a nation extends to its private ships, and this dominion is never shared by a foreign
power where the internal affairs of the vessel are alone involved, and where it is not
within the territorial domain of such power. It results from the foregoing : (1) That
tortious acts are governed by the law of the place where they are done. (2) That a
foreign tribunal will never afford reparation for such acts, unless they are unjustified
both by the law of the place where they occurred and by the law of the forum. (3)
That a contract creating the relation of master and servant, made in a country for a
service to be rendered in such country, imposes only such obligations, and confers only
such rights, as the terms of the contract stipulate, and the laws of such country imply.
(4) That the vessels of such country are, even upon the high seas, a detached, floating
portion of its territory, and exclusively within the influence of its laws, so far as the
internal economy of the vessel is concerned.” – ED.
1 Arguments of counsel and the concurring opinions of Channell, B., and Lush, JJ.,
are omitted. -- ED.
334
[PART I.
JURISDICTION ON THE HIGH SEAS.
ritory, for the prisoner was a seaman on board a merchant vessel, which,
as to her crew and master, must be taken to have been at the same
time under the protection of the British flag, and, therefore, also amen-
able to the provisions of the British law. It is true that the prisoner
was an American citizen, but he had with his own consent embarked
on board a British vessel as one of the crew. Although the prisoner
was subject to the American jurisprudence as an American citizen, and
to the law of France as having committed an offence within the terri-
tory of France, yet he must also be considered as subject to the juris-
diction of British law, which extends to the protection of British
vessels, though in ports belonging to another country. From the pas-
sage in the treatise of Ortolan, already quoted, it appears that, with
regard to offences committed on board of foreign vessels within the
French territory, the French nation will not assert their police law
unless invoked by the master of the vessel, or unless the offence leads
to a disturbance of the peace of the port; and several instances where
that course was adopted are mentioned. Among these are two cases
where offences were committed on board American vessels — one at
the port of Antwerp, and the other at Marseilles — and where, on the
local authorities interfering, the American court claimed exclusive
jurisdiction. As far as America herself is concerned, it is clear that
she, by the statutes of the 23d of March, 1825, has made regulations
for persons on board her vessels in foreign parts, and we have adopted
the same course of legislation. Our vessels must be subject to the laws
of the nation at any of whose ports they may be, and also to the laws
of our country, to which they belong. As to our vessels when going
to foreign parts we have the right, if we are not bound, to make regu-
lations. America has set us a strong example that we have the right
to do so. In the present case, if it were necessary to decide the ques-
tion on the 17 & 18 Vict., c. 104, I should have no hesitation in saying
that we not now only legislate for British subjects on board of British
vessels, but also for all those who form the crews thereof, and that
there is no difficulty in so construing the statute ; but it is not neces-
sary to decide that point now. Independently of that statute, the
general law is sufficient to determine this case. Here the offence was
comınitted on board a British vessel by one of the crew, and it makes
no difference whether the vessel was within a foreign port or not. If
the offence had been committed on the high seas it is clear that it
would have been within the jurisdiction of the admiralty, and the
Central Criminal Court has now the same extent of jurisdiction. Does
it make any difference because the vessel was in the river Garonne
half-way between the sea and the head of the river ? The place where
the offence was committed was in a navigable part of the river below
CHAP. III. ]
335
REGINA V. ANDERSON.
i
bridge, and where the tide ebbs and flows, and greåt ships do lie and
hover. An offence committed at such a place, according to the author-
ities, is within the Admiralty jurisdiction, and it is the same as if the
offence had been committed on the high seas. On the whole I come
to the conclusion that the prisoner was amenable to the British law,
and that the conviction was right.
BYLES, J. I am of the same opinion. I adhere to the opinion that
I expressed at the trial. A British ship is, for the purposes of this
question, like a floating island; and, when a crime is committed on
board a British ship, it is within the jurisdiction of the Admiralty
Court, and therefore of the Contral Criminal Court, and the offender
is as amenable to British law as if he had stood on the Isle of Wight
and committed the crime. Two English and two American cases de-
cide that a crime committed on board a British vessel in a river like
the one in question, where there is the flux and reflux of the tide, and
wherein great ships do hover, is within the jurisdiction of the Ad-
miralty Court; and that is also the opinion'expressed in Kent's Com-
mentaries. The only effect of the ship being within the ambit of
French territory is that there might have been concurrent jurisdiction
had the French claimed it. I give no opinion on the question whether
the case comes within the enactment of the Merchant Shipping Act.
Reg. v. Lopez, 7 Cox C. C. 431; Reg. v. Armstrong, 13 Cox C. C. 184.
BLACKBURN, J. I am of the same opinion. It is not necessary to
decide whether the case comes within the Merchant 'Shipping Act.
If the offence could have been properly tried in any English court,
then the Central Criminal Court had jurisdiction to try it. It has
been decided by a number of cases that a ship on the high seas,
carrying a national flag, is part of the territory of that nation whose
flag she carries; and all persons on board her are to be considered as
subject to the jurisdiction of the laws of that nation, as much so as
if they had been on land within that territory. From the earliest
times it has been held that the maritime courts have jurisdiction
over offences committed on the high seas where great ships go, which
are, as it were, common ground to all nations, and that the jurisdic-
tion extends over ships in rivers or places where great ships go as far
as the tide extends. In this case the vessel was within French terri-
tory, and subject to the local jurisdiction, if the French authorities
had chosen to exercise it. Our decisions establish that the admiralty
jurisdiction extends at common law over British ships on the high
seas, or in waters where great ships go as far as the tide ebbs and
flows. The cases Rex v. Allen and Rex v. Jemot are most closely in
point, and establish that offences committed on board British ships in
places where great ships go are within the jurisdiction of the Court
336
JURISDICTION ON THE HIGH SEAS. (PART I.
of Admiralty, and consequently of the Central Criminal Court. In
America it appears, from the case of The United States v. Wiltberger,
that it was held that the United States had no jurisdiction in the case
of the crime of manslaughter committed on board a United States
vessel in the river Tigris in China; but, as I understand the Amer-
ican cases of Thomas v. Lane and The United States v. Coombes, a rule
more in conformity with the English decisions was laid down; and
upon whose authority I take it that the American courts would agree
with us. It is clear, therefore, that a person on board an American
ship is subject to the American law. My view is, that when a person
is on board a vessel sailing under the British flag, and commits a
crime, that nation has a right to punish him for the crime com-
mitted by him; and clearly the same doctrine extends to those who
are members of the crew of the vessel.
Conviction affirmed.1
1 In U.S. v. Bennett, 1877, 3 Hughes, 466, Fed. Cas. No. 14,574, the crime was com-
mitted on the Garonne near the city of Bordeaux, and the decision was the same.
See, also, Reg. v. Lopez, and Reg. v. Sattler, 1858, D. & B. 525.
In 1851, a case arose in reference to seamen, supposed not to be citizens of the
United States, who, having committed a mutiny at sea, on board of the American
vessel Atalanta, were brought back in the vessel to Marseilles, where, on the applica-
tion of the consul of the United States, they were received and imprisoned by the
local authorities on shore.
Six of them were afterwards on his application taken from prison and placed on
board the Atalanta for conveyance to the United States under clarge of crime. Then,
with notice to the consul, but in spite of his remonstrance, the local authorities went
on board of the Atalanta, forcibly resumed possession of the prisoners, and replaced
them in confinement on shore. Mr. Mason, in a note of the 27th of June, 1856, says :
" It is the first instance, in which a vessel wearing the flag of the United States,
lying in a French port, or a French ship lying in a port of the United States, has, since
the date of the treaty, been visited by police officers without the authority of the
consul." (MS. Department of State.) The correspondence between the two govern-
mients having been subniitted to the Attorney-General of the United States, he con-
curred in opinion with the American Minister, “that the local authority of Marseilles
exceeded its lawful power in substance, as well as in form, and that there could be no
conflict on the part of France with other powers on account of the nationality of the
prisoners, for they were always in the constructive, if not in the actual, custody of the
United States.” 8 Opin. Atty-Gen. 73.
In the case of Jolin Anderson, 1879, Great Britain admitted the contention of the
United States, that a crime committed upon an American merchant vessel while
sailing on the high seas was properly triable in the United States, and the action of
the Indian authorities in trying Anderson in Calcutta, in which port the vessel sub-
sequently arrived, was disavowed by the British Government. 1 Wharton's Digest,
123, 125. —ED.
1
+
CHAP. III.]
387
REGINA V. LESLEY.
REGINA 7. LESLEY.
COURT FOR CROWN CASES RESERVED, 1860.
(Bell's Crown Cases, 220.)
1
The prosecutor and others were 'Chilians who were banished by
their government froin Chili to England. The government of Chili
hired the defendant to take the banished men to England in his ves-
sel, then lying in the territorial waters of Chili. This plan was carried
out and now the defendant is prosecuted for false imprisonment.
ERLE, C. J.:-."In this case the question is whether a conviction
for false imprisonment can be sustained upon the following facts.
(Stating substantially as above.)
" Then, can the conviction be sustained for that which was done
within the Chilian waters? We answer no.
** We assume that in Chili the act of the government toward its
subjects was lawful; and although an English ship in some respects
carries with her the laws of her country in the territorial waters of
a foreign state, yet in other respects she is subject to the laws of
that state as to acts done to the subjects thereof.
“We assume that the government could justify all that it did
within its own territory, and we think it follows that the defendant
can justify all that he did there as agent for the government and
under its authority.
“In Dobree v. Napier, 2 Bing. N. C., 781, the defendant, on behalf
of the Queen of Portugal, seized the plaintiff's vessel for violating a
blockade of a Portuguese port in time of war. The plaintiff brought
trespass; and judgment was for the defendant, because the Queen
of Portugal, in her own territory, had a right to seize the vessel and
to employ whom she would to make the seizure; and therefore the
defendant, though an Englishman seizing an English vessel, could
justify the act under the employment of the Queen.
“We think that the acts of the defendant in Chili became lawful
on the same principle, and that there is therefore no ground for the
conviction.
“ The further question remains, Can the conviction be sustained for
that which was done out of the Chilian territory ? and we think it
can.
" It is clear that an English ship on the high sea, out of any for-
1 Short statement substituted for that of the report. - ED.
22
A
338
[PART I.
JURISDICTION ON THE HIGH SEAS.
eign territory, is subject to the laws of England ; and persons, whether
foreign or English, on board such ship, are as much amenable to
English law as they would be on English soil.
“In Regina v. Sattler, Dears. & Bell's C. C., 525, this principle was
acted on, so as to make the prisoner, a foreigner, responsible for mur-
der on board an English ship at sea. The same principle has been
laid down by foreign writers on international law among which it is
enough to cite Ortolan, “Sur la Diplomatie de la Mer,' liv. 2, cap. 13.
“The merchant shipping Act, 17 & 18 Vict. C. 104, § 267, makes the
master and seamen of a British ship responsible for all offences against
property or person committed on the sea out of her Majesty's do-
minions as if they had been committed within the jurisdiction of the
admiralty of England.
“Such being the law, if the act of the defendant amounted to a
false imprisonment, he was liable to be convicted. Now, as the con-
tract of the defendant was to receive the prosecutor and the others as
prisoners on board his ship and to take them, without their consent,
over the sea to England, although he was justified in first receiving
them in Chili, yet that justification ceased when he passed the line
of Chilian jurisdiction and after that it was a wrong which was inten-
tionally planned and executed in pursuance of the contract, amounting
in law to a false imprisonment.
“It may be that transportation to England is lawful by the law of
Chili, and that a Chilian ship might so lawfully transport Chilian
subjects; but for an English ship, the laws of Chili, out of the state,
are powerless, and the lawfulness of the acts must be tried by Eng-
lish law.
“For these reasons, to the extent above mentioned, the conviction
is afirmed.”
THE “ BELGENLAND."
SUPREME COURT OF THE UNITED STATES, 1884.
(114 United States Reports, 355.)
This case grew out of a collision in mid-ocean between the Norwe-
gian barque Luna and the Belgian steamer Belgenland, in consequence
of which the Luna was run down and sunk. Part of the crew of the
Luna, including the captain, were rescued by the steamer and
brought to Philadelphia. The captain at once libelled the Belgen-
CHAP. III.]
THE
339
BELGENLAND."
land. The District Court decided in favor of the libellant, giving a
verdict for $50,000.
The Circuit Court confirmed the verdict, and the libellee now
appeals to the U. S. Supreme Court. Only so much of the case is
given as refers to jurisdiction.
Mr. Justice BRADLEY delivered the opinion of the court:1
*** We shall content ourselves with inquiring what rule is
followed by Courts of Admiralty in dealing with maritime causes
arising between foreigners and others on the high seas.
“This question is not a new one in these courts. Sir William
Scott had occasion to pass upon it in 1799. An American ship was
taken by the French on a voyage from Philadelphia to London, and
afterwards rescued by her crew, carried to England, and libelled for
salvage; and the court entertained jurisdiction. The crew, however,
though engaged in the American ship, were British born subjects,
and weight was given to this circumstance in the disposition of the
case. The judge, however, made the following remarks : But, it is
asked, if they were American seamen, would this court hold plea of
their demands ? It may be time enough to answer this question
whenever the fact occurs. In the meantime, I will say without
scruple that I can see no inconvenience that would arise if a British
court of justice was to hold plea in such a case; or conversely, if
American courts were to hold pleas of this nature respecting the
merits of British seamen on such occasions. For salvage is
For salvage is a ques-
tion of jus Gantium, and materially different from the question of a
mariner's contract, which is a creature of the particular institutions of
the country, to be applied and construed and explained by its own
particular rules. There might be good reason, therefore, for this
court to decline tointerfere in such cases and to remit them to their own
domestic forum ; but this is a general claim, upon the general ground
of quantum meruit, to be governed by a sound discretion, acting on
general principles; and I can see no reason why one country should
be afraid to trust to the equity of the courts of another on such a
question of such a nature, so to be determined.' The Two Friends,
1 Ch. Rob., 271, 278.
The law has become settled very much in accord with these
views. That was a case of salvage; but the same principles would
seem to apply to the case of destroying or injuring a ship, as to that
of saving it. Both, when acted on the high seas between persons of
different nationalities, come within the domain of the general law of
nations, or communis juris, and are prima facie proper subjects of
1 Short statement substituted for that of the report and portions of the judgment
are omitted. - ED.
.
310
JURISDICTION ON THE HIGH SEAS. [PART 1.
inquiry in any court of admiralty which first obtains jurisdiction
of the rescued or offending ship at the solicitation in justice of the
meritorious, or injured, parties.
The same question of jurisdiction arose in another salvage case
which came before this court in 1804, Mason v. The Blaireau, 2.
Cranch, 240.
There a French ship was saved by a British shịp, and brought
into a port of the United States and the question of jurisdiction
was raised by Mr. Martin, of Maryland, who, however, did not press
the point, and referred to the observations of Sir William Scott in
The Two Friends. Chief Justice MARSHALL, speaking for the court,
disposed of the question as follows :—- A doubt has been suggested,
said he, respecting the jurisdiction of the court, and upon reference
to the authorities, the point does not appear to have been ever
settled. These doubts seem rather founded on the idea that upon
principles of general policy, this court ought not to take cognizance
of a case entirely between foreigners, than from any positive inca-
pacity to do so. 'On weighing the considerations drawn from public
convenience, those in favor of the jurisdiction appear much to over-
balance those against it, and it is the opinion of this court, that,
whatever doubts may exist in a case where the jurisdiction may
be objected to, there ought to be none where the parties assent
to it.' * * *
In the absence *** of treaty stipulations, however, the case of for-
eign seamen is undoubtedly a special one, when they sue for wages.
under a contract which is generally strict in its character, and framed
according to the laws of the country to which the ship belongs;
framed also with a view to secure, in accordance with those laws,
the rights and interests of the ship-ówners as well as those of master
and crew, as well when the ship is abroad as when she is at home.
Nor is 'this special character of the case entirely absent when for-
eigin seamen súe the master of their ship for ill-treatment. On
general principles of comity, Admiralty Courts of other countries
will not interfere between the parties in such cases unless there is
special reason for doing so, and will require the foreign consul to be
notified, and, though not absolutely bound by, will always pay due
respect to, his wishes as to taking jurisdiction.
But, although the courts will use a discretion about assuming
jurisdiction 'of controversies between foreigners in cases arising
beyond the territorial jurisdiction of the country to which the courts
belong, yet where such controversies are comininis juris, that is,
where they arise under the common law of nations, special grounds
should appear to induce the court to deny its aid to a foreign suitor
CHÅP. III.]
341
THE 6i BELGENLAND.”
when it has jurisdiction of the ship or party charged. The exist-
ence of jurisdiction in all such cases is beyond dispute; the only
question will be, whether it is expedient to exercise it. * * *
In another case, Justicę STORY examined the subject very fully,
and came to the conclusion that, wherever there is a maritime lien
on the ship, an Admiralty Court can take jurisdiction on the prin-
ciple of the civil law, that in proceedings in rem the proper forum is
the locus rei sitçe. He added: With reference, therefore, to what
may be deemed the public law of Europe, a proceeding in rem may
well be maintained in our courts where the property of a foreigner
is within our jurisdiction. Nor am I able to perceive how the exer-
cise of such judicial authority clashes with any principles of public
policy,
That, as we have seen, was a case of bottomry, and Justice STORY
in answer to the objection that the contract might have been entered
into in reference to the foreign law, after showing that such law
might be proven here, said: 'In respect to maritime contracts, there
is still less reason to decline the jurisdiction, for in almost all
civilized countries these are in general substantially governed by
the same rules.
Justice Story's decision in this case. was referred to by Dr.
Lushington with strong approbation in the case of the Golubchick
1 W. Rob., 143, decided in 1840, and was adopted as authority for his
taking jurisdiction in that case, * * *
A Danish ship was suņk by a Bremen ship, and on the latter
being libelled, the respondents entered a protest against the jurisdic-
tion of the court. But jurisdiction was retained by Dr. LUSHINGTON
who, amongst other things, remarked: "An alien friend is entitled
to sue (in our courts) on the same footing as a British-born subject,
and if the foreigner in this case had been resident here, and the
cause of action had originated infra corpus comitatus, no objection
could have been taken. Reference being made to the observations
of Lord Stowell in cases of seamen's wages, the judge said: “All
questions of collision are questions communis juris; but in case of
mariners' wages, whoever engages voluntarily to serve on board a
foreign ship, necessarily undertakes to be bound by the law of the
country to which such ship belongs, and the legality of his claim
must be tried by such law. One of the most important distinctions,
therefore, respecting cases where both parties are foreigners is,
whether the case be communis juris or not. *** If these parties
· inust wait until the vessel that has done the injury returned to its
own country, their remedy might be altogether lost, for she might
never return, and, if she did, there is no part of the world to which
they might not be sent for their redress.
342
[PART I.
JURISDICTION ON THE HIGH SEAS.
In the subsequent case of the Griefswald, 1 Swabey, 430, de-
cided by the same judge in 1859, which arose out of a collision
between a British barque and a Persian ship in the Dardanelles, Dr.
LUSHINGTON said: "In cases of collision, it has been the practice of
this country, and, so far as I know, of the European States and of
the United States of America, to allow a party alleging grievance
by a collision to proceed in rem against the ship wherever found,
and this practice, it is manifest; is most conducive to justice, because
in very many cases a remedy in personam would be impracticable.?
The subject has frequently been before our own Admiralty
Courts of original jurisdiction, and there has been but one opinion
expressed, namely, that they have jurisdiction in such cases, and
that they will exercise it unless special circumstances exist to show
that justice would be better subserved by declining it. ***
Indeed, where the parties are not only foreigners, but belong to
different nations, and the injury or salvage service takes place on the
high seas, there seems to be no good reason why the party injured,
or doing the service, should ever be denied justice in our courts;
neither party has any peculiar claim to be judged by the municipal
law of his own country, since the case is pre-eminently one conmu-
nis juris, and can generally be more impartially and satisfactorily
adjudicated by the court of a third nation having jurisdiction of
the res or parties, than it could be by the courts of either of the
nations to which the litigants belong. As Judge DEADY very justly
said, in a case before him in the district of Oregon: The parties
cannot be remitted to a home forum, for, being subjects of different
governments, there is no such tribunal. The forum which is com-
mon to them both by the jus gentium is any court of admiralty
within the reach of whose process they may both be found. Bern-
hard v. Greene, 3 Sawyer, 230, 235.
As to the law which should be applied in cases between parties,
or ships, of different nationalties, arising on the high seas, not
within the jurisdiction of any nation, there can be no doubt that it
must be the general maritime law, as understood and administered
in the courts of the country in which the litigation is prosecuted."
i See The Lamington, 1898, 87 Fed. 752, which states and follows the fundamental
principles of this case. – ED.
CHAP. III.]
343
CHURCH V. HUBBART.
SECTION 18.
MUNICIPAL SEIZURES BEYOND THE THREE-MILE LIMIT.
CHURCH V. HUBBART.
SUPREME COURT OF THE UNITED STATES, 1804.
(2 Cranch, 187.)
While the American vessel Aurora was between four and five leagues
from the Brazilian coast she was seized by the government of Brazil
for attempting to carry on illicit trade with its citizens.
MARSHALL, Ch. J., delivered the opinion of the court.1
As a general principle, the nation which prohibits commercial inter-
course with its colonies must be supposed to adopt measures to make
that prohibition effectual. They must, therefore, be supposed to seize
vessels coming into their harbors or hovering on their coasts in a con-
dition to trade.* * *
To reason from the extent of protection a nation will afford to
foreigners to the extent of the means it may use for its own security
does not seem to be perfectly correct. It is opposed by principles
which are universally acknowledged. The authority of a nation
within its own territory is absolute and exclusive. The seizure of a
vessel within the range of its cannon by a foreign force is an inva-
sion of that territory and is a hostile act, which it is its duty to repel.
But its power to secure itself from injury may certainly be exercised
beyond the limits of its territory. Upon this principle the right of
a belligerent to search a neutral vessel on the high seas for contra-
band of war, is universally admitted, because the belligerent has a
right to prevent the injury done to himself by the assistance in-
tended for his enemy; so, too, a nation has a right to prohibit any
commerce with its colonies. Any attempt to violate the laws made
to protect this right, is an injury to itself which it may prevent, and
it has a right to use the means necessary for its prevention. These
means do not appear to be limited within any certain marked boun-
daries, which remain the same at all times and in all situations. ***
In different seas and on different coasts, a wider or more
contracted range, in which to exercise the vigilance of the govern-
ment of the country, will be assented to. Thus in the channel * * *
1 Statement of the case is omitted and only so much of the opinion is given as re-
lates to the right of the Brazilian Government to seize a foreign vessel so situated. – Ed.
344
[PART 1.
JURISDICTION ON THE HIGH SEAS.
the seizure of vessels on suspicion of attempting an illicit trade
must necessarily be restricted to very narrow limits, but on the
coast of South America, seldom frequented by vessels but for the
purpose of illicit trade, the vigilance of the government may be ex-
tended somewhat further. * * *
The right of the Spaniards was supposed to be exercised un-
reasonably and vexatiously, but it never was contended that it could
only be exercised within the range of the cannon from their bat-
teries. Indeed, the right given to our own revenue cutters, to visit
vessels four leagues from our coast, is a declaration that in the
opinion of the American government, no suel principle as that con-
tended for, has a real existence.
1 Mr. Dana, in speaking of this decision (Dana's Wheaton, 259, note), says, as to
the assertion that the seizure of a vessel four leagues from the coast does not render
.the seizure invalid, “this remark must now be treated as an unwarranted admission.
It may be said that the principle is settled, that municipal seizures cannot be
made, for any purpose, beyond territorial waters. It is also: settled, that the liniit of
these waters is, in the absence of treaty, the marine league or the cannon-shot. It
cannot now be successfully maintained, either that municipal visits and search may
be beyond the territorial waters for special purposes, or that there are different bounds
of that territory for different objects. . . . In the earlier cases, the courts were not
strict as to standards of distance, where no foreign powers intervened in the causes.
In later times, it is safe to infer that judicial as well as political tribunals will insist on
a line of marine territorial jurisdiction for the exercise of force on foreign vessels in
time of peace for all purposes alike.”
There still stands upon the statute book of the United States a law passed in 1799
authorizing their revenue officers to stop and visit foreign vessels four leagues from
the coast. The British “ Hovering Act," passed in 1734, and which doubtless suggested
the American act, contained a similar provision. But this, says Mr. Boyd (Boyd's
Wheaton, 241), has long since been repealed. “The present custom's legislation
nakes a distinction as regards the extent of jurisdiction claimed for revenue purposes,
between ships belonging to British subjects and ships belonging to foreigners." There
is no longer any authority under English laws to visit a foreign vessel beyond the
three-mile limit. See Custom's Consolidations Act, 1876, Sec. 134.
See further on this subject, the case of Rose v. Himely, 1808, 4 Cranch, 241, in
which the Supreme Court of the United States held that a seizure, under customs
regulations, of a foreign vessel beyond the territorial waters of a State, was not valid:
See, also, the case of Hudson v. Guestier, 1810, 6 Cranch, 281; The Apollon, 1824, 9
Wheat. 362. In The Itata (United States and Chilean Claims Commission, convention
of Aug. 7, 1892), 3 Moore, Int. Arb. 3067–3071, the question of seizure in foreign juris-
diction för violation of our neutrality laws was carefully considered. The judgment
was as follows: “ After an examination
"After an examination of many authorities on international law,
numerous decisions of courts, we are of opinion that the United States committed an
act for which they are liable in damages and for which they should be held to answer."
For facts of the case, see U. S. v. Trumbull, infra, 731. – ED.
and
1
1
CHAP. III.]
OPINION OF SIR LEOLINE JENKINS.
315
SECTION 19. --- PIRACY.
OPINION OF SIR LEOLINE JENKINS.
CHARGE TO THE JURY, 1668.
(Life of Sir Leoline Jenkins, I., LXXXVI.)
" There are some sorts of felonies and offences, which cannot be
committed anywhere else but upon the sea, within the jurisdiction
of the Admiralty. These I shall insist upon a little more particu-
larly, and the chiefest in this kind is piracy.
“ You are therefore to inquire of all Pirates and sea-rovers; they
are in the eye of the law hostes humani generis, enemies not of one
nation or of one sort of people only, but of all mankind. They are
outlawed, as I may say, by the laws of all nations, that is, out of
the protection of all princes and of all laws whatsoever. Everybody
is commissioned, and is to be armed against them, as against rebels
and traitors, to subdue and to root them out.
“That which is called robbing upon the highway, the same being
done upon the water is called piracy. Now robbery, as 'tis dis-
tinguished from thieving or larceny, implies not only the actual
taking away of my goods, while I am, as we say, in peace, but also
the putting me in fear, by taking them away by force and arms out
of my hands, or in my sight and presence; when this is done upon
the sea, without a lawful commission of war or reprisals, it is down-
right piracy.
“And such was the generosity of our ancient English, such the
abhorrence of our laws against pirates and sea-rovers, that if any
of the King's
, subjects robbed or murdered a foreigner upon our seas
or within our ports, though the foreigner happened to be of a nation
in hostility against the King, yet if he had the King's passport, or
the Lord Admiral's, the offender was published, not as a felon only,
but this crime was made high treason, in that great Prince Henry
the Fifth's time; and not only himself, but all his accomplices were
to suffer as traitors against the crown and dignity of the King.” 1
.
1 For the leading case of U. S. v. Smith, 1820, 5. Wheat. 153, see § 1, supru. — Ed.
346
(PART 1.
JURISDICTION ON THE HIGH SEAS.
UNITED STATES V. THE “AMBROSE LIGHT."
UNITED STATES DISTRICT COURT FOR So. Dist. OF N. Y.,
1885.
(25 Federal, 408.)
The libel in this case was filed to procure the condemnation of the
brig Ambrose Light, which was brought into this port as prime on
June 3, 1885, by Lieut. Wright and a prize, crew, detached from the
United States gun-boat Alliance, under Commander Clarke, by whose
orders the brigantine had been seized on the twenty-fourth of April.
The seizure was made in the Caribbean sea, about twenty miles to
the westward of Cartagena.
The commander was looking for the insurgent Preston, by whose
order Colon had shortly before been fired, to the great loss and injury
of our citizens.
Observing the brigantine displaying a strange flag, viz., a red cross
on a white ground, he bore down upon her, and brought her to by a
couple of shots across her bows. Before coming to, she exhibited the
Colombian flag. On examination, some sixty armed soldiers were
found concealed below her decks, and one cannon was aboard, with
a considerable quantity of shot, shell, and ammunition. Preston was
not found. Her papers purported to commission her as a Colombian
man-of-war, and read as follows: (Translation.)
“I, Pedroa Lara, governor of the province of Barranquilla, in the
state of Bolivia, in the United States of Colombia, with full powers
conferred by the citizen president of the state, I give to whom it may
concern this patente of the sailing vessel Ambrose Light, that she
may navigate as a Colombian vessel-of-war in the waters touching
the coast of this republic, in the Atlantic ocean.
“ Therefore, the general commandants and captains of the vessels
of war of the friendly nations of Colombia are requested to give this
vessel all the consideration that by right belongs to the vessels of
the class of the Ambrose Light of all civilized nations. In the faith
of which we have given these presents, and signed with rubric with
the secretary of my office, in the city of Barranquilla, on the eight-
eenth day of the month of April, 1885.
(Signed)
“ Pedroa Lara
The Secretary [Sig.), “R. A. Del Valle.
(Indorsed :) “Office of the Military,
“ Barranquilla, April 18, 1885.
Registered and noted in folio and book, respectively.
“The General in Chief, N. Juneno Collante.
“Adjutant and Secretary, A. Solanom."
CHAP. III.] UNITED STATES V. THE
347
AMBROSE LIGHT."
Believing this commission to be irregular, and to show no lawful
authority to cruise as a man-of-war on the high seas, Commander
Clarke reported her under seizure, in accordance with the naval
regulations, to Admiral Jowett, commanding the North Atlantic
squadron, then cruising in the Central American waters, and the
admiral directed the vessel to be taken to New York for adjudication
as prize. The vessel was at first supposed to belong to citizens of
the United States. The proofs showed that she had been sold to,
and legally belonged to, Colente, one of the chief military leaders of
the insurgents at Barranquilla. None of her officers or crew were
citizens of the United States. She was engaged upon a hostile
expedition against Cartagena, and designed to assist in the blockade
and siege of that port by the rebels against the established govern-
ment of the United States of Colombia. She had left Sabanilla on
April 20th, bound for Baru, near Cartagena, where she expected the
soldiers aboard to disembark. She was under the orders of the
colonel of the troops, whose instructions were to shoot the captain
if disobedient to his orders. Further instructions were to fight any
Colombian vessel not showing the white flag with a red cross.
Sabanilla, and a few other adjacent sea-ports, and the province of
Barranquilla, including the city of Barranquilla, had been for some
months previous, and still were, under the control of the insurgents.
The proofs did not show that any other depredations or hostilities
were intended by the vessel than such as might be incident to the
struggle between the insurgents and the government of Colombia,
and to the so-called blockade and siege of Cartagena.
As respects any recognition of the insurgents by foreign powers,
it did not appear in evidence that up to the time of the seizure of the
vessel, on April 24, 1885, a state of war had been recognized as exist-
ing, or that the insurgents had ever been recognized as a de facto
government, or as having belligerent rights, either by the Colombian
government, or by our own government, or by any other nation.
The claimants introduced in evidence a diplomatic note from our
Secretary of State to the Colombian minister, dated April 24, 1885,
which, it was contended, amounted to a recognition by implication
of a state of war. The government claimed the forfeiture of the ship
as piratical, under the law of nations, because she was not sailing
under the authority of any acknowledged power. The claimants
contended that, being actually belligerent, she was in no event
piratical by the law of nations; but if so, that the subsequent re-
cognition of belligerency by our government by implication entitles
her to a release.
348
[PART I.
JURISDICTION ON THE HIGH SEAS.
BROWN, J. 6. That recognition by at least some established
government of a “state of war," or of the belligerent rights of insur-
gents, is necessary to prevent their cruisers from being held legally
piratical by the courts of other nations injuriously affected, is either
directly affirmed, or necessaril, implied froin many adjudged cases;
and I have found no. adjudication in which a contrary view is even
intimated.
This great weight of authority, drawn from every source that au-
thoritatively makes up the law of nations, seems to ine fully to war-
rant the conclusion that the public vessels of war of all nations,
for the preservation of the peace and order of the seas, and the
security of their own commerce, have the right to seize as piratical
all vessels carrying on, or threatening to carry on, unlawful private
warfare to their injury; and that privateers, or vessels of war, sent
out to blockade ports, under the commissions of insurgents, unrecog-
nized by the government of any sovereign power, are of that char-
acter, and derive no protection from such void commissions.
It thus appears that the rules laid down and implied in the decis.
ions of our supreme court in the cases of Rose v. Himely and U. S.
v. Palmer, nearly 70 years ago, have been since almost universally
followed. The practical responsibility of determining whether in-
surgent vessels of war shall be treated as lawful belligerents, or as
piratical, rests where the supreme court then in effect decided that
it ought to rest, viz., with the political and executive departments of
the government. These departments have it in their power, at any
moment, through the granting or withholding of recognition of bel-
ligerency, and through the extent of such recognition as they may
choose to accord, virtually to determine how such cruisers shall be
treated by the courts.
Even after judgment and sentence the prisoners may, like Smith
and his associates, convicted before Mr. Justice Grier, be treated,
and exchanged, as prisoners of war. And it is with those depart-
ments, exclusively, that the discretion ought to rest to determine when
and how its technical rights against rebel cruisers shall be enforced.
Its naval regulations will be framed accordingly; and any seizures
made under such regulations may be enforced, or at any moment
remitted, at the pleasure of those departments.
Where insurgents conduct an armed strife for political ends, and
avoid any infringement or menace of the rights of foreign nations on
the high seas, the modern practice is, in the absence of treaty stipu-
lations or other special ties, to take no notice of the contest. One of
1 Only a few extracts are given from the elaborate “opinion " rather than "judg-
ment" in this case.
Ep.
$
i
349
CHAP. II.] UNITED STATES V. THE
AMBROSE LIGHT."
the earliest applications of this rule that I have met is in the answer
of the states-general to Sir Joseph York's demand in 1779 for the
surrender of Paul Jones' prizes as piratically captured, in which their
Mightinesses say that they had for a century past strictly observed
the maxim that they will in no respect presume to judge of the legal-
ity or illegality of the actions of those who, upon the open sea, have
taken any vessels that do not belong to this country. On this point
Prof. Lawrence, in his recent Hand-book of Int. Law (London, 1884),
says:
When a community, not being a state in the eye of international
law, resorts to hostilities, it may, in respect of war, be endowed with
the rights and subjected to the obligations of a state if other powers
accord it what is called recognition of belligerency. Neutral powers
should not do this *** unless it affect by the struggle the interests
of the recognizing state. If the struggle is maritime, recognition is
almost a necessity. The controversy of 1861 illustrates the whole
question.'
The practice is stated by Hall as follows: "When, however,
piratical acts have a political object, and are directed solely against
a particular state, it is not the practice for states other than that
attacked to seize, and still less to punish, the persons committing
them. It would be otherwise, so far as seizure is concerned, with re-
spect to vessels manned by persons acting with a political object, if
the crew, in the course of carrying out their object, committed acts
of violence against ships of other states than that against which their
political operation was aimed; and the mode in which the crew were
dealt with would probably depend on the circumstances of the case.
Int. Law, § 81, p. 223.
Whether a foreign nation shall exercise its rights only when its
own interests are immediately threatened, or under special provoca-
tions only after injuries inflicted by the insurgents, as in this case, at
Colon, is a question purely for the executive department. But when
a seizure has been made by the navy department, under the regula-
tions, and the case is prosecuted before the court by the government
itself, claiming summum jus,—its extreme rights—the court is bound
to apply to the case the strict technical rules of international law.
The right here'asserted may be rarely enforced; the very knowledge
that the right exists tends, effectually, in most cases, to prevent any
violation of it, or at least any actual interference by insurgents with
the rights of other nations. But if the right itself were denied, the
commerce of all nations would be at the mercy of every petty con:
test carried on by irresponsible insurgents and marauders under the
name of war.
350
[PART I.
JURISDICTION ON THE HIGH SEAS.
1
In the absence of any recognition of these insurgents as belligerents,
I therefore hold the Ambrose Light to have been lawfully seized, as
bound upon an expedition technically piratical.
[On the other ground, however, that the Secretary of State, by his
note to the Colombian Minister, April 24, 1885, had recognized by im-
plication a state of war, the vessel was released.]
1 The judgment in the case of the Ambrose Light has called forth much adverse
criticism; and on the whole the weight of opinion would seem to be against the
position that insurgent vessels not molesting the ships of other nations may be treated
as pirates. See a criticism of this case by Mr. Francis Wharton, in 3 Wharton's
Digest, 469.
In the case of United States v. Baker, 1861, 5 Blatch. 6, Judge Nelson charged the
jury that“ if it were necessary on the part of the Government to bring the crime
charge dagainst the prisoners (officers of the privateer Savannah) within the definition
of robbery and piracy as known to the common law of nations, there would be great
difficulty in so doing, perhaps, upon the counts, certainly upon the evidence. For that
shows, if anything, an intent to depredate upon the vessels and property of one nation
only, the United States, which falls far short of the spirit and intent which are said to
constitute the essential elements of the crime. But the robbery charged in this case
is that which the act of Congress (1820) describes as a crime, and may be denominated
a statute offence as contradistinguished from that known to the law of nations. The
act declares the person a pirate, punishable by death, who commits the crime of
robbery upon the high seas, against any ship or vessel," &c. The jury did not agree
in this case. But in Philadelphia four individuals were convicted for the same offence.
- These arrests led to retaliatory action on the part of the Confederate States. And
on the 31st of January, 1862, an order was issued by the Secretary of State, to the
marshals, directing the transfer of all prisoners charged with piracy, including those
who had been convicted at Philadelphia, to a military prison for the purpose, it was
understood, of exchanging them as prisoners of war. Lawrence's Wheaton, 1863,
p. 253, note; 3 Wharton's Digest, p. 465. For other judicial decisions touching the
status of the confederates in the United States, see the Golden Rocket case – viz.,
Dole v. The N. E. M. M. Ins. Co., 1863, 6 Allen, 373, in which it was held that the
“rebels” in that war were not pirates jure gentium. The best report of this case,
both as regards argument and judgment, is in 2 Clifford's Ct. Ct. Reports, 1864,
394–434. See, also, the singularly well-balanced and considered judgment of Wood-
ward, C. J., in Fifield v. Ins. Co., 1864, 47 Pa. St. 166, 168–174. See especially
Dana's Wheaton, note 84, 196–200.
It may be of interest to know that Rear-Admiral (then Lieutenant) Albert Kautz,
was the first prisoner to be exchanged in the Civil War, and that it was through his
instrumentality and personal interview with President Lincoln that the exchange of
prisoners was effectuated between the North and South. See Appleton's Cyclopedia
of American Biography, sub. nom. Kautz, and two singularly delightful articles
by the Rear-Admiral himself in Harper's Weekly, 1898, Vol. XLII. pp. 159–160;
178-182. -Ed.
t
CHAP. II.]
351
THE MAGELLAN PIRATES.
THE MAGELLAN PIRATES.
EccL. AND ADM. COURT, 1853.
(1 Spinks' Eccl. g. Adm. Rep. 81.)
LUSHINGTON, J. (extract):-
" I apprehend that in the administration of our criminal law,
generally speaking, all persons are held to be pirates who are found
guilty of piratical acts, and piratical acts are robbery and murder
upon the high seas. I do not believe that, even where human life
was at stake, our courts of common law ever thought it necessary
to extend their inquiry further, if it was clearly proved against the
accused that they had committed robbery and murder upon the high
seas. In that case they were adjudged to be pirates, and suffered
accordingly. *** It was never, so far as I am able to find, deemed
necessary to inquire whether the parties so convicted had intended
to rob or to murder on the high seas indiscriminately. Though the
municipal law of different countries may and does differ in many
respects as to its definition of piracy, yet I apprehend that all nations
agree in this, that acts such as those which I have mentioned, when
committed on the high seas, are piratical acts, and contrary to the
law of nations. * * * I think it does not follow that, because persons
who are rebels and insurgents may commit against the ruling
powers of their own country acts of violence, they may not be, as
well as insurgents and rebels, pirates also; pirates for other acts
committed towards other persons. It does not follow that rebels
and insurgents may not commit piratical acts against the subjects
of other States, especially if such acts were in no degree with the
insurrection or rebellion. Even an independent State may, in my
opinion, be guilty of piratical acts. What were the Barbary tribes of
olden times ? what are many of the African tribes at this moment?
It is, I believe, notorious that tribes now inhabiting the African
coast of the Mediterranean will send out their boats and catch any
ships becalmed upon their coasts ?
" Are they not pirates because, perhaps, their sole livelihood may
not depend upon piratical acts? I am aware that it has been said
that a State cannot be piratical, but I am not disposed to assent to
such dictum as a universal proposition."1
1 In the case of the Montezuma, 1877, it was held and correctly so that ships belong-
ing to insurgents, and confining their operations to the parent government, are not
352
[PART 1.
JURISDICTION ON THE HIGH SEAS.
LE « LOUIS.IS
HIGÈ COURT OF ADMIRALTY, 1817.
(2 Dodson, 210.)
This was the case of a French vessel which sailed from Martinique
on the 30th of January, 1816, destined on a. voyage to the coast of
Africa and back, and was captured ten or twelve leagues to the
southward of Cape Mesurada, by the Queen Charlotte cutter, on the
11th of March in the saine year, and carried to Sierra Leone.
She was proceeded against in the Vice-Admiralty Court of that
colony, and the information pleaded, - 1st, that the seizors were
duly and legally commissioned to make captures and seizures. 2d,
That the seizure was within the jurisdiction of the court. 3d, That
the vessel belonged to French subjects or others, and was fitted out,
manned and navigated for the purpose of carrying on the African
slave-trade, after that trade had been abolished by the internal laws
of France, and by the treaty between Great Britain and France.
4th, That the vessel had bargained for twelve slaves at Mesurada,
and was prevented by the capture alone from taking them on board.
5th, That the brig being engaged in the slave-trade, contrary to the
laws of France, and the law of nations, was liable to condemnation,
and could derive no protection from the French or any other flag.
6th, That the crew of the brig - resisted the Queen Charlotte, and
piratically killed eight of her crew, and wounded twelve others.
7th, That the vessel being engaged in this illegal traffic resisted the
King's duly commissioned cruisers, and did not allow of search until
overpowered by numbers. And 8th, That by reason of the circum-
stances stated, the vessel was out of the protection of any law, and
liable to condemnation. The ship was condemned to his Majesty in
the Vice-Admiralty Court at Sierra Leone, and from this decision an
appeal was inade to this court.
Judgment. — Sir W. SCOTT. — This ship was taken off Cape Mesu-
rada, on the coast of Africa, on the 11th of March, 1816, by an
English colonial armed vessel, after a severe engagement, which fol-
to be treated as pirates by foreign powers (Calvo's International Law, 1, 591); :but
it seems equally well established that rebels of one state may be treated as pirates
by other States if they extend their hostile acts to the ships or citizens of the latter
states. The Hrascar, 1877, 3 Wharton's Digest, 474, and see comments on this.case in
Hall's Int. Law, 277-278. - ED.
CHAP. III.]
353
60
LE
LOUIS."
lowed an attempt to escape. The court has found occasion to lament
that the particulars of this melancholy transaction are not more
circumstantially brought to its notice; for, in the mass of matter
with which these proceedings are clogged (matter which can have no
application whatever to any question that could possibly be expected
to arise in the case), no information is distinctly conveyed to the
court, what preliminaries led to this unfortunate conflict, in which
no fewer than twelve lives were lost on the British side, and three
on the other, and in which several persons on both sides were
wounded. The court is left to infer, from the general course of the
transaction, that it originated in a demand to visit and search the
vessel, on a suspicion of her being a slave trader, and in a resistance
to that demand; the demand and the resistance being maintained to
the length of producing the calamitous event which I have described.
The ship seized was, in appearance and in fact, a French ship,
admitted both in the plea and in the argument to be so unquestion-
ably, owned and navigated by Frenchmen, originally, indeed, built in
America, and having been for a short time in British possession,
which had ceased. She is immediately proceeded against in the Vice-
Admiralty Court at Sierra Leone (whither she had been carried), as a
French ship violating French law by the intention of purchasing
slaves for the purpose of carrying them to her port in Martinique.
There are some words in the libel which certainly can have no con-
sistent meaning in the sentence in which they stand, but which, if
they have any meaning at all, seem to intimate vaguely and unin-
telligibly ani ownership somewhere else than in French subjects.
Nothing, however, appears that at all excites a suspicion that she
is not what she is treated as being both by the parties and by the
court, a French ship. For the mere circumstance of her having had
English, as well as other colors, on board, cannot, in the known
practice of merchant vessels, excite any such suspicion. After the
admission which has been made, that she had a contingent intention
at least of trading in slaves, as well as other commodities, if a con-
venient opportunity should offer, I feel it not requisite to enter into
the detail of the many circumstances which compel that admission.
The number of iron manacles on board, the construction of the plat-
forms, the magnitude of the coppers, the quantity and quality of the
provisions in store, the negotiations with the natives at Mesurada,
the mysterious passages which occur in the correspondence between
the owners, all tend one way, to show a contingent, or rather a pre-
dominant intention so to trade; and this being admitted, the court
will not deemn itself guilty of any injustice in holding that the legal
question is the same as if the intention were single and absolute; for
23
354
[PART 1.
JURISDICTION ON THE HIGH SEAS.
I have little doubt but that the contingency would have happened,
and the opportunity would have offered and would have been used.
At Sierra, proceedings were commenced, which led to the first
condemnation of the ship and cargo. Much argument has been en-
ployed to controvert the jurisdiction of the court upon the point of
locality, which I do not think it necessary to examine for the deter-
mination of the present cause. I will suppose the jurisdiction to
be duly founded, as far as the matter of locality is concerned, and
consider only whether the sentence can be sustained, giving the
authority which pronounced it the benefit of a supposed indisputable
jurisdiction.
At the outset of the proceedings, the seizor describes himself as
commissioned to make captures and seizures. It certainly appeared
to be a singular commission that authorized him to make captures in
time of peace; and it was therefore not an unnatural curiosity on the
part of the court to desire to see it. The commission, after repeated
requisitions, has been at last brought in, at a time extremely incon-
venient for the purpose of any careful examination by the court, if
that were necessary. It may, however, be sufficient to state that
this commission professes to be issued by the governor of Sierra
Leone, on the 25th of January, 1816, to be founded on the Slave
Trade Act, 51 Geo. III., and to authorize the commander to seize and
detain (for I do not find that the word capture occurs) all ships and
vessels offending against that act, or any other act abolishing the
slave trade; and, after stating these facts, to observe, that neither
this British act of parliament, nor any commission founded on it, can
affect any right or interest of foreigners, unless they are founded
upon principles, and impose regulations, that are consistent with the
law of nations. That is the only law which Great Britain can apply
to them; and the generality of any terms employed in an act of
parliament must be narrowed in construction by a religious adherence
thereto.
Upon the course of the proceedings in the court of Sierra Leone,
after the manner in which they have been adverted to in argument,
I should desert my duty if I did not make some remark, without
meaning at all to depart from that tenderness which is usually shown
to mere informalities in the practice of Vice-Admiralty Courts. I
have no doubt but that the gentleman under whose cognizance these
proceedings passed, carried out with him, among many other laud.
able qualities, a proper zeal for the purposes of the establishment of
Sierra Leone; and I have as little doubt that he possessed a still
higher zeal for his own immediate and paramount duty, the correct
and equal administration of justice to all parties who might come
t
CHAP. III.]
355
LE
LOUIS.'
before him. But it is impossible to deny that there occur in these
proceedings incongruities, arising (as it should seem) from inatten-
tion somewhere, not only to the common forms of law, but to the
rational principles on which they are founded. What was the natural,
as well as legal course? Surely, simple and obvious enough; for the
proctor, after lodging in the registry all the papers found on board,
and citing by monition the party to appear, to give a libel (answer-
ing to the bill of indictment in criminal cases) stating the facts
imputed, and the law that is charged to be violated, and praying the
examination of his witnesses thereon, and the judgment of the court
upon the effect of the documents and testimony to be produced.
The party charged has a right to give his claim, stating the facts by
which he undertakes to discharge himself from all legal censure, and
to produce his witnesses thereon. Upon the result of the whole
evidence so furnished, and of proper special interrogatories adminis-
tered under the immediate authority of the judge, the court should
pronounce its judgment. What is done here? In the first place, the
prize interrogatories calculated for the transactions of war are, in-
stantly on bringing in, applied to this transaction, which, however
denominated a capture, and with whatever fatal violence accom-
panied, is in truth a transaction of peace. Then special interroga-
tories are administered, non constat by what authority, some of them,
certainly, not very fairly (at least, according to common notions)
addressed to the persons from whom the answers are to be extracted.
It is in this late stage of the proceeding that the prosecutor brings
forth his libel or charge, in which he tells the judge (whose exclusive
proviirce it is to decide on the sufficiency of the proofs) that "the
case is incontestably proved,” both in law and in fact; the law
alleged being, that the slave trade is prohibited both by treaty and
by the internal law of France; and the facts charged being, that the
party was trading in slaves, and resisted search. In the same beney-
olent view of saving the judge the entire trouble of performing his
duty, the prosecutor informs him that "there is no doubt of the ship's
being fitted out for the slave trade,” and “that the evidence of the
master is all evasive,” and prays a commission of inspection to ascer-
tain the fact of which he had just before told him that no doubt
whatever existed, and the party is then cited by monition to appear,
after the case has been thus incontestably proved against him; and
then, without a single witness examined upon the libel, without the
smallest evidence produced of the foreign law, - though, upon all
principles of common jurisprudence, foreign law is always to be
proved as a fact, — the judge, having properly reduced the six counts
of the libel to two, pronounces the ship to be a French ship, em-
356
JURISDICTION ON THE HIGH SEAS. (PART I.
ployed illegally (that is, against the French law) in the slave trade;
secondly, that she resisted by force the legal search of the King's
cruisers; and that, on both accounts, herself and cargo are to be con-
fiscated. There is, I think, considerable difficulty in vindicating the
correctness of these proceedings, except upon the supposition that
persons charged with a concern in so odious a traffic are instantly
to have a caput lupinum placed upon their shoulders, and are not
entitled, in the course of proceedings against them, to the ordinary
forms and measures of justice. However, without pressing further
observation upon the proceedings which have led to the judgment, I
hasten to the more important task of considering the propriety of the
judgment itself, having just stated that the grounds are two - one,
that this was a French ship, intentionally employed in the African
slave trade; the other, that she resisted by force the King of Eng-
land's commissioned cruiser.
Assuming the fact, which is indistinctly proved, that there was
a demand, and a resistance producing the deplorable results here
described, I think that the natural order of things compels me to
inquire first, whether the party who demanded had a right to search;
for if not, then not only was the resistance to it lawful, but likewise
the very fact on which the other ground of condemnation rests is
totally removed. For if no right to visit and search, then no ulterior
right of seizing and bringing in, and proceeding to adjudication;
and it is in the course of those proceedings alone, that the facts are
produced, that she is a French ship trading in slaves; and if these
facts are made known to the seizor by his own unwarranted acts,
he cannot avail himself of discoveries thus unlawfully produced, nor
take advantage of the consequences of his own wrong. Supposing,
however, that it should appear that he had a right to visit and
search, and therefore to avail himself of all the information he so
acquired, the question would then be, whether that inforination has.
established all the necessary facts? The first is, that this was a
French ship intentionally employed in the slave trade, which, I have
alleady intimated, appears to be sufficiently shown. The second is;
that such a trading is a contravention of the French law; for it has.
been repeatedly admitted that the court, in order to support this
sentence of condemnation, must have the foundation of the trade
being prohibited by the law of the country to which the party
belongs.
Upon the first question, whether the right of search exists in time
of peace, I have to observe, that two principles of public law are
generally recognized as fundamental. One is the perfect equality
and entire independence of all distinct states. Relative magnitude:
t
CHAP. III.]
357
LE “LOUIS. ”
creates no distinction of right; relative imbecility, whether per-
manent or casual, gives no additional right to the more powerful
neighbor; and any advantage seized upon that ground is mere usurpa-
tion. This is the great foundation of public law, which it mainly
concerns the peace of mankind, both in their politic and private
capacities, to preserve inviolate. The second is, that all nations
being equal, all have an equal right to the uninterrupted use of the
unappropriated parts of the ocean for their navigation. In places
where no local authority exists, where the subjects of all states meet
upon a footing of entire equality and independence, no one state,
or any one of its subjects, has a right to assume or exercise authority
over the subjects of another. I can find no authority that gives the
right of interruption to the navigation of states in amity upon the
high seas, excepting that which the rights of war give to both bellig-
erents against neutrals. This right, incommodious as its exercise
may occasionally be to those who are subjected to it, has been fully
established in the legal practice of nations, having for its foundation
the necessities of self-defence, in preventing the enemy from being
supplied with the instruments of war, and from having his means
of annoyance augmented by the advantages of maritime commerce.
Against the property of his enemy each belligerent has the extreme
rights of war. Against that of neutrals, the friends of both, each
has the right of visitation and search, and of pursuing an inquiry
whether they are employed in the service of his enemy, the right
being subject, in almost all cases of an inquiry wrongfully pursued,
to a compensation in costs and damages.
With professed pirates there is no state of peace. They are the
enemies of every country, and at all times; and therefore are univer-
sally subject to the extreme rights of war. An ancient authority,
the laws of Oleron, section 45, composed at the time of the Crusades,
and as supposed by an eminent leader in those expeditions, our own
Richard I., represents infidels as equally subject to those rights; but
this rests partly upon the ground of notions long ago exploded, that
such persons could have no fellowship, no peaceful communion with
the faithful; and still more upon the ground of fact that they were
for many centuries engaged in real hostilities with the Christian
states. Another exploded practice was that of princes granting pri-
vate letters of marque against the subjects of powers in amity, by
whom they had been injured; without being able to obtain redress
from the sovereign or tribunals of that country. But at present,
under the law, as now generally understood and practised, no nation
can exercise a right of visitation and search upon the common and
unappropriated parts of the sea, save only on the belligerent claim.
358
[PART I.
JURISDICTION ON THE HIGH SEAS.
If it be asked why the right of search does not exist in time of peace
as well as in war, the answer is prompt; that it has not the same
foundation on which alone it is tolerated in war, the necessities of
self-defence. They introduced it in war; and practice has estab-
lished it. No such necessities have introduced it in time of peace,
and no such practice has established it. It is true, that wild claims
(alluded to in the argument) have been occasionally set up by
nations, particularly those of Spain and Portugal, in the East and
West Indian seas: but these are claims of a nature quite foreign to
the present question, being claims not of a general right of visitation
and search upon the high seas unappropriated, but extravagant claims
to the appropriation of particular seas, founded upon some grants of
a pretended authority, or upon some ancient exclusive usurpation.
Upon a principle much more just in itself and more temperately
applied, maritime states have claimed a right of visitation and in-
quiry within those parts of the ocean adjoining to their shores, which
the common courtesy of nations has, for their common convenience,
allowed to be considered as parts of their dominions for various
domestic purposes, and particularly for fiscal or defensive regulations
more immediately affecting their safety and welfare. Such are our
hovering laws, which within certain limited distances more or ess
moderately assigned, subject foreign vessels to such examination.
This has nothing in common with a right of visitation and search
upon the unappropriated parts of the ocean. A recent Swedish
claim of examination on the high seas, though confined to foreign
ships bound to Swedish ports, and accompanied in a manner not very
consistent or intelligible, with a disclaimer of all right of visita-
tion, was resisted by our government as unlawful, and was finally
withdrawn.
The right of visitation being in this present case exercised in time
of peace, the question arises, how is it to be legalized? And looking
to what I have described as the known existing law of nations evi-
denced by all authority and all practice, it must be upon the ground
that the captured vessel is to be taken legally as a pirate, or else
some new ground is to be assumed on which this right which has
been distinctly admitted not to exist generally in time of peace can
be supported. Wherever it has existed, it has existed upon the
ground of repelling injury, and as a measure of self-defence. No
practice that exists in the world carries it farther.
It is perfectly clear, that this vessel cannot be deemed a pirate
from any want of a national character legally obtained. She is the
property not of sea rovers, but of French acknowledged domiciled
subjects. She has a French pass, French register, and all proper
CHAP. III.]
359
LE
LOUIS."
documents, and is an acknowledged portion of the mercantile marine
of that country. If, therefore, the character of a pirate can be
impressed upon her, it must be only on the ground of her occupation
as a slave trader; no other act of piracy being imputed. The ques-
tion then comes to this: - Can the occupation of this French vessel
be legally deemed a piracy, inferring, as it must do, if it be so, all
the pains and penalties of piracy?
I must remember that, in discussing this question, I must consider
it, not according to any private moral apprehensions of my own (if
I entertained them ever so sincerely, but as the law considers it:
and, looking at the question in that direction, I think it requires no
labor of proof to show that such an occupation cannot be deemed a
legal piracy. The very statute lately passed, which inakes it a trans-
portable offence in any British subject to be concerned in this
trade, affords a decisive proof that it was not liable to be considered
as a piracy, and a capital offence, as it would be in foreigners as well
as British subjects, if it was a piracy at all. In truth it wants some
of the distinguishing features of that offence. It is not the act of
freebooters, enemies of the human race, renouncing every country,
and ravaging every country in its coasts and vessels indiscriminately,
and thereby creating an universal terror and alarm; but of persons
confining their transactions (reprehensible as they may be) to partic-
ular countries, without exciting the slightest apprehension in others.
It is not the act of persons insulting and assaulting coasts and vessels
against the will of the governments and the course of their laws, but
of persons resorting thither to carry on a traffic (as it is there most un-
fortunately deemned), not only recognized but invited by the institutions
and the administrations of those barbarous communities. But it is
unnecessary to pursue this topic further. It has not been contended
in argument, that the common case of dealing in slaves could be
deemed a piracy in law. In all the fervor of opinion which the agi-
tation of all questions relating to this practice has excited in the
minds of many intelligent persons in this country, no attempt has
ever been thought of, at least with any visible effect, to submit any
such question to the judgment of the law by such a prosecution of
any form instituted in any court: and no lawyer, I presume, could be
found hardy enough to maintain, that an indictment for piracy could
be supported by the mere evidence of a trading in slaves. Be the
malignity of the practice what it may, it is not that of piracy, in
legal consideration.
Piracy being excluded, the court has to look for some new and
peculiar ground: but in the first place a new and very extensive
ground is offered to it by the suggestion, which has been strongly
360
[PART 1.
JURISDICTION ON THE HIGH SEAS.
pressed, that this trade, if not the crime of piracy, is nevertheless
crime, and that every nation, and indeed every individual has not
only a right, but a duty, to prevent in every place the commission of
crime. It is a sphere of duty sufficiently large that is thus opened
out to communities and to their members. But to establish the con-
sequence required, it is first necessary to establish that the right to
interpose by force to prevent the commission of crime, commences
not upon the commencement of the overt act, nor upon the evident
approach towards it, but on the bare surmise grounded on the mere
possibility; for unless it goes that length it will not support the
right of forcible inquiry and search. What are the proximate cir-
cumstances which confer on you the right of intruding yourself into
a foreign ship, over which you have no authority whatever, or of
demanding the submission of its crew to your inquiry, whether they
mean to deal in the traffic of slaves; not in your country, but in one
with which you have no connection? Where is the law that has
defined those circumstances and created that right under their exist-
ence? Secondly, it must be shown that the act imputed to the
parties is unquestionably and legally criminal by the universal law
of nations; for the right of search claimed makes no distinctions,
and in truth can make noue; for till the ship is searched it cannot
be known whether she is å slave trader or not, and whether she
belongs to a nation which admits the act to be criminal, or to one
which maintains it to be simply commercial, - and I say legally
criminal, because neither this court nor any other cau carry its pri-
vate apprehensions, independent of law, into its public judgments on
the quality of actions. It must conform to the judgment of the law
upon that subject; and acting as a court in the administration of
law, it cannot attribute criminality to an act where the law imputes
It must look to the legal standard of morality; and upon a
question of this nature, that standard must be found in the law of
nations as fixed and evidenced by general and ancient and admitted
practice, by treaties and by the general tenor of the laws and ordi-
nances, and the formal transactions of civilized states; and looking
to those authorities, I find a difficulty in maintaining that the traffic
is legally criminal.
Let me not be misunderstood, or misrepresented, as a professed
apologist for this practice, when I state facts which no man can deny,
that personal slavery arising out of forcible captivity is coeval
with the earliest periods of the history of mankind, — that it is found
existing (and as far as appears without animadversion) in the earliest
and most authentic records of the human race, that it is recognized
by the codes of the most polished nations of antiquity, — that under
non 9.
CHAP. II.
361
66
LE
LOUIS.”
:
the light of Christianity itself, the possession of persons so acquired
has been in every civilized country invested with the character of
property, and secured as such by all the protections of law, – that
solemn treaties have been framed and national monopolies eagerly
sought, to facilitate and extend the commerce in this asserted
property, -- and all this, with all the sanctions of law, public and
municipal, and without any opposition, except the protests of a few
private moralists, little heard and less attended to, in every country,
till within these very few years, in this particular country. If the
matter rested here, I fear it would have been deemed a most extrava-
gant assumption in any court of the law of nations, to pronounce that
this practice, the tolerated, the approved, the encouraged object of
law, ever since man became subject to law, was prohibited by that
law, and was legally criminal. But the matter does not rest here.
Within these few years a considerable change of opinion has taken
place, particularly in this country. Formal declarations have been
made, and laws enacted in reprobation of this practice; and pains,
ably and zealously conducted, have been taken to induce other coun-
tries to follow the example; but at present with insufficient effect:
for there are nations which adhere to the practice, under all the
encouragement which their own laws can give it. What is the doc-
trine of our courts of the law of nations relatively to them? Why,
that their practice is to be respected; that their slaves if taken are
to be restored to them; and if not taken under innocent mistake,
to be restored with costs and damages. All this surely, upon the
ground that such conduct on the part of any state is no departure
from the law of nations; because, if it were, no such respect could be
allowed to it, upon an exemption of its own making; for no nation
can privilege itself to commit a crime against the law of nations by
a mere municipal regulation of its own. And if our understanding
and administration of the law of nations be, that every nation, inde-
pendently of treaties, retains a legal right to carry on this traffic, and
that the trade carried on under that authority is to be respected by
all tribunals, foreign as well as domestic, it is not easy to find any
consistent grounds on which to maintain that the traffic, according to
our views of that law, is criminal.
Against the subjects of countries which have issued declarations
hostile to the trade, the courts have not unfairly applied the argu-
mentum ad homines. At the same time, it is impossible not to feel
(and with concern) that if the real understanding of the law, both in
this country and others, is to be collected from public acts as well
as from public declarations, it will at least be difficult to determine
with certainty and precision what that understanding really is; some
362
[PART I.
JURISDICTION ON THE HIGH SEAS.
parts of their systems looking one way, and some another. The
notorious fact is, that in the dominions of this country and others,
many thousands of persons are held as legal property, they and their
posterity, upon no other original title than that which I am now
called upon to pronounce a crime, every one of these instances
attended with all the aggravation that appertains to the long contin-
uation of crime, if crime it be; and yet protected by law, with all
the securities that can be given to property in its most respected
forms. Recent treaties with foreign powers stipulate for a permitted
continuance of this traffic to them for a course of years, and in exten-
sive districts, and without any limitation of the numbers they may
export, — that is, according to the argument that has been held, con-
tracts for the commission of crime, without stint, throughout those
districts, and during those periods of time! In such a state of law
and fact, at home and abroad, it is more than difficult to arrive at
the conclusion, and for this court, representing this country, to
notify such conclusion to foreign parties, that, in its clear and con-
sistent judgment of the law of nations upon this traffic, it is a gross
violation of that law.
Much stress is laid upon a solemn declaration of very eminent per-
sons assembled in Congress, whose rank, high as it is, is by no means
the inost respectable foundation of the weight of their opinion that
this traffic is contrary to all religion and morality. Great. as the
reverence due to such authorities may be, they cannot, I think, be
admitted to have the force of overruling the established course of the
general law of nations. Suppose an equal number of foreign per-
sonages, equal in rank and station, and, if such could be found, in
talents, were to declare that the right of search in time of war, as
exercised on neutrals, was contrary to all reason and justice; this
country, I presume, would not attribute any such effect to such opin-
ions so delivered, even although they were not accompanied, as this
declaration is, with any contemporary acts, which evinced that they
were considered by the parties themselves rather as speculative opin-
ions than as drawing after them the obligation of a public and
practical conformity; for otherwise some difficulty might occur in
reconciling the stipulated continuation of this traffic contained in
some treaties framed at no great distance of time, with the descrip-
tion of its nature and quality as represented in this declaration.
It is next said that every country has a right to enforce its own
navigation laws; and so it certainly has, so far as it does not inter-
fere with the rights of others. It has a right to see that its own
vessels are duly navigated, but it has no right in consequence to
visit and search all the apparent vessels of other countries on the
CHAP. III.]
363
LE “LOUIS. ”
high seas, in order to institute an inquiry whether they are not in
truth British vessels violating British laws. No such right has ever
been claimed, nor can it be exercised without the oppression of
interrupting and harassing the real and lawful navigation of other
countries; for the right of search when it exists at all, is universal,
and will extend to vessels of all countries, whether they tolerate the
slave trade or not; and whether the vessels are employed in slave
trading or in any other traffic. It is no objection to say that British
ships may thus by disguise elude the obligations of British law.
The answer of the foreigner is ready, that you have no right to pro-
vide against that inconvenience by imposing a burden upon his navi-
gation. If even the question were reduced to this, that either all
British ships might fraudulently escape, or all foreign ships be
injuriously harassed, Great Britain could not claim the option to
einbrace the latter branch of the alternative. When you complain
that the regulation cannot be enforced without the exercise of such
a right, the answer again is, that you ought to to make regulations
which you cannot enforce without trespassing on the rights of others.
If it were a matter by which your own safety was affected, the neces-
sities of self-defence would fully justify; but in a matter in which
your own safety is in no degree concerned, you have no right to pre-
vent a suspected injustice towards another, by committing an actual
injustice of your own.
The next argument is, that the legislature must have contemplated
the exercise of this right in time of peace; otherwise they have left
the remedy incomplete, and peace in Europe will be war in Africa.
The legislature must be understood to have contemplated all that was
within its power, and no more. It provided for the existing occa-
sion, and left to future wisdom to provide for future times. Nothing
can be more clear, than that it was so understood by the British
Government; for the project of the treaty proposed by Great Britain
to France, in 1815, is, “that permission should be reciprocally given
by each nation to search and bring in the ships of each other;
when the permission of neutrals to have their ships searched is asked
at the commencement of a war, it may then be time enough to admit
that the right stands on exactly the same footing in time of war and
in time of peace. The fact turned out to be, that such permission
was actually refused by France, upon the express ground that she
would not tolerate any maritime police to be exercised on her sub-
jects, but by herself. Nor can it be matter of just surprise or
resentment, that that people should be willing to retain, what every
independent nation must be averse to part with, the exclusive right
of executing their own laws.
"
and
364
(PART I.
JURISDICTION ON THE HIGH SEAS.
It is pressed as a difficulty, what is to be done, if a French ship
laden with slaves for a French port is brought in? I answer, with-
out hesitation, restore the possession which has been unlawfully
divested -- rescind the illegal act done by your own subject; and
leave the foreigner to the justice of his own country. What evil fol-
lows? If the laws of France do not prohibit, you admit that condem-
nation cannot take place in a British court. But if the law of France
be what you contend, what would have followed upon its arrival at
Martinique, the port whither it was bound? That all the penalties
of the French law would have been immediately thundered upon it.
If your case be true, there will be no failure of justice. Why is the
British judge to intrude himself in subsidium juris, when everything
requisite will be performed in the French court in a legal and effect-
ual manner? Why is the British judge, professing, as he does, to
apply the French law, to assume cognizance for the mere purpose of
directing that the penalties shall go to the British Crown and its
subjects, which that law has appropriated to the French Crown and
its subjects, thereby combining, in one act of this usurped author-
ity, an aggression upon French property as well as upon French
jurisdiction?
It is said, and with just concern, that if not permitted in time of
peace it will be extremely difficult to suppress the traffic. It will be
so, and no man can deny, that the suppression, however desirable,
and however sought, is attended with enormous difficulties; difficul-
ties which have baffled the most zealous endeavors of many years.
To every man it must have been evident that without a general and
sincere concurrence of all maritime states in the principle and in the
proper modes of pursuing it, comparatively but little of positive good
could be acquired; so far at least, as the interests of the victims of
this commerce were concerned in it; and to every man who looks to
the rival claims of these states, to their established habit of trades,
to their real or pretended wants, to their different modes of thinking,
and to their real mode of acting upon this particular subject, it must
be equally evident that such a concurrence was matter of very difficult
attainment. But the difficulty of the attainment will not legalize
measures that are otherwise illegal. To press forward to a great
principle by breaking through every other great principle that stands
in the way of its establishment; to force the way to the liberation of
Africa by trampling on the independence of other states in Europe;
in short, to procure an eminent good by means that are unlawful, is
as little consonant to private morality as to public justice. Obtain
the concurrence of other nations, if you can, by application, by
remonstrance, by example, by every peaceable instrument which man
CHAP. III.]
LE
365
66 LOUIS.”
can employ to attract the consent of man. But a nation is not justi-
fied in assuming rights that do not belong to her; merely because she
means to apply thein to a laudable purpose; nor in setting out upon
a moral crusade of converting other nations by acts of unlawful force.
Nor is it to be argued, that because other nations approve the ulti-
mate purpose, they must therefore submit to every measure which
any one state or its subjects may inconsiderately adopt for its attain-
ment. In this very case nothing can be clearer than that the only
French law produced is in direct contradiction to such a notion; be-,
cause approving as it does (though to a very limited extent) the
abolition, it nevertheless reserves to its own authorities the cogni-
zance of each cause and the appropriation of the penalties.
If I felt it necessary to press the consideration further, it would
be by stating the gigantic mischiefs which such a claim is likely to
produce. It is no secret, particularly in this place, that the right
of search in time of war, though unquestionable, is not submitted to
without complaints loud and bitter, in spite of all the modifications
that can be applied to it. If this right of war is imported into peace
by convention, it will be for the prudence of states to regulate by
that convention the exercise of the right with all the softenings of
which it is capable. Treaties, however, it must be remembered, are
perishable things, and their obligations are dissipated by the first-
hostility. The covenants, however solemn, for the abolition of the
trade, or for the exercise of modes of prevention, coexist only with
the relations of amity among the confederate states. At the same
time it may be hoped, that so long as the treaties do exist, and their
obligations are sincerely and reciprocally respected, the exercise of a
right, which pro tanto converts a state of peace into a state of war,
may be so conducted as not to excite just irritation. But if it be
assumed by force, and left at large to operate reciprocally upon the
ships of every state (for it must be a right of all against all), without.
any other limits as to time, place, or mode of inquiry than such as
the prudence of particular states, or their individual subjects, may
impose, I leave the tragedy contained in this case to illustrate the
effects that are likely to arise in the very first stages of the process,
without adding to the account what must be considered as a most
awful part of it, the perpetual irritation and the universal hostility
which are likely to ensue.
Let it however be taken, for the present, that the whole of these
premises, tending to show that no right of search upon the high seas
exists in time of peace, are either unsound in themselves, or are
strained to produce a conclusion that is so; I proceed to inquire how
far the French law had actually abolished the slave trade at the time
366
[PART I.
JURISDICTION ON THE HIGH SEAS.
this adventure occurred; having already observed that if it were not,
the sentence of condemnation was admitted to be unmaintainable,
and that no proof whatever of any French law was produced in the
court below either by the exhibition of the law itself or by the infor-
mation received from foreign professors and practisers of that law, or
by anything else than the mere assertion of the prosecutor in the
libel. What proof is offered is brought in upon the appeal, and the
question depends on its sufficiency.
The actual state of the matter, as I collect it from these documents,
Appendix (H), is this: On the 27th of July, 1815, the British
minister at Paris writes a note to Prince Talleyrand, then minister
to the King of France, inclosing a protocol of the fifteenth confer-
ence, and expressing a desire, on the part of his court, to be in-
formed, whether, under the law of France, as it then stood, it was pro-
hibited to French subjects to carry on the slave trade, Appendix (I).
The French minister informs him, in answer, on the 30th of July, .
that the law of the Usurper on that subject was null and void (as
were all his decrees); but that his most Christian Majesty had issued
directions, that on the part of France “the traffic should cease from
the present time everywhere and forever.” In what form these
directions were issued, or to whom addressed, does not appear, but
upon such authority it inust be presumed that they were actually
issued. It is, however, no violation of the respect due to that
authority to inquire what was the result or effect of those directions
so given. What followed in obedience to them in any public and
binding form? And I fear I am compelled to say that nothing of the
kind followed, and that the directions must have slept in the port-
folio of the office to which they were addressed; for it is, I think,
impossible that if any public and authoritative ordinance had fol-
lowed, it could have escaped the sleepless attention of many persons
in our own country to all public foreign proceedings upon this inter-
esting subject. Still less would it have escaped the notice of the
British resident minister, who at the distance of a year and a half
is compelled on the part of his own court to express a curiosity to
know what laws, ordinances, instructions, and other public and osten-
sible acts had passed for the abolition of the slave trade.
On the 30th of November in the same year, the additional article
of the definite treaty, Appendix (N), a very solemn instrument most
•undoubtedly, is formally and publicly executed, and it is in these
terms: “The high contracting parties, sincerely desiring to give
effect to the measures on which they deliberated at the Congress of
Vienna, for the complete and universal abolition of the slave trade,
and having each in their respective dominions prohibited, without
CHAP. III.]
367
LE
" LOUIS."
restriction, their colonies and subjects, from taking any part what-
ever in this traffic, engage to renew, conjointly, their efforts, with a
view to ensure final success to the principles which they proclaimed
in the declaration of the 8th February, 1815, and to concert, without
loss of time, by their minister at the court of London, the most
effectual measures for the entire and definitive abolition of a traffic
so odious and so highly reproved by the laws of religion and nature.”
Now what are the effects of this treaty? According to the view I
take of it they are two, and two only; one declaratory of a fact, the
other, promissory of future measures. It is to be observed that the
treaty itself does not abolish the slave trade, it does not inform
the subjects that the trade is hereby abolished, and that by vir-
tue of the prohibitions therein contained, its subject shall not in
future carry on that trade; but the contracting powers mutually
inform each other of the fact, that they have in their respective
dominions abolished the slave trade, without stating at all the mode
in which that abolition had taken place. It next engages to take
future measures for the universal abolition. That, with respect to
both the declaratory and promissory parts, Great Britain has acted
with the optima fides is known to the whole world, which has wit-
nessed its domestic laws as well as its foreign negotiations.
I am very far from intimating that the government of this country
did not act with perfect propriety in accepting the assurance that the
French Government had actually abolished the slave trade, as a suffi-
cient proof of the fact; but the fact is now denied by a person who
has a right to deny it; for though a French subject, he is not bound
to acknowledge the existence of any law that has not publicly
appeared, and the other party having taken upon himself the burden
of proving it in the course of a legal inquiry, the court is compelled
to demand and expect the ordinary evidence of such a disputed fact.
It was not till the 15th of January, Appendix (R), in the present
year that the British resident minister applies for the communication
I have described, of all laws, instructions, ordonnances, and so on;
he receives in return, what is clelivered by the French minister as the
ordonnance, bearing date only one week before the requested com-
munication, namely, the 8th of January, Appendix (P). It has been
asserted, in argument, that no such ordonnance has yet up to this
very hour even appeared in any printed or public form, however
much it might import both French subjects and the subjects of for-
eign states so to receive it; how that fact may be I cannot say; but
I observe it appears before me in a manuscript form, and by inquiry
at the Secretary of State's office I find it exists there in no other
plight or condition.
368
[PART I.
JURISDICTION ON THE HIGH SEAS.
In transmitting this to the British Government, the British min-
ister observes, it is not the document he had reason to expect, and
certainly with much propriety; for how does the document answer
his requisition? His requisition is for all laws, ordonnances, in-
structions, and so forth. How does this, a simple ordonnance, pro-
fessing to have passed only a week before, realize the assurance
given on the 30th of July, 1815, that the traffic "should cease from
the present time everywhere and forever"? Or how does this realize
the promise made in November, that measures should be taken with-
out loss of time to prohibit not only French colonies but French sub-
jects likewise from taking any part whatever in this traffic? What
is this regulation in substance? Why it is a mere prospective colo-
nial regulation, prohibiting the importation of slaves into the French
colonies from the 8th of January, 1817? Consistently with this
declaration, even if it does exist in the form and with the force of
a law, French subjects may be yet the common carriers of slaves to
any foreign settlement that will admit them, and may devote their
capital and their industry, unmolested by law, to the supply of any
such markets.
Supposing, however, the regulations to contain the fullest and most
entire fulfilment of the engagement of France, both in time and in
substance, what possible application can a prospective regulation of
January, 1817, have to a transaction of March in 1816?
The counsel, fully sensible of the difficulty, have been obliged to
resort, first, to the conduct of the inaster, whose studious concealment
of his transactions argues, as they contend, his consciousness of
their illegality. That, from the fervor which the agitation of such
questions had excited, anything and everything might be feared in
that quarter of the globe is not at all extraordinary; but the conceal-
inent of the master, if even much greater than it is, would not, under
those apprehensions, or indeed under any apprehensions, prove the
existence of a law that did not exist. They are next driven to the
supposition of intermediate edicts, though the French minister has
not thought fit to produce them. I inust observe, first, that the pro-
hibition of the introduction of slaves into her colonies would be the
first step that would be taken, or, as they express it, the initiative of
any course of regulations; and, secondly, that nobody is now to be
old that a modern edict which does not appear, cannot be presumed;
and that no penal law of any state can bind the conduct of its sub-
jects, unless it is conveyed to their attention in a way which excludes
the possibility of honest ignorance. Surely, there is no case in which
the maxim, that what does not appear is to be treated in the same
way as if it did not exist, more fully and forcibly applies than one
A
.
CHAP. III.]
369
LE
" LOUIS.”
in which they have been demanded by the person who had a right to
demand them, and have been withheld by those who had a duty to
produce them. The very production of a law professing to be enacted
in the beginning of 1817, is a satisfactory proof that no such law
existed in 1816, the year of this transaction.
It would be going further than the necessities of the present case
require me to do, to say that the evidence now offered does not enable
me to assert that the French law prohibited its subjects from taking
any part whatever in this traffic. It is enough to say, that no law
is shown, which can have any bearing upon this transaction. The
Usurper's law was dead-born; and if any law existed at the time of
this transaction, it must be that which permitted the traffic for five
years; for the authority of that law could not be destroyed by the
usurpation; but whether it had existence or not, the seizor has
entirely failed in the task he has undertaken of proving the existence
of a prohibitory law, enacted by the legal government, which can
be applied to the present transaction, and therefore upon that ground,
as well as upon the other, I think myself called upon to reverse this
judgment.
Upon the matter of costs and damages that have been prayed, I
must observe that it is the first case of the kind, and that the ques-
tion itself is primce impressionis, and that upon both grounds it is
not the inclination of the court to inflict such a censure. If a second
case should occur, it will require (in my judgment till corrected), and
undoubtedly shall receive, a different consideration.
1 For other cases upon the subject of the slave trade, see The Amédie, 1810,
1 Act. 240 (per Sir Wm. Grant); The Fortuna, 1811, 1 Dod. 81; Madrazo v. Willes,
1820, 3 B. & Ald. 353; The Antelope, 1825, 10 Wheat. 66. See also Dana' Wheaton,
notes 83 (193–195), 84 (196–200), 85 (201–203). — ED.
24
CHAPTER IV.
NATIONALITY.
SECTION 20.
INDELIBLE ALLEGIANCE -- EXPATRIATION.
THE CASE OF ÆNEAS MACDONALD, ALIAS ANGUS
MACDONALD, 1747.
(Foster's Crown Law, 59.)
In the year 1747, a bill of indictment was found against him, under
the special commission in Surry, for the share he had in the late rebel-
lion. The indictinent ran in the same form as those agaiust the other
prisoners, without any averment that he was in custody before the
first of January, 1746. But the counsel for the Crown were aware of
the exception taken in the case of Mr. Townly and others, and that
since the whole proceeding against the prisoner was subsequent to
January, 1746, the answer then given would not serve the present case.
That bill was therefore withdrawn before the prisoner pleaded to it;
and a new bill concluding with an averment that he was apprehended
and in custody before the first of January, 1746, was preferred and
found against him. On that bill he was arraigned in July, 1747, and
his trial came on the 10th of December following.
The overt acts charged in the indictment were sufficiently proved :
and also that the prisoner was apprehended and in custody before the
first of January, 1746.
The counsel for the prisoner insisted that he was born in the
dominions of the French King, and on this point they put his defence.
But apprehending that the weight of the evidence might be against
them, as indeed it was, with regard to the place of the prisoner's birth,
they endeavored to captivate the jury and bystanders, by representing
the great hardship of a prosecution of this kind against a person, who,
admitting him to be a native of Great Britain, had received his educa-
tion from his early infancy in France; and spent his riper years in a
profitable employment in that kingdom, where all his hopes centred :
and speaking of the doctrine of natural allegiance, they represented it
as a slavish principle, not likely to prevail in these times; especially
as it seemed to derogate from the principles of the revolution.
CHAP. IV.] ÆNEAS MACDONALD, ALIAS ANGUS MACDONALD. 371
Here the court interposed; and declared, that the mentioning the
case of the revolution as a case any way similar to that of the prisoner,
supposing him to have been born in Great Britain, can serve no pur-
pose but to bring an odium on that great and glorious transaction.
It never was doubted that a subject-born, taking a commission from
a foreign prince and committing high treason, may be punished as
a subject for that treason, notwithstanding his foreign commission.
It was so ruled in Dr. Storey's case: and that case was never yet
denied to be law. It is not in the power of any private subject to
shake off his allegiance, and to transfer it to a foreign prince. Nor is it
in the power of any foreign prince by naturalizing or employing a
subject of Great Britain, to dissolve the bond of allegiance between
that subject and the Crown.
However, as the prisoner's counsel had mentioned his French com-
mission as a circumstance tending in their opinion to prove his birth
in France, the court permitted it to be read, the Attorney-General con-
senting. It was dated, the first of June, 1745, and appointed the pris-
oner commissary of the troops of France, which were then intended to
embark for Scotland.
The court, with the consent of the counsel for the Crown, permitted
the cartel between France and Great Britain for the exchange or
ransom of prisoners likewise to be read; and observed, that as it relateth
barely to the exchange or ransom of prisoners of war, it can never
extend to the case of the prisoner at the bar, supposing him to be a
subject-born; because by the laws of all nations, subjects taken in
arms against their lawful prince, are not considered as prisoners of
war, but as rebels; and are liable to the punishment ordinarily in-
flicted on rebels.
Lord Chief Justice Lee, in his direction to the jury, told them, that
the overt acts laid in the indictment being fully proved, and not denied
by the prisoner, or rather admitted by his defence, the only fact they
had to try was, whether he was a native of Great Britain; if so, he must
be found guilty. And as to that point, he said the presumption in all
cases of this kind is against the prisoner; and the proof of his birth
out of the King's dominions, where the prisoner putteth his defence on
that issue, lieth upon him. But whether the evidence that had been
given in the present case (which he summed up very minutely), did or
did not amount to such proof, he left to their consideration.
The jury found him guilty, but recommended him to mercy. He
received sentence of death as in cases of high treason; but was after-
ward pardoned upon the conditions mentioned below.1
1 Banishment.
ED.
372
(PART I.
NATIONALITY,
WILLIAMS' CASE.
UNITED STATES DISTRICT COURT, DISTRICT OF CONNECTICUT, 1797.
(Wharton's State Trials, 652.) 1
On the trial, it was admitted on the part of Williams, that he had
committed the facts alleged against him in the indictment, but, in
his defence, he offered to prove that, in the year 1792, he received
from the Consul-General of the French Republic, a warrant, appoint-
ing him third lieutenant on board the Jupiter, a French seventy-four-
gun ship; that, pursuant to this appointment, he went on board the
Jupiter, and took the command to which he was appointed; that the
Jupiter soon after sailed for France, and arrived at Rochefort, in
France, in the autumn of the same year; that at Rochefort he was:
duly naturalized in the various Bureaux in that place, the same
autumn, renouncing his allegiance to all other countries, particularly
to America, and taking an oath of allegiance to the Republic of
France, all according to the laws of said republic; that immediately
after said naturalization he was duly commissioned by the Republic
of France appointing him a second lieutenant on board a French
frigate called the Charont; and that before the ratification of the
treaty of amity and commerce between the United States and Great.
Britain, he was duly commissioned by the French Republic a second
lieutenant on board a seventy-four gun ship, in the service of said
republic; and that he has ever continued under the government of the
French Republic down to the present time, and the most of said time
actually resident in the dominions of the French Republic; that dur-.
ing said period he was not resident in the United States more than
six months, which was in the year 1796, when he came to this country
for the purpose merely of visiting his relations and friends; that, for
about three years past, he has been domiciliated in the island of
Guadaloupe, within the dominions of the French Republic, and has
made that place his fixed habitation, without any design of again
returning to the United States for permanent residence. The attor-.
ney for the district conceded the above-mentioned statement to be
true; but objected that it ought not to be admitted as evidence to the
jury, because it could have no operation in law to justify the prisoner
in committing the faots alleged against him in the indictment. This .
1 Reported less fully in 2 Cranch, 83, note a. – - ED.
CHAP. IV.]
373
WILLIAMS OASE.
no
question was argued on both sides by Mr. Pierpont Edwards for the
United States, and Mr. David Daggett for the prisoner.
Judge Law (district judge) expressed doubts as to the legal opera-
tion of the evidence; and gave it as his opinion, that the evidence,
and the operation of law thereon, be left to the consideration of the
jury.
Judge ELLSWORTH, the Chief Justice of the United States, stated
his views nearly in the following language:
The common law of this country remains the same as it was before
the Revolution. The present question is to be decided by two great
principles; one is, that all the meinbers of civil community are bound
to each other by compact. The other is, that one of the parties to
this compact cannot dissolve it by his own act. The compact between
our community and its members is, that the community will protect
its members, and on the part of the members, that they will at all
times be obedient to the laws of the community, and faithful in its
defence. This compact distinguishes our government from those
which are founded in violence or fraud. It necessarily results, that
the members cannot dissolve this compact, without the consent or
default of the cominunity. There has been here no consent-
default. Default is not pretended. Express consent is not claimed;
but it has been argued, that the consent of the community is implied
by its policy - its conditions, and its acts.
In countries so crowded with inhabitants that the means of subsist-
ence are difficult to be obtained, it is reason and policy to permit
emigration. But our policy is different; for our country is but
sparsely settled, and we have no inhabitants to spare.
Consent has been argued from the condition of the country; because
we were in a state of peace. But though we were in peace the war
had commenced in Europe. We wished to have nothing to do with
the war; but the war would have something to do with uş. It has
been extremely difficult for us to keep out of this war; the progress
of it has threatened to involve us. It has been necessary for our
government to be vigilant in restraining our own citizens from those
acts which would involve us in hostilities. The most visionary
writers on this subject do not contend for the principle in the un-
limited extent, that a citizen may at any and at all times renounce
his own and join himself to a foreign country. Consent has been
argued from the acts of our own government, permitting the natural-
ization of foreigners. When a foreigner presents himself here, and
proves himself to be of a good moral character, well affected to the
Constitution and Government of the United States, and a friend to
the good order and happiness of civil society, if he has resided here
374
[PART I.
NATIONALITY.
the time prescribed by law, we grant him the privilege of a citizen.
We do not inquire what his relation is to his own country; we have
not the means of knowing, and the inquiry would be indelicate; we
leave him to judge of that. If he embarrasses himself by contracting
contradictory obligations, the fault and the folly are his own. But
this implies no consent of the government, that our own citizens should
expatriate themselves. Therefore, it is my opinion that these facts
which the prisoner offers to prove in his defence, are totally irrele-
vant; they can have no operation in law; and the jury ought not to
be embarrassed or troubled with them; but by the constitution of the
court the evidence must go to the jury.
The prisoner was accordingly found guilty, fined and imprisoned.
1
1 See very learned note in which Dr. Wharton traces the doctrine from its
promulgation in Williams' Case, and its fluctuations until its final recognition. “At
last in Shanks v. Dupont, 1830 (3 Pet. 242), the long circuit of doubts and reserva-
tions was closed, and the court found itself back again at the position of Williams'
Case, that allegiance without mutual consent is indissoluble."
From the "historical review of the principal discussions in the Federal courts on
tliis interesting subject in American jurisprudence, the better opinion would seem to
be, that a citizen cannot renounce his allegiance to the United States without the per-
mission of Government, to be declared by law; and that, as there is no existing legis-
lative regulation on the case, the rule of the English common law remains unaltered."
2 Kent's Commentaries, p. 60.
Proclamation of the Prince Regent, July 24, 1814, Cockburn's Nationality, 77 :-
" A proclamation by the Prince Regent, of the 24th July, especially directed against
America, after prohibiting all natural-born subjects of His Majesty from serving in
the ships and armies of the United States, and charging all such persons at once to
quit such service, proceeds as follows:
“And whereas it has been further represented to us that divers of our natural-born
subjects as aforesaid have been induced to accept Letters of Naturalization or
Certificates of Citizenship from the said United States of America, vainly supposing
that by such letters or certificates they are discharged from that duty and allegiance
which, as our natural-born subjects, they owe to us: Now we do hereby warn all such
our natural-born subjects, that no such Letters of Naturalization or Certificates of
Citizenship do, or can, in any manner discharge our natural-born subjects of the
allegiance, or in any degree alter the duty which they owe to us, their natural sover-
eign. .
Moreover, that all such, our subjects, as aforesaid, who have voluntarily entered,
or shall enter, or voluntarily continue to serve on board of any such ships of war, or in
the land forces of the said United States of America, at enmity with us, are, and will
be, guilty of high treason." - ED.
CHAP. IV.]
375
WILLIAMS' CASE.
AN ACT CONCERNING AMERICAN CITIZENS IN
FOREIGN STATES, JULY 27, 1868.
" Whereas the right of expatriation is a natural and inherent right
of all people, indispensable to the enjoyment of the rights of life,
liberty, and the pursuit of happiness; and whereas in the recognition
of this principle this Government has freely received emigrants from
all nations, and invested them with the rights of citizenship; and
whereas it is claimed that such American citizens, with their descend-
ants, are subjects of foreign states, owing allegiance to the governments
thereof; and whereas it is necessary to the maintenance of public
peace that this claim of foreign allegiance should be promptly and finally
disavowed : Therefore,
“Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That any declaration,
instruction, opinion, order, or decision of any officers of this Govern-
ment which denies, restricts, impairs, or questions the right of
expatriation, is hereby declared inconsistent with the fundamental
principles of this Government.
6 SEC. 2. And be it further enacted, That all naturalized citizens of
the United States, while in foreign states, shall be entitled to and shall
receive from this Government, the same protection of persons and
property that is accorded to native-born citizens in like situations and
circumstances.
“SEC. 3. And be it further enacted, That whenever it shall be made
known to the President that any citizen of the United States has been
unjustly deprived of his liberty by or under the authority of any
foreign government, it shall be the duty of the President forth with to
demand of that government the reasons for such imprisonment, and if
it appears to be wrongfal and in violation of the rights of American
citizenship, the President shall forthwith demand the release of such
citizen, and if the release so demanded is unreasonably delayed or
refused, it shall be the duty of the President to use such means, not
amounting to acts of war, as he may think necessary and proper to
obtain or effectuate such release, and all the facts and proceedings
relative thereto shall as soon as practicable be communicated by the
President to Congress.” 1
1 “I invite the earnest attention of Congress to the existing laws of the United States
respecting expatriation and the election of nationality hy individuals.
Many citizens of the United States reside permanently abroad with their families.
Under the provisions of the act approved February 10, 1855, the children of such
persons are to be deenied and taken to be citizens of the United States, but the righits
376
[PART I.
NATIONALITY.
SECTION 21. CITIZENSHIP
NATURALIZATION.
.
HAWLEY, DISTRICT JUDGE, IN BLAIR V. SILVER
PEAK MINES ET AL., 1899.
(93 Federal, 332, 335.)
The general rule is well settled that a citizen is one who owes the
government allegiance, service, and money by way of taxation, and
to whom the government in turn grants and guarantees liberty of per-
son and of conscience, the right of acquiring and possessing property,
i.
of citizenship are not to descend to persons whose fathers never resided in the
United States.
“It thus happens that persons who have never resided within the United States
have been enabled to put forward a pretension to the protection of the United States
against the claim to military service of the government under whose protection they
were born and have been reared. In some cases even. naturalized citizens of the
United States have returned to the land of their birth, with intent to remain there,
and their children, the issue of a marriage contracted there after return, and who have
never been in the United States, have laid claim to our protection, when the lapse of
many years had imposed upon them the duty of military service to the only govern-
ment which had ever known them personally.
"Until the year 1868 it was left embarrassed by conflicting opinions of courts and
of jurists to determine how far the doctrine of perpetual allegiance derived from our
former colonial relations with Great Britain was applicable to American citizens.
Congress then wisely swept these doubts a way by enacting that 'any declaration,
instruction, opinion, order, or decision of any officer of this government which denies,
restricts, impairs, or questions the right of expatriation, is inconsistent with the
fundamental principles of this government.' But Congress did not indicate in that
statute, nor has it since done so, what acts are deemed to work expatriation. For my
own guidance in determining such questions, I required (under the provisions of the
Constitution) the opinion in writing of the principal officer in each of the executive
departments upon certain questions relating to this subject. The result satisfies me
that further legislation has become necessary. I therefore commend the subject to
the careful consideration of Congress, and I transmit here with copies of the several
opinions of the principal officers of the executive department, together with other
correspondence and pertinent information on the same subject.
“ The United States, who led the way in the overthrow of the feudal doctrine of
perpetual allegiance, are among the last to indicate how their own citizens may elect
another nationality. The papers submitted here with indicate what is necessary to
place us on a par with other leading nations in liberality of legislation on this interna-
tional question. We have already in our treaties assented to the principles which
would need to be embodied in laws intended to accomplish such results. We have
agreed that citizens of the United States may cease to be citizens, and may voluntarily
render allegiance to other powers. We have agreed that residence in a foreign land,
CHAP. IV.]
377
HAWLEY V. SILVER PEAK MINES.
of suit and of defence, and security in person, estate, and reputation.
Knox v. Greenleaf, 4 Dall. 360; Gassies v. Ballon, 6 Pet. 761; Shel-
ton v. Tiffin, 6 How. 163, 185; Sheppard v. Graves, 14 How. 512,
513; Minor v. Happersett, 21 Wall. 162, 166; U. 8. v. Cruikshank,
92 U. S. 542; Anderson v. Watt, 138 U. S. 695, 706, 11 Sup. Ct. 449;
Boyd v. Nebraska, 143 U. S. 135, 159, 12 Sup. Ct. 375; Gordon v.
Bank, 144 U. S. 97, 103, 12 Sup. Ct. 657; Marks v. Marks, 75 Fed.
321. It is also well settled that a state may deny all her political
rights to an individual, and he yet be a citizen. The right of office
and suffrage are political purely. A citizen enjoys civil rights. Id.
without intent to return, shall of itself work expatriation. We have agreed in some
instances upon the length of time necessary for such continued residence to work a
presumption of such intent. I invite Congress now to mark out and define when and
how expatriation can be accomplished; to regulate by law tlie condition of American
women marrying foreigners; to fix the status of children born in a foreign country of
American parents residing more or less permanently abroad, and to make rules for
determining such other kindred points as may seem best to Congress.” President
Grant's Fifth Annual Message, 7 Richardson's Messages and Papers, 239,240.
An Act concerning Aliens and British Subjects, May 12, 1870. Extract:-“4. Any
person who by reason of his having been born within the dominions of Her Majesty
is a natural-born subject, but who also at the time of his birth became, under the law
of any foreign state, a subject of such state, and is still such subject, may, if of full
age and not under any disability, make a declaration of alienage in manner aforesait),
and from and after the making of such declaration shall cease to be a British subject.
5. From and after the passing of this act an alien shall not be entitled to be tried by a
jury de medietute linguae, but shall be triable in the same manner as if he were a
natural-born subject. “6. Any British subject who has at any time before, or may at
any time after, the passing of this act, when in any foreign state and not under any
disability, voluntarily become naturalized in such state, shall, from and after the time
of his so having become naturalized in such foreign state, be deemed to have ceased
to be a British subject and be regarded as an alien;" &c.
In France it is likewise held that French nationality is lost by naturalization in
a foreign state. Alibert's case, 1852, Report on Naturalization, United States, p. 133.
In the excellent case of Michael Zeiter, 1869, before the court of first instance of
Wissembourg, the question was whether he was exenipt from military service. And
this depended upon whether he was a citizen of France, for, by the 2d article of the
law of March 21, 1832, as the court say, “nul ne peut être admis dans les troupes
françaises s'il n'est français."
Zeiter contended that he had been naturalized in the United States, and had thereby
lost his French nationality. The court assented to this view of the law, but demanded
furtier proof of his naturalization in America. When he had procured satisfactory
proofs, the court decreed as follows:
"Attendu que, par la production du certificat qui lui a été delivré le vingt-huit mai.
dernier, par le consul des États Unis à Paris, et qui a été enregistré à Wissembourg
aujourd'hui, le demandeur a justifié qu'il est citoyen américain : le tribunal donne acte
au demandeur de ce que, par la production du dit certificat, il a satisfait au jugement
rendu en ce siége le vingt-cinq avril dernier.
“En conséquence dit et reconnait que le demandeur, Michel Zeiter, par sa natural-
isation en pays étranger, a perdu la qualité de français.” — Ed.
378
NATIONALITY.
[PART I.
328; Burnham v. Rangeley, 1 Woodb. & M. 7, Fed. Cas. No. 2176;
Catlett v. Insurance Co., 1 Paine, 594, Fed. Cas. No. 2517; Minor y.
Happersett, 21 Wall. 162; Blanck v. Pausch, 113 Ill. 60, 64; State v.
Fairlamb, 121 Mo. 138, 150, 25 S. W. 895.”
1
1
'LITTELL V. ERIE R. R. CO.
UNITED STATES CIRCUIT COURT, S. D. NEW YORK, 1900.
(105 Federal, 539.)
WHEELER, District Judge. Jurisdiction of this case depends upon
citizenship. The complaint alleges "that the plaintiff now is, and at
all times hereinafter mentioned was, a citizen of the United States,
and an actual resident of the State of New Jersey.” The defendant
has demurred, assigning this to be an insufficient allegation of citizen-
ship in New Jersey. But citizens of the United States residing in
any of the States are citizens of those States. Gassies v. Ballon, 6
Pet. 761, 8 L. Ed. 573; Dred Scott v. Sandford, 19 How. 393, 15 L.
Ed. 691; Boyd v. Nebraska, 143 U. S. 135, 12 Sup. Ct. 375, 36 L. Ed.
103. This allegation is, therefore, a full equivalent of what a direct
one would be that the plaintiff is a citizen of New Jersey. In the
cases cited in support of the demurrer there does not appear to have
been any such allegation relating to citizenship of the party in ques-
tion as this. Robertson v. Cease, 97 U. S. 646, 24 L. Ed. 1057; In-
surance Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 L. Ed. 380;
Menard v. Goggan, 121. U. S. 253, 7 Sup. Ct. 873, 30 L. Ed. 914;'.
Wolfe v. Insurance Co., 148 U. S. 389, 13 Sup. Ct. 602, 37 L. Ed.
493; Horne v. George H. Hammond Co., 155 U. S. 393, 15 Sup. Ct.
167, 39 L. Ed. 197; Cooper v. Newell, 155 U.S. 532, 15 Sup. Ct. 355,
39 L. Ed. 249. Such a one was held to be sufficient in Gassies v.
Ballon, and was so recognized in Dred Scott v. Sandford, which have
not been either expressly or impliedly overruled as to this. Demurrer
overruled. 1
1 On the privileges of citizens of State in another State of the Union, see note, 1
Lawyer's Rep. Ann. 56, and as to privileges of citizens in general, see note, 14 L. R.
A. 579–586. See also the elaborate list of authorities on Rights of Citizens, in A. B.
Hart, Handbook of History, Diplomacy, Government, 1901, pp. 146–149. -Ed.
CHAP. IV.]
379
EX PARTE CHIN KING.
Ex Parte CHIN KING.
Ex Parte CHAN SAN HEE.
UNITED STATES CIRCUIT COURT FOR OREGON, 1888.
(35 Federal, 354.)
Application for writ of habeas corpus.
DEADY, J.-" The writ of habeas corpus in these cases was allowed
and issued on June 25, 1888, and they were heard together on the
same day.
6 The petition of Chin King states that she was born in San Fran-
cisco, Cal., on October 10, 1868; while that of Chan San Hee states
that she was born in Portland, Or., on March 15, 1878; and they
each state that they are restrained of their liberty by William Robert
Laird, the master of the British bark · Kitty,' because the collector
of customs for this port refuses to allow them to land from said bark
on the ground that the petitioners are Chinese, and have no return
certificate, as required by the act of Congress on that subject; but
they aver that they are native-born citizens of the United States and
therefore not included within the terms of said act.
6. The return of the master to each writ states that the · Kitty'
sailed from Hong Kong for Portland, on April 19, 1888, and that the
petitioners were passengers thereon during said voyage, and are now
in custody on board the same, for the reasons stated in the petitions.
“On application the United States district attorney was allowed
to intervene on behalf of the United States, and allege that he had
no knowledge or information sufficient to form a belief, as to whether
the petitioners were born in the United States, as alleged, or not.
“On the hearing it appeared that Chung Yip Gen is a Chinese
merchant, who has lived and done business in this city for the past
13 years and for 12 years prior thereto in San Francisco; that he
was married in San Francisco about 23 years ago, and the petitioners
are his daughters, the older one having been born in San Francisco,
and the younger one in Portland, and that in 1881 the father sent
them and their mother to China, from whence they were to return
when they pleased.
“By the common law, a child born within the allegiance-the
jurisdiction--of the United States, is born a subject or citizen there-
of, without reference to the political status or condition of its parents.
McKay v. Campõell, 2 Sawy., 118; In re Look Tin Sing, 10 Sawy., 353;
380
(PART I.
NATIONALITY.
)
21 Fed. Rep., 905; Lynch v. Clarke, 1 Sandf. Ch., 583. In the latter
case it was held that Julia Lynch, who was born in New York in
1849, of alien parents during a temporary sojourn by them in that
city, and returned with them the same year to their native country,
where she resided until her death, was an American citizen.
“The vice-chancellor, after an exhaustive examination of the law,
declared that every citizen born within the dominion and allegiance
of the United States was a citizen thereof, without reference to the
situation of his parents.
This, of course, does not include the children born in the United
States of parents engaged in the diplomatic service of foreign gov-
ernments, whose residence, in contemplation of public law, is a part
of their own country.
“The rule of the common law on this subject has been incorpo-
rated into the fundamental law of the land.
“ The fourteenth amendment declares : All persons born or natu-
ralized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States, and of the state wherein they
reside.
“In In re Look Tin Sing, 10 Sawy., 353; 21 Fed. Rep., 905, it was
held that a person born within the United States, of Chinese parents,
not engaged in any diplomatic or official capacity under the emperor
of China, is a citizen of the United States. The case is similar to
that of the petitioners. The party in question was born in California
in 1870, of Chinese parents. In 1879, he went to China, and returned
to California in 1884, without the certificate provided for in the re-
striction act of 1882, or that of 1884, and was therefore denied the
right to land.
“Mr. Justice FIELD, in delivering the opinion of the court, in which
Sawyer, Sabin, and Hoffman concurred, says (p. 359): "The inability
of persons to become citizens under those laws (of naturalization) in
no respect impairs the effect of their birth, or of the birth of their
children, upon the status of either, as citizens of the United States.'
“The only point made by the district attorney against the peti-
tioners on the question of their citizenship is that they left this
country without, as he claims, any definite or fixed purpose to
return.
“But I think the evidence does not warrant so strong a statement.
For aught that appears they intended to return; and the fact that
they have returned gives strength to the inference. The most that
can be said is, there was no time fixed for their return. And that is
the case with hundreds of minor American citizens, who go abroad
yearly for nurture and education. But it seems that the citizenship
CHAP. IV.]
381
EX PARTE OHIN KING.
of the petitioners would not be affected by the fact, if they had
never come back, unless it also appears that they had in some formal
and affirmative way renounced the same.
“ However, in my judgment, a father cannot deprive his minor
child of the status of American citizenship, impressed upon it by the
circumstances of its birth under the Constitution and within the
jurisdiction of the United States.
“This status, once acquired, can only be lost or changed by the
act of the party when arrived at majority, and the consent of the
government.
“By section 2 of article 4 of the Constitution it is provided : The
citizens of each state shall be entitled to all privileges and immuni-
ties of citizens in the several states.'
“It has always been held that the privileges and immunities
there referred to are fundamental; and that a citizen of one state
may at least, under this provision, pass through or reside in any
other state of the union for the ordinary pursuits or purposes of life.
Corfield v. Coryell, 4 Wash. C. C., 380; Paul v. Virginia, 8 Wall., 180.
"The action of the collector in these cases has the effect, and is so
intended, to deny these citizens of the United States the right of free
locomotion within the same, the right to come into, pass through,
or reside in this state, and is therefore contrary to and in violation of
the constitutional provision guaranteeing such right to every citizen.
Sections 751, 752, and 753 of the Revised Statutes provide, in effect,
that the courts of the United States and the judges thereof shall
have power, by habeas corpus, to deliver a person held in custody or
restrained of his liberty in violation of the Constitution or of a law
or treaty of the United States.
“The petitioners, as we have seen, are restrained of their liberty
in violation of the Constitution, and therefore this court has juris-
diction to discharge them on habeas corpus.
“The petitioners are discharged from custody.” 1
1 In U. S. v. Wong Kim Ark, 1898, 169 U. S. 649, Mr. Justice Gray, in delivering
the judgment of the court, gives an exhaustive survey of citizenslup by birth in the
United States. Authorities are cited in great fulness, and reference is made in the
case to the most recent as well as the most authoritative decisions on the subject in
the United States, England, and the Continent.
In a note on this case in 12 Harvard Law Review, 55, the following apt résumé is
given : "Citizenship is a question not of international but of municipal law. The
division of the law of citizenship into the jus sanguinis and the jus soli is a deduction
from the division of the jurisdiction of a state into the personal and the territorial.
In the civil law, citizenship is by descent. At common law, all those born within the
kingdom or legeance of the Crown were held subjects; and if the United States have
a conimon law this ancient rule governs. Calvin's Case, 7 Rep. 1. Whatever abstract
382
[PART I.
NATIONALITY:
FONG YUE TING V. UNITED STATES.
WONG QUAN V. UNITED STATES.
LEE JOE v. UNITED STATES.
SUPREME COURT OF THE UNITED STATES, 1892.
(149 United States, 698.)
Mr. Justice GRAY delivered the opinion of the court.
The general principles of public law which lie at the foundation of
these cases are clearly established by previous judgments of this
court, and by the authorities therein referred to.
In the recent case of Nishimura Ekin v. United States, 142 U. S.
651, 659, the court, in sustaining the action of the executive depart-
ment, putting in force an act of Congress for the exclusion of aliens,
rules there may be, the right of every sovereignty to determine for itself by its own
laws who are its citizens is a fundamental one. By the Fourteenth Amendment of the
United States Constitution, “ All persons born or naturalized within the United States
are citizens ;” the exception is that those not born “subject to jurisdiction thereof”
are not citizens. Are the children of aliens within the exception? When within our
territory, the sovereigns, diplomats, sailors upon ships of war, and soldiers in the
organized military forces of a foreign state, are not subject to our jurisdiction.
Children born of parents under these circumstances of extraterritoriality would not be
citizens. The same is true of the children of tribal Indians. The logic of these
exceptions of sovereignty, however, does not apply to the alien subject domiciled in
the United States. He is subject to the territorial jurisdiction; his children are born
subject to our jurisdiction; and these, by our municipal law, are citizens. Accord-
ingly, the decision reached by the Supreme Court seems to have sanction of authority,
policy, and theory.
· The case further presents a phase of the conflict of laws not often considered. The
objection to the doctrine of the majority opinion has been taken by very high
authorities, that as our law provides no right of election by or for a child, as do the
Continental codes, a dual allegiance will result, and this is urged to be contrary to the
theory of citizenship. This difficulty, however, is apparent rather than real. When
a child is born in America of Chinese parents, China claims him by the jus sanguinis,
America by the jus soli. It is not a question whether he is an American or a China-
man; he is both. The municipal laws being thus in conflict, his citizenship at any
time will depend upon whether he is subject to the jurisdiction of the one or of the
other country. The duality of citizenship is a fact only in a third country. In
China he is a Chinaman ; in America, an American." - ED.
1 In this case the question before the court was as to the validity of a statute
(act of May 5, 1892, c. 60), requiring the registration of Chinese laborers within the
U. S. who were entitled by the existing law to remain and the expulsion of those
not registered. - ED.
CHAP. IV.]
383
FONG YUE TING V. UNITED STATES.
!
said: “It is an accepted maxim of international law, that every
sovereign nation has the power, as inherent in sovereignty, and
essential to self-preservation, to forbid the entrance of foreigners
within its dominions, or to admit them only in such cases and upon
such conditions as it may see fit to prescribe. In the United States,
this power is vested in the national government, to which the Con-
stitution has committed the entire control of international relations,
in peace as well as in war. It belongs to the political department
of the government, and may be exercised either through treaties
made by the President and Senate, or through statutes enacted by
Congress.”
The same views were more fully expounded in the earlier case of
Chae Chan Ping y. United States, 130 U. S. 581, in which the valid-
ity of a former act of Congress, excluding Chinese laborers from the
United States, under the circumstances therein stated, was affirmed.
In the elaborate opinion delivered by Mr. Justice Field, in behalf
of the court, it was said: “Those laborers are not citizens of the
United States; they are aliens. That the government of the United
States, through the action of the legislative department, can exclude
aliens from its territory is a proposition which we do not think open
to controversy. Jurisdiction over its own territory to that extent is
an incident of every independent nation. It is a part of its indepen-
dence. If it could not exclude aliens, it would be to that extent
subject to the control of another power. "The United States, in
their relation to foreign countries and their subjects or citizens, are
one nation, invested with powers which belong to independent
nations, the exercise of which can be invoked for the maintenance
of its absolute independence and security throughout its entire
territory.” 130 U. S. 603, 604.
It was also said, repeating the language of Mr. Justice Bradley
in Knox y. Lee, 12 Wall. 457, 555: “The United States is not only
a government, but it is a national government, and the only govern-
ment in this country that has the character of nationality. It is
invested with power over all the foreign relations of the country, war,
peace, and negotiations and intercourse with other nations; all of
which are forbidden to the State governments." 130 U. S. 605.
And it was added: “For local interests the several States of the
Union exist; but for international purposes, embracing our relations
with foreign nations, we are but one people, one nation, one power.”
130 U. S. 606.
The court then went on to say: "To preserve its independence,
and give security against foreign aggression and encroachment, is the
highest duty of every nation, and to attain these ends nearly all other
384
(PART I.
NATIONALITY.
+
considerations are to be subordinated. It matters not in what form
such aggression and encroachment come, whether from the foreign
nation acting in its national character, or from vast hordes of its
people crowding in upon us. The government, possessing the powers
which are to be exercised for protection and security, is clothed with
authority to determine the occasion on which the powers shall be
called forth; and its determination, so far as the subjects affected are
concerned, is necessarily conclusive upon all its departments and offi-
cers. If, therefore, the government of the United States, through its
legislative department, considers the presence of foreigners of a differ-
ent race in this country, who will not assimilate with us, to be danger-
ous to its peace and security, their exclusion is not to be stayed
because at the time there are no actual hostilities with the nation of
which the foreigners are subjects. The existence of war would ren-
der the necessity of the proceeding only more obvious and pressing.
The same necessity, in a less pressing degree, may arise when war
does not exist, and the same authority which adjudges the necessity
in one case must also determine it in the other. In both cases, its
determination is conclusive upon the judiciary. If the governinent
of the country of which the foreigners excluded are subjects is dis-
satisfied with this action, it can make complaint to the executive
head of our government, or resort to any other measure which, in its
judgment,' its interests or dignity may demand; and there lies its
only remedy. The power of the government to exclude foreigners
from the country, whenever, in its judgment, the public interests
require such exclusion, has been asserted in repeated instances, and
never denied by the executive or legislative departments.” 130 U. S.
606, 607. This statement was supported by many citations from the
diplomatic correspondence of successive Secretaries of State collected
in Wharton's International Law Digest, $ 206.
The right of a nation to expel or deport foreigners, who have not
been naturalized or taken any steps towards becoming citizens of the
country, rests upon the same grounds, and is as absolute and unquali-
fied as the right to prohibit and prevent their entrance into the
country.
This is clearly affirmed in despatches referred to by the court in
Chae Chan Ping's Case. In 1856, Mr. Marcy wrote: “Every society
possesses the undoubted right to determine who shall compose its
members, and it is exercised by all nations, both -in peace and war.
A memorable example of the exercise of this power in time of peace
was the passage of the alien law of the United States in the year
1798." In 1869, Mr. Fish wrote: “The control of the people within
its limits, and the right to expel from its territory persons who are
CHAP. IV.]
385
FONG YUE TING V, UNITED STATES.
dangerous to the peace of the State, are too clearly within the essen-
tial attributes of sovereignty to be seriously contested.” Wharton's
International Law Digest, $ 206; 130 U, S. 607.
The statements of leading commentators on the law of nations are
to the same effect.
Vattel says: "Every nation has the right to refuse to admit a
foreigner into the country, when he cannot enter without putting the
nation in evident danger, or doing it a manifest injury. What it
owes to itself, the care of its own safety, gives it this right; and in
virtue of its natural liberty, it belongs to the nation to judge whether
its circumstances will ºr will not justify the admission of the for-
eigner." "Thus, also, it has a right to send them elsewhere, if it
has just cause to fear that they will corrupt the manners of the citi-
zens; that they will create religious disturbances, or occasion any
other disorder, contrary to the public safety. In a word, it has a
right, and is even obliged, in this respect, to follow the rules which
prudence dictates.” Vattel's Law of Nations, lib. 1, c. 19.9. $$ 230,
231.
Ortolan says: "The government of each state has always the right
to compel foreigners who are found within its territory to go away,
by having them taken to the frontier. This right is based on the
fact that, the foreigner not making part of the nation, his individual
reception into the territory is matter of pure permission, of simple
tolerance, and creates no obligation. The exercise of this right may
be subjected, doubtless, to certain forms by the domestic laws of each
country; but the right exists none the less, universally recognized and
put in force. In France, no special form is now prescribed in this
matter; the exercise of this right of expulsion is wholly left to the
executive power.” Ortolan, Diplomatie de la Mer, lib. 2, c. 14 (4th
ed.), p. 297.
Phillimore says: “It is a received maxim of international law, that
the government of a state may prohibit the entrance of strangers into
the country, and may therefore regulate the conditions under which
they shall be allowed to remain in it, or may require and compel their
departure from it.” 1 Phillimore's International Law (3d ed.), c.
10, $ 220.
Bar says: "Banishment and extradition must not be confounded.
The former is simply a question of expediency and humanity, since
no state is bound to receive all foreigners, although, perhaps, to ex-
clude all would be to say good-by to the international union of all
civilized states; and although in some states, such as England,
strangers can only be expelled by means of special acts of the legis-
lative power, no state has renounced its right to expel them, as is
23
1
386
NATIONALITY,
[PART I.
6 Trans-
shown by the alien bills which the government of England has at
times used to invest itself with the right of expulsion.” “Banish-
ment is regulated by rules of expediency and humanity, and is a
matter for the police of the state. No doubt the police can appre-
hend any foreigner who refuses to quit the country in spite of
authoritative crders to do so, and convey him to the frontier.” Bar's
International Law (Gillespie's ed. 1883), 708 note, 711.
In the passages just quoted from Gillespie's translation of Bar,
" banishment” is evidently used in the sense of expulsion or deporta-
tion by the political authority on the ground of expediency, and not
in the sense of transportation or exile by way of punishment for
crime. Strictly speaking, "transportation," "extradition” and “de-
portation," although each has the effect of removing a person from the
country, are different things, and have different purposes.
portation ” is by way of punishment of one convicted of an offence
against the laws of the country. "Extradition” is the surrender to
another country of one accused of an offence against its laws, there
to be tried, and, if found guilty, punished. “Deportation” is the
removal of an alien out of the country, simply because his presence is
deemed inconsistent with the public welfare, and without any punish-
ment being imposed or contemplated, either under the laws of the
country out of which he is sent, or under those of the country to
which he is taken.
In England, the only question that has ever been made in regard to
the power to expel aliens has been whether it could be exercised by
the King without the consent of Parliament. It was formerly exer-
cised by the King, but in later times by Parliament, which passed
several acts on the subject between 1793 and 1848. 2 Inst. 57; 1
Chalmers Opinions, 26; 1 Bl. Com. 260; Chitty on the Prerogative,
49; 1 Phillimore, c. 10, § 220 and note; 30 Parl. Hist. 157, 167, 188,
217, 229; 34 Hansard Parl. Deb. (1st series) 441, 445, 471, 1065–
1071; 6 Law Quart. Rev. 27.
Eminent English judges, sitting in the Judicial Committee of the
Privy Council, have gone very far in supporting the exclusion or
expulsion, by the executive authority of a colony, of aliens having no
absolute right to enter its territory or to remain therein.
In 1837, in a case arising in the Island of Mauritius, which had
been conquered by Great Britain from France in 1810, and in which
the law of France continued in force, Lord Lyndhurst, Lord Brougham
and Justices Bosanquet and Erskine, although considering it a case of
great hardship, sustained the validity of an order of the English gov-
ernor, deporting a friendly alien who had long resided and carried on
business in the island, and had enjoyed the privileges and exercised
CHAP. IV.]
387
FONG YUE TING V. UNITED STATES.
the rights of a person duly domiciled, but who had not, as required
by the French law, obtained from the colonial government formal
and express authority to establish a domicil there. In re Adam, 1
Moore P. C. 460.
In a recent appeal from a judgment of the Supreme Court of the
Colony of Victoria, a collector of customs, sued by a Chinese immi-
grant for preventing him from landing in the colony, had pleaded a
justification under the order of a colonial minister claiming to exer-
cise an alleged prerogative of the Crown to exclude alien friends, and
denied the right of a court of law to examine his action, on the ground
that what he had done was an act of state; and the plaintiff had
demurred to the plea. Lord Chancellor Halsbury, speaking for him-
self, for Lord Herschell (now Lord Chancellor) and for other lords,
after deciding against the plaintiff on a question of statutory con-
struction, took occasion to observe: "The facts appearing on the
record raise, quite apart from the statutes referred to, a grave ques-
tion as to the plaintiff's right to maintain the action. He can only
do so if he can establish that an alien has a legal right, enforceable
by action, to enter British territory. No authority exists for the
proposition that an alien has any such right. Circumstances may
occur in which the refusal to permit an alien to land might be such
an interference with international comity as would properly give rise
to diplomatic remonstrance from the country of which he was a
native; but it is quite another thing to assert that an alien, excluded
from any part of her Majesty's dominions by the executive govern-
ment there, can maintain an action in a British court, and raise such
questions as were argued before their lordships on the present appeal
whether the proper officer for giving or refusing access to the coun-
try has been duly authorized by his own colonial government, whether
the colonial government has received sufficient delegated authority
from the Crown to exercise the authority which the Crown had a
right to exercise through the colonial government if properly com-
municated to it, and whether the Crown has the right without parlia-
mentary authority to exclude an alien. Their lordships cannot assent
to the proposition that an alien refused permission to enter British
territory can, in an action in a British court, compel the decision of
such matters as these, involving delicate and difficult constitutional
questions affecting the respective rights of the Crown and Parlia-
ment, and the relations of this country to her self-governing colonies.
When once it is admitted that there is no absolute and unqualified
right of action on behalf of an alien refused admission to British
territory, their lordships are of opinion that it would be impossible,
upon the facts which the demurrer admits, for an alien to maintain
88
NATIONALITY.
[PART 1.
an action.” Musgrove v. Chun Teeong Toy, App. Cas. (1891), 272,
282, 283.
The right to exclude or to expel all aliens, or any class of aliens,
absolutely or upon certain conditions, in war or in peace, being an
inherent and inalienable right of every sovereign and independent
nation, essential to its safety, its independence and its welfare, the
question now before the court is whether the manner in which Con-
gress has exercised this right in sections 6 and 7 of the act of 1892
is consistent with the Constitution,
The United States are a sovereign and independent nation, and are
vested by the Constitution with the entire control of international
relations, and with all the powers of government necessary to main-
tain that control and to make it effective. The only government of
this country, which other nations recognize or treat with, is the
government of the Union; and the only American flag known
throughout the world is the flag of the United States.
The power to exclude or to expel aliens, being a power affecting
international relations, is vested in the political departments of the
government, and is to be regulated by treaty or by act of Congress,
and to be executed by the executive authority according to the regu-
lations so established, except so far as the judicial department has
been authorized by treaty or by statute, or is required by the
paramount law of the Constitution, to intervene.
In view of that decision [Chae Chan Ping v. U. S., 1888, 581],
which, as before observed, was a unanimous judgment of the court,
and which had the concurrence of all the justices who had delivered
opinions in the cases arising under the acts of 1882 and 1884, it
appears to be impossible to hold that a Chinese laborer acquired,
under any of the treaties or acts of Congress, any right, as a denizen
or otherwise, to be and remain in this country, except by the license,
permission and sufferance of Congress, to be withdrawn whenever, in
its opinion, the public welfare might require it.
By the law of nations, doubtless, aliens residing in a country, with
the intention of making it a permanent place of abode, acquire, in one
sense, a domicil there; and, while they are permitted by the nation
to retain such a residence and domicil, are subject to its laws, and
may invoke its protection against other nations. This is recognized
by those publicists who, as has been seen, maintain in the strongest
terms the right of the nation to expel any or all aliens at its pleasure.
Vattel, lib. 1, c. 19, $ 213; 1 Phillimore, c. 18, § 321; Mr. Marcy, in
Koszta's Case, Wharton's International Law Digest, $ 198. See, also,
Lau Ow Bew v. United States, 144 U. S. 47, 62; Merlin, Repertoire
de Jurisprudence, Domicile, $ 13, quoted in the case, above cited, of
In re Adam, 1 Moore P. C. 460, 472, 473.
CHAP. IV.]
389
FONG YUE TING 0, UNITED STATES.
the pro-
+
Chinese laborers, therefore, like all other aliens residing in the
United States for a shorter or longer time, are entitled, so long as
they are permitted by the government of the United States to remain
in the country, to the safeguards of the Constitution, and
tection of the laws, in regard to their rights of person and of prop-
erty, and to their civil and criminal responsibility.
But they
continue to be aliens, having taken no steps towards becoming
citizens, and incapable of becoming such under the naturalization
laws; and thereforé rémain subject to the power of Congress to
expel them, or to order them to be removed and deported from the
country, whenever in its judgment their removal is necessary or
expedient for the public interest.
Nothing inconsistent with tliese views was decided or suggested by
the court in Chy Lung v. Freeman, 92 U. S. 275, or in Yick Wo v.
Hopkins, 118 U. S. 356, cited for the appellants.
In Chy Lung v. Freeman, a statute of the State of California,
restricting the immigration of Chinese persons, was held to be uncon-
stitutional and void, because it contravened the grant in the Consti-
tution to Congress of the power to regulate commerce with foreign
nations.
In Yick Wo v. Hopkins, the point decided was that the Fourteenth
Amendment of the Constitution of the United States, forbidding any
State to deprive any person of life, liberty or property without due
process of law, or to deny to any person within its jurisdiction the
equal protection of the laws, was violated by a municipal ordinance
of San Francisco, which conferred upon the board of supervisors
arbitrary power, without regard to competency of persons or to
fitness of places, to grant or refuse licenses to carry on public laun-
dries, and which was executed by the supervisors by refusing licenses
to all Chinese residents, and granting them to other persons under
like circumstances. The question there was of the power of a State
over aliens continuing to reside within its jurisdiction, not of the
power of the United States to put an end to their residence in the
country.
Upon careful consideration of the subject, the only conclusion
which appears to us to be consistent with the principles of interna-
tional law, with the Constitution and laws of the United States, and
with the previous decisions of this court, is that in each of these
cases the judgment of the circuit court, dismissing the writ of habeas
corpus, is right and must be.
Affirmed.?
1 Dissenting opinion of Mr. Justice Brewer omitted.- ED.
390
[PART 1.
NATIONALITY,
CITY OF MINNEAPOLIS V. REUM.
UNITED STATES CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT, 1893.
(56 Federal, 576.)
SANBORN, Circuit Judge. In Lanz v. Randall, 4 Dill. 425, Mr.
Justice Miller, who was then presiding in the Circuit Court for the
District of Minnesota, held that a State could not make the subject
of a foreign government a citizen of the United States, and that a
resident of Minnesota who was born a subject of the Grand Duke of
Mecklenburg, had declared his intention to become a citizen of the
United States many years before he brought his suit, had resided
in the State of Minnesota for fifteen years, had several times voted
at elections held in that State where the constitution of the State
authorizes such residents to do so without naturalization, but had
• never applied to be or been admitted to citizenship under the Federal
naturalization laws, was still an alien, and a subject of the Grand Duke
of Mecklenburg. This decision has been followed by the courts, and
acquiesced in by the profession. It is now vigorously challenged by
counsel for plaintiff in error.
Section 2, art. 3, of the Constitution of the United States, provides
that the judicial power of the nation shall extend to controversies
between a State or the citizeus thereof and foreign states, citizens, or
subjects;” and the acts of Congress of March 3, 1887 (24 Stat. 552),
and of August 13, 1888 (25 Stat. 433), confer jurisdiction of all these
controversies in cases involving over $2,000 upon the circuit courts.
Every person at his birth is presumptively a citizen or subject of the
state of his nativity, and where, as in the case at bar, his parents
were then both subjects of that state, the presumption is conclusive.
To the land of his birth he owes support and allegiance, and from it
he is entitled to the civil and political rights and privileges of a citi-
zen or subject. This relation, imposed by birth, is presumed to con-
tinue until a change of nationality is proved. Minor v. Happersett,
21 Wall. 162, 167; Vatt. Law Nat. p. 101; Morse. Nat. 61, 125. A
change of nationality cannot be made by the individual at will. Each
nation has the right to refuse to grant the rights and privileges of
citizenship to all persons not born upon its soil, and, if it deter-
mines to admit them to those rights and privileges, it may fix the
terms on which they shall be conferred upon them. Naturalization
is the admission of a foreign subject or vitizen into the political body
CHAP. IV.]
391
CITY OF MINNEAPOLIS V. REUM.
of a nation, and the bestowal upon him of the quality of a citizen or
subject.
The Fourteenth Amendment to the Constitution of the United States
provides that “all persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.” As the plaintiff was
born in the kingdom of Saxony, of parents who at the time of his birth
were subjects of the King of Saxony, he is not a citizen of the United
States unless he has been naturalized therein. The United States, in
the exercise of their undoubted right, have prescribed the conditions
upon compliance with which an alien may become a citizen of this
nation. The act of Congress of April 14, 1802 (2 Stat. 153, c. 28, $ 1;
Rev. St. § 2165), provides that "an alien may be admitted to become
a citizen of the United States in the following manner, and not other-
wise. First. He shall, two years at least prior to his admission, de-
clare before a proper court his intention to become a citizen of the
United States, and to renounce his allegiance to the potentate or sov-
ereignty of which he may be at the time a citizen or subject. Second.
He shall, at the time of his application to be admitted, declare, on
oath, before some one of the courts above specified, that he will support
the Constitution of the United States, and that he absolutely and en-
tirely renounces and abjures all allegiance and fidelity to every foreign
prince, potentate, state, or sovereignty; and particularly, by name, to
the prince, potentate, state, or sovereignty of which he was before
a citizen or subject, which proceedings shall be recorded by the clerk
of the court. Third.. It shall be made to appear to the satisfaction
of the court admitting such alien that he has resided within the
United States five years at least, and within the State or Terri-
tory where such court is at the time held one year at least, and that
during that time he has behaved as a man of a good, moral character,
attached to the principles of the Constitution of the United States,
and well disposed to the good order and happiness of the same; but
the oath of the applicant shall in no case be allowed to prove his
residence."
By the act of May 26, 1824 (4 Stat. 69, c. 186, $ 1; Rev. St. $ 2167),
it is provided that:
“Any alien, being under the age of twenty-one years, who has re-
sided in the United States three years next preceding his arriving at
that age, and who has continued to reside therein to the time he may
make application to be admitted a citizen thereof, may, after he ar-
rives at the age of twenty-one years, and after he has resided five
years within the United States, including the three years of his mi-
nority, be admitted a citizen of the United States, without having
392
[PART 1.
NATIONALITY.
!
made the declaration required in the first condition of section twenty-
one hundred and sixty-five; but such alien shall inake the declaration
required therein at the time of his admission, and shall further de-
clare on oath, and prove to the satisfaction of the court, that, for two
years next preceding, it has been his bona fide intention to become a
citizen of the United States; and he shall in all other respects comply
with the laws in regard to naturalization."
There is no other provision of the acts of Congress under which this
plaintiff could have been naturalized. The counsel for plaintiff in
error, however, alleges that he became a citizen of the United States
(1) because at the time he declared his intention to do so he might
have been admitted to citizenship, under the provisions of section
2167; (2) because various acts of Congress have conferred certain
privileges, and some have conferred all the privileges, of a citizen
upon foreign-born residents who had declared their intention to be-
come citizens; and (3) because the State of Minnesota has granted
to such residents practically all the privileges of citizenship in its power
to bestow.
Before this plaintiff could become a naturalized citizen, the contract
of allegiance and protection that the relation of a citizen to his nation
implies must be made between him and the United States. The United
States have prescribed the conditions under which such an alien may
make this contract, the place where, and the manner in which, it shall
be made, and have declared that it can be inade on those conditions,
and in that inanner, and not otherwise. Rev. St. $ 2165. The condi-
tions are that he shall declare, on oath, that he will support the Con-
stitution; that he does renounce all allegiance to every foreign prince,
potentate, state, or sovereignty, and particularly to that one of which
he was a subject; that it shall be made to appear to the court that he
has resided in the United States five years, and in the State where the
court is held one year; that he has behaved as a man of good morai
character during all of this time, attached to the principles of the Con-
stitution of the United States, and well disposed to the good order and
happiness of the same. The place where these conditions inust be
complied with is in one of the courts of record named in the acts of
Congress, and the method by which the contract is to be made is by
plenary proof to that court of a compliance with these conditions, which
must be evidenced by its judgment. The plaintiff has complied with
none of these terins. He has not even applied to any court to be ad-
mitted to citizenship. He has not consented to become a citizen of the
United States on the terms they offer to him, or on any terms, but he
still insists he is not a citizen, and that he is still a subject of the King
of Saxony. On the other hand, the United States have not consented
CHAP. IV.]
393
CITY OF MINNEAPOLIS V. REUM.
to accept the plaintiff as a citizen, on any terms, much less to waive all
the essential conditions without a compliance with which Congress has
declared an alien cannot be naturalized. The minds of both parties
must meet to make a contract, and, where neither party consents, there
can surely be no agreement
That the plaintiff, on Oct. 25, 1890, had resided in Minnesota, as
boy and man, long enough to qualify him to become a citizen under
section 2167, is not material. The conclusive answer to the argument
here urged is that the declaration of an intention to enter into a new
relation for which parties are qualified does not establish the rela-
tion. A man and woman who declare their intention to be married
at some future time do not thereby become husband and wife. On
the other hand, a declaration of an intention to enter into a relation or
to do an act at some future time is very persuasive evidence that
the relation was not entered upon, and the act was not done, at the
time the declaration was made. It must be borne in mind that the
only effect of section 2167 was to relieve the plaintiff from waiting two
years after filing his declaration before being admitted to citizenship.
That section expressly provides that in all other respects he shall com-
ply with the laws in regard to naturalization. The plaintiff's declara-
tion on October 25, 1890, when he was qualified to be naturalized, that
he intended at some future time to become a citizen, coupled with the
fact that he did not then apply to be admitted to citizenship, nor com-
ply with any of the conditions prescribed by law for his naturalization,
compels the conclusion that he did not then denationalize himself, but
that he still remained a foreign subject.
That Congress, in various acts, has conferred certain privileges and
imposed certain burdens upon “persons of foreign birth who shall
have declared their intention to become citizens," at the same time
that it conferred like privileges or iinposed like burdens upon our own
citizens, as in the act of March 3, 1863, (12 Stat. 731, where all able-
bodied male citizens of the United States, and “persons of foreign
birth who shall have declared their intention to become citizens under
and in pursuance of the laws thereof," between certain ages, are de-
clared to constitute the national forces, and as in the patent laws (Rev.
St. § 4904), the pre-emption laws (id. § 2259), and in the mining
laws (id. $ 2289), where certain privileges are conferred on citizens of
the United States, and those who have declared their intention to
become such,” in no way militates against, but strongly supports, the
correctness of our conclusion, because, if foreign-born residents, by de-
claring their intention to become citizens, could ipso facto become
such, it would have been futile to name them in all of these acts as a
class distinct from our citizens. That Congress has, by various special
394
(PART I.
NATIONALITY.
!
acts, many of which are referred to in the opinion of Chief Justice
Fuller in Boyd v. Nebraska, 143 U.S. 158, 12 Sup. Ct. Rep. 375, natural-
ized certain classes of persons who had not complied with the terins
of the general laws on this subject, is not important here, because the
plaintiff is not a member of any class thus naturalized. Nor is the
decision in Boyd v. Nebraska, supra, in point in this case, because Gov-
ernor Boyd was there held to be one of a class of foreign-born residents
that was naturalized by the acts of Congress admitting the State of
Nebraska into the Union. These acts conferred the rights of citizen-
ship upon foreign-born residents of Nebraska who had declared their
intention to become citizens. The plaintiff was a resident of Minnesota.
A single argument remains to be noticed, and that is that the State
of Minnesota has conferred on plaintiff the elective franchise, the right
to hold any office in its gift, and, in reality, all the rights and privi-
leges of citizenship in its power to bestow; and therefore it is said he
is a citizen of that State, and not a foreign subject, and the Federal
court has no jurisdiction of this action. It may be conceded that a
State may confer on foreign citizens or subjects all the rights and
privileges it has the power to bestow, but, when it has done all this, it
has not naturalized them. They are foreign citizens or subjects still,
within the meaning of the Constitution and laws of the United States,
and the jurisdiction of the Federal courts over controversies between
them and citizens of the States is neither enlarged nor restricted by the
acts of the State. The power to naturalize foreign subjects or citizens
was one of the powers expressly granted by the States to the national
government. By section 8, art. 1, of the Constitution of the United
States, it was provided that “the Congress shall have the power to
establish a uniform rule of naturalization." Congress has exercised
this power, established the rule, and expressly declared that foreign-
born residents may be naturalized by a compliance with it, and not
otherwise. This power, like the power to regulate commerce among
the States, was carved out of the general sovereign power held by the
States when this nation was formed and granted by the Constitution
to the Congress of the United States. It thus vested exclusively in
Congress, and no power remained in the States to change or vary the
rule of naturalization Congress established, or to authorize any foreign
subject to denationalize himself, and become a citizen of the United
States, without a compliance with the conditions Congress had pre-
scribed. Dred Scott v. Sandford, 19 How. 393, 405; Slaughter House
Cases, 16 Wall. 36, 73; Minor v. Happersett, 21 How. 162; Boyd v. Ne-
braska, 143 U. S. 135, 160, 12 Sup. Ct. Rep. 375.
In like manner, the States granted to the judiciary of the nation the
power to determine a controversy between a State or citizens thereof
CHAP. IV.]
395
CITY OF MINNEAPOLIS 2. REUM.
and foreign states, citizens, or subjects (Const. U. S. art. 3, § 2), and
Congress conferred that power upon the circuit courts. The extent
of the jurisdiction of those courts is measured by the Constitution
and the acts of Congress. A foreign-born resident, who has not been
naturalized according to the acts of Congress, is not a "citizen” of the
United States or of a State, within the definition given by the Four-
teenth Amendment to the Constitution, but remains a foreign subject
or citizen ; and any controversy between him and a citizen of a State
which involves a sufficient amount is thus clearly within the jurisdic-
tion of the circuit courts, under any fair construction of the Constitu-
tion and laws of the United States. The jurisdiction thus conferred
it is not in the power of any State, by its legislative or other action,
to take away, restrict, or enlarge, and the action of the State of Min-
nesota regarding the citizenship of the plaintiff was not material in
this case. Toland v. Sprague, 12 Pet. 300, 328; Cowless v. Mercer
Co., 7 Wall. 118; Railway Co. v. Whitton, 13 Wall. 270, 286; Phelps
v. Oaks, 117 U. S. 236, 239, 6 Sup. Ct. Rep. 714; O'Connell v. Reed, 56
Fed. Rep. 531.
The result is that the power granted to Congress by article 1, § 8, of
the Constitution of the United States, to establish a uniform rule of
naturalization, is exclusive; and the naturalization laws enacted by
Congress in the exercise of this power constitute the only rule by
which a foreign subject may become a citizen of the United States or
of a State, within the meaning of the Federal Constitution and laws. It
is not in the power of a State to denationalize a foreign subject who has
not complied with the Federal naturalization laws, and constitute hiin a
citizen of the United States or of a State, so as to deprive the Federal
courts of jurisdiction over a controversy between him and a citizen of a
State, conferred upon them by article 3, § 2, of the Constitution of the
United States, and the acts of Congress.
A foreign subject who is qualified to become a citizen of the United
States, under section 2167 of the Revised Statutes, does not become
such by filing his declaration of intention so to do. That section re-
quires that he shall. renounce allegiance to the sovereignty of which he
he is a subject, take the oath of allegiance to the United States, and
comply with the other conditions prescribed in the second and third
paragraphs of section 2165 of the Revised Statutes, in order to become
naturalized; and until he does so he remains a foreign subject.
The court below was right in denying the motion to dismiss this
action for want of jurisdiction, and the judgment below is affirmed,
with costs.I
1 According to Boyd v. Thayer, 1891, 143 U. S. 135, p. 162, “Naturalization is the
act of adopting a foreigner, and clothing him with the privileges of a native citizen.
396
[PART 1.
NATIONALITY,
In Re MOSES.
UNITED STATES CIRCUIT COURT, S. D. NEW YORK, 1897.
(83 Federal, 995.)
Petition of Marcus Moses for writ of habeas corpus.
LACOMBE, Circuit Judge. The act of Aug. 18, 1894, c. 301 (28 Stat.
390), provides that:
“In every case where an alien is excluded from admission into the
United States under any law or treaty now existing or hereafter made,
the decision of the appropriate immigration or custom officers, if ad-
verse to the admission of such alien, shall be final, unless reversed on
appeal to the Secretary of the Treasury.”
If, therefore, the petitioner's wife and children are “aliens," this
court cannot inquire into the correctness of the decision of the immi-
gration officers. Lem Moon Sing v. U. S., 158 U. S. 540, 15 Sup. Ct.
967. In other words, the only jurisdictional facts which it is necessary.
***. Congress, in the exercise of the power to establish a uniform rule of naturaliza-
tion, has enacted general laws under which individuals may be naturalized, but the
instances of collective naturalization by treaty or by statute are numerous. ***
Manifestly the nationality of the inhabitants of territory acquired by conquest or
cession becomes that of the government under whose dominion they pass, subject to
the right of election on their part to retain their former nationality by removal or
otherwise, as may be provided." The learned Chief Justice proceeds to an enumera-
tion of the many instances of collective naturalization in our history. A much shorter
and more recent discussion of the subject (collective naturalization on annexation of
Texas) is found in Contzen v. U. S., 1900, 179 U. S. 191–196. See, also, Behrensmeyer
v. Kreitz, 1891, 135 III. 591.
Chancellor Kent said, in considering the subject of naturalization: "Perhaps there
might be difficulties also as to the copper-colored natives of America, or the yellow or
tawney races of Asiatics, and it may well be doubted whether any of them are white
persons, within the purview of the law.” (2 Com. 73.) The act of Congress of May 6,
1882, removed the doubt as to "the yellow or tawny races of Asiatics" by providing
" that hereafter no State court or court of the United States shall admit Chinese to
citizenship; and all laws in conflict with this act are hereby repealed.” (22 Stat. 61;
In re Saito, 1894, 62 Fed. 126.) The African is covered by section 2169 of the Revised
Statutes: "The provisions of this title shall apply to aliens (being free white persons,
,
[In re Camille, 1880, 6 Fed. 256] and to aliens) of African nativity, and to persons of
African descent." The “copper-colored natives of America" are statuteless; but In
re Rodriguez, 1897, 81 Fed. 337 it was decided that a Mexican was eligible to citizen-
ship, even although he could neither read nor write. Congress has not seen fit,"
said the learned judge, "to require of applicants for naturalization an educational
qualification, and courts should be careful to avoid judicial legislation.”
On the naturalization of women by marriage, see Pequignot v. City of Detroit, 1883,
16 Feil. 211. - EU.
CHAP. IV.]
397
IN RE MOSES.
for the respondent to establish in a proceeding of this character are
First, that the person seeking admission is an alien; and, second, that
the immigration officers made their decision in the way in which the
statute requires. It is no longer necessary for the respondent to offer
proof in this court that such person is an immigrant, as was the case
before the passage of the act of 1894, supra, and while the earlier acts
only were in force. The decisions of this court cited on the brief
(In re Martorelli, 63 Fed. 437; In re Maiola, 67 Fed. 114) were ren-
dered under the earlier acts, and are no longer applicable.
The petitioner relies upon an exception contained in the statute
which excludes persons suffering from a loathsome or contagious
disease, or persons likely to become a public charge, in these words:
“ But this section shall not be held to exclude persons living in the
United States from sending for a relative or friend, who is not of the
excluded classes," &c.
But under the act of 1894, the decision of the immigration officers
that a person seeking admission is of the excluded class is not review-
able in the courts.
It is further contended that petitioner is not an alien, and that, there-
fore, his wife and children are not aliens. Undoubtedly the citizen-
ship of his wife and children is the same as his own;
but
record it does not appear that the petitioner is, as he contends, a citizen
of the United States. He began as an alien,-a subject of the King
of Roumania. He did not change his condition nor his allegiance by
merely coming to this country nor by residing here. Nor has his
declaration of intention altered the situation. He does not by that
document renounce his allegiance, but merely declares that it is his
intention so to do at some later day ; and so long as his foreign alle-
giance continues he remains an alien. Lanz v. Randall, 4 Dill. 425,
Fed. Cas. No. 8080 ; Maloy v. Duden, 25 Fed. 673; City of Minne-
apolis v. Reum, 6 C. C. A. 31, 56 Fed. 576.
The writ is dismissed.i
upon the
i Carlisle v. United States, 1872, 16 Wall. 147, 154–156, Mr. Justice Field said:
The claimants were residents in the United States prior to the commencement of the
rebellion. They so allege in their petition ; they were, therefore, bound to obey all
the laws of the country, not immediately relating to citizenship, during their sojourn
in it; and they were equally amenable with citizens for any infraction of those laws.
'The rights of sovereignty (Wildman, Institutes on International Law, p. 40.) ex-
tend to all persons and things not privileged that are within the territory. They
extend to all strangers therein, not only to those who are naturalized and to those who
are domiciled therein, having taken up their abode with the intention of permanent
residence, but also to those whose residence is transitory. All strangers are under the
protection of the sovereign while they are within his territories, and owe a temporary
allegiance in return for that protection.'
By allegiance is meant the obligation of fidelity and obedience which the individual
398
LPART I.
NATIONALITY.
SECTION 22. — STATUS OF AMERICAN INDIANS.
ELK v. WILKINS.
SUPREME COURT OF THE UNITED STATES, 1884.
1
(112 United States Reports, 94.)
This was an action brought by an Indian in the Circuit Court of
the United States for the District of Nebraska, against the registrar
of one of the wards of the city of Omaha, for refusing to register him
as a qualified voter therein.
1.
owes to the government under which he lives, or to his sovereign, in return for the
protection he receives. It may be an absolute and permanent obligation, or it may be
a qualified and temporary one. The citizen or subject owes an absolute and perma-.
nent allegiance to his government or sovereign, or at least until, by some open and
distinct act, he renounces it and becomes a citizen or subject of another government
or another sovereign. The alien, whilst domiciled in the country, owes a local and
temporary allegiance, which continues during the period of his residence.
This obligation of temporary allegiance by an alien resident in a friendly country is
everywhere recognized by publicists and statesmen. In the case of Thrasher, a citizen
of the United States resident in Cuba, who complained of injuries suffered from the gov-
ernment of that island, Mr. Webster, then Secretary of State, made, in 1851, a report
to the President in answer to a resolution of the House of Representatives, in which
he said: 'Every foreigner-born residing in a country owes to that country allegiance
and obedience to its laws so long as he remains in it, as a duty upon him by the mere
fact of his residence, and that temporary protection which he enjoys, and is as much
bound to obey its laws as native subjects or citizens. This is the universal under-
standing in all civilized states, and nowhere a more established doctrine than in this
country. And again : ‘Independently of a residence with intention to continue such
residence; independently of any domiciliation ; independently of the taking of any
oath of allegiance or of renouncing any former allegiance, it is well known that, by the
public law, an alien or a stranger-born, for so long a time as he continues within the
dominions of a foreign government, owes obedience to the laws of that government,
and may be punished for treason or other crimes as a native-born subject might be,
unless his case is varied by some treaty stipulation' (Webster's Works, Vol. VI.
p. 526). This same doctrine is stated in Hale’s Pleas of the Crown (Vol. I. ch. 10),
East's Crown Law (Vol. I. ch. 2, sec. 4), and Foster's Discourse upon High Treason
( sec. 2, p. 185), all of which are treatises of approved merit.
“Such being the established doctrine, the claimants here were amenable to the laws
of the United States prescribing punishment for treason and for giving aid and com-
fort to the rebellion. They were, as domiciled aliens in the country prior to the rebel-
lion, under the obligation of fidelity and obedience to the government of the United
States. They subsequently took their lot with the insurgents, and would be subject
like them to punishment under the laws they violated but for the proclamation of
1
CHAP. IV.]
399
ELK V. WILKINS.
Mr. Justice Gray delivered the opinion of the court, extracts from
which are as follows:
case
the President of Dec. 25, 1868. That proclamation, in its comprehensive terms, in-
cludes them and all others in like situation. It grants 'unconditionally, and without
reservation, to all and to every person who, directly or indirectly, participated in the
late insurrection or rebellion, a full pardon and amnesty for the offence of treason
against the United States, or of adhering to their enemies during the late civil war,
with restoration of all rights, privileges, and immunities under the Constitution and
the laws which have been made in pursuance thereof.'
In Lem Moon Siny v. United States, 1894, 158 U. S. 538, 547, it is said: “The power
of Congress to exclude aliens altogether from the United States, or to prescribe the
terms and conditions upon which they may come to this country, and to have its declared
policy in that regard enforced exclusively through executive officers, without judicial
intervention, is settled by our previous adjudications. Is a statute passed in execu-
tion of that power any less applicable to an alien, who has acquired a commercial
domicile within the United States, but who, laving voluntarily left the country,
although for a temporary purpose, claims the right under some law or treaty to
reënter it? We think not. The words of the statute are broad and include "every
” of an alien, at least every Chinese alien, who, at the time of its passage, is out
of this country, no matter for what reason, and seeks to come back. He is none the
less an alien because of his having a commercial domicile in this country. While he
lawfully remains here he is entitled to the benefit of the guarantees of life, liberty, and
property, secured by the Constitution to all persons, of whatever race, within the
jurisdiction of the United States. His personal rights when he is in this country and
such of his property as is here during his absence, are as fully protected by the su-
preme law of the land as if he were a native or naturalized citizen of the United States.
But when he has voluntarily gone from the country, and is beyond its jurisdiction,
being an alien, he cannot reënter the United States in violation of the will of the Gov-
ernment as expressed in enactments of the law-making power. He cannot, by reason
merely of his domicile in the United States for purposes of business, demand that his
claim to reënter this country by virtue of some statute or treaty, shall be determined
ultimately, if not in the first instance, by the courts of the United States, rather than
exclusively and finally, in every instance, by executive officers charged by an act of
Congress with the duty of executing the will of the political department of the govern-
ment in respect of a matter wholly political in its character. He left the country sub-
ject to the exercise by Congress of every power it possessed under the Constitution.
The question of citizenship has frequently arisen in cases of foreign residents who
claim immunity attached to American citizenship. The following are a few selected
examples :
Hausding's Case: (1885), in which it was held that children born in the United States
of alien parents, and never dwelling in the United States, are not citizens thereof
(2.Wharton's Digest, 399.); Embden's Case (1885) held that children born abroad
of citizens of the United States, and continuing to reside abroad, are not citizens
thereof unless they elect to become such on coming of age (2 Wharton's Digest, 410);
and in A Prussian Subject's Case (1875), it was held by the Attorney-General that under
the treaty of 1868 between the United States and the North German Confederation,
a Prussian by birth, naturalized in the United States, is presumed to have renounced
his American citizenship if he returns to Prussia, and resides there two years
(2 Wharton's Digest, 412).
In the United States there are two classes, native and naturalized citizens. These
possess equal rights under the law, Osborn v. U. S. Bank, 1824, 9 Wheat. 738, 827, but
400.
[PART 1.
NATIONALITY.
«*** The question then is, whether an Indian, born a member of
one of the Indian tribes within the United States, is, merely by reason
by the Constitution only the native-born are eligible to the presidency and vice-presi-
den(:y. “It seems to liave grown into a rule,” says Atty.-Gen. Bradford, in 1794,“ that a
nation ought not to interfere in the causes of its citizens brought before foreign tribunals,
excepting in the case of a refusal of justice — palpable and evident injustice — or a
violation of rules, and forms,” and in Murray v. Charming Belsy, 1804, 2 Cr. 64, 120,
Chief Justice Marshall says: “The American citizen who goes into a foreign country,
although he owes local and temporary allegiance to thąt country, is yet, if he performs
no other act changing his condition, entitled to the protection of his own government;
and if, without the violation of any municipal law, he should be oppressed unjustly, he
would have a right to claim that protection, and the interposition of the American
Government in his favor would be considered as a justifiable interposition. But his
situation is completely changed where, by his own act, he has made himself the sub-
ject of a foreign power.”
After speaking of the protection the citizen enjoys in United States, Mr. Justice Miller
says: " Another privilege of a citizen of the United States is to demand the care and
protection of the Federal Government over his life, liberty and property when on the higli
seas or within the jurisdiction of a foreign government. Of this there can be no doubt,
nor that the right depends upon his character as a citizen of the United States (Slaugh-
ter House Cases, 1872, 16 Wall. 36, 79-80). See, also, the case of ?'he Leghorn Seiz-
ures, 1892, 27 Ct. of Cl. 224, 235-236, 241. And in De Bode v. Reg., 1851, 3 H. L. C.
449, 465, Lord Chancellor Truro held: “It is admitted law that if the subject of a
country is spoliated by a foreign government he is entitled to obtain redress from the
foreign government through the means of his own government. But if, from weak-
ness, timidity, or any other cause on the part of his own government, no redress is
obtained from the foreigner, then he has a claim against his own country.”
The alien, as well as his property, enjoys an equal protection before the law; for
the temporary allegiance which he owes demands in return protection from the gov-
ernment. To what extent this protection is enjoyed the above cases show. If the
alien temporarily or permanently residing in foreign parts is not reciprocally well
treated, the government whose citizens are injured may expel or place under corre-
sponding disability citizens of the offending nation within its limits, or it may demand
through diplomatic channels their protection. In case of the native-born, this is a per-
fect right; in case of naturalized citizens the right is perfect as against third parties,
but imperfect as against the mother country, while in cases of mere “ declaration of
intention” and incomplete naturalization the claim is of the slightest. The following
cases will perhaps serve to make this clear:
Wagner's Case, 1882 (2 Wharton's Digest, 392), to the effect that a foreign minor
who emigrates to and becomes naturalized in the United States, may on returning to
his original state be forced to perform military service due at time of his original de.
parture, but that it would be highly unreasonable to exact the performance of a
service or duty non-existent or inchoate at the time of bis enigration.
Koszta's Case, 1853 (Cockburn's Nationality, 118), was one of imperfect naturaliza-
tion, in that the claimant had merely declared his intention to become a citizen, but
had not as yet fully complied with final requirements of the law. It appears that he
was a Hungarian refugee of 1848–9; that he was domiciled in the United States ; that
he had previously declared ìis intention to become an American citizen; that he was
temporarily absent from the United States ; that he was furnished with a consular
travelling pass, stating that he was entitled to American protection.
The subsequent proceedings are thus described by Mr. Justice Miller, in Re Neagle,
CHAP. IV.]
401
ELK V. WILKINS.
of his birth within the United States, and of his afterwards voluntarily
separating himself from his tribe and taking up his residence among
white citizens, a citizen of the United States, within the meaning of
the first section of the Fourteenth Amendment to the Constitution.
“Under the Constitution of the United States, as originally estab-
lished, 'Indians not taxed,' were excluded from the persons according
to whose numbers representatives and direct taxes were apportioned
1889, 135 U. S. 1, 64: “One of the most remarkable episodes in the history of our
foreign relations, and which has become an attractive historical incident, is the case of
Martin Koszta, a native of Hungary, who, though not fully a naturalized citizen of the
United States, had in due form of law made his declaration of intention to become a
citizen. While in Smyrna he was seized by command of the Austrian consul-general at
that place and carried on board the Hussar, an Austrian vessel, where he was held in
close confinement. Captain Ingraham, in command of the American sloop of war St.
Louis, arriving in port at this critical period, and ascertaining that Koszta liad with
him his naturalization papers, demanded his surrender to him, and was compelled
to train his guns upon the Austrian vessel before his demand, were complied with. It
was, however, to prevent bloodshed, agreed that Koszta should be placed in the hands
of the French consul, subject to the result of diplomatic negotiations between Austria
and the United States. The celebrated correspondence between Mr. Marcy, Secretary
of State, and Chevalier Hülsemann, the Austrian minister [chargé d'affaires) at
Washington, which arose out of this affair and resulted in the release and restoration
to liberty of Koszta attracted a great deal of public attention, and the position assume
by Mr. Marcy met the approval of the country and of Congress, who voted a gold
medal to Captain Ingraham for his conduct in the affair.” See, further, Magoon's
Military Occupation, 118-120, and for the diplomatic correspondence between the two
governments, 2 Wharton's Digest, $$ 175, 198.
Kuszta's Case excited at the time and since much unfavorable and some favorable
criticism and comment, for which see Hall's Int. Law, 251-254 and Calvo, Vol. II.
pp. 45-47, 66, 142–145. Professor Pomeroy's position is as follows: "The discussion
between the two cabinets was long and somewhat acrimonious. But I believe that
Mr. Marcy conducted the correspondence with so much ability that he convinced his
opponents ... Now, although Koszta's crime was a political one, I see no reason
why the same doctrine would not apply to the case of any other offender. Doubtless,
indeed, our government would not have exhibited as niucl alacrity, in case the man
had been a common murderer or thief, but they certainly might have done so with
the same result. International Law, 253-258.
Tousig's Case, 1854 (Lawrence's Wheaton, 1863, 929), was simple: he was an
Austrian by birth who had acquired a domicile in the United States, and although
unnaturalized, had been improperly furnished with an American passport. On his
return to Austria he was arrested and charged with offences committed before emi-
grating from Austria. The difference between the two cases is sufficiently plain.
Tousig voluntarily subjected himself to Austrian jurisdiction; Koszta wisely kept
away from the fatherland, and was apprehended by Austrian authorities in neutral
territory. In Tousig's case the American Government neither should nor did offer pro-
tection; in Koszta's case it protected Koszta's “inchoate rights a phrase much
employed by Fuller, C. J., in Boyd v. Thuyer, 1891, 143 U. S. 135—- against violation
in a neutral port. If Koszta had returned to Austria, the cases would have been on
all fours. -ED.
26
402
[PART I.
NATIONALITY.
* * *
among the several states; and Congress had and exercised the power
to regulate commerce with the Indian tribes, and the members there-
of, whether within or without the boundaries of one of the States of
the Union. The Indian tribes, being within the territorial limits of
the United States, were not, strictly speaking, foreign states; but
they were alien nations, distinct political communities, with whom
the United States might and habitually did deal, as they thought fit,
either through treaties made by the President and Senate, or through
acts of Congress in the ordinary forms of legislation. The members
of those tribes owed immediate allegiance to their several tribes, and
were not part of the people of the United States. They were in a
dependent condition, a state of pupilage resembling that of a ward
to his guardian. Indians and their property exempt from taxation
by treaty or statute of the United States, could not be taxed by any
State. General acts of Congress did not apply to Indians, unless so
expressed as to clearly manifest an intention to include them. Con-
stitution, art. 1, secs. 2,8; art. 2, sec. 2; Cherokee Nation v. Georgia,
5 Pet. 1; Worcester v. Georgia, 6 Pet., 515; ... Crow Dog's Case, 109
U. S. 556. *
“ The alien and dependent condition of the members of the Indian
tribes could not be put off at their own will, without the action or
assent of the United States. They were never deemed citizens of
the United States, except under explicit provisions of treaty or stat-
ute to that effect, either declaring a certain tribe, or such members
of it as chose to remain behind on the reinoval of the tribe westward,
to be citizens, or authorizing individuals of particular tribes to be-
come citizens on application to a court of the United States for
naturalization and satisfactory proof of fitness for civilized life. ***
“..Chief Justice TANEY, in the passage cited for the plaintiff from
his opinion in Scott v. Sandford, 19 How., 393, 404, did not affirm or
imply that either the Indian tribes, or individual members of those
tribes, had the right, beyond other foreigners, to become citizens of
their own will, without being naturalized by the United States. His
words were: “They' (the Indian tribes) may without doubt, like the
subjects of any foreign government, be naturalized by the authority
of Congress, and become citizens of a State, and of the United States;
and if an individual should leave his nation or tribe, and take up his
abode among the white population, he would be entitled to all the
rights and privileges which would belong to an emigrant from any
other foreign people.' But an emigrant from any foreign state can-
not become a citizen of the United States withoạt a formal renun-
ciation of his old allegiance, and an acceptance by the United States
of that renunciation through such form of naturalization as may be
required by law.
CHAP. IV.]
403
ELK v. WILKINS.
- The distinction between citizenship by birth and citizenship by
naturalization is clearly marked in the provisions of the Constitution,
by which ‘no person, except a natural born citizen or a citizen of the
Uạited States at the time of the adoption of this Constitution, shall
be eligible to the office of President;' and 'the Congress shall have
power to establish an uniform rule of naturalization. Constitu-
tion, art. 2, sec. 1 ; art. 1, sec. 8.
· By the Thirteenth Amendment of the Constitution slavery was
prohibited. The main object of the opening sentence of the Four-
teenth Amendment was to settle the question, upon which there had
been a difference of opinion throughout the country and in this court,
as to the citizenship of free negroes, Scott v. Sandford, 19 How., 393;
and to put it beyond doubt that all persons, white or black, and
whether formerly slaves or not, born or naturalized in the United
States, and owing no allegiance to any alien power, should be citizens
of the United States and of the State in which they reside. Slaugh-
ter House Cases, 16 Wall., 36, 73; Strauder v. West Virginia, 600
U.S., 303, 306.
“This section contemplates two sources of citizenship, and two
sources only; birth and naturalization. The persons declared to be
citizens are all persons born or naturalized in the United States,
and subject to the jurisdiction thereof,' the evident meaning of these
last words is not merely subject in some respect or degree to the
jurisdiction of the United States, but completely subject to their
political jurisdiction and owing them direct and immediate allegiance.
And the words relate to the time of birth in the one case, as they
do to the time of naturalization in the other. Persons not thus sub-
ject to the jurisdiction of the United States at the time of birth
cannot become so afterwards, except by being naturalized, either indi-
vidually, as by proceedings under the naturalization acts, or collec-
tively, as by force of a treaty by which foreign territory is acquired.
“ Indians born within the territorial limits of the United States,
members of, and owing allegiance to, one of the Indian tribes (an
alien, though dependent, power), although in a geographical sense
born in the United States, are no more born in the United
Ştates and subject to the jurisdiction thereof, within the meaning
of the first section of the Fourteenth Amendment, than the children
of subjects of any foreign government born within the domain of that
government, or the children born within the United States, of am-
bassadors or other pubļic ministers of foreign nations. ***
Such Indians, then, not being citizens by birth, can only become
citizens in the second way mentioned in the Fourteenth Amendment,
by being naturalized in the United States,' by or under some
treaty or statute. * * *
404
(PART I.
NATIONALITY.
“The act of July 27, 1868, ch. 249, declaring the right of expatriation
to be a natural and inherent right of all people, and reciting that
in the recognition of this principle this government has freely
received emigrants from all nations, and invested them with the rights
of citizenship,' while it affirms the right of every man to expatriate
himself from one country, contains nothing to enable him to become
a citizen of another, without being naturalized under its authority.
15 Stat., 223; Rev. Stat., $ 1999.
"The provision of the act of Congress of March 3, 1871, ch. 120,
that hereafter no Indian nation or tribe within the territory of the
United States shall be acknowledged or recognized as an independent
nation, tribe or power with whom the United States may contract
by treaty,' is coupled with a provision that the obligation of any
treaty already lawfully made is not to be thereby invalidated or im-
paired, and its utmost possible effect is to require the Indian tribes
to be dealt with for the future through the legislative and not through
the treaty-making power. 16 Stat., 566; Rev. Stat., $ 2079. * * *
- The plaintiff, not being a citizen of the United States under the
Fourteenth Amendment of the Constitution, has been deprived of no
right secured by the Fifteenth Amendment, and cannot maintain this
action.
“Judgment affirmed.”
1
UNITED STATES v. KAGAMA.
!
SUPREME COURT OF THE UNITED STATES, 1886.
(118 United States Reports, 375.)
Mr. Justice MILLER delivered the opinion of the court.
“The case is brought here by certificate of division of opinion
between the Circuit Judge and the District Judge holding the Cir-
cuit Court of the United States for District of California.
“The questions certified arise on a demurrer to an indictment
against two Indians for murder committed on the Indian reservation,
of Hoopa Valley, in the State of California, the person murdered
being also an Indian of said reservation. Though there are six ques-
tions certified as the subject of difference, the point of them all is
well set out in the third and sixth, which are as follows:
“Whether the provisions of said section 9 (of the act of Congress
of March 3, 1885), making it a crime for one Indian to commit murder
upon another Indian, upon an Indian reservation situated wholly
CHAP. IV.]
405
UNITED STATES V. KAGAMA.
within the limits of a State of the Union, and making such Indian
so committing the crime of murder within and upon such Indian
reservation subject to the saine laws' and subject to be tried in
the same courts, and in the same manner, and subject to the same
penalties as are all other persons' committing the crime of murder
within the exclusive jurisdiction of the United States,' is a consti-
tutional and valid law of the United States ?'
6.6. Whether the courts of the United States have jurisdiction
or authority to try and punish an Indian belonging to an Indian
tribe for committing the crime of murder upon another Indian be-
longing to the same Indian tribe, both sustaining the usual tribal
relations, said crime having been committed upon an Indian reserva-
tion made and set apart for the use of the Indian tribe to which said
Indians both belong ?'
“The indictment sets out in two counts that Kagama, alias Pactah
Billy, an Indian, murdered Iyouse, alias Ike, another Indian, at Hum-
boldt county, in the State of California, within the limits of the
Hoopa Valley Reservation, and it charges Mahawaha, alias Ben, also
an Indian, with aiding and abetting in the murder.
« The law referred to in the certificate is the last section of the
Indian appropriation act of that year, and is as follows:
669. That immediately upon and after the date of the passage of
this act all Indians committing against the person or property of
another Indian or other person any of the following crimes, namely,
murder, manslaughter, rape, assault with intent to kill, arson, burg-
lary and larceny, within any territory of the United States, and
either within or without the Indian reservation, shall be subject
therefor to the laws of said Territory relating to said crimes, and
shall be tried therefor in the same courts and in the same manner,
and shall be subject to the same penalties, as are all other persons
charged with the commission of the said crimes, respectively; and
the said courts are hereby given jurisdiction in all such cases; and
all such Indians committing any of the above crimes against the
person or property of another Indian or other person, within the
boundaries of any State of the United States, and within the limits
of any Indian reservation, shall be subject to the same laws, tried in
the same courts and in the same manner, and subject to the same
penalties, as are all other persons committing any of the above crimes
within the exclusive jurisdiction of the United States., 23 Stat.
Ch., 341, 362, $ 9, 385.
"The above enactment is clearly separable into two distinct defini-
tions of the conditions under which Indians may be punished for the
same crimes as defined by the common law. The first of these is
1
406
(PÁRT I.
NATIONALITY.
where the offence is committed within the limits of a territorial gov-
ernment, whether on or off an Indian reservation. In this class of
cases the Indian charged with the crime shall be judged by the laws
of the Territory on that subject, and tried by its courts. This propo-
sition itself is new in legislation of Congress, which has heretofore
only undertaken to punish an Indian who‘sustains the usual relation
to his tribe, and who commits the offence in the Indian country, or
on an Indian reservation, in exceptional cases; as where the offence
was against the person or property of a white man, or was some vio-
lation of the trade and intercourse regulations imposed by Congress
on the Indian tribes. It is new, because it now proposes to punish
these offences when they are committed by one Indian on the person
or property of another.
“The second is where the offence is committed by one Indian
against the person or property of another, within the limits of a State
of the Union, but on an Indian reservation. In this case, of which
the State and its tribunals would have jurisdiction if the offence was
committed by a white man outside an Indian reservation, the courts
of the United States are to exercise jurisdiction as if the offence had
been committed at some place within the exclusive jurisdiction of the
United States. The first clause subjects all Indians guilty of these
crimes, committed within the limits of a Territory, to the laws of
that Territory, and to its courts for trial. The second, which applies
solely to offences by Indians which are committed within the limits
of a State and the limits of a reservation, subjects the offenders to
the laws of the United States passed for the government of places
under the exclusive jurisdiction of those laws, and to trial by the
courts of the United States. This is a still further advance; as assert-
ing this jurisdiction over the Indians within the limits of the States
of the Union.
Although the offence charged in this indictment was committed
within a State and not within a Territory, the considerations which
are necessary to a solution of the problem in regard to the one must
in a large degree affect the other.
“ The Constitution of the United States is almost silent in regard
to the relations of the government which was established by it to the
numerous tribes of Indians within its borders.
“In declaring the basis on which representation in the lower branch
of the Congress and direct taxation should be apportioned, it was fixed
that it should be according to numbers, excluding Indians not taxed,
which, of course, excluded nearly all of that race, but which meant
that if there were such within a State as were taxed to support the
government, they should be counted for representation, and in the
CHAP. IV.]
UNITED STATES V. KAGAMA.
407
computation for direct taxes levied by the United States. This
expression, excluding Indians not taxed, is found in the XIV th amend-
ment, where it deals with the same subject under the new conditions
produced by the emancipation of the slaves. Neither of these shed
much light on the power of Congress over the Indians in their exist-
ence as tribes, distinct from the ordinary citizens of a State or Ter-
ritory.
" The mention of Indians in the constitution which has received
most attention is that found in the clause which gives Congress
power to regulate commerce with foreign nations and among the
several States, and with the Indian tribes.'
“ This clause is relied on in the argument in the present case, the
proposition being that the statute under consideration is a regulation
of commerce with the Indian tribes. But we think it would be a
very strained construction of this clause, that a system of criminal
laws for Indians living peaceably in their reservations, which left
out the entire code of trade and intercourse laws justly enacted
under that provision, and established punishments for the common-
law crimes of murder, manslaughter, arson, burglary, larceny, and
the like, without any reference to their relation to any kind of com-
merce, was authorized by the grant of power to regulate commerce
with the Indian tribes. While we are not able to see, in either of
these clauses of the Constitution and its amendments, any delegation
of power to enact a code of criminal law for the punishment of the
worst class of crimes known to civilized life when committed by
Indians, there is a suggestion in the manner in which the Indian
tribes are introduced into that clause, which may have a bearing on
the subject before us. The commerce with foreign nations is dis-
tinctly stated as submitted to the control of Congress. Were the
Indian tribes foreign nations? If so, they came within the first of
the three classes of commerce mentioned, and did not need to be
repeated as Indian tribes. Were they nations, in the minds of the
framers of the Constitution ? If so, the natural phrase would have
been · foreign nations and Indian nations,' or, in the terseness of
language uniformly used by the framers of the instrument, it would
naturally have been “foreign and Indian nations. And so in the
case of The Cherokee Nation v. The State of Georgia, 5 Pet., 1, 20,
brought in the Supreme Court of the United States, under the
declaration that the judicial power extends to suits between a State
and foreign states, and giving to the Supreme Court original juris-
diction where a State is a party, it was conceded that Georgia as a
State came within the clause, but held that the Cherokees were not
a State or nation within the meaning of the Constitution, so as to be
able to maintain the suit.
A
408
[PART I.
NATIONALITY.
“But these Indians are within the geographical limits of the United
States. The soil and the people within these limits are under the
political control of the Government of the United States, or of the
States of the Union. There exist within the broad doinain of
sovereignty but these two. There may be cities, counties, and other
organized bodies with limited legislative functions, but they are all
derived from, or exist in, subordination to one or the other of these.
The territorial governments owe all their powers to the statutes of
the United States conferring on them the powers which they exercise,
and which are liable to be withdrawn, modified, or repealed at any
time by Congress. What authority the State governments may have
to enact criminal laws for the Indians will be presently considered.
But this power of Congress to organize territorial governments, and
make laws for their inhabitants, arises not so much from the clause
in the Constitution in regard to disposing of and making rules and
regulations concerning the Territory and other property of the
United States, as from the ownership of the country in which the
Territories are, and the right of exclusive sovereignty which must
exist in the National Government, and can be found nowhere else.
Murphy v. Ransey, 114 U. S., 15, 14.
5. In the case of American Ins. Co. v. Canter, 1 Pet., 511, 542, in
which the condition of the people of Florida, then under a territorial
government, was under consideration, MARSHALL, Chief Justice, said :
· Perhaps the power of governing a Territory belonging to the United
States, which has not, by becoming a State, acquired the means of
self-government, may result necessarily from the fact that it is not
within the jurisdiction of any particular State, and is within the
power and jurisdiction of the United States. The right to govern
may be the inevitable consequence of the right to acquire Territory.
Whichever may be the source whence the power is derived, the
possession of it is unquestioned.'
“In the case of the United States v. Rogers, 4 How., 567,572, where
a white man pleaded in abatement to an indictment for murder
committed in the country of the Cherokee Indians, that he had been
adopted by and become a member of the Cherokee tribe, Chief Justice
TANEY said: The country in which the crime is charged to have
been committed is a part of the territory of the United States, and
not within the limits of any particular State. It is true it is occupied
by the Cherokee Indians. But it has been assigned to them by the
United States as a place of domicil for the tribe and they hold with
the assent of the United States, and under their authority.' After
referring to the policy of the European nations and the United States
in asserting dominion over all the country discovered by them, and
CHAP. IV.]
409
UNITED STATES V. KAGAMA.
the justice of this course, he adds : “But had it been otherwise, and
were the right and the propriety of exercising this power now open
to question, yet it is a question for the law-making and political de-
partments of the government, and not for the judicial. It is our
duty to expound and execute the law as we find it, and we think it
too firmly and clearly established to admit of dispute, that the Indian
tribes, residing within the territorial limits of the United States, are
subject to their authority, and when the country occupied by one of
them is not within the limits of one of the States, Congress may by
law punish any offence committed there, no matter whether the
offender be a white man or an Indian.'
- The Indian reservation in the case before us is land bought by
the United States from Mexico by the treaty of Guadaloupe Hidalgo,
and the whole of California, with the allegiance of its inhabitants,
many of whom were Indians, was transferred by that treaty to the
United States.
“The relation of the Indian tribes living within the borders of
the United States, both before and since the Revolution, to the
people of the United States has always been an anomalous one and
of a complex character.
“ Following the policy of the European governments in the dis-
covery of America towards the Indians who were found here, the
colonies before the Revolution and the States and the United States
since, have recognized in the Indians a possessory right to the soil
over which they roamed and bunted and established occasional vil-
lages. But they asserted an ultimate title in the land itself, by
which the Indian tribes were forbidden to sell or transfer it to other
nations or people without the consent of this paramount authority.
When a tribe wished to dispose of its land, or any part of it, or the
State or the United States wished to purchase it, a treaty with the tribe
was the only mode in whioh this could be done. The United States
recognized no right in private persons, or in other nations, to make
such a purchase by treaty or otherwise. With the Indians them-
selves these relations are equally difficult to define. They were,
and always have been, regarded as having a semi-independent posi-
tion when they preserved their tribal relations; not as States, not
as nations, not as possessed of the full attributes of sovereignty, but
as a separate people with the power of regulating their internal and
social relations, and thus far not brought under the laws of the
Union or of the State within whose limits they resided.
"Perhaps the best statement of their position is found in the two
opinions of this court by Chief Justice Marshall in the case of the
Cherokee Nation v. Georgia, 5 Pet., 1, and in the case of Worcester v.
410
[PART 1.
NATIONALITY.
State of Georgia, 6 Pet., 515, 536. These opinions are exhaustive;
and in the separate opinion of Mr. Justice Baldwin, in the former, is
a very valuable resumé of the treaties and statutes concerning the
Indian tribes previous to and during the confederation.
« In the first of the above cases it was held that these tribes were
neither States nor nations, had only some of the attributes of sov-
ereignty, and could not be so far recognized in that capacity as to
sustain a suit in the Supreme Court of the United States. In the
second case it was said that they were not subject to the jurisdiction
asserted over them by the State of Georgia, which, because they
were within its limits where they had been for ages, had attempted
to extend her laws and the jurisdiction of her courts over them.
“In the opinions in these cases they are spoken of as 'wards of
the nation,'' pupils,' as local dependent communities. In this spirit
the United States has conducted its relations to them from its
organization to this time. But, after an experience of a hundred
years of the treaty-making system of government, Congress has
determined upon a new departure-to govern them by acts of Con-
gress. This is seen in the act of March 3, 1871, embodied in § 2079
of the Revised Statutes :
“No Indian nation or tribe, within the territory of the United
States shall be acknowledged or recognized as an independent na-
tion, tribe, or power, with whom the United States may contract
by treaty; but no obligation of any treaty lawfully made and
ratified with any such Indian nation or tribe prior to March
third, eighteen hundred and seventy-one, shall be hereby invalidated
or impaired.
“The case of Crow Dog, 109 U. S., 556, in which an agreement
with the Sioux Indians, ratified by an act of Congress, was supposed
to extend over them the laws of the United States and the jurisdic-
tion of its courts, covering murder and other grave crimes, shows
the purpose of Congress in this new departure. The decision in that
case admits that if the intention of Congress had been to punish, by
the United States courts, the murder of one Indian by another, the
law would have been: valid. But the court could not see, in the
agreement with the Indians sanctioned by Congress, a purpose to
repeal $ 2146 of the Revised Statutes, which expressly excludes from
that jurisdiction the case of a crime committed by one Indian
against another in the Indian country. The passage of the act now
under consideration was designed to remove that objection, and to
go further by including such crines on reservations lying within
a State:
“Is this latter fact a fatal objection to the law? The statute itself
5
CHAP. IV.]
411
UNITED STATES V. KAGAMA.
CC
contains no express limitation upon the powers of a State or the
jurisdiction of its courts. If there be any limitation in either of
these, it grows out of the implication arising from the fact that
Congress has defined a crime committed within the State, and
made it punishable in the courts of the United States. But Con-
gress has done this, and can do it, with regard to all offences relat-
ing to matters to which the Federal authority extends. Does that
authority extend to this case?
" It will be seen at once that the nature of the offence (murder) is
one which in almost all cases of its commission is punishable by the
laws of the States, and within the jurisdiction of their courts. The
distinction is claimed to be that the offence under the statute is
committed by an Indian, that it is cominitted on a reservation set
apart within the State for residence of the tribe of Indians by the
United States, and the fair inference is that the offending Indian
shall belong to that or some other tribe. It does not interfere with
the process of the State Courts within the reservation, nor with the
operation of State laws upon white people found there. Its effect
is confined to the acts of an Indian of some tribe, of a criminal char-
acter, committed within the limits of the reservation.
It seems to us that this is within the competency of Congress.
These Indian tribes are the wards of the nation. They are com-
munities dependent on the United States. Dependent largely for
their daily food. Dependent for their political rights. They owe
no allegiance to the States, and receive from them no protection.
Because of the local ill-feeling, the people of the States where they
are found are often their deadliest enemies. From their very weak-
ness and helplessness, so largely due to the course of dealing of the
Federal Government with them and the treaties in which it has been
promised, there arises the duty of protection, and with it the power.
This has always been recognized by the Executive and by Congress,
and by this Court whenever the question has arisen.
co In the case of Worcester v. The State of Georgid, above cited,
it was held that, though the Indians had by treaty sold their land
within that State, and agreed to remove away, which they had
failed to do, the State could not, while they remained on those
lands, extend its laws, criminal and civil, over the tribes; that the
duty and power to compel their removal was in the United States,
and the tribe was under their protection, and could not be subjected
to the laws of the State and the process of its courts.
“ The same thing was decided in the case of Fellows v. Blacksmith
and Others, 19 How., 366. In this case, also, the Indians had sold
their lands under supervision of the States of Massachusetts and
112
V
NATIONALITY.
[PART I.
of New York, and had agreed to remove within a given time. When
the time came a suit to recover some of the land was brought in
the Supreme Court of New York, which gave judgment for the
plaintiff. But this court held, on writ of error, that the State could
not enforce this removal, but the duty and the power to do so was in
the United States. See also the case of the Kansas Indians, 5
Wall., 737; New York Indians, 5 Wall., 761.
"The power of the general government over these remnants of a
race once powerful, now weak and diminished in numbers, is nec-
essary to their protection, as well as to the safety of those among
whom they dwell. It must exist in that government, because it
never has existed anywhere else, because the theater of its exercise
is within the geographical limits of the United States, because it has
never been denied, and because it alone can enforce its laws on all
the tribes.
We answer the questions propounded to us, that the 9th section
of the act of March, 1885, is a valid law in both its branches, and
that the Circuit Court of the United States for the District of Cali-
fornia has jurisdiction of the offence charged in the indictment in
this case. 1
SECTION .23. TREATIES THE LAW OF THE LAND.
FOSTER & ELAM V. NEILSON, 1829.
(2 Peters, 253 at 314.)
Extract from judgment of MARSHALL, C. J.-
A treaty is in its nature a contract between two pations, not a
legislative act. It does not generally effect, of itself, the object to
be accomplished; especially so far as its operation is infraterritorial;
but is carried into execution by the sovereign power of the respective
parties to the instrument.
In the United States a different principle is established.
Constitution declares a treaty to be the law of the land.
It is, con-
sequently, to be regarded in courts of justice as equivalent to an act
of the legislature, whenever it operates of itself without the aid of
1 For the treaty relations of the United States with the various Indian nations and
tribes, see 2 Butler's Treaty-Making Power, 1902, $$ 401, 423; for the legal and
political conditions of the tribal Indians, see the late Professor Thayer's two articles :
"A People without Law," 68 Atlantic Monthly (1891), 540, 676; 2 Harvard Law Review
(1888), 167; "The Legal Status of the Indian,” 15 Am. Law Review (1881), 21. - Ed.
CHAP. IV.]
413
FOSTER AND ELAM V. NEILSON.
any legislative provision. But when the terms of the stipulation
import a contract when either of the parties engages to perform a
particular act; the treaty addresses itself to the political, not the
judicial department; and the legislature must execute the contract
before it can become a rule for the court. 1
Mr. Justice FIELD, in Geofroy v. Riggs, 1889, 133 U. S. 258, 266 :
That the treaty power of the United States extends to all proper
subjects of negotiation between our government and the governments
of other nations, is clear. It is also clear that the protection which
should be afforded to the citizens of one country owning property in
another, and the manner in which that property may be transferred,
devised or inherited, are fitting subjects for such negotiation and of
regulation by mutual stipulations between the two countries. As
commercial intercourse increases between different countries the resi-
dence of citizens of one country within the territory of the other
naturally follows, and the removal of their disability from alienage
to hold, transfer and inherit property in such cases tends to promote
amicable relations. Such removal has been within the present cen-
tury the frequent subject of treaty arrangement. The treaty power,
as expressed in the Constitution, is in terms unlimited, except by
those restraints which are found in that instrument against the action
of the government or of its departments, and those arising from the
nature of the government itself and of that of the States. It would
not be contended that it extends so far as to authorize what the Con-
stitution forbids, or a change in the character of the government or in
that of one of the States, or a cession of any portion of the territory
of the latter, without its consent. Fort Leavenworth Railroad Co. v.
,
i See the elaboration of this definition by Mr. Justice Miller, in the Head Money
Cases, 1884, 112 U. S. 580, 597-599.
The Kestor, 1901, 110 Fed. 432, 448, Bradford, District Judge, says: "Treaty
stipulations between the United States and foreign nations are not restrictive of the
constitutional power of Congress. They have the force of law, but, like statutes, are
superseded in American courts by subsequent acts of Congress conflicting with them.
Head Money Cases, 112 U. S. 580; Whitney v. Robertson, 124 U. S. 190; The Chinese
Exclusion Case, 130 U. S. 581; Horner v. U. S., 143 U. S. 570; Fong Yue Ting v. U.S.,
149 U. S. 698. It goes without saying that mere international comity not incorporated
in any convention between the United States and a foreign power must yield to a statute
with which it is in conflict. There is, as before stated, no treaty between the United
States and Great Britain inconsistent with the application of the section to British
vessels. The proviso has reference to treaties, and not to international comity not
embodied in a treaty.
Full effect must therefore be given to the proviso that 'this
section shall apply as well to foreign vessels as to vessels of the United States,' as a
constitutional enactment applying to the prepayment on our soil or in our waters of
the 'wages of seamen who are British subjects shipping in American ports on British
vessels." - ED.
A
414
(PART I.
NATIONALITY.
Lowe, 114 U. S. 525, 541. But with these exceptions, it is not per-
ceived that there is any limit to the questions which can be adjusted
touching any matter which is properly the subject of negotiation with
a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac,
2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions
Attys. Gen. 417; The People v. Gerke, 5 California, 381.1
CHARLES WUNDERLE et al. v. CATHARINE
WUNDERLE.
SUPREME COURT OF ILLINOIS, 1893.
(144 Illinois, 40.)
Mr. Justice MAGRUDER delivered the opinion of the court.2
Alexander Wunderle, the owner of the land in controversy, died
intestate and without issue, and left him surviving a widow, who is
the appellee herein, and one brother and one sister, who are the appel-
lants herein. His death took place in January, 1891, while the act
of 1887 hereinafter mentioned was in force. Have appellants become
the owners of one undivided half of the land, subject to the widow's
dower and homestead rights therein, under the laws of this State in
regard to the descent of property ? The decision of this question
depends upon the decision of the further question, whether the fact,
that the appellants were non-resident aliens at the time of the intes-
tate's decease, rendered them incapable of taking real estate in
Illinois by inheritance.
By chapter 4 of the Revised Statutes of 1845, it was provided,
that “all aliens, residing in this State, may take by deed, will or
otherwise, lands and tenements, and any interest therein, and alien-
ate, sell, assign, and transmit the same to their heirs, or any other
persons, whether such heirs or other persons be citizens of the United
States or not, in the same manner as natural-born citizens of the
United States or of this State might do; and, upon the decease of
any alien having title, or interest in, any lands or tenements, such
lands and tenements shall pass and descend in the same manner as
if such alien were a citizen of the United States, and it shall be.no
.1 For the view that the Federal Government.is. not limited by the Constitution of the
United States:in:its exercise of the treaty-making power, see, Butler's Treaty-Making
Power. - Ep.
-2 -Statement of case.omitted, and only 80. much of the opinion is given as relates to
the operation of the treaty.- ED.
CHAP. IV.]
WUNDERLE V. 'WUNDERLE.
415
objection to any persons having an interest in such estate that they
are not.citizens of the United States; but all such persons shall have
the same rights and remedies, and in all things be placed on the same
footing, as natural-born citizens and actual residents of the United
States." It will be noticed that the act of 1845 conferred the right
to take lands by deed, will, or otherwise, and to alienate, sell, assign
and transmit the same, upon “all aliens residing in this State.”
By an act, approved Feb. 17, 1851, the foregoing provision of said
chapter 4 of the Revised Laws was amended by leaving out the words,
"residing in this State,” after the words, "all aliens," so as to confer
the right to take lands by deed, will or otherwise, and to alienate,
sell, assign and transmit the same, upon all aliens whether residing
in Illinois or not. 1 Starr & Cur. Ann. Stat. chap. 6, p. 264. The
act of 1851 remained in force until 1887. On June 16, 1887, the Legis-
lature passed an act, which went into force on July 1, 1887, entitled
"An Act in regard to aliens, and to restrict their right to acquire and
hold real and personal estate, and to provide for the disposition of
the lands now owned by non-resident aliens.” Laws of Ill. of 1887,
p. 5; 3 Starr & Cur. Ann. Stat. chap. 6, p. 60.
By the tenth section of the act of 1887, the act of 1851, "and all
other acts and parts of acts in conflict with” the act of 1887, are re-
pealed. The first section of the act of 1887, with the exception of the
proviso at the end thereof in reference to "minor aliens actually
residing in the United States," is as follows: "Be it enacted,
that a non-resident alien, firm of aliens, or corporation incorporated
under the laws of any foreign country, shall not be capable of acquir-
ing title to or taking or holding any lands or real estate in this State
by descent, devise, purchase or otherwise, except that the heirs of
aliens who have heretofore acquired lands in this State under the
laws thereof, and the heirs of aliens who may acquire lands under the
provisions of this act, may take such lands by devise or descent and
hold the same for the space of three years and no longer, if such alien
at the time of so acquiring such lands is of the age of twenty-one
years, and if not twenty-one years of age, then for the term of five
years from the time of so acquiring such lands, and if, at the end of
the time herein limited, such lands so acquired by such alien heirs
have not been sold to bonâ fide purchasers for value, or such alien
heirs have not become actual residents of this State, the same shall
revert and escheat to the State of Illinois the same as the lands of
other aliens under the provisions of this act.” By the use of the
words, "heirs of aliens who may acquire lands under the provisions
of this act," reference is evidently made to the case specified in sec-
tion 8.of the act, where a non-resident alien, owning lands in this
416
[PART 1.
NATIONALITY.
State at the time the act took effect, disposes of the same during his
lifetime, and takes security for the purchase money, and afterwards
he, or his non-resident heirs," again obtain the title on sale made
under a judgment or decree, rendered in order to enforce the payment
of any part of such purchase money.
The appellants do not come within the terms of the exception
mentioned in section 1, because they are not the heirs of an alien,
but, on the contrary, the deceased intestate, whose heirs they claim
to be, was a citizen and resident of the United States at the time of
his death. They do, however, come directly within the terms of the
principal or enacting clause of section 1. As it is conceded that
they are and always have been residents of the Grand Duchy of
Baden and subjects of the German Empire, each of them is a non-
resident alien; and the enacting clause of section 1 expressly and
explicitly declares, that "a non-resident alien *** shall not be cap-
able of acquiring title to or taking or holding any lands or real estate
in this State by descent." Manifestly, therefore, the appellants are
not entitled to take any portion of the lands in controversy by inheri-
tance from their deceased brother, if the act of 1887, as applied to
the facts of this case, is a valid law. The subject presented by the
record is the validity of the act of 1887.
First, it is said, that the act conflicts with various treaties made
by the government of the United States, and particularly with a
treaty made in 1871 with the German empire.
It is a general rule of the common law, that the title to real prop-
erty must be acquired and passed according to the lex rei sitce. This
rule not only applies to alienations and acquisitions made by the acts
of the parties, but also to estates and rights acquired by operation of
law. The descent and heirship of real estate are governed by the law,
of the country where it is located. (Story on Confl. of Laws, secs.
424, 448, 483, 509; Stoltz v. Doering, 112 Ill. 234.) This principle,
originally applicable as between countries entirely foreign to each
other, also prevails as among the States of the American Union.
From it results the doctrine, that the title of aliens to land within the
limits of the several States is matter of State regulation. Williams
on Real Property, 4th ed., p. 64, note 1; Lawrence's Wheaton on
International Law, p. 168 n.; Story on Confl. of Laws, sec. 430;
Wheaton's Int. Law (Boyd), 3d ed., p. 132; 2 Wharton's Inter. Law
Dig., bottom pages 490 and 497; Field's Inter. Code, 2d ed., p. 176.
But while it is true that “the right of foreigners to hold title to real
estate is entirely dependent on the laws of the State in which the land
is situate,” 2 Wharton's Int. Law Dig., sec. 201, p. 490, it is also true
that the State law must give way if it conflicts with any existing treaty
CHAP. IV.]
417
WUNDERLE V. WUNDERLE.
between the government of the United States and the government of
the country of which such foreigner is a subject or citizen.
Article 6 of the Federal Constitution provides, that "all treaties
made or which shall be made under the authority of the United
States shall be the supreme law of the land, and the judges in every
State shall be bound thereby, anything in the constitution or laws of
any State to the contrary notwithstanding." In construing this arti-
cle it has been held, that provisions in regard to the transfer, devise
or inheritance of property are fitting subjects of negotiation and regu-
lation by the treaty-making power of the United States, and that a
treaty will control or suspend the statutes of the individual States
whenever it differs from them. Hence, if the citizen or subject of a
foreign government is disqualified under the laws of a State from tak-
ing, holding or transferring real property, such disqualification will
be removed, if a treaty between the United States and such foreign
government confers the right to take, hold or transfer real property.
Hauenstein v. Lynham, 100 U. S. 483; Geofroy v. Riggs, 133 U. S.
258; Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259;
Orr v. Hodgson, 4 Wheat. 453; Fairfax v. Hunter, 7 Cranch, 603;
The People v. Gerke, 5 Cal. 381. But the treaty which will suspend
or override the statute of a State must be a treaty between the United
States and the government of the particular country of which the
alien, claiming to be relieved of the disability imposed by the State
law, is a citizen or subject. A treaty with some other country, of
which such alien is not a citizen or subject, cannot have the effect of
removing the disability complained of.
The objection made to the act of 1887 is, that it does not allow
non-resident aliens, who would be the heirs of citizens under the Illi-
nois statute of descents but for their alienage, to hold real estate,
which they might otherwise inherit as heirs, for such a reasonable
length of time as would enable them to sell the same, and remove the
proceeds of sale. In support of this objection counsel refer us to sev-
eral treaties containing such provisions as the following: “Where
on the death of any person holding real estate within the territories
of the one party, such real estate would, by the laws of the land,
descend on a citizen or subject of the other, were he not disqualified
by alienage, such citizen or subject shall be allowed a reasonable
time to sell the same, and to withdraw the proceeds without moles-
tation, and exempt from all duties of detraction on the part of the
governments of the respective States.” Lawrence's Wheaton on Int.
Law, p. 167; Wheaton's Int. Law, 3d Eng. ed. by Boyd, pp. 131,
132. But the appellants are subjects of the Grand Duchy of Baden;
and counsel have referred us to no treaty with Baden, nor have we
27
418
NATIONALITY,
[PART 1.
been able to find any, which contains such a provision as that last
above quoted. The treaties between the United States and Baden,
made in 1857 and in 1868, had reference to the extradition of crimi-
nals and to naturalization, but they contained no stipulations as to
the acquisition, or transfer, or transmission of property. Treaties
and Conventions, U. S., 1776-1887, pp. 41-46.
On the contrary,
te find it stated in one of the works on international law, that, at a
time when certain treaties were made with some of the German states
by a representative of the United States, “Baden declined making
auy.” Lawrence's Wheat. on Int. Law, p. 168, note.
It is claimed, however, that the treaty concluded on Dec. 11, 1871,
between the German Empire, of which Baden now forms a part, and
the United States, contains a stipulation which should be so construed
as to remove the disability imposed upon the appellants by the act of
1887. That stipulation is embodied in Article 10 of the treaty and is
as follows: "In all successions to inheritances, citizens of each of the
contracting parties shall pay in the country of the other such duties
only as they would be liable to pay, if they were citizens of the
country in which the property is situated, or the judicial adminis-
tration of the same may be exercised. Treaties and Conventions,
U. S., 1776-1887, p. 366. This article in a treaty, made by the
German empire soon after its formation, conferred no new rights so
far as the power to take, hold, or dispose of land was concerned. It
merely recognized existing treaties theretofore made between the
United States and certain of the German states, which became parts.
of the empire when it was formed. It did nothing more than stipu-
late in regard to the payment of duties in cases where treaties
already in existence contained provisions upon the subject of succes-
sions to inheritances. Article 10 permitted such stipulations as had ,
been made in the treaties of the separate states to continue in force
under the treaty of the empire, but neither that article, nor any
other article of the treaty of 1871, provided that the subjects of the
empire should be permitted to take or hold real estate in the United
States, except so far as the right to do so was guaranteed by existing
treaties.
In Re Thomas, 12 Blatchf. 370, in an opinion delivered by Mr.
Justice Blatchford, it was held that the convention, concluded
between Bavaria and the United States on Sept. 12, 1853, for the
extradition of criminals, was not abrogated by the absorption of Bava-
ria into the German Empire; and the learned Justice there says:
“An examination of the provisions of the constitution of the German
Empire does not disclose anything which indicates that then existing
treaties between the several states composing the confederation called
i.
CHAP. IV.]
419
WUNDERLE V. WUNDERLE.
the German Empire and foreign countries were annulled, or to be
considered as abrogated."
Our conclusion upon this branch of the case is that the disability
imposed upon non-resident aliens by the first section of the act of
1887 is not removed, so far as the appellants are concerned, by any
existing treaty between the United States and the Grand Duchy of
Baden, or between the United States and the German Empire; nor
is the disqualification of the appellants, as declared by said act,
affected in any way by provisions in treaties between the United
States and other governments than those of Baden and the German
Empire.
1
i Note the language of Mr. Justice Swayne in Hauenstein v. Lynham, 1879, 100 U. S.
483, 488–490 : “ The efficacy of the treaty is declared and guaranteed by the Constitution
of the United States. That instrument took effect on the fourth day of March, 1789.
In 1796, but a few years later, this court said: “If doubts could exist before the adoption
of the present national government, they must be entirely removed by the sixth article
of the Constitution, which provides that“ all treaties made or which shall be made under
the authority of the United States shall be the supreme law of the land, and the judges
in every State shall be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding." There can be no limitation on the power of
the people of the United States. By their authority the State constitutions were
made, and by their authority the Constitution of the United States was established ;
and they had the power to change or abolish the State constitutions or to make them
yield to the general government and to treaties made by their authority. A treaty
cannot be the supreme law of the land, that is, of all the United States, if any act of a
State Legislature can stand in its way. If the constitution of a State (which is the
fundamental law of the State and paramount to its Legislature) must give way to a
treaty and fall before it, can it be questioned whether the less power, an act of the State
Legislature, must not be prostrate? It is the declared will of the people of the United
States that every treaty made by the authority of the United States shall be superior
to the constitution and laws of any individual State, and their will alone is to decide.
If a law of a State contrary to a treaty is not void, but voidable only, by a repeal or
nullification by a State Legislature, this certain consequence follows, that the will of
a small part of the United States may control or defeat the will of the whole.' Ware
v. Hylton, 3 Dall. 199.
“It will be observed that the treaty-making clause is retroactive as well as pro-
spective. The treaty in question, in Ware v. Hylton, was the British treaty of 1783,
which terminated the war of the American Revolution. It was made while the
Articles of Confederation subsisted. The Constitution, when adopted, applied alike to
treaties 'made and to be made.'
“We have quoted from the opinion of Mr. Justice Chase in that case, not because we
concur in everything said in the extract, but because it shows the views of a powerful
legal mind at that early period, when the debates in the convention which framed the
Constitution must have been fresh in the memory of the leading jurists of the country.
In Chirac v. Chirac, 2 Wheat. 259, it was held by this court that a treaty with
France gave to her citizens the right to purchase and hold land in the United States,
removed the incapacity of alienage and placed them in precisely the same situation as
if they had been citizens of this country. The State law was hardly adverted to, and
420
[PART 1.
NATIONALITY.
HAVER v. YAKER.
SUPREME COURT OF THE UNITED STATES, 1869.
(9 Wallace, 32.)
Mr. Justice Davis delivered the opinion of the court.
It is undoubtedly true, as a principle of international law, that, as
respects the rights of either government under it, a treaty is con-
sidered as concluded and binding from the date of its signature. In
this regard the exchange of ratifications has a retroactive effect, con-
firming the treaty from its date (Wheaton's International Law, by
Dana, 336, bottom paging). But a different rule prevails .where the
treaty operates on individual rights. The principle of relation does
not apply to rights of this character, which were vested before the
treaty was ratified. In so far as it affects them, it is not considered as
seems not to have been considered a.factor of any importance in this view of the case.
The same doctrine was reaffirmed touching this treaty in Carneal v. Banks, 10 id. 181,
and with respect to the British treaty of 1794, in Hughes v. Edwards, 9 id. 489. A
treaty stipulation may be effectual to protect the land of an alien from forfeiture by
escheat under the laws of a State. Orr v. Hodgeson, 4 id. 453. By the British treaty
of 1794, 'all impediment of alienage was absolutely levelled with the ground despite
the laws of the States. It is the direct constitutional question in its fullest conditions.
Yet the Supreme Court held that the stipulation was within the constitutional powers
of the Union. Fairfax's Devisees v. Hunter's Lessee, 7 Cranch, 627; see. Ware v.
Hylton, 3 Dall. 242.' 8 Op. Att’ys-Gen. 417. Mr. Calhoun, after laying down certain
exceptions and qualifications which do not affect this case, says: 'Within these limits
all questions which may arise between us and other powers, be the subject-matter what
it may, fall within the treaty-making power and may be adjusted by it.' Treaties on
the Const. and Gov. of the U. S. 204.
“If the national government has not the power to do what is done by such treaties,
it cannot be done at all, for the States are expressly forbidden to enter into any
treaty, alliance, or confederation.' Const., art. 1, § 10.
'It must always be borne in mind that the Constitution, laws, and treaties of the
United States are as much a part of the law of every State as its own local laws and
constitution. This is a fundamental principle in our system of complex national
polity. See, also, Shanks v. Dupont, 3 Pet. 242; Foster f. Elam v. Neilson, 2 id. 253;
The Cherokee Tobacco, 11 Wall. 616; Mr. Pinkney's Speech, 3 Elliot's Constitutional
Debates, 231; The People, &c., v. Gerke & Clark, 5 Cal. 381.
“We have no doubt that this treaty is within the treaty-making power conferred by
the Constitution. And it is our duty to give it full effect.”
The power of the Federal Government to conclude a treaty, which either expressly
vir impliedly repeals or modifies a State statute, is considered on principle and
affirinatively established in the light of legal theory in People v. Gerke, 1858, 5 Cal.
381. -ED.
CHAP. IV.]
HAVER V. YAKER.
421
concluded until there is an exchange of ratifications, and this we
understand to have been decided by this court, in Arredondo's Case,
reported in 6th Peters, Vol. VI. p. 749. The reason of the rule is ap-
parent. In this country, a treaty is something more than a contract,
for the Federal Constitution declares it to be the law of the land. If
so, before it can become a law, the Senate, in whom rests the authority
to ratify it, must agree to it. But the Senate are not required to
adopt or reject it as a whole, but may modify or amend it, as was done
with the treaty under consideration. As the individual citizen, on
whose rights of property it operates, has no means of knowing any-
thing of it while before the Senate, it would be wrong in principle to
hold him bound by it, as the law of the land, until it was ratified and
proclaimed. And to construe the law, so as to make the ratification
of the treaty relate back to its signing, thereby divesting a title already
vested, would be manifestly unjust, and cannot be sanctioned.
These views dispose of this case, and we are not required to deter-
mine whether this treaty, if it had become a law at an earlier date,
would have secured the plaintiffs in error the interest which they
claim in the real estate left by Yaker at his death.
Judgment affirmed.
1
1 Mr. Justice Wayne, in Davis v. The Police Jury, 1850, 9 How. 280, 289, says:
“All treaties, as well those for cessions of territory as for other purposes, are binding
upon the contracting parties, unless when otherwise provided in them, from the day
they are signed, the ratification of then relates back tu the time of signing. Vattel,
B. 4, c. 2, § 22 ; Mart. Summary, B. 8, c. 7, § 5.
" It is true that, in a treaty for the cession of territory, its national character con-
tinues, for all commercial purposes ; but full sovereignty, for the exercise of it, does not
pass to the nation to which it is transferred until actual delivery. But it is also true,
that the exercise of sovereignty by the ceding country ceases except for strictly munic-
ipal purposes, especially for granting lands. And for the same reason in both cases;
-- because, after the treaty is made, there is not in either the union of possession and
the right to the territory which must concur to give plenum dominium et utile.
that, there must be the jus in rem and the jus in re, or what is called in the common
law of England the juris et seisinal conjunctio. 'This general law of property applies to
the right of territory no less than to other rights, and all writers upon the law of
nations concur, that the practice and conventional law of nations has been comform-
able to this principle.' Puffendorf, par Barbeyrac, lib. 4, c. 9, § 8, note 2.
“In this case, after the treaty was made, and until Louisiana was delivered to France,
its possession continued in Spain. The right to the territory, though in France, was
imperfect until ratified, but absolute by ratification from the date of the treaty.” The
learned justice cited with approval, indeed he based his argument and opinion upon
the judgment of Sir William Scott in the Fama, 1804, 5 C. Rob. 106. — ED.
To give
1
422
(PART 1.
NATIONALITY.
!
WHITNEY V. ROBERTSON.
SUPREME COURT OF THE UNITED STATES, 1887.
(124 United States, 190.)
Mr. Justice FIELD delivered the opinion of the court.
The plaintiffs are merchants, doing business in the city of New
York, and in August, 1882, they imported a large quantity of "cen-
trifugal and molasses sugars," the produce and manufacture of the
island of San Domingo. These goods were similar in kind to sugars
produced in the Hawaiian Islands, which are admitted free of duty
under the treaty with the king of those islands, and the act of Con-
gress, passed to carry the treaty into effect. They were ruly entered
at the custom house at the port of New York, the plaintiffs claiming
that by the treaty with the Republic of San Domingo the goods
should be admitted on the same terms, that is, free of duty, as simi-
lar articles, the produce and manufacture of the Hawaiian Islands.
The defendant, who was at the time collector of the port, refused to
allow this claim, treated the goods as dutiable articles under the acts
of Congress, and exactéd duties on them to the amount of $21,936.
The plaintiffs appealed from the collector's decision to the Secretary
of the Treasury, by whom the appeal was denied. They then paid
under protest the duties exacted, and brought the present action to
recover the amount.
The complaint set forth the facts as to the importation of the goods,
the claim of the plaintiffs that they should be admitted free of duty
because like articles from the Hawaiian Islands were thus admitted,
the refusal of the collector to allow the claim, the appeal from his
decision to the Secretary of the Treasury and its denial by him, and
the payment under protest of the duties exacted, and concluded with
a prayer for judgment for the amount. The defendant demurred to
the complaint, the demurrer was sustained, and final judgment was
entered in his favor, to review which the case is brought here.
The treaty with the king of the Hawaiian Islands provides for the
importation into the United States, free of duty, of various articles,
the produce and manufacture of those islands, in consideration, among
other things, of like exemption from duty, on the importation into
that country, of sundry specified articles which are the produce and
manufacture of the United States. 19 Stat. 625. The language of
the first two articles of the treaty, which recite the reciprocal engage-
CHAP. IV.]
423
WHITNET v. ROBERTSON.
ments of the two countries, declares that they are made in considera-
tion of the rights and privileges” and “as an equivalent therefor,"
which one concedes to the other.
The plaintiffs rely for a like exemption of the sugars imported by
them from San Domingo upon the 9th article of the treaty with the
Dominican Republic, which is as follows: “No higher or other duty
shall be imposed on the importation into the United States of any
article the growth, produce, or manufacture of the Dominican Repub-
lic, or of her fisheries; and no higher or other duty shall be imposed
on the importation into the Dominican Republic of any article the
growth, produce, or manufacture of the United States, or their fish-
eries, than are or shall be payable on the like articles the growth,
produce, or manufacture of any other foreign country, or its fisher-
ies.” 15 Stat. 47.3, 478.
In Bartram v. Robertson, decided at the last term (122 U. S. 116),
we held that brown and unrefined sugars, the produce and manufac-
ture of the island of St. Croix, which is part of the dominions of the
King of Denmark, were not exempt from duty by force of the treaty
with that country, because similar goods from the Hawaiian Islands
were thus exempt. The first article of the treaty with Denmark pro-
vided that the contracting parties should not grant "any particular
favor” to other nations in respect to commerce and navigation, which
should not immediately become common to the other party, who
should "enjoy the same freely if the concession were freely made,
and upon allowing the same compensation if the concession were con-
ditional.” 11 Stat. 719. The fourth article provided that no "higher
or other duties” should be imposed by either party on the importa-
tion of any article which is its produce or manufacture, into the
country of the other party, than is payable on like articles, being
the produce or manufacture of any other foreign country. And we
held in the case mentioned that "those stipulations, even if conceded
to be self-executing by the way of a proviso or exception to the gen-
eral law imposing the duties, do not cover concessions like those
made to the Hawaiian Islands for a valuable consideration. They
were pledges of the two contracting parties, the United States and
the King of Denmark, to each other, that in the imposition of duties
on goods imported into one of the countries which were the produce
or manufacture of the other, there should be no discrimination against
them in favor of goods of like character imported from any other
country. They imposed an obligation upon both countries to avoid
hostile legislation in that respect. But they were not intended to
interfere with special arrangements with other countries founded
upon a concession of special privileges."
421
[PART I.
NATIONALITY,
The counsel for the plaintiffs meet this position by pointing to the
omission in the treaty with the Republic of San Domingo of the pro-
vision as to free concessions, and concessions upon compensation,
contending that the oinission precludes any concession in respect of
commerce and navigation by our government to another country, with-
out that concession being at once extended to San Domingo. We do
not think that the absence of this provision changes the obligations
of the United States. The 9th article of the treaty with that repub-
lic, in the clause quoted, is substantially like the 4th article in the
treaty with the King of Denmark. And as we said of the latter, we
may say of the former, that it is a pledge of the contracting parties
that there shall be no discriminating legislation against the importa-
tion of articles which are the growth, produce, or manufacture of
their respective countries, in favor of articles of like character,
imported from any other country. It has no greater extent. It was
never designed to prevent special concessions, upon sufficient consid-
erations, touching the importation of specific articles into the country
of the other. It would require the clearest language to justify a con-
clusion that our government intended to preclude itself from such
engagements with other countries, which might in the future be of
the highest importance to its interests.
But, independently of considerations of this nature, there is another
and complete answer to the pretensions of the plaintiffs. The act
of Congress under which the duties were collected authorized their
exaction. It is of general application, making no exception in favor
of goods of any country. It was passed after the treaty with the
Dominican Republic, and, if there be any conflict between the stipu-
lations of the treaty and the requirements of the law, the latter must
control. A treaty is primarily a contract between two or more inde-
pendent nations, and is so regarded by writers on public law. For
the infraction of its provisions a remedy must be sought by the
injured party through reclamations upon the other. When the stipu-
lations are not self-executing they can only be enforced pursuant to
legislation to carry them into effect, and such legislation is as much
subject to modification and repeal by Congress as legislation upon
any other subject. If the treaty contains stipulations which are
self-executing, that is, require no legislation to make them opera-
tive, to that extent they have the force and effect of a legislative
enactment. Congress may modify such provisions, so far as they
bind the United States, or supersede them altogether. By the Con-
stitution a treaty is placed on the same footing, and made of like
obligation, with an act of legislation. Both are declared by that
instrument to be the supreme law of the land, and no superior efficacy
CHAP. IV.]
425
WHITNEY V. ROBERTSON.
is given to either over the other. When the two relate to the same
subject, the courts will always endeavor to construe them so as to
give effect to both, if that can be done without violating the language
of either; but if the two are inconsistent, the one last in date will
control the other, provided always the stipulation of the treaty on .
the subject is self-executing. If the country with which the treaty
is made is dissatisfied with the action of the legislative department,
it may present its complaint to the executive head of the government,
and take such other measures as it may deem essential for the protec-
tion of its interests. The courts can afford no redress. Whether the
complaining nation has just cause of complaint, or our country was
justified in its legislation, are not matters for judicial cognizance.
In Taylor y. Morton, 2 Curtis, 454, 459, this subject was very elabo-
rately considered at the circuit by Mr. Justice Curtis, of this court,
and he held that whether a treaty with a foreign sovereign had been
violated by him; whether the consideration of a particular stipula-
tion of the treaty had been voluntarily withdrawn by one party so
that it was no longer obligatory on the other; whether the views and
acts of a foreign sovereign had given just occasion to the legislative
department of our government to withhold the execution of a promise
conta ned in a treaty, or to act in direct contravention of such prom-
ise, were not judicial questions; that the power to determine these
matters had not been confided to the judiciary, which has no suitable
means to exercise it, but to the executive and legislative depart-
ments of our government; and that they belong to diplomacy and
legislation, and not to the administration of the laws. And he
justly observed, as a necessary consequence of these views, that if
the power to determine these matters is vested in Congress, it is
wholly immaterial to inquire whether by the act assailed it has
departed from the treaty or not, or whether such departure was by
accident or design, and, if the latter, whether the reasons were good
or bad.
In these views .we fully concur. It follows, therefore, that when
a law is clear in its provisions, its validity cannot be assailed before
the courts for want of conformity to stipulations of a previous treaty
not already executed. Considerations of that character belong to
another department of the Government. The duty of the courts is
to construe and give effect to the latest expression of the sovereign
will. In Head Money Cases, 112 U. S. 580, it was objected to an
act of Congress that it violated provisions contained in treaties with
foreign nations, but the court replied that so far as the provisions of
the act were in conflict with any treaty, they must prevail in all the
courts of the country; and, after a full and elaborate consideration
1
426
[PART 1.
NATIONALITY.
1
of the subject, it held that “so far as a treaty made by the United
States with any foreign nation can be the subject of judicial cogni-
zance in the courts of this country, it is subject to such acts as
Congress may pass for its enforcement, modification, or repeal.”
Judgment affirmed.
1 In Botiller v. Dominguez, 1889, 130 U. S. 238, 247, it is said: “ With regard to the
first of these propositions it may be said, that so far as the act of Congress is in con-
flict with the treaty with Mexico, that is a matter in which the court is bound to follow
the statutory enactments of its own governinent. If the treaty was violated by this
general statute, enacted for the purpose of ascertaining the validity of claims derived
from the Mexican Government, it was a matter of international concern, which the
two states must determine by treaty, or by such other means as enables one state to
enforce upon another the obligations of a treaty. This court in a class of cases
like the present has no power to set itself up as the instrumentality for enforcing the
provisions of a treaty with a foreign nation which the government of the United States,
as a sovereign power, chooses to disregard. The Cherokee Tobacco, 11 Wall. 616 ;
Taylor v. Morton, 2 Custis, 454; Head Money Cuses, 112 U. S. 580, 598; Whitney v.
Robertson, 124 U. S. 190, 195."
In Adams v. Akerlund, 1897, 168 Ill. 632, 638, Mr. Justice Magruder said:
" Where treaties concern the rights of individuals, it is frequently necessary for the
courts to ascertain by construction the meaning intended to be conveyed by the terms
used. United States v. Rauscher, 119 U. S. 407; Wilson v. Wall, 6 Wall. 83; Head
Money Cases, 112 U. S. 580. In thus giving a construction to the language of treaties,
the courts will adopt the same general rules which are applicable in the construction
of statutes, contracts and written instruments generally, in order to effectuate the pur-
pose and intention of the makers. 26 Am. & Eng. Ency. of Law, p. 555. Moreover,
it is another well-settled rule, laid down by the Supreme Court of the United States,
that, 'where a treaty admits of two constructions, one restricted as to the rights that
may be claimed under it, and the other liberal, the latter is to be preferred.' Hauen-
stein v. Lynham, 100 U. S. 483; Schultze v. Schultze, 144 Ill. 290."
In Tucker v. Alexandroff, 1901, 183 U.S. 424, 437, Mr. Justice Brown uses the follow-
ing language: “We think, then, that the rights of the parties are to be determined by
the treaty, but that this particular convention, being operative upon both powers and
intended for their mutual protection, should be interpreted in a spirit of uberrima fides,
and in a manner to carry out its manifest purpose. Taylor on International Law,
§ 383. As treaties are solemn engagements entered into between independent nations
for the common advancement of their interests and the interests of civilization, and as
their main object is not only to avoid war and secure a lasting and perpetual peace,
but to promote friendly feeling between the people of the two countries, they should
: be interpreted in that broad and liberal spirit which is calculated to make for the exist-
ence of perpetual amity, so far as it can be done without the sacrifice of individual
rights or those principles of personal liberty which lie at the foundation of our jurispru-
dence. It is said by Chancellor Kent in his Commentaries, Vol. I., p. 174:Treaties of
every kind are to receive a fair and liberal interpretation according to the intention
of the contracting parties, and are to be kept with the most scrupulous good faith.
Their meaning is to be ascertained by the same rules of construction and course
of reasoning which we apply to the interpretation of private contracts.'
If treaties between nations standing upon the same social and intellectual plain
are to be liberally construed; it stands to reason that when one contracting party is al
powerful and enlightened, the other a backward, weak and therefore dependent nation,
i.
CHAP. IV.]
427
SUTTON V. SUTTON.
SUTTON V. SUTTON.
COURT OF CHANCERY, 1830.
(1 Russell & Mylne, 663.)
The Master of the Rolls (Sir John LEACH]. 1
The relations, which had subsisted between Great Britain and
America, when they formed one empire, led to the introduction of
the ninth section of the treaty of 1794, and made it highly reasonable
that the subjects of the two parts of the divided empire should, not-
withstanding the separation, be protected in the mutual enjoyment of .
their landed property; and, the privileges of natives being reciprocally
given, not only to the actual possessors of lands, but to their heirs
and assigns, it is a reasonable construction that it was the intention
of the treaty that the operation of the treaty should be permanent,
and not depend upon the continuance of a state of peace.
The act of 37 George III. gives full effect to this article of the
treaty in the strongest and clearest terms; and if it be, as I consider
the letter must yield much to the spirit. Or as Mr. Justice Gray said, in Jones v.
Mehan, 1899, 175 U. $. 1, 11: “The treaty must therefore be construed, not according
to the teclinical meaning of its words to learned lawyers, but in the sense in which they
would naturally be understood by the Indians. Worcester v. Georgia, 6 Pet. 515;
The Kansas Indians, 5 Wall. 737, 760; Choctaw Nation v. United Stutes, 119 U. S.
1, 27, 28.”
But, however liberally the treaty may be interpreted, it is the agreement made by
the parties, not by the court, that is to be interpreted. The spirit will, indeed, he found
out, but a new clause will not be read in the treaty. For example, in The Amiable Isabella,
1821, 6 Wheat. 1, Mr. Justice Story refused to read into the treaty of 1795 with Spain
the form of a passport which the contracting parties had, it would seem, inadvertently
left out. In like manner the Supreme Court in a recent case refused to consider a
“proviso” (to which ratification was made subject) as part of the treaty, because the
proviso was omitted in tlie official publication of the treaty. N. Y. Indians v. U. S.,
1897, 170 U. S. 1. Where, however, a written declaration was annexed to the treaty
at the time of its ratification, the declaration was held as obligatory as if the provision
had been inserted in the body of the treaty itself, because the declaration was annexed
with full knowledge and consent of both parties to the treaty. Doe v. Braden, 1853,
16 How. 635.
On the question of the interpretation of treaties in general, see a very learned and
comprehensive note by J. C. Bancroft Davis, U. S. Treaties and Conventions, 1889,
pp. 1227-1229 (printed with additions, 2 Butler's Treaty-Making Power, note 6,
pp. 145–148). – ED.
1 The statement of the case is omitted. The ninth article of Jay's Treaty enabled
the subjects of either country to hold lands in the other, and to sell and devise them is
if they were natives. -- ED. .
1
428
[PART 1.
NATIONALITY.
it, the true construction of this article, that it was to be permanent,
and independent of a state of peace or war, then the act of Parlia-
ment must be held, in the twenty-fourth section, to declare this
permanency; and when a subsequent section provides that the act is
to continue in force, so long only as a state of peace shall subsist,
it cannot be construed to be directly repugnant and opposed to the
twenty-fourth section, but is to be understood as referring to such
provisions of the act only as would in their nature depend upon a
state of peace.
I am of opinion, therefore, in favor of the title, and consider that
the heirs and assigns of every American who held lands in Great
Britain at the time mentioned in the act of the 37 George III, are,
as far as regards those lands, to be treated, not as aliens, but as
native subjects.
1
1
SOCIETY FOR THE PROPAGATION OF THE GOSPEL IN
FOREIGN PARTS V. THE TOWN OF NEW HAVEN,
AND WILLIAM WHEELER.
:
SUPREME COURT OF THE UNITED STATES, 1823.
I
(8 Wheaton, 464.)
This case came before the court upon a certificate of a division in
opinion of the judge of the circuit court for the District for Vermont.
It was an action of ejectment, brought by the plaintiffs against tlie
defendants, in that court.
Mr. Justice WASHINGTON delivered the opinion of the court:
1st. That the capacity of the plaintiffs, as a corporation, to hold
lands in Vermont, ceased by, and as a consequence of, the revolution.
2dly. That the society being, in its politic capacity, a foreign cor-
poration, it is incapable of holding land in Vermont, on the ground of
alienage ; and that its rights are not protected by the treaty of peace.
1 This same ninth article was previously considered in an American case. In Fox
v. Southack, 1815, 12 Mass. 143, 148, Jackson, J., says: “It is not necessary for the
determination of this cause, to decide whether the ninth article of that treaty was
annulled by the late war; as, if it were so, that circumstance would not give any new
rights to the plaintiff. There seems, however, to be no doubt that this article is one of
those stipulations which are distinguished by some of the writers on the law of nations
as real in their own nature; and which are accomplished by the act of ratification, so
that they cannot be dissolved by any subsequent event. Pactum liberatorium, quo pax
nemisso aut transactio, facta est, qua jus extinctum reviviscere non protest. Commentary of
II. Cocceius on Grotius, B. 2, c. 16, § 16." -- ED.
CHAP. IV.]
429
PROPAGATION OF GOSPEL V, NEW HAVEN.
3dly. That if they were so protected, still the effect of the last war
between the United States and Great Britain was to put an end to
that treaty, and, consequently, to rights derived under it, unless they
had been revived by the treaty of peace, which was not done.
2. The next question is, was this property protected against for-
feiture, for the cause of alienage, or otherwise, by the treaty of peace ?
This question, as to real estates belonging to British subjects, was
finally settled in this court, in the case of Orr v. Hodgson (4 Wheat.
Rep. 453), in which it was decided, that the sixth article of the treaty
protected the titles of such persons, to lands in the United States,
which would have been liable to forfeiture, by escheat, for the cause
of alienage, or to confiscation, jure belli.
The counsel for the defendants did not controvert this doctrine, so
far as it applies to natural persons; but he contends, that the treaty
does not, in its terms, embrace corporations existing in England, and
that it ought not to be so construed. The words of the sixth article are,
" there shall be no future confiscations made, nor any prosecutions
commenced, against any person or persons, for or by reason of the
part which he or they may have taken in the present war; and that
no person shall, on that account, suffer any future loss or damage,
either in his person, liberty or property,” etc.
The terms in which this article is expressed are general and un-
qualified, and we are aware of no rule of interpretation applicable to
treaties, or to private contracts, which would authorize the court to
make exceptions by construction, where the parties to the contract
have not thought proper to make them. Where the language of the
parties is clear of all ambiguity, there is no room for construction.
Now, the parties to this treaty have agreed, that there shall be no
future confiscations in any case, for the cause stated. How can this
court say, that this is a case where, for the cause stated, or for some
other, confiscation may lawfully be decreed? We can discover no
sound reason why a corporation existing in England may not as well
hold real property in the United States, as ordinary trustees for char-
itable, or other purposes; or as natural persons for their own use. We
have seen that the exemption of either or all of those persons, from
the jurisdiction of the courts of the State where the property lies,
affords no such reason.
It is said that a corporation cannot hold lands, except by permis-
sion of the sovereign authority. But this corporation did hold the
land in question, by permission of the sovereign authority, before, dur-
ing, and subsequent to the revolution, up to the year 1794, when the
Legislature of Vermont granted it to the town of New Haven; and the
430
NATIONALITY.
[PART 1.
only question is, whether this grant was not void by force of the sixth
article of the above treaty ? We think it was.
Was it meant to be contended, that the plaintiffs are not within the
protection of this article, because they are not persons who could take
part in the war, or who can be considered by the court as British sub-
jects? If this were to be admitted, it would seem to follow, that a
corporation cannot lose its title to real estate, upon the ground of
alienage, since, in its civil capacity, it cannot be said to be born under
the allegiance of any sovereign. But this would be to take a very
incorrect view of the subject. In the case of The Bank of the United
States v. Deveaux, 5 Cranch’s Rep. 86, it was stated by the court,
that a corporation, considered as a mere legal entity, is not a citizen,
and, therefore, could not, as such, sue in the courts of the United
States, unless the rights of the members of it, in this respect, could be
exercised in their corporate name. It was added, that the name of
the corporation could not be an alien or a citizen; but the corporation
may be the one or the other, and the controversy is, in fact, between
those persons and the opposing party.
But even if it were admitted that the plaintiffs are not within the
protection of the treaty, it would not follow that their right to hold
the land in question was devested by the act of 1794, and became
vested in the town of New Haven. At the time when this law was
enacted, the plaintiffs, though aliens, had a complete, though defeasi-
ble, title to the land, of which they could not be deprived for the cause
of alienage, but by an inquest of office; and no grant of the State
could, upon the principles of the common law, be valid, until the title
of the State was so established. Fairfax's Devisee v. Hunter's Lessee,
7 Cranch's Rep. 503. Nor is it pretended by the counsel for the
defendants, that this doctrine of the common law was changed by any
statute law of the State of Vermont, at the time when this land was
granted to the town of New Haven. This case is altogether unlike
that of Smith v. The State of Maryland, 6 Cranch’s Rep. 286, which
turned upon an act of that State, passed in the year 1780, during the
revolutionary war, which declared, that all property within the State,
belonging to British subjects, should be seized, and was thereby con-
fiscated to the use of the State; and that the commissioners of con-
fiscated estates should be taken as being in the actual seisin and
possession of the estates so confiscated, without any office found, entry,
or other act to be done. The law in question passed long after the
treaty of 1783, and without confiscating or forfeiting this land (even
if that could be legally done), grants the same to the town of New
Haven.
3. The last question respects the effect of the late war, between
CHAP. IV.] PROPAGATION OF GOSPEL V. NEW HAVEN. 431
Great Britain and the United States, upon rights existing under the
treaty of peace. Under this head, it is contended by the defendants'
counsel, that although the plaintiffs were protected by the treaty of
peace, still, the effect of the last war was to put an end to that treaty,
and, consequently, to civil rights derived under it, unless they had
been revived and preserved by the treaty of Ghent.
If this argument were to be admitted in all its parts, it nevertheless
would not follow, that the plaintiffs are not entitled to a judgment on
this special verdict. The defendants claim title to the land in con-
troversy solely under the act of 1794, stated in the verdict, and con-
tend, that by force of that law, the title of the plaintiffs was devested.
But if the court has been correct in its opinion upon the two first
points, it will follow, that the above act was utterly void, being passed
in contravention of the treaty of peace, which, in this respect, is to be
considered as the supreme law. Remove that law, then, out of the
case, and the title of the plaintiffs, confirmed by the treaty of 1794,83
remains unaffected by the last war, it not appearing from the verdict,
that the land was confiscated, or the plaintiffs' title in any way de-
vested, during the war, or since, by office found, or even by any legis-
lative act.
But there is a still more decisive answer to this objection, which is,
that the termination of a treaty cannot devest rights of property
already vested under it.
(If
If real estate be purchased or secured under a treaty, it would be
most mischievous to admit, that the extinguishment of the treaty
extinguished the right to such estate. In truth, it no more affects
such rights, than the repeal of a municipal law affects rights acquired
under it. If, for example, a statute of descents be repealed, it has
never been supposed, that rights of property already vested during its
existence, were gone by such repeal. Such a construction would over-
turn the best established doctrines of law, and
sap
the
very
foundation
on which property rests.
But we are not inclined to admit the doctrine urged at the bar, that
treaties become extinguished, ipso facto, by war between the two
governments, unless they should be revived by an express or implied
renewal on the return of peace. Whatever may be the latitude of
doctrine laid down by elementary writers on the law of nations, deal-
ing in general terms in relation to this subject, we are satisfied, that
the doctrine contended for is not universally true. There may be
treaties of such a nature, as to their object and import, as that war
will put an end to them ; but where treaties contemplate a permanent
arrangement of territorial, and other national rights, or which, in their
terms, are meant to provide for the event of an intervening war, it
432
[PART 1.
NATIONALITY.-
would be against every principle of just interpretation to hold them
extinguished by the event of war. If such were the law, even the
treaty of 1783, so far as it fixed our limits, and acknowledged our in-
dependence, would be gone, and we should have had again to struggle
for both upon original revolutionary principles. Such a construction
was never asserted, and would be so monstrous as to supersede all
reasoning
We think, therefore, that treaties stipulating for permanent rights
and general arrangements, and professing to aim at perpetuity, and to
deal with the case of war as well as of peace, do not cease on the occur-
rence of war, but are, at most, only suspended while it lasts; and
unless they are waived by the parties, or new and repugnant stipula-
tions are made, they revive in their operation at the return of peace.
A majority of the court is of opinion, that judgment upon this special
verdict ought to be given for the plaintiffs, which opinion is to be
certified to the circuit court.
Certificate for the plaintiffs.
1
1 “The passage cited by counsel from the language of Mr. Justice Washington in
Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464, 493, also illus-
trates this doctrine. There the learned justice observes that 'if real estate be pur-
chased or secured under a treaty, it would be most mischievous to admit that the
extinguishment of the treaty extinguished the right to such estate. In truth, it no
more affects such rights than the repeal of a municipal law affects rights acquired un-
der it.' Of this doctrine there can be no question in this court.” The Chinese Ex-
clusion Case, 1888, 130 U. S. 581, 610.
To the same effect Fiott et als. V. Commonwealth, 1855, 12 Gratt. 564, 577, where it
is said: "But it has been determined by the Supreme Court that the termination of a
treaty by war does not divest rights of property already vested under it. Society for,
&c. v. New Haven, 8 Wheat. R. 461. Fox v. Southack, 12 Mass. R. 143."
The following is a well-known diplomatic exemplification of the rule of the prin-
cipal case. By the treaty of 1783, between Great Britain and the United States, the
latter secured certain fishery privileges upon the coast of Newfoundland, Nova Scotia,
and Labrador. Great Britain claimed that the privilege was a mere commercial regu-
lation and as such abrogated by the war of 1812. The United States maintained,
on the contrary, that the privilege operated as a grant, and was at most only suspendeil
not abrogated by the war. The correctness of the British contention is recognized
in "the convention of 1818" between the two countries. See Hall, Inter. Law, 99–102,
for this and other instances. Pomeroy, 368–371. - ED.
D
CHAP. IV.
433
HOOPER, ADM'R, v. UNITED STATES.
HOOPER, ADMÄR, v. UNITED STATES, AND OTHER CASES,
1887.
(22 Court of Claims, 408, 416.) ?
DAVIS, J.
The treaties of 1778, particularly the treaty of com-
merce, which is the most important one for our purposes, were in
existence until the passage of the abrogating act. Whatever disputes,
occurred between this country and France during the disputed period
following the conclusion of the Jay Treaty, arose from differences of
interpretation of various clauses of the Franco-American treaty, and
on neither side do we find seriously advanced a contention that the
treaties were not in existence and were not binding on both nations.
The United States distinctly urged their enduring force, while the
French departed from this position only in this (if it be a departure),
that the Jay Treaty introduced a modification into their treaty with us
of which they were entitled to the benefit.
As to the period after July 7, 1798:
On that date the abrogating act passed by Congress was approved by
the President and became a law within the jurisdiction of the Con-
stitution; a law replacing to that extent the treaties, and binding upon
all the subordinate agents of the nation, including its courts, but not
necessarily final as the annulment of an existing contract between two
sovereign powers.
A treaty which on its face is of indefinite duration, and which con-
tains no clause providing for its termination, may be annulled by one
of the parties under certain circumstances. As between the nations it
is in its nature a contract, and if the consideration fail, for example,
or if its important provisions be broken by one party, the other may,
at its option, declare it terminated. The United States have so held
in regard to the Clayton-Bulwer Treaty, as to which Mr. Frelinghuysen,
then Secretary of State, wrote Mr. Hall, minister in Central America
(July 19, 1884): "The Clayton-Bulwer Treaty was voidable at the
option of the United States. This, I think, has been demonstrated
fully upon two grounds. First, that the consideration of the treaty
having failed, its object never having been accomplished, the United
States did not receive that for which they covenanted ; and, second,
that Great Britain has persistently violated her agreement not to
colonize the Central American coast.”
n
1 Only so much of the opinion is given as relates to annulment of treaties. — Ed.
28
434
[PART ï.
NATIONALITY.
Here concur two clear reasons for annulment, failure of consider-
ation and an active breach of contract.1
Abrogation of a treaty may occur by change of circumstances, as :
6. When a state of things which was the basis of the treaty, and one
of its tacit conditions, no longer exists. In most of the old treaties
were inserted the clausula rebus sic stantibus, by which the treaty
might be construed as abrogated when material circumstances on
which it rested changed. To work this effect it is not necessary
that the facts alleged to have changed should be material conditions.
It is enough if they were strong inducements to the party asking
abrogation.
“ The maxim' Conventio omnis intelligitur rebus sic stantibus' is held
to apply to all cases in which the reason for a treaty has failed, for
there has been such a change of circumstances as to make its perform-
ance impracticable except at an unreasonable sacrifice.” Wharton's
Com. A.m. Law, $ 161.
“ Treaties, like other contracts, are violated when one party neglects
or refuses to do that which moved the other party to engage in the
transaction. * * * When a treaty is violated by one party in one or
more of its articles, the other can regard it as broken and demand
redress, or can still require its observance." Woolsey, $ 112.
The United States annulled, or at least attempted to annul, the
treaties with France upon the grounds, stated in the preamble of the
statute, that the treaties had been repeatedly violated by France, that
the claims of the United States for reparation of the injuries com-
mitted against them had been refused; that attempts to negotiate had
been repelled with indignity and that there was still being pursued
against this country a system of “predatory violence infracting the
said treaties and hostile •to the rights of a free and independent
nation."
Such were the charges upon which was based the enactment
that "the United States are of right freed and exonerated from the
stipulations of the treaty and of the consular convention heretofore
1
1 The court is obliged to follow the decision of the political department as to the
existence or non-existence of a treaty. If the treaty is really binding, its violation
would give rise, in terms of private law, to an action for the breach of contract which,
in international law, would be prosecuted between nation and nation, that is diplomati-
cally, and might result in war if the injury complained of be not redressed by the
defendant state. Hart, 211.
As to the provisions of the Clayton-Bulwer Treaty and its somewhat checkered
career, see T. J. Lawrence's Essays on International Law, 2d ed., pp. 89–162; the late
Freeman Snow in 3 Harv. Law Rev. 53–73; C. H. Hyde (The Isthmian Canal Treaty),'
in 15 ib. 725-732. The Hay-Dauncefote Treaty of Nov. 18, 1901, put an end to this
unfortunate controversy, and with its ratification on Dec. 16, 1901, Clayton, Bulwer,
and their treaty were laid to rest. - ED.
CHAP. IV.]
435
HOOPER, ADM'R, v. UNITED STATES.
concluded between the United States and France, and that the same
shall not henceforth be regarded as legally obligatory on the govern-
ment or citizens of the United States."
The treaties, therefore, ceased to be a part of the supreme law of
the land, and when Chief Justice Marshall stated, in July, 1799,
Chirac v. Chirac, 2 Wheaton, 272, that there was no treaty in
existence between the two nations, he meant only that within the
jurisdiction of the Constitution the treaties had ceased to exist, and
did not mean to decide, what it was exclusively within the power of
the political branch of the government to decide, that, as a contract
between two nations the treaties had ceased to exist by the act of one
party, a result which the French ministers afterwards said could be
reached only by a successful war.
The only question that we have now to consider is that of the inter-
national relation. The annulling act issued from competent authority
and was the official act of the government of the United States. So
far as it was in the power of one party to abrogate these treaties it
was indisputably done by the act of July 7, 1798. Notwithstanding
this statute, did not the treaties remain in effect to this extent, if no
further, that they furnish a scale by which the acts of France, which
we are charged to examine, are to be weighed; and in considering the
legality of those acts are we not to follow the treaties where they
vary the law of nations ? The claimants in very learned and philo-
sophical arguments contend for the affirmative.
We are of the opinion that the circumstances justified the United
States in annulling the treaties of 1778; that the act was a valid one,
not only as a municipal statute, but as between the nations; and that
thereafter the compacts were ended. We fail to find any agreement
by France as to these claims to submit to the treaty rules after July 7,
1798, the treaties not being recognized by us, and we conclude that the
validity of claims not expressly mentioned in the treaty of 1800,
which arose after July 7, 1798, is to be ascertained by the principles
of the law of nations, recognized at that time, and not by exceptional
provisions found in the treaties of 1778.1
1 On the subject of treaties generally, see Butler's Treaty-Making Power, 2 vols.
1902, for an exposition of power to conclude treaties, together with an examination of
the treaties themselves and the construction courts of justice have put upon them.
The appendix to Vol. II. contains an alphabetical summary of every treaty and
convention (other than postal), concluded by the United States and ratified by the
Senate. — ED.
436
[PART I.
NATIONALITY.
TERLINDEN V. AMES.
SUPREME COURT OF THE UNITED STATES, 1901.
(184 United States, 270.)
One Terlinden, alias Graefe, was accused of various acts of forgery,
counterfeiting, and the utterance of forged papers, committed during
the year 1901, in the kingdom of Prussia. After the commission of
these extradictable offences he fled from Germany and was appre-
hended in Illinois in 1901, as a fugitive from justice upon a warrant
properly issued by Mark A. Foote, United States Commissioner for the
Northern District of Illinois, upon the duly verified complaint of Dr.
Walther Wever, Imperial German Consul at Chicago. On habeas cor-
pus proceedings, the District Court found that the accused was law-
fully restrained of his liberty, and the prisoner was remanded to the
custody of John C. Ames, Marshal for the Northern District of
Illinois.
From this order an appeal was taken to the Supreme Court of the
United States. Among the errors assigned, were the following two :
that the District Court erred in declining to hold that no treaty exists
between the United States and the kingdom of Prussia or the German.
Empire, and in assuming the existence of such treaty.?
Mr. Chief Justice FULLER delivered the opinion of the court.2
This brings us to the real question, namely, the denial of the
existence of a treaty of extradition between the United States and
the Kingdom of Prussia, or the German Empire. In these proceed-
ings the application was made by the official representative of both
the Empire and the Kingdom of Prussia, but was based on the ex-
3
1 This statement is substituted for that of the report. - ED.
2 In the omitted portion of the opinion, the learned chief justice held that extra-
dition proceedings before a committing magistrate, thereto duly authorized, where
jurisdiction exists, and there is competent legal evidence tending to establish the
criminality alleged, cannot be interfered with by habeas corpus ; that in this case the writ
of habeas corpus was issued before the examination by the commissioner was entered.
upon, and the inquiry was confined to the question of jurisdiction; that in this case
he had jurisdiction if there was a treaty between this and the demanding country
provided the commission of an extraditable offence was charged (from the head-
note). In reaching this conclusion the learned chief justice cited, examined, and ap-
proved the following authorities : In re Stupp, 1875, 12 Blatch. 501; Ornelus v. Ruiz,
1895, 161 U. S. 502; Bryant v. U, S., 1896, 167 U. S. 104; Craemer v. Washington, 1897,
168 U. S. 124. -ED.
CHAP. IV.]
437
TERLINDEN V. AMES.
tradition treaty of 1852. The contention is that, as the result of the
formation of the German Empire, this treaty had been terminated by
operation of law.
Treaties are of different kinds and terminable in different ways.
The fifth article of this treaty provided, in substance, that it should
continue in force until 1858, and thereafter until the end of a twelve
months' notice by one of the parties of the intention to terminate it.
No such notice has ever been given, and extradition has been fre-
quently awarded under it during the entire intervening time.
Undoubtedly treaties may be terminated by the absorption of
powers into other nationalities and the loss of separate existence, as
in the case of Hanover and Nassau, which became by conquest incor-
porated into the Kingdom of Prussia in 1866. Cessation of indepen-
dent existence rendered the execution of treaties impossible. But
where sovereignty in that respect is not extinguished, and the power
to execute remains unimpaired, outstanding treaties cannot be regarded
as avoided because of impossibility of performance.
This treaty was entered into by his Majesty the King of Prussia in
his own name and in the names of eighteen other States of the Ger-
manic Confederation, including the Kingdom of Saxony and the free
city of Frankfort, and was acceded to by six other States, including
the Kingdom of Würtemburg, and the free Hanseatic city of Bremen,
but not including the Hanseatic free cities of Hamburg and Lubeck.
The war between Prussia and Austria in 1866 resulted in the extinc-
tion of the Germanic Confederation and the absorption of Hanover,
Hesse, Cassel, Nassau and the free city of Frankfort, by Prussia.
The North German Union was then created under the praesidium
of the Crown of Prussia, and our minister to Berlin, George Bancroft,
thereupon recognized officially not only the Prussian Parliament, but
also the Parliament of the North German United States, and the
collective German Customs and Commerce Union, upon the ground
that by the paramount constitution of the North German United
States, the King of Prussia, to whom he was accredited, was at the
head of those several organizations or institutions; and his action was
entirely approved by this Government. Messages and Documents,
Dep. of State, 1867–8, Part I, p. 601 ; Dip. Correspondence, Secretary
Seward to Mr. Bancroft, Dec. 9, 1867.
February 22, 1868, a treaty relative to naturalization was concluded
between the United States and his Majesty, the King of Prussia, on
behalf of the North German Confederation, the third article of which
read as follows: “ The convention for the mutual delivery of criminals,
fugitives from justice, in certain cases, concluded between the United
States on the one part and Prussia and other States of Germany on
438
[PART I.
NATIONALITY.
the other part, the sixteenth day of June, one thousand cight hundred
and fifty-two, is hereby extended to all the States of the North Ger-
man Confederation.” 15 Stat. 615. This recognized the treaty as
still in force, and brought the Republics of Lubeck and Hamburg
within its scope. Treaties were also made in that year between the
United States and the Kingdoms of Bavaria and Würtemburg, con-
cerning naturalization, which contained the provision that the previous
conventions between them and the United States in respect of fugitives
from justice should remain in force without change.
Then came the adoption of the Constitution of the German Empire.
It found the King of Prussia, the chief executive of the North German
Union, endowed with power to carry into effect its international
obligations, and those of his kingdom, and it perpetuated and con-
firmed that situation. The official promulgation of that Constitution
recited that it was adopted instead of the Constitution of the North
German Union, and its preamble declared that "his Majesty the King
of Prussia, in the name of the North German Union, his Majesty the
King of Bavaria, his Majesty the King of Würtemburg, his Highness
the Grand Duke of Baden, and his Royal Highness the Grand Duke
of Hesse and by Rhine for those parts of the Grand Duchy of Hesse
which are situated south of the Main, conclude an eternal alliance for
the protection of the territory of the Confederation, and of the laws
of the same, as well as for the promotion of the welfare of the German
people.” As we have heretofore seen, the laws of the Empire were
to take precedence of those of the individual States, and it was vested
with the power of general legislation in respect of crimes.
Article 11 read, “The King of Prussia shall be the president of the
Confederation, and shall have the title of German Emperor. The
Emperor shall represent the Empire among nations, declare war,
and conclude peace in the name of the same; enter into alliances
and other conventions with foreign countries, accredit ambassadors, and
receive them. ... So far as treaties with foreign countries refer to
matters which, according to Article IV. are to be regulated by the
legislature of the Empire, the consent of the Federal Council shall be
required for their ratification, and the approval of the Diet shall
be necessary to render them valid."
It is contended that the words in the preamble translated “
eternal alliance” should read “an eternal union,” but this is not
material, for admitting that the Constitution created a composite State
instead of a system of confederated States, and even that it was
called a confederated Empire rather to save the amour propre of some
of its component parts than otherwise, it does not necessarily follow
that the Kingdom of Prussia lost its identity as such, or that treaties
can
CHAP. IV.]
TERLINDEN V. AMES.
439
theretofore entered into by it could not be performed either in the
name of its King or that of the Emperor. We do not find in this
constitution any provision which in itself operated to abrogate existing
treaties or to affect the status of the Kingdom of Prussia in that
regard. Nor is there anything in the record to indicate that out-
standing treaty obligations have been disregarded since its adoption.
So far from that being so, those obligations have been faithfully
observed.
And without considering whether extinguished treaties can be
renewed by tacit consent under our Constitution, we think that on
the question whether this treaty has ever been terminated, govern-
mental action in respect to it must be regarded as of controlling im-
portance. During the period from 1871 to the present day, extradition
from this country to Germany, and from Germany to this country,
has been frequently granted under the treaty, which has thus been
repeatedly recognized by both governments as in force. Moore's
Report on Extradition with Returns of all Cases, 1890.
In 1889, in response to a request for information on international
extradition as practised by the German Government, the Imperial
Foreign Office transmitted to our chargé at Berlin a memorial on the
subject, in the note accompanying which it was said: “The questions
referred to, in so far as they could not be uniformly answered for
all the confederated German States, have been answered in that
document as relating to the case of applications for extradition
addressed to the Empire or Prussia.” It was stated in the memorial,
among other things:
“In so far as by laws and treaties of the Empire relating to the
extradition of criminals, provisions which bind all the States of the
union have not been made, those States are not hindered from in-
dependently regulating extradition by agreements with foreign States,
or by laws enacted for their own territory.
“Of conventions, some of an earlier, some of a later period, for the
extradition of criminals, entered into by individual States of the
union with various foreign States, there exist a number, and in par-
ticular such with France, the Netherlands, Austria-Hungary, and
Russia. With the United States of America, also, extradition is
regulated by various treaties, as, besides the treaty of June 16, 1852,
which applies to all of the States of the former North German Union,
and also to Hesse, south of the Main, and to Würtemburg, there exist
separate treaties with Bavaria and Baden, of September 12, 1853, and
January 30, 1857, respectively.” Moore's Report, 93, 94.
Thus it appears that the German Government has officially recog-
nized, and continues to recognize, the treaty of June 16, 1852, as still
440
[PART 1.
NATIONALITY.
in force, as well as similar treaties with other members of the Em-
pire, so far as the latter has not taken specific action to the contrary
or in lieu thereof. And see Laband, Das Staatsrecht des Deutschen
Reiches (1894), 122, 123, 124, 142.
It is out of the question that a citizen of one of the German States,
charged with being a fugitive from its justice, should be permitted
to call on the courts of this country to adjudicate the correctness of
the conclusions of the Empire as to its powers and the powers of its
members, and especially as the executive department of our govern-
ment has accepted these conclusions and proceeded accordingly.
The same is true as respects many other treaties of serious moment,
with Prussia, and with particular States of the Empire, and it would
be singular, indeed, if after the lapse of years of performance of their
stipulations, these treaties must be held to have terminated because
of the inability to perform during all that time of one of the
parties.
In the notes accompanying the State Department's compilation
of Treaties and Conventions between the United States and other
powers, published in 1889, Mr. J. C. Bancroft Davis treats of the
subject thus :
“ The establishment of the German Empire in 1871, and the com-
plex relations of its component parts to each other and to the Empire,
necessarily give rise to questions as to the treaties entered into with
the North German Confederation and with many of the States com-
posing the Empire. It cannot be said that any fixed rules have been
established.
“Where a State has lost its separate existence, as in the case of
Hanover and Nassau, no questions can arise.
“Where no new treaty has been negotiated with the Empire, the
treaties with the various States which have preserved a separate
existence have been resorted to.
“ The question of the existence of the extradition treaty with
Bavaria was presented to the United States District Court, on the
application of a person accused of forgery committed in Bavaria, to
be discharged on habeas corpus, who was in custody after the issue of a
mandate, at the request of the minister of Germany. The court
held that the treaty was admitted by both governments to be in
existence.
“Such a question is, after all, purely a political one."
The case there referred to is that of In re Thomas, 12 Blatch. 370,
in which the continuance of the extradition treaty with Bavaria was
called in question, and Mr. Justice Blatchford, then district judge,
said:
CHAP. IV.]
441
TERLINDEN V. AMES.
“It is further contended, on the part of Thomas, that the conven-
tion with Bavaria was abrogated by the absorption of Bavaria into
the German Empire. An examination of the provisions of the Con-
stitution of the German Empire does not disclose anything which
indicates that then existing treaties between the several States com-
posing, the confederation called the German Empire, and foreign
countries, were annulled, or to be considered as abrogated.
“Indeed, it is difficult to see how such a treaty as that between
Bavaria and the United States can be abrogated by the action of
Bavaria alone, without the consent of the United States. Where a
treaty is violated by one of the contracting parties, it rests alone with
the injured party to pronounce it broken, the treaty being, in such
case, not absolutely void, but voidable, at the election of the injured
party, who may waive or remit the infraction committed, or may
demand a just satisfaction, the treaty remaining obligatory if he
chooses not to come to a rupture. 1 Kent's Com. 174. In the present
case the mandate issued by the government of the United States
shows that the convention in question is regarded as in force both by
the United States and by the German Empire, represented by its en-
voys, and by Bavaria, represented by the same envoy. The applica-
tion of the foreign government was made through the proper diplomatic
representative of the German Empire and of Bavaria, and the com-
plaint before the commissioner was made by the proper consular
authority representing the German Empire and also representing
Bavaria."
We concur in the view that the question whether power remains in
a foreign State to carry out its treaty obligations is in its nature
political and not judicial, and that the courts ought not to interfere
with the conclusions of the political department in that regard.
Treaties of extradition are executory in their character, and fall
within the rule laid down by Chief Justice Marshall in Foster v.
Neilson, 2 Pet. 253, 314, thus: “Our Constitution declares a treaty to
be the law of the land. It is, consequently, to be regarded in courts
of justice as equivalent to an act of the legislature, whenever it
operates of itself without the aid of any legislative provision. But
when the terms of the stipulation import a contract, when either of
the parties engages to perform a particular act, the treaty addresses
itself to the political, not the judicial department.”
In Doe v. Braden, 16 How. 635, 656, where it was contended that
so much of the treaty of February 22, 1819, ceding Florida to the
United States, as annulled a certain land grant, was void for want of
power in the King of Spain to ratify such a provision, it was held
that whether or not the King of Spain had power, according to the
442
[PART 1.
NATIONALITY.
Constitution of Spain, to annul the grant, was a political and not a
judicial question, and was decided when the treaty was made and
ratified.
Mr. Chief Justice Taney said: “The treaty is therefore a law made
by the proper authority, and the courts of justice ! have no right to
annul or disregard any of its provisions, unless they violate the Con-
stitution of the United States. It is their duty to interpret it and
administer it according to its terms. And it would be impossible for
the executive department of the government to conduct our foreign
relations with any advantage to the country, and fulfil the duties
which the Constitution has imposed upon it, if every court in the
country was authorized to inquire and decide whether the person who
ratified the treaty on behalf of a foreign nation had the power, by
its constitution and laws, to make the engagements into which he
entered."
Extradition may be sufficiently defined to be the surrender by one
nation to another of an individual accused or convicted of an offence
outside of its own territory, and within the territorial jurisdiction of
the other, which, being competent to try and to punish him, demands
the surrender.
In the United States, the general opinion and practice have been
that extradition should be declined in the absence of a conventional
or legislative provision. 1 Moore on Extradition, 21; United States v.
Rauscher, 119 U. S. 407.
The power to surrender is clearly included within the treaty-making
power and the corresponding power of appointing and receiving am-
bassadors and other public ministers. Holmes v. Jennison, 14 Pet.
540, 569. Its exercise pertains to public policy and governmental
administration, is devolved on the executive authority, and the war-
rant of surrender is issued by the Secretary of State as the represen-
tative of the President in foreign affairs.
If it be assumed in the case before us, and the papers presented on
the motion for a stay advise us that such is the fact, that the com-
missioner, on hearing, deemed the evidence sufficient to sustain the
charges, and certified his findings and the testimony to the Secretary
of State, and a warrant for the surrender of Terlinden on the proper
requisition was duly issued, it cannot be successfully contended that
the courts could properly intervene on the ground that the treaty
under which both governments had proceeded, had terminated by
reason of the adoption of the constitution of the German Empire, not-
withstanding the judgment of both governments to the contrary.
The decisions of the executive department in matters of extradi-
tion, within its owu sphere, and in accordance with the Constitution,
CHAP. IV.]
443
LA NINFA.
are not open to judicial revision, and it results that where proceedings
for extradition, regularly and constitutionally taken under the acts
of Congress, are pending, they cannot be put an end to by writs of
habeas corpus.
The District Court was right, and its final order is
Affirmed.
Mr. Justice HARLAN did not hear the argument and took no part
in the decision of the case. 1
"LA NINFA."
UNITED STATES CIRCUIT COURT OF APPEALS, NINTH CIRCUIT, 1896.
(75 Federal, 513.)
2
HAWLEY, District Judge.
From these facts the question arises whether Behring Sea, at a
distance of more than one league from the American shore, is
Alaskan territory, or in the waters thereof, or within the dominion
of the United States in the waters of Behring Sea. Section 1956 of
Revised Statutes reads as follows:
“Sec. 1956. No person shall kill any otter, mink, marten or fur-
seal, or other fur-bearing animal, within the limits of Alaska Terri-
tory, or in the waters thereof; * * * and all vessels, their tackle,
apparel, furniture and cargo, found engaged in violation of this
section shall be forfeited,” &c.
Section 3 of the act to provide for the protection of the salmon
fisheries of Alaska, approved March 2, 1889, provides that section
1956 "is hereby declared to include and apply to all the dominion
of the United States in the waters of Behring Sea; and it shall be
the duty of the President, at a timely season in each year, to issue
his proclamation and cause the same to be published * * * warning
all persons against entering said waters for the purpose of violating
the provisions of said section,” &c. By these provisions, the ques-
tion as to what the boundaries were over which the United States
i See also Schultze v. Schultze, 1893, 144 Ill. 290, 295, and 15 Harv. Law Rer.
817-848, for a valuable note to principal case. As to the effect of absorption of a
State or province upon a treaty concluded by the State thus absorbed and a third power,
and of obligations generally, see the recent instances in Magoon's Military Occupation,
177-1990) ; 302-305; 305-313; 316-338; 529-534 ; 630-646; Hall's Int. Law, 96–105. — Ed.
? Statement of case in the first part of the opinion omitted. — ED.
444
[PART I.
NATIONALITY.
had dominion was not intended to be, and was not, determined by
the amendatory act. The question was left open for future consid-
eration. By reference to the proceedings in Congress, it appears that
the amendment of section 1956 was brought about in the following
manner: A bill was introduced in the Senate, and passed, amending
section 1963 of the Revised Statutes, and to provide for better pro-
tection of the fur-seal and salmon fisheries in Alaska, and had
reference to fishing and fisheries only. When this bill came to the
House of Representatives, an amendment was proposed and adopted,
"that section 1956 of the Revised Statutes vas intended to include
and apply, and is hereby decreed to include and apply, to all the
waters of Behring Sea in Alaska embraced within the boundary lines
mentioned and described in the treaty with Russia, dated March 30,
1867, by which the territory of Alaska was ceded to the United
States," &c. The bill as thus amended was returned to the Senate.
The committee on foreign relations reported the house amendmeng
with a recommendation that it be disagreed to. Senator Morgan,
of the committee, said:
“That in the report made by the committee the rights of the
Government of the United States were not considered, and not
intended to be considered. We only arrive at the conclusion that
the question presented in the amendment of the house is of such a
serious and important character that the committee on foreign rela-
tions would not undertake, at this time, to pronounce that kind of
judgment upon it which is due to the magnitude of such a question.
* The bill, as it passed the Senate originally, should pass, because
it protects the salmon and other fisheries in Alaska, about which there
is no dispute. But this particular question is one of very great grav-
ity and seriousness, and the committee on foreign relations, or at
least a majority of the entire committee, did not feel warranted in
undertaking to consider it at this time.”
Senator Sherman, of the same committee, said:
"The question proposed by the House to the form of an amendment
was a grave one, and had no relation to the subject-matter of the bill,
and ought not to be connected with it, had no connection really
with it,
and involved serious matters of international law, perhaps,
and of public policy, and therefore it ought to be considered by
itself.”
The amendment made by the House was disagreed to. A committee
of conference was appointed. The result was that the description
as to the boundaries in the House amendment was stricken out, and
the words "hereby declared to include and apply to all the dominions
of the United States in the waters of Behring Sea” inserted in lieu
CHAP. IV.]
445
S LA NINFA.'
thereof. It thus appears, as is manifest by the act itself, that the
question as to the boundaries over which the United States had
dominion was not intended to be, and was not, determined when
the act was passed.
The government relies solely upon the provisions of the statute to
sustain the decree of the district court, and contends that the deci.
sion of the Supreme Court in Re Cooper, 143 U. S. 474, 12 Sup. Ct.
453, justifies the affirmance of the decree. That decision does not
reach the direct point here in controversy. The court there held that
the question was a political one, in which the United States had
asserted a doctrine in opposition to the views contended for by the
petitioner; that the negotiations were then pending in relation to
the particular subject; but the court declined to decide whether the
government was right or wrong in its contention, or to review the
action of the political departments upon the question under review.
The opinion shows that the court considered it a grave question. It
recites much of the important history relative to the disputed ques-
tion, but the question itself was not decided. The case was disposed
of upon other grounds. What was said concerning the disputed
questions had reference to the conditions then existing. The condi-
tions now existing are entirely different. The negotiations then
pending were brought about by the asserted claim of the United
States to proprietary rights in the waters of Behring Sea, and in the
fur-bearing animals which frequent it and its islands, which was dis-
puted by other nations, particularly by England, the property of
whose subjects had been from time to time seized by the United
States for alleged violations of the statutes in question; and these
controversies resulted in submitting the disputed question to an
arbitration. 27 Stat. 948. Article 1 provides that:
"The questions which have arisen between the government of th
United States and the government of her Britannic majesty, concern-
ing the jurisdictional rights of the United States in the waters of
Behring Sea, and concerning also the preservation of the fur-seal in,
or habitually resorting to the said sea, and the rights of the citizens
and subjects of either country, as regards the taking of fur-seal in,
or habitually resorting to the said waters, shall be submitted to a
tribunal of arbitration."
The five points submitted to the arbitrators are set forth in article
6, and, omitting the second, are as follows:
“(1) What exclusive jurisdiction in the sea, now known as the
Behring Sea, and what exclusive rights in the seal fisheries therein,
did Russia assert and exercise prior and up to the time of the cession
of Alaska to the United States?
4:46
[PART I.
NATIONALITY.
(3) Was the body of water now known as the Behring Sea
included in the phrase ' Pacific Ocean,' as used in the treaty of 1825
between Great Britain and Russia; and what rights, if any, in the
Behring Sea were held and exclusively exercised by Russia after
said treaty ?
(4) Did not all the rights of Russia as to jurisdiction, and as to
the seal fisheries in Behring Sea east of the water boundary in the
treaty between the United States and Russia of the 30th March, 1867,
pass unimpaired to the United States under that treaty ?
“(5) Has the United States any right, and, if so, what right of
protection or property in the fur-seals frequenting the islands of the
United States in Behring Sea, when such seals are found outside the
ordinary three-mile limit?"
The decision of the arbitrators upon these points was as follows:
“(1) *** By the ukase of 1821, Russia claimed jurisdiction in the
sea now known as the 'Behring Sea' to the extent of one hundred
Italian miles from the coasts and islands belonging to her; but in
the course of the negotiations which led to the conclusion of the
treaties of 1824 with the United States, and of 1825 with Great
Britain, Russia admitted that her jurisdiction in the said sea should
be restricted to the reach of cannon-shot from the shore; and it
appears that from that time up to the time of the cession of Alaska
to the United States, Russia never asserted in fact or exercised any
exclusive jurisdiction in Behring Sea, or any exclusive rights in
the seal fisheries therein, beyond the ordinary limit of territorial
waters. * *
(2).
“(3) As to the third of the said five points, as to so much thereof
as requires us to decide whether the body of water now known as
'Behring Sea' was included in the phrase 'Pacific Ocean,' as used in
the treaty of 1825 between Great Britain and Russia, we, the said
arbitrators, do unanimously decide and determine that the body of
water now known as the 'Behring Sea' was included in the phrase
' Pacific Ocean,' as used in the said treaty. And as to so much of
said third point as requires us to decide what rights, if any, in the
Behring Sea were held and exclusively exercised by Russia after the
said treaty of 1825, we, * * * a majority of said arbitrators, do de-
cide and determine that no exclusive rights of jurisdiction in Behring
Sea, and no exclusive rights as to the seal fisheries therein, were held
or exercised by Russia outside of the ordinary territorial waters after
the treaty of 1825. As to the fourth of said five points, we, the said
arbitrators, do unanimously decide and determine that all the rights
of Russia as to jurisdiction ard as to the seal fisheries in the Behring
CHAP. IV.]
(6 LA NINFA."
447
Sea east of the water boundary, in the treaty between the United
States and Russia of 30th March, 1867, did pass unimpaired to the
United States under the said treaty. As to the fifth of said points
* * * a majority of the said arbitrators do decide and determine that
the United States has not any right of protection or property in the
fur-seals frequenting the islands of the United States in Behring Sea,
when such seals are found outside the ordinary three-mile limit.”
27 Am. Law Rev. 703.
By the fourteenth article of the treaty or convention submitting the
questions to arbitration it was provided that:
“The high contracting parties engage to consider the result of the
proceedings of the tribunal of arbitration as a full, perfect and final.
settlement of all the questions referred to by the arbitrators.”
In submitting the questions to the high court of arbitration, the
government agreed to be bound by the decision of the arbitrators, and
has since passed an act to give effect to the award rendered by the
tribunal of arbitration. 28 Stat. 52. The award should, therefore,
be considered as having finally settled the rights of the United States
in the waters of Alaska and of Behring Sea, and all questions con-
cerning the rights of its own citizens and subjects therein, as well as
of the citizens and subjects of other countries.
The true interpretation of section 1956, and of the amendment
thereto, depends upon the dominion of the United States in the
waters of Behring Sea, such dominion therein as was "ceded by
Russia to the United States by treaty of 1867.” This question has
been settled by the award of the arbitrators, and this settlement must
be accepted
as final." It follows therefrom that the words “in the
waters thereof," as used in section 1956, and the words dominion
of the United States in the waters of Behring Sea," in the amend-
ient thereto, must be construed to mean the waters within three
miles from the shores of Alaska. On coming to this conclusion, this
court does not decide the question adversely to the political depart-
ment of the government. It is undoubtedly true, as has been decided
by the Supreme Court, that in pending controversies doubtful ques-
tions, which are undecided, must be inet by the political department
of the government. “They are beyond the sphere of judicial cogni-
zance,” and, “if a wrong has been done, the power of redress is with
Congress, not with the judiciary.” The Cherokee Tobacco, 11 Wall.
616-621. But in the present case there is no pending question left
undetermined for the political department to decide. It has been
settled. The award is to be construed as a treaty which has become
final. A treaty, when accepted and agreed to, becomes the supreme
law of the land. It binds courts as much as an act of Congress.
66
448
[PART I.
NATIONALITY.
In Head Money Cases, 112 U. S. 580-598, 5 Sup. Ct. 254, the court
said:
“A treaty is primarily a contract between independent nations.
It depends for the enforcement of its provisions on the interest and
honor of the governments which are parties to it. *** A treaty,
then, is the law of the land, as an act of Congress is, whenever its
provisions prescribe a rule by which the rights of the private citizen
or subject may be determined. And when such rights are of a nature
to be enforced in a court of justice, that court resorts to the treaty
for a rule of decision for the case before it, as it would to a statute.”
Chew Heong v. U. S., 112 U. S. 536, 540, 565, 5 Sup. Ct. 255; U. S.
v. Rauscher, 119 U. S. 407-419, 7 Sup. Ct. 234.
The duty of courts is to construe and give effect to the latest
expression of the sovereign will; hence it follows that, whatever may
have been the contention of the government at the time In re Cooper
was decided, it has receded therefrom since the award was rendered
by an agreement to accept the same "as a full, complete, and final
settlement of all questions referred to by the arbitrators,” and from
the further fact that the government since the rendition of the award
has passed “an act to give effect to the award rendered by the tribunal
of arbitration."
It is suggested in the brief of the learned counsel for the United
States that:
“It may be the present policy of the government to make record
evidence as to the consistency of its contentions from the beginning
upon the important question of its rights to protect its property and
seal fisheries. * * * It may be that it is the policy of this govern-
ment to punish its own citizens and vessels, and not the citizens and
vessels of England. All these and other considerations make the
question one essentially political, so that courts would at least hesi-
tate to enter any field beyond that of construing the statutes under
which this case is presented.”
There is nothing in the award which denies jurisdiction of the
United States over her own merchant vessels on the high seas at any
place not within the jurisdiction of any other sovereignty. These
questions have no bearing as to the interpretation to be given to the
statutes under review. These statutes, whatever their interpretation
may be, must be applied to citizens and subjects of all nations, and
were not intended to apply only to citizens, subjects, and vessels
of America. By the terms of the arbitration, “the rights of the
citizens and subjects of either country” wore involved in the decision
of the arbitrators, and it necessarily follows that the citizens and
subjects of the United States have the same right to rely upon the
CHAP. IV.]
449
“LA NINFA.”
eries."
1
award as to their rights, under the statute, as the citizens and sub-
jects of England. There are no provisions in the act of April 6,
1894, "to give effect to the award rendered by the tribunal of arbi-
tration,” which indicate any policy upon the part of this government
to enforce any rights against its own citizens, under the statute, con-
sistent with the contentions made, “from the beginning upon the
important questions of its right to protect its property and seal fish-
On the other hand, the entire act clearly shows that it is the
policy of the government not to make any such distinction. The act
was passed enacting certain rules relative to the control of its own
subjects in the exercise of the right which, under the award of the
arbitrators, the two countries had in common to kill seal outside of
the three-mile limit.
The decree of the District Court is reversed, and the cause remanded,
with instructions to the District Court to dismiss the libel,
MCKENNA, Circuit Judge, dissents.
1 As to the power or rather the duty of the United States Government to set aside
an arbitration award between it and a foreign power, on the ground that the award
was obtained fraudulently, see Frelinghuysen v. Key, 1883, 110 U. S. 63, 70-76; La
Abra Silver Mining Co. v. U. S., 1899, 175 U. S. 423, 450 et seq.
On this subject generally, see the masterly and monumental work of John B.
Moore on International Arbitrations, 6 vols., 1898, in which are set forth the specific
instances of arbitration between the United States and foreign powers, the treaties
relating to such arbitrations, and a detailed history of international arbitration.
Seė, also, the careful theoretical presentation of the subject by M. Revon, L'Arbi-
trage International, 1892, and for the documents and history of the establishment of
the Permanent Court of Arbitration at The Hague, see F. W. Holls, Peace Conference
at The Hague, 1900.
The Permanent Court considered, as its first case, « The Pious Fund” dispute
between Mexico and the United States. According to the New York Nation (Sept.
18, 1902), the facts of this case are as follows: “Originally, a private benefaction, it
was administered by the Jesuit Missionaries of California from 1697 to 1767. After
the expulsion of the Jesuits, it was transferred to the Franciscans, from whom the
new-born Mexican Republic took it, guaranteeing, however, by way of indemnity,
the payment in perpetuity of six per cent on the capital to the church authorities.
'Perpetuity' and the payments stopped abruptly with the cession of California to the
United States, and now the church in California sues the Mexican Government for
arrears of interest amounting to about $1,000,000.”
On Oct. 14, 1902, the tribunal (according to the New York Tribune, Oct. 15, 1902),
unanimously held: “First - That the claim of the United States in behalf of the
Archbishop of San Francisco is governed by the principle of res adjudicata in virtnie
of the arbitration decision pronounced by Sir Edward Thornton, on Nov. 11, 1875, and
amended by Sir Edward Thornton, on Oct. 24, 1876. Second — That in conformity
with this decision the government of the United States of Mexico should pay the gov-
ernment of the United States $1,420,682.67. *** This sum will cover the total pay- .
ment of annuities due from and unpaid by the government of the Mexican Republic.
* * * Third
- The government of the United States of Mexico will pay to the govern-
ment of the United States *** an annual payment of $43,050.99.”
For the facts of the case in detail, and the award of Sir Edward Thornton, see
2 Moore, Int. Arb. 1349–1354. -ED.
23
1
PART II.
INTERNATIONAL RELATIONS AS MODIFIED BY WAR.
CHAPTER I.
MEASURES SHORT OF ACTUAL WAR.
SECTION 24. – REPRISALS.
MARSHALL, C. J., in The Nereide, 1815, 9 Cranch, 388, 422: The
court is decidedly of opinion that reciprocating to the subjects of a
nation, or retaliating on them its unjust proceedings towards our
citizens, is a political, not a legal measure. It is for the consider-
ation of the government, not of its courts. The degree and the kind
of the retaliation depend entirely on considerations foreign to this
tribunal. It may be the policy of the nation to avenge its wrongs in
a manner having no affinity to the injury sustained, or it may be
its policy to recede from its full rights and not to avenge them at
all. It is not for its courts to interfere with the proceedings of the
nation and to thwart its views. It is not for us to depart from the
beaten track prescribed for us, and to tread the devious and intri-
.cate path of politics. *** If it be the will of the government to
apply to Spain any rule respecting captures which Spain is sup-
posed to apply to us, the government will manifest that will by pass-
ing an act for the purpose. Till such an act be passed, the court
is bound by the law of nations, which is a part of the law of the
land. 1
So far as the claim is made that the relators should be held in a spirit of comity
and reciprocity, we can only say that the comity and reciprocity to be extended to
representatives of foreign governments depends upon Congress, and is not lodged with-
in the judiciary. See 2 Op. Atty.-Gen. 378, citing The Nereide, 9 Cranch, 389.”
Pardee, J., in Re Aubrey, 1885, 26 Fed. 848, 851. -- ED.
!
452
(PART II.
MEASURES SHORT OF ACTUAL WAR.
WILLIAM GRAY, ADMINISTRATOR, V. THE
UNITED STATES.
THE COURT OF CLAIMS, 1886.
(21 Court of Claims, 340.)
DAVIS, J., delivered the opinion of the court.1
The defendants contend that the seizures were justified, as war
existed between this country and France during the period in ques-
tion; and, as we could have no claim against France for seizure of
private property in time of war, the claimants could have no result-
ing claim against their own government; that is, the claims, being
invalid, could not form a subject of set-off as it is urged these claims
did in the second article of the treaty of 1800. It therefore becomes .
of great importance to determine whether there was a state of war
between the two countries.
It is urged that the political and judicial departments of each
government recognized the other as an enemy; that battles were
fought and blood shed on the high seas; that property was captured
by each from the other and condemned as prize; that diplomatic and
consular intercourse was suspended, and that prisoners had been
taken by each government from the other and "held for exchange,
punishment, or retaliation, according to the laws and usages of
war."
While these statements may be in substance admitted and
constitute very strong evidence of the existence of war, still they are:
not conclusive, and the facts, even if they existed to the extent:-
claimed, may not be inconsistent with a state of reprisals straining
the relations of the states to their utmost tension, daily threatening
hostilities of a more serious nature, but still short of that war which
abrogates treaties, and after conclusion of which parties must, as
between themselves, begin international life anew.
The French issued decree after decree against our peaceful com-
merce, but, on the ground of military necessity incident to the war
with Great Britain and her allies, they refused to receive our minis-
ter, but in that refusal, insolent though it was, there is nothing to
show that war was intended, and the mere refusal to receive a minis-
ter does not in itself constitute a ground for hostilities.
The Attorney-General, Mr. Lee, in August, 1798, very strongly
1 Facts are wholly omitted and only so much of the opinion is given as relates to
the question of reprisals. — Ed.
CHAP. I.]
453
GRAY V. UNITED STATES.
sustained the defendant's position, for he wrote the Secretary of
State that there existed with France "not only an actual maritime
war," but“ą maritime war authorized by both nations;" that conse-
quently France was an enemy, to aid and assist whom would be
treason on the part of a citizen of the United States; but we cannot
agree that this extreme position was authorized by the facts of the
law.
Congress enacted the various statutes bereinafter referred to in
detail, and when one of them, the act providing an additional arma-
ment, was passed in the House, Edward Livingston, who opposed it,
said:
“Let no man flatter himself that the vote which has been given is
not a declaration of war. Gentlemen know that this is the case.
Those were times of great excitement; between danger of interna-
tional contest and heat of internal partisan conflict, statesmen could
not look at the situation with the calmness possessed by their succes-
sors, and those successors, with some exceptions to be sure, regarded
the relations between the countries as not amounting to war.
The question has been carefully examined by authorized and com-
petent officers of the political department of the government, and we
may turn to their statements as expository of the view of that branch
upon the subject.
In 1827 Senator Holmes reported that there had been "a partial
war, but no actual, open war would absolve us from treaty stipula-
tions. * * * It was never understood here that this was such a war
as would annul a treaty.” 19th Cong., 2d sess., Senate Rep., Feb. 8,
1827, p. 8.
Mr. Giles, reporting to the House of Representatives, as early as
1802, called it a "partial state of hostility” between the United States
and France.
Mr. Chambers reported to the Senate in 1828 that,
“The relations which existed between the two nations in the inter-
val between the passage of the several acts of Congress before referred
to and the convention of 1800 were very peculiar, but in the opinion
of your committee cannot be considered as placing the two nations
in the attitude of a war which would destroy the obligations of
previously existing treaties.”
Mr. Livingston reported to the Senate in 1830 that, —
"This was not a case of war, and the stipulations which reconciled
the two nations was not a treaty of peace; it was a convention for
the putting an end to certain differences. *** Nowhere is the slight-
est expression on either side that a state of war existed, which would
exonerate either party from the obligations of making those indemni-
1
454
[PART II.
MEASURES SHORT OF ACTUAL WAR.
ties to the other. * * * The convention which was the result of these
negotiations is not only in its form different from a treaty of peace,
but it contains stipulations which would be disgraceful to our country
on the supposition that it terminated a state of war
* * * Neither
party considered then they were in a state of war.” Rep. 4, 445.
Mr. Everett made a statement to the House of Representatives on.
the 21st February, 1835; in which he said:
"The extreme violence of the measures of the French Government
and the acccumulated injuries heaped upon our citizens would have
amply justified the government of the United States in a recourse to
war; but peaceful remedies and measures of defence were preferred;
(and, after referring to the acts of Congress, he adds): These vigor-
ous acts of defence and preparation, evincing that, if necessary, the
United States were determined to proceed still further and go to war
for the protection of their citizens, had the happy effect of precluding
a resort to that extreme measure of redress."
Finally, Mr. Sumner considered the acts of Congress as “vigorous
measures," putting the country "in an attitude of defence;” and that
the "painful condition of things, though naturally causing great
anxiety, did not constitute war. 38th Cong., 1st sess., Rep. 41,
1864.
The judiciary also had occasion to consider the situation, and the
learned counsel for the defendants cites us to the opinion of Mr. Jus-
tice Moore, delivered in the case of Bass v. Tingy, 4 Dall. 37, wherein
the facts were as follows: Tingy, commander of the public armed ship
the Ganges, had libelled the American ship Eliza, Bass, master, set-
ting forth that she had been taken on the high seas by a French priva-
teer the 31st March, 1799, and retaken by him late in the following
April, wherefore salvage was claimed and allowed below. Upon
appeal the judgment was affirmed. Each of the four justices present
delivered an opinion.
Justice Moore, answering the contention that the word " enemy"
could not be applied to the French, says:
“How can the character of the parties engaged in hostility of war
be otherwise described than by the denomination of enemies ? It is
for the honor and dignity of both nations, therefore, they should be
called enemies; for it is by that description alone that either could
justify or excuse the scene of bloodshed, depredation, and confisca-
tion which has unhappily occurred, and surely Congress could only
employ the language of the act of June 13, 1798, towards a nation
whom she considered as an enemy."
Justice Washington considers the very point now in dispute, saying
(p. 40):
CHAP. I.]
455
GRAY V. UNITED STATES.
“The decision of the question must depend upon *** whether at
the time of passing the act of Congress of the 2d of March, 1799,
there subsisted a state of war between two nations. It may, I believe,
be safely laid down that every contention by force between two nations,
in external matters, under the authority of their respective govern-
ments, is not only war, but public war. If it be decreed in forin it
is called solemn and is of the perfect kind, because one whole nation
is at war with another whole nation, and all the members of the nation
declaring war are authorized to commit hostilities against the mem-
bers of the other in every place and under every circumstance. In
such a war all the members act under à general authority, and all the
rights and consequences of war attach to their condition. But hostili-
ties may subsist between two nations more confined in its nature and
extent, being limited as to places, persons, and things, and this is
more properly termed imperfect war, because not solemn, and because
those who are authorized to commit hostilities act under special au-
thority and can go no further than to the extent of their commission.
Still, however, it is public war, because it is an external contention
by force between some of the members of the two nations, authorized
by the legitimate powers. It is a war between the two nations, though
all the members are not authorized to commit hostilities such as in
a solemn war, where the government retains the general power.”
Applying this rule he held that “an American and French armed
vessel, combating on the high seas, were enemies," but added that
France was not styled “an enemy" in the statutes, because the degree
of hostility meant to be carried on was sufficiently described without
declaring war, or declaring that we were at war. Such a declaration
by Congress might have constituted a perfect state of war which was
not intended by the government.
Justice Chase, who had tried the case below, said:
“It is a limited, partial war. Congress has not declared war in
general terms, but Congress has authorized hostilities on the high
seas by certain persons in certain cases. There is no authority given
to commit hostilities on land, to capture unarmed French vessels, nor
even to capture armed French vessels in a French port, and the
authority is not given indiscriminately to every citizen of America
against every citizen of France, but only to citizens appointed by
commissions or exposed to immediate outrage and violence. * * * If
Congress had chosen to declare a general war, France would have been
a general enemy; having chosen to wage a partial war, France was
* * * only a partial enemy."
Justice Patterson concurred, holding that the United States and
France were “in a qualified state of hostility” “quoad hoc."
war
456
[PART II.
MEASURES SHORT OF ACTUAL WAR.
As far as Congress tolerated and authorized it, so far might we pro-
ceed in hostile operations, and the word “enemy" proceeds the full
length of this qualified war, and no further.
The Supreme Court, therefore, held the state of affairs now under
discussion to constitute partial warfare, limited by the acts of
Congress.
The instructions of Ellsworth, Davie, and Murray, dated Oct. 22,
1799, did not recognize a state of war as existing, or as having
existed, for they said the conduet of France would have justified an
immediate declaration of war, but the United States, desirous of
maintaining peace, contented themselves “with preparations for
defence and measures calculated to defend their commerce." Doc.
102, p. 561. Yet all the measures relied upon as evidence of existing
war had taken effect prior to the date of these instructions. So the
ministers, in a communication to the French authorities, said, as to
the acts of Congress, “which the hard alternative of abandoning
their commerce to ruin imposed,” that “far from contemplating a
co-operation with the enemies of the Republic (they) did not even
authorize reprisals upon her merchantmen, but were restricted simply
to the giving of safety to their own, till a moment should arrive when
their sufferings could be heard and redressed.” Doc. 102, p. 583.
France did not consider that war existed, for the minister said that
the suspension of his functions was not to be regarded as a rupture
between the countries, “but as a mark of just discontent" (15 Nov.,
1796, Foreign Relations, Vol. I. p. 583), while J. Bonaparte and his
colleagues termed it a "transient misunderstanding” (Doc. 102, p.
590), a state of “misunderstanding" which had existed "through the
acts of some agents rather than by the will of the respective govern-
mnents, "" and which had not been a state of war, at least on the side
of France. Ib. 616.
The opinion of Congress at this time is best gleaned from the laws
which it passed. The important statute in this connection is that of
May 28, 1798 (1 Stat. L. 561), entitled "An Act more effectually to
protect the commerce and coasts of the United States.” Certainly
there was nothing aggressive or warlike in this title.
The act recites that, whereas the French armed vessels have com-
mitted depredations on American commerce in violation of the law of
nations and treaties between the United States and France, the Presi-
dent is authorized – not to declare war, but to direct naval com-
manders to bring into our ports, to be proceeded against according to
the law of nations, any such vessels “which shall have committed, or
which shall be found hovering on the coasts of the United States for
the purpose of committing, depredations on the vessels belonging to
CHAP. I.]
457
GRAY V. UNITED STATES.
the citizens thereof; and also to retake any ship or vessel of any citizen
or citizens of the United States which may have been captured by any
such aimed vessel."
This law contains no declaration or threat of war; it is distinctly
an act to protect our coasts and commerce. It says that our vessels
may arrest a vessel raiding or intending to raid upon that commerce,
and that such vessel shall not be either held by an executive authority
or confiscated, but turned over to the admiralty courts — recognized
international tribunals -- for trial, not according to municipal statutes,
as was being done in France, but according to the law of nations.
Such a statute hardly seems necessary, for if it extended at all the
police powers of naval commanders upon the high seas it was in the
very slightest degree, and it is hardly probable then or now, with or
without specific statutory or other authority, an American naval com-
mander would in fact allow a vessel rightfully flying the flag of the
United States to be seized on the high seas or near our coasts by the
cruisers of another government. But if the act did enlarge the power
of such officers, and give to them authority not theretofore possessed,
it tied them down to specific action in regard to specified vessels.
They might seize armned vessels only, and only those armed vessels
which had already committed depredations, or those which were on
our coast for the purpose of committing depredations, and they might
retake an American vessel captured by such an armed vessel. This
statute is a fair illustration of the class of laws enacted at this time;
they directed suspension of commercial relations until the end of the
next session of Congress, not indefinitely (June 13, 1798, ib. § 4, p.
566); they gave power to the President to apprehend the subjects of
hostile nations whenever he should make “public proclamations” of
war (July 6, 1798, ib. 577), and no such proclamation was made;
they gave him authority to instruct our armed vessels to seize French
"armed," not merchant, vessels (July 9, 1798, ib. 578), together with
contingent authority to augment the army in case war should break
out or in case of imminent danger of invasion. March 2, 1799,
ib. 525. Within a few months after this last act of Congress the
Ellsworth mission was on its way to France to begin the negotiations
which resulted in the treaty of 1800, and even the act abrogating the
treaties of 1778 does not speak of war as existing, but of "the systems
of predatory violence * * * hostile to the rights of a free and inde-
pendent nation.” July 7, 1798, ib. 578.
If war existed, why authorize our armed vessels to seize French
armed vessels? War itself gave that right, as well as the right to
seize merchantmen, which the statutes did not permit. If war existed,
why empower the President to apprehend foreign enemies? War it-
458
[PART II.
MEASURES SHORT OF ACTUAL WAR.
War
self placed that duty upon him as a necessary and inherent incident
of military command. Why, if there was war, should a suspension
of commercial intercourse be authorized, for what more complete sus-
pension of that intercourse could there be than the very fact of war?
And why, if war did exist, should the President, so late as March,
1799, be empowered to increase the army upon one of two conditions,
viz., that war should break out or invasion be imminent, that is, if war
should break out in the future or invasion become imminent in the
future?
Upon these acts of Congress alone it seems difficult to found a state
of war up to March, 1799, while in February, 1800, .we find a statute
suspending enlistments, unless, during the recess of Congress,
should break out with France." This is proof positive that Congress
did not then consider war as existing, and in fact Ellsworth, Davie,
and Murray were at the time hard at work in Paris. In May follow-
ing the President was instructed to suspend action under the act pro-
viding for inilitary organization, although the treaty was not concluded
until the following September.
This legislation shows that war was imminent; that protection of
our commerce was ordered, but distinctly shows that, in the opinion of
the legislature, war did not in fact exist.
Wheaton draws a distinction between two classes of war, saying:
“A perfect war is where one whole nation is at war with another
nation, and all the members of both nations are authorized to commit
hostilities against all the members of the other, in every case, and
under every circumstance permitted by the general laws of war. An
imperfect war is limited as to places, persons, and things (to which
the editor adds): Such were the limited hostilities authorized by the
United States against France in 1798." Lawrence's Wheaton, 518.
There was no declaration of war; the tribunals of each country
were open to the other an impossibility were war in progress; dip-
lomatic and commercial intercourse were admittedly suspended; but
during many years there was no intercourse between England and
Mexico, which were not at war; there was retaliation and reprisal,
but such retaliations and reprisals have often occurred between nations
at peace; there was a near approach to war, but at no time was one of
the nations turned into an enemy of the other in such manner that
every citizen of one became the enemy of every citizen of the other;
finally, there was not that kind of war which abrogated treaties and
wiped out, at least temporarily, all pending rights and contracts,
individual and national.
In cases like this “the judicial is bound to follow the action of
'the political department of the government, and is concluded by it”
!
S
CHAP. I.]
459
GRAY V. UNITED STATES.
22
(Phillips v. Phillips, 92 U. S. R. 130); and we do not find an act of
Congress or of the executive between the years 1793 and 1801 which
recognizes an existing state of solemn war, although we find statutory
provisions authorizing a certain course "in the event of a declaration
of war," or "whenever there shall be declared war," or during the
existing "differences.” One act provides for the increase of the army
“in case war shall break out,” while another restrains this increase
“unless war shall break out.” 1 Stat. L. 558, 577, 725, 750; see,
also, acts of Feb. 10, 1800, and May 14, 1800.
We have already referred to the instructions of the executive, which
show that branch of the government in thorough accord with the
legislature on this subject, and the negotiations of our representatives
hereinafter referred to were marked by the same views, while the
treaty itself--a treaty of amity and commerce of limited duration -
is strong proof that what were called " differences” did not amount to
We are, therefore, of the opinion that no such war existed as
operated to abrogate treaties, to suspend private rights, or to authorize
indiscriminate seizures and condemnations; that, in short, there was
no public general war, but limited war, in its nature similar to a pro-
longed series of reprisals.1
war.
i The Court of Claims reconsidered this question in Hooper, Adm'r, v. U. S., 1887,
22 Ct. Cl. 408, 456, with the following result:
" Acts of retaliation are admitted to be justifiable under certain conditions.
They
may exist when the two nations are otherwise at peace, but they are in their nature
acts of warfare. They depart from the field of negotiation into that of force, and, as is
war, are justified by a successful result. To term the decrees of France and the acts of
their privateers under them'acts of reprisal,' does not alter the facts or the legal posi-
tion. That position has been defined by the Supreme Court of the United States as
limited, partial war. We, following the path indicated by that tribunal, have defined
it as 'limited war in its nature similar to a prolonged series of reprisals.".
“ Acts of retorsion are not acts of war; they are pacific. When resorted to between
independent states, they are intended to prevent the necessity of resorting to war.
Nor can the passing of such an act be considered a granting of letters of marque and
reprisal. Letters of marque and reprisal are a commission to attack the subjects of a
foreign state on the high seas beyond the limits of the state, seize their property, and
put it in sequestration. It is a hostile act of aggression. Martens, Law of Nations,
270; 1 Black. Com. 258. These terms were perfectly understood by the framers of our
Constitution, and they are used in the sense in which they are ordinarily understood by
enlightened jurists." Wood, arguendo in Gibbons v. Livingston, 1822, 6 N. J. L. 236, 255.
“ Letters of marque and reprisal may theoretically issue in time of peace (articles
of Confederation signed 1778, art. 9), as they form a mode of redress for some
specific injury which is considered to be compatible with a state of peace and per-
mitted by the law of nations.' Kent, Vol. I. p. 61. The commission authorizes 'the
seizure of the property of the subjects as well as of the sovereign of the offending nation
and to bring it in to be detained as a pledge, or disposed of under judicial sanction in like
manner as if it were a process of distress under national authority for some debt or duty
withheld.' Ibid. Speaking very technically, a letter of marque is merely a permission
460
(PART II.
MEASURES SHORT OF ACTUAL WAR.
SECTION 25. — HOSTILE EMBARGO.
THE “BOEDES LUST."
HIGH COURT OF ADMIRALTY, 1803.
(5 C. Robinson, 245.)
This was the case of a Dutch ship on a voyage from Demerara to
Batavia, embargoed at the Cape of Good Hope by an English squadron
before the actual declaration of war against Holland in 1803, and
afterwards condemned as enemy's property. An extract follows from
to pass the frontier, while a letter of reprisal authorizes a 'taking in return,' a taking
by way of retaliation, a captio rei unius in alterius satisfactionem. The colloquial use
together of the two names, letter of marque and letter of reprisal, leads sometimes to
misunderstanding as to the differing effect of each, one being simply an authority to
depart, the other an authority to seize property in compensation for an injury com-
mitted.” Davis, J., in Hooper, Adm'r, v. U.S., 1867, 22 Ct. Cl. 408, 429.
Reprisals may be granted for injuries to private citizens as well as to the State,
and when done by foreign individuals as well as when by public authority. The
granting of letters of reprisal (not of marque and reprisal) to citizens injured by
private hands, to remunerate themselves by reprisals on private property of any
citizens of the nation of the wrongdoer, has been reprobated by the best modern
writers, and discountenanced by the practice of nations. It entails all the responsibili-
ties of national acts, with none of their political or moral securities. Stephen's
Blackstone, ii. 516. Phillimore, iii. 22. Woolsey, $ 114. Halleck, 298, § 12. Espe-
cially is it true, that, for injuries done directly to the state, letters of generul reprisal
are not now issued to private persons in time of peace. The issuing of such letters
would now be considered an act of war. Kent, i. 61. Halleck, 299. Phillimore,
iii. 24–36, contains a summary of the chief modern instances of general reprisals.
“The right of making reprisals is not limited to property, but extends to persons.
Still, the practice of modern times discountenances the arrest and detention of innocent
persons, strictly in the way of reprisal. Halleck, 301, $ 16. Phillimore, iii. 23.
"By the later usage of speech, the term "letter of marque" seems to be confined to
the authorization to private armed trading vessels to make captures of property of the
enemy in war. If there is no declared or recognized status of war, and the government,
for a public purpose, desires to seize property, in the way of security or warning or
specific retaliation, such authorization to such vessels would be called "letters of
reprisal,' or 'letters of marque and reprisal.' If, in time of war, the private vessel
receiving the authorization is fitted out and employed solely as a cruiser, she is called
a 'privateer.'
" It is agreed that reprisals for private wrongs should never be resorted to by a
government until all reasonable appeals to the government of the wrongdoer have
been exhausted. The course of the British Government in the case of Pacifico, in
making reprisals against Greece, has been condemned, not only because the prelimi-
pary methods had not been exhausted, but because of the extortionate character of the
1
CHAP. I.]
461
THE 6 BOEDES LUST."
the judgment of Sir W. Scott: This was the state of the first seizure.
It was at first equivocal; and if the matter in dispute had terminated
demand made against a power incapable of resistance. Phillimore, iii. 29–33.
Halleck, 298, § 11.
“The remedy of retorsion, where there is no recognized war, is distinguished from
strict reprisals. It is the application of the lex talionis to nations, and is confined to
cases of the violation of mere comity, or of the imperfect obligations. It is not proper
to resort to specific retaliation for cases of serious injury and injustice. The tendency
of modern times is to put everything which may result in public international contro-
versy directly into the hands of the government, and to confine all acts of force to
public military officers, and to simplify these acts of force into acts of war, either
special and preliminary, or general. Woolsey, § 114. Halleck, 296, § 10. Kent, i. 93,
94. Manning, 105. Klüber, $ 234. Heffter, $$ 110, 111. Phillimore, iii. 8.
“By treaties and the practice of nations, the making of reprisals is now confined to
the seizure of commercial property on the high seas, by public cruisers, or private
cruisers specially authorized thereto. Heffter, § 110.” Dana's' Wheaton, note
No. 151.
And for instances in which the United States has acted by way of reprisal, see-
Lawrence's Wheaton, p. 507, note 168.
In considering the admissibility of reprisals, Attorney-General Randolph says: “I
appeal to the British reasoning on the Silesia loan [1752] as supporting this senti-
nient, in the following passages : 'The law of nations, founded upon justice, equity,
convenience, and the reason of the thing, and confirmed by long usage, do not allow of
reprisals, except in cases of violent injuries directed and supported by the State, and
justice absolutely denied, in ré minime dubiâ, by all tribunals, and afterward by the
prince.' Where the judges are left free, and give sentence according to their con-
science, though it should be erroneous, that would be no ground for reprisals. Upon
doubtful questions, different men think and judge differently, and all a friend can
desire is, that justice should be as impartially administered to him as it is to the
subjects of that prince in whose courts the matter is tried. Under such circumstances
a citizen must acquiesce.” 1 Op. Atty-Gen. 1793.
For the facts of the Silesian Loan Case, the importance of which rests more upon.
the able exposition of the law of maritime capture than upon the question of reprisals,
see the long account in 2 Martens, Causes Célèbres, 97, or the brief note in Hall, Int.
Law, 454.
In the case of Don Pacifico, 1850; frequently cited as an instance of reprisals, the
facts were briefly : Pacifico was by race a Jew, by birth a Britislı subject, residing at
Athens, Greece. It was customary at Athens to burn “ Judas Iscariot”in effigy at
Easter. This the authorities, in 1847, attempted to prevent, owing to the presence of
Mr. Charles de Rothschild in Athens. The mob resented the action of the authorities
and vented its disappointment on Don Pacifico. His house was attacked and plundered.
He generously estimated his loss at £26.000, and it seems lodged a complaint with the
Greek Government, which however, took no action. Feeling that a Jew would have
little or no chance of justice in the Greek courts, Pacifico appealed to the British
Government which interfered and demanded compensation for the injuries done to a
British subject. On the failure of the Greek Government to meet the demand, the
British admiral laid an embargo on all Greek merchant vessels in Greek ports and
captured and detained such as were found upon the sea. Pacifico's claim was ulti-
mately laid before certain commissioners who assessed his damages at £150.
Don Pacifico has usually been represented as an adventurer who had little claim:
upon the sympathy of his fellow-men; and England has generally been severely
462
[PART II.
MEASURES SHORT OF ACTUAL WAR.
in reconciliation, the seizure would have been converted into a mere
civil embargo. That would have been the retroactive effect of that
criticised for supporting his claim. Yet if he was a British subject, he had a right to
be protected as such. He was born in British territory, Gibraltar, and his father was
born in London. His letters relating to this affair are dignified, and show much
ability. His chief crime would seem to have been that of being a Jew. The argument
that Pacifico ought to have resorted to the ordinary courts of Greece to obtain his
indemnity is quite untenable. What chance of success would he have had in a suit
against a mob of several hundred persons, to him unknown, and with public opinion
against him ? Indeed he brought the matter to the notice of the judiciary department
of the government; and it was then the duty of the government to take further pro-
ceedings. The fact would seem to be that the whole trouble lay in the weak and
vacillating policy of the Greek Government, which could easily have avoided all
trouble by simply doing justice to M. Pacifico and the other claimants. Whether the
British Government was justified in resorting to such extreme measures may be
questioned; but that some action was called for there can be little doubt.
See further the case of Van Brokelen, 1888, 2 Moore Intr. Arb. 1807-1853 in which
the United States intervened in behalf of Van Brokelen on the ground that the
Haytian courts unduly discriminated against him; The Costa Rica Packet, 1897,
5 Moore, id. 4948–4954, in which Great Britain intervened in behalf of one Carpenter
against Holland, on the ground that no real cause was shown for his arrest, and that
the treatment to which he was subjected in prison appeared “to be unjustifiable in
view of his being the subject of a civilized state," per F. de Martens, arbiter.
The following judicious passage from the judgment of Drake, C. J., in Hubbell et
ul. v. U. S., 1879, 15 Ct. Cl. 546, 608, throws light on this subject: “A nation is not
ordinarily esteemed to be liable internationally for injury done to the property of
foreigners within its jurisdiction. If Chinese property is destroyed in California, or a
British vessel pillaged by wreckers in Alaska, international responsibility in damages
does not necessarily follow. By the comity of nations it is assumed that the civil
power acts in good faith; that its laws in their ordinary operation afford requisite
protection; and if that protection fails its courts furnish the means to procure com-
pensation and to punish the wrongdoer. A foreigner who resides within a country
is only entitled to enjoy the same protection and the same indemnity which are
accorded to the citizen or subjects. Mr. Webster to Mr. Calderon, Nov. 13, 1851.
When the courts of the country are so bad or so corrupt as to excuse resorting to
them; or when all redress through them has failed; or when a despotism affords no
protection to natives; or when the injured nation has determined to question the good
faith of the other power, a case arises for an international reclamation for such a cause.
The bombardment of Greytown, 1854, is an American precedent. Greytown was
a port on the Mosquito coast, in which some United States citizens resided. These
citizens, and others interested with them in business, were subjected to gross indigni-
ties and injuries by the local authorities, who were British, but who professed to act
under authority from the king or chief of the Mosquito Islands. The parties injured
accordingly appealed to the commander of the United States sloop-of-war Cyane, then
lying 'near that port, for protection. To punish the authorities for their action, he
bombarded the town. For this act he was denounced by the British residents, who
claimed that the British Government had a protectorate over that region. His action
was sustained by the government of the United States, the ground being the necessity,
of punishing in this way a great wrong to citizens of the United States, and preventing
its continuance." 1 Wharton's Digest, p. 229, and II. p. 595.
A favorite form of reprisal in coercing weaker states has been by what are called
CHAP. I.]
THE “BOEDES LUST.”
462
1
course of circumstances. On the contrary, if the transactions end in
hostility, the retroactive effect is directly the other way. It impresses
the direct hostile character upon the original seizure. It is declared
to be no embargo, it is no longer an equivocal act, subject to two
interpretations; there is a declaration of the animus, by which it was
done, that it was done hostili animo and is to be considered as an
hostile measure ab initio. The property taken is liable to be used as
the property of persons, trespassers ab initio, and guilty of injuries,
which they have refused to redeem by any amicable alteration of their
measures. This is the necessary course, if no particular compact
intervenes for the restitution of such property taken before a formal
declaration of hostilities. No such convention is set up on either
side, and the state, by directing proceedings against this property for
condemnation, has signified a contrary intention. Accordingly the
general mass of Dutch property has been condemned on this retroac-
tive effect; and this property stands upon the same footing.
pacific blockades:” thus, in 1827, “the coasts of Greece were blockaded by the
English, French, and Russian squadrons, while the three powers professed to be at
peace with Turkey."
“The Tagus was blockaded by France in 1831, New Granada by England in 1861,
Mexico by France, in 1838, and La Plata from 1838 to 1810 by France, and from 1845
to 1848 by France and England.”. Hall's Int. Law, 386.
In like manner, without a declaration of war, France blockaded the Island of
Formosa, in 1884, and in 1893, the coast of Siam. In 1886 Greece was blockaded by
the fleets of nearly all the great European powers, and in 1897 Crete was "pacifically
blockaded by the use of cannon.
Retorsion, as in the case of differential import duties, is a matter of municipal law
and municipal policy, and though unfriendly in its nature, it is certainly not hostile.
The case is different with reprisals ; they are an appeal from reason to force. A
pacific blockade is pacific in name and in fact only so far as it is an effort by the
display of organized force to preserve peace. It is, however, recognized in interna-
tional law, provided that the interests of neutrals are not affected. See Hall's Int.
Law, 381-390, and the singularly felicitous treatment of the subject of pacific
blockades, in Holland's Studies in Int. Law, 1898, pp. 130–150. — Ed.
1 The object of a hostile embargo may be by way of reprisal to obtain satisfaction
for an alleged injury; or, it may be, in the expectation of the outbreak of war, to get
possession of property which will presumably be hostile, for the purpose of confiscating
it later after the actual outbreak of war. Although the government might restore
such property at the breaking out of war, it has not been the practice to do so; and
hence, as Dana says, embargo" refers itself directly to the question of the right, on
breaking out of war, to seize ships and cargues found in port.” Dana's Wheaton,
p. 372, note.
In the case of Lindo v. Rodney, 1781, Douglas, 615, Lord Mansfield said: “Ships not
knowing of hostilities come in by mistake ; upon the declaration of war, or hostilities,
all the ships of the enemy are detained in our ports, to be confiscated as the property
of the enemy, if no reciprocal agreement is made."
The earlier writers upon international law do not mention embargo, at least in the
sense of hostile embargo. Until towards the end of the last century, there was really no
404
[PART II.
MEASURES SHORT OF AOTUAL WAR.
SECTION 26. -- WAR: PURPOSE AND DECLARATION.
UNITED STATES V. THE "ACTIVE."
UNITED STATES DISTRICT COURT, TERRITORY OF MISSISSIPPI, 1814.
(24 Federal Cases, 755.)
In 1814, during the war between Great Britain and the United
States, the Active and its cargo belonging to the enemy was taken in
sight of the fort at Mobile Point by troops stationed at that place
under the command of Major William Lawrence. A libel was filed
distinction made between property found on land and that found afloat. In both cases
it was liable to capture. At the time of Bynkershoek and of Vattel, private property
of the enemy was confiscated, though some treaties liad exempted it from seizure at
the commencement of war. Bynkershoek, I. chapter II. Bynkershoek mentions
many cases, too, where it was seized before the declaration of war. It was left to the
English admiralty courts to formulate the practice into legal maxims by their deci-
sions. As to the retroactive effect of a declaration of war as applied by the courts, it is
apparently a necessary invention of Sir William Scott to legalize a practice already in
vogue.
Dr. Lushington said in the Johanna Emilie, 1854, Spinks, 14,“ With regard to an
enemy's property coming to any part of the kingdom, or being found there, being seizable,
I confess I am astonished that doubt should exist on the subject. I apprehend the law
has been this, that it is competent for any person to take possession of such property,
unless it had any protection by license, or by some declaration emanating by the
authority of the Crown, and to assist the Crown to proceed against it to adjudication.”
At the breaking out of the Crimean War in 1854, merchant vessels of the enemy
were allowed by the belligerents six weeks for loading their cargoes and departing.
And, further, vessels of the same character sailing from foreign ports prior to the promul-
gation of these orders, were allowed to enter the ports of the enemy and discharge
their cargoes and to depart. The initiation of this modification of the old rule in this
war seems to have been taken by Turkey in her declaration of war against Russia,
October 4, 1853. The Sublime Porte, however, does not consider it just that,
agreeable to ancient usage, an embargo should be laid on Russian merchant vessels.
Accordingly they will be warned to proceed within a period to be fixed hereafter to
the Black Sea or to the Mediterranean, as they choose." See 1 Halleck, 533; Hertslet,
II. 1176.
In the recent war with Spain, the President's proclamation of April 26, 1898, pro-
vided as follows: "4. Spanish merchant vessels in any ports or places within the
United States shall be allowed until May 21st, 1898, inclusive, for loading their car-
goes and departing from such ports and places; and such Spanish merchant vessels,
if met at sea by any United States ship, shall be perniitted to continue their voyage, if,
upon examination of their papers, it shall appear that their cargoes were taken on
board before the expiration of the above term : Provided, that nothing herein con-
tained shall apply to Spanish vessels having on board any officer in the military or
CHAP. I.]
465
UNITED STATES V. THE
ACTIVE.”
in the name of the United States against the schooner Active and
cargo to procure their condemnation as prize of war, to which a plea
was filed on behalf of the captors alleging that the “schooner Active
and cargo were captured by William Lawrence and others on the high
seas, and not in the enemy's forts, camps, or barracks, and, therefore,
by the usages of the laws of nations and the laws of war, as eneiny's
property become forfeited to the said private captors.” The question
before the court was: Are the troops thus making a prize entitled hy
law to the benefit of it?
TOULMAN, J.1 The most satisfactory mode probably of coming
to a conclusion on this subject will be to have recourse to general
principles.
1. What is war? “It is a contest,” says Bynkershoek, “carried on
between independent persons for the sake of asserting their rights."
Where society does not exist — where there is no such institution as
that which we call government- these individuals, being strictly
independent persons, may carry on war against each other. But
whenever men are formed into a social body, war cannot exist between
individuals. The use of force among them is not war, but a trespass,
cognizable by the municipal law. Bynk. War, p. 128. If war,
then, be the act of the nation, whatever is done in the prosecution of
it, must either expressly or implicitly be under the national authority.
Whatever private benefits result from it must be from a national
grant. "War," says Vattel (page 368), “is that state in which a
nation prosecutes its right by force.” The right of making war
belongs alone to the sovereign power. Individuals cannot control
operations of war, nor commit any hostility (except in self-defence),
without the sovereign's order. The generals (adds that writer), the
officers, the soldiers, the partisans, and those who fit out private
ships of war, having all commissions from the sovereign, make war
by virtue of a particular order. And the necessity of a particular
naval service of the enemy; or any coal (except such as may be necessary for their
voyage) or any other article prohibited or contraband of war, or any respatch of or to
the Spanish Government.” 10 Richardson's Messages and Papers, 204. For a liberal
interpretation extending the terms of the proclamation to Spanislı vessels sailing from
American ports before, but captured after, the declaration of war, see The Buena
Ventura, 1899, 175 U. S. 387.
The departure from the old rule in this case, coupled with the numerous treaties
ulating for time for the removal of vessels in case of war, go far towards creating
that change of practice which ultimately changes the law of nations. Dana's
Wheaton, note No. 156.
For the various civil embargo and non-intercourse acts of the United States, and
their judicial interpretation, see 3 Wharton's Digest, $$ 319, 320; 16 Am. & Eng.
Ency. of Law, 2d ed. 1139, notes 2, 3.- ED.
i Only that part of the opinion relating to general principles is given. – ED.
30
466
[PART II.
MEASURES SHORT OF ACTUAL WAR.
order is so thoroughly established, that even after a declaration of
war between two nations, if the peasants themselves commit any
hostilities, the enemy, instead of sparing them, hangs them up as so
many robbers or banditti. This is the case with private ships of war.
It is only in virtue of a commission granted by the sovereign or his
admiralty, that they are entitled to be treated like prisoners tåken in
a formal war.
Vatt. Law Nat. pp. 365, 366. If, then, on the gen-
eral principles of civil society, the whole operations of war depend
upon the will and authority of the government, surely the appropria-
tion and distribution of the property acquired in consequence of those
operations must equally be subject to the control of the government,
and depend on those regulations which it may establish.
2. What, indeed, is the object of war?
Is it to aggrandize individuals, or is it to maintain the rights of the
nation? “The just and lawful scope of every war," observes Vattel
(page 280), "is to revenge or prevent injury. If, to accomplish this
object, it is expedient to encourage individual warfare, by granting
all the profits arising from it to the parties engaged, the nation has a
right to promise this encouragement; but until this encouragement
be actually offered, it must follow that everything which is required
by individuals, whether acting as private persons or as a part of the
public force, must belong to the nation under whose authority they
act."
4. What rights are acquired by a state of war? “A nation,” says
Bynkershoek (page 4), "who has injured another is considered, with
everything that belongs to it, as being confiscated to the nation
which receives the injury." The rights accruing, therefore, are
national altogether. They are not individual rights.
The case
seems analogous to that of the internal administration of justice. A
civil society - a nation - has the right of punishing those who are
guilty of violating the public laws. Though the guilty be members
of their own community, they may forfeit their property or their
lives. But the right of the body politic does not attach itself to the
individual members of it. The nation, indeed, might authorize indi-
viduals to take the lives or the property of known offenders; but,
without an authority delegated by the nation, individuals have no
such right. A right in private persons to avenge violations of the
law does not follow as a natural consequence from the circumstance of
their being members of the great political body. On the contrary,
the same act which would be retributive justice when emanating from
the sovereign power would become murder or robbery in the individ-
ual. Why should it be otherwise, as it regards our intercourse with
other nations? Why should a nation be less jealous of its rights with
CHAP. I.]
467
66
UNITED STATES V. THE
ACTIVE.
regard to hostile nations than with regard to hostile individuals?
Why less jealous when encroached upon on a large scale than when
they are encroached upon on a scale truly small and insignificant?
And even admitting that in the one case the public authority permits
an individual to execute the sentence of the law, and in the other to
attack' and vanquish the public enemy, it will not follow that in
either case the property of the enemy is to become the property of
the individual by whom the national will is carried into execution.
This, it should seem, must depend on express stipulations inade in
behalf of the nation. Agreeably to these principles, the celebrated
M. De Vattel, after observing that a nation has the right to deprive
the enemy of his possessions and goods, of everything that may aug-
ment his forces and enable him to make war, goes on to remark, that
booty, or the movable property of the enemy taken in war, belongs
to that sovereign making war, no less than his towns and lands: for
he alone (the sovereign authority) has such claims against the enemy
às warrant him to seize on his goods, and appropriate them to him-
self. His soldiers (he adds) are only instruments in his hand, for
asserting his right. He maintains and forms them. Whatever they
do is in his name and for him. Vatt. Law Nat. 335.
Vatt. Law Nat. 335. These prin-
ciples are equally applicable to every form of government. It is per-
fectly immaterial with whom the sovereign authority resides. With
whomsoever it resides, its power is erected on the doctrine of its
being the legitimate representative of the nation; and the rights of
the nation are not surely to be considered as being less, under a
republican, than under a monarchical form of government.
The nation, however, as I have observed before, may give a bounty
to individual captors — may relinquish a part of its rights to those
who fight under its banners. Agreeably to this the same writer goes
on to observe that “the sovereign may grant to the troops what share
of the booty he pleases. At present most nations allow whatever
they can make on certain occasions, when the general allows of plun-
dering what they find on enemies fallen in battle; the pillage of a
..camp
when it has been forced and sometimes of a town taken by
assault.". The cases here enumerated seem to be those where either
the object was too trifling to become a matter of national attention, or
where the services previously rendered by the troops call for a degree
of vigor and exertion which would merit extraordinary encourage-
ment. The whole, however, is made to depend on the will of the
nation expressed through their commanding general.
I have been more particular in stating the principles laid down by
writers on the law of nations (or the dictates of justice and common
sense, as applied to national intercourse), because the attorney for
468
[PART II.
MEASURES SHORT OF ACTUAL WAR.
the claimant, whilst acknowledging that the laws of the United States
are silent on the present case, places a great reliance on the injunc-
tions of national law. It is contended that the law of nations gives
the booty in this case to the captors.
What, indeed, is the law of nations? It is that rule of conduct.
which regulates the intercourse of nations with one another; or in the
words of the author last cited, “the law of nations is the science of
the law subsisting between nations or states, and of the obligations
that flow from it.” Vatt. Law Nat. 49. It is a law for the govern-
ment of national communities as to their mutual relations, and not.
for the government of individuals of those communities in their rela-
tion towards one another nor can it control the conduct of nations
towards their own citizens, except in cases involving the rights of
other nations. Property once transferred by capture must be subjects
to the laws of the nation by which the capture is made. The ques-
tion whether it shall be public or private property must depend on the
regulations adopted by the nation making the capture, and cannot
naturally be regarded as subject to the control of a system of laws
which has respect to the laws and duties of nations towards one an-
other. What our author states as to the practice of nations towards
their own citizens, is not, truly speaking, a delineation of the laws of
nations. The conduct of nations towards their own citizens must.
depend on their own municipal regulations. It is by the laws of
nations that we must determine the circumstances under which prizes
may be taken, but what is to become of them when taken under the
sanction of that law cannot depend upon the law of nations, but must.
depend upon the will of the nation by which the capture is made..
Individuals of the capturing nation can have no right independent.
of the nation to which they belong. It is by a reliance upon the
authority of their nation, that they shelter themselves from the charge
of robbery or piracy. The sovereign, however, may distribute the
booty as he pleases. He may do it by a general law, or by special
regulations, issued by his generals, subject to the emergency of the
case; provided that the government permits of such a delegation of
authority. Even the property acquired by privateers depends on
stipulations made with the supreme power of the country to which
they belong. “Persons,” says Vattel (page 367), “fitting out ships.
to cruise on the enemy, in recompense of their disbursements and risk
they run, acquire the property of the capture; but they acquire it by
grants of the sovereign who issues out commissions to them. The
sovereign, either gives up to them the whole capture or a part-- this
depends on the contract between them.” Vatt. Law Nat. p. 367.
As to those who without any authority from their sovereign, commit.
r
r
66
CHAP. I.]
UNITED STATES V. THE
ACTIVE."
469
depredations by sea or land, they are regarded as pirates and plun-
derers, and things taken by them do not thereby undergo a change of
property. Bynk. p. 127.
Agreeably to this statement (Lord Camden v. Home, 4 Term R.
.387), we find that Sir William Scott granted a munition against the
master and owner of a privateer not commissioned against the Dutch,
to bring in proceeds of a Dutch prize. The party appearing acknowl.
edged that he had no commission, but prayed to be adınitted as a joint
captor. The court did not even suffer the case to be argued, but
observed: “The person admits that he had no commission. It is
therefore impossible for him to contend for a legal interest in joint
capture. If he thinks he has any equitable claims, arising from any
service he has performed, they may be represented to the adıniralty.
The former proceedings (of condemnation at Jamaica) on the part of
the non-commissioned captor are mere nullities; and the property
must be proceeded against as droits of admiralty.” 4C. Rob. Adm.
72. The case of the Rebeckah, which was a question of interest in
the capture of a vessel made by naval officers from the island of St.
Marcou, a naval station, used for the temporary accommodation of the
crews of ships of war, gave occasion to remarks from Sir William
Scott, very applicable to the case now before me.
“I accede," says
he, "entirely to what has been laid down, that a capture at sea, made
by a force upon land (which is a case certainly possible, though not
frequent), is considered generally as a non-commissioned capture, and
inures to the benefit of the lord high admiral. Thus, if a ship of
the enemy was compelled to strike by a firing from the castle of
Dover, or other garrisoned fortress upon land, that ship would be a
droit of admiralty, and the garrison must be content to take a reward
from the bounty of the admiralty, and not a prize interest, under the
king's proclamation. All title to sea-prize must be derived from
commissions under the admiralty, which is the great fountain of
maritime authority; and a military force upon the land is not in-
vested with any commission so derived, impressing on them a mari-
time character, and authorizing them to take, upon that element, for
their own benefit. I likewise think cases may occur in which naval
persons, having a real authority to take upon the sea for their own
advantage, might yet entitle the admiralty, and not themselves, by a
capture made upon the sea, by the use of a force stationed upon the
land. Suppose the crew, or part of the crew, of a man-of-war were
landed, and descried a ship of the enemy at sea, and that they took
possession of any battery or fort upon the shore, and by means
thereof, compelled such ship to strike. I have no doubt that such a
capture, though made by persons having naval commissions, yet being
A
470
MEASURES SHORT OF ACTUAL WAR. [PART II.
9
made by means of a force upon the land, would be a droit of admi-
ralty, and nothing more." C. Rob. Adm. 227.
The only question, then, which remains to be considered is, have
the laws of the United States given to the military any share in prizes
taken by troops so circumstanced?
As to the laws of the United States respecting property captured
by the public force, the most material is the act of the 23d April,
1800, for the better government of the navy. This act gives to the
captors the proceeds of vessels and goods taken on board of them
when adjudged good prize. But this act is a law expressly for the
government of the navy of the United States; and, indeed, it does not
appear to be contended that it can by any rule of construction be
extended to the army. Private commissoned vessels, in like manner,
deserve their right to appropriate to themselves the prizes they make,
from the “act concerning letters of marque, prizes, and prize goods,”
passed on the 26th day of June, 1812. This act, after stating the
conditions on which authority should be given to our vessels to cap-
ture the vessels and property of the enemy, proceeds to vest the same,
when taken under such authority, in the owners, officers, and crews of
the vessels by which prizes should be made. 11 Laws (Weightman's
ed.), p. 240 (2 Stat. 759). Had it been the intention of the govern-
ment that non-commissioned vessels should be entitled to the proceeds
of prizes made, or that any person in the employ of the United States,
and not belonging to the navy or marines, should be entitled to the
benefit of all enemy's property taken by them, it would surely have
been natural that such intention should have been expressed in these
or some other legislative acts. Moreover, indeed, it does not appear
what occasion there could be to provide regulations and bonds for the
government and good conduct of vessels applying for commissions to
make prizes; if all vessels of any description were authorized to take
and to appropriate to their own use the property of the enemy, merely
because, as it hath been contended, the fortune of war had thrown it
!
in their way.
In the whole view of the case, therefore, now before the court, it is
adjudged and decreed, that the plea be overruled, and dismissed, with
costs in court occasioned by the plea, and that the schooner Active and
cargo be condemned as good and lawful prize of the United States.
DAVIS, J., in Dole v. Merchant's Mutual Marine Ins. Co., 1863, 51
Maine, 465, 470. That they were liable to be regarded as “enemies,"
is undoubtedly true. This implies the existence of “war." But
every forcible contest between two governments, de facto or de jure,
War is an existing fact, and not a legislative decree. Con-
gress alone may have power to “declare” it beforehand, and thus
is war.
CHAP. I.]
471
THE
TEUTONIA.
cause or commence it. But it may be initiated by other nations, or
by traitors; and then it exists, whether there is a declaration of it or
not. It may be prosecuted without any declaration; or Congress may,
as in the Mexican war, declare its previous existence. In either case
it is the fact that makes " enemies," and not any legislative act.
THE
TEUTONIA.”
PRIVY COUNCIL, 1870.
(Law Reports, 4 Privy Council, 171.)
Lord Justice MELLISH. “This is an appeal in a cause instituted
under the 6th section of the Admiralty Court Act, 1861, on behalf of
Messrs. Duncan, Fox & Co., the consignees of a bill of lading of the
cargo laden on board the ship Teutonia, against that ship and her
freight, and against the owner of the vessel.
The Teutonia was a Prussian brig, subject to the laws of Prussia,
and her master and crew were subjects of the King of Prussia.
And by the charter-party referred to in the bill of lading it was
agreed that, “after receiving on board the said cargo, the said vessel
shall proceed either to Cork, Cowes, or Falmouth, at the option of
the master, where he shall receive orders from charterer's agents
within three days after his arrival to proceed to any one safe port in
Great Britain or on the Continent between Havre and Hamburgh,
both included, and there, according to bills of lading and charter-
party, deliver the cargo, the act of God, the Queen's enemies, fire,
and all and every other risk, dangers, and accidents of the seas,
rivers, and navigation of whatever nature and kind soever ex-
cepted, freight to be paid in manner herein mentioned on a true
and right delivery of the cargo in the port of discharge at and after
the rate of 45s. British sterling per ton.”
The vessel arrived at Falmouth on 10th of July; and the master,
whilst there, heard rumours that war was probable between France
and Prussia. On the 11th of July, the master received orders from
the consignees to discharge the cargo at Dunkirk; and he at once
set sail for Dunkirk, and arrived at a distance of about fourteen
miles off that port, at 12 o'clock at night of the 16th, which was a
Saturday; and the master says that, after lying to for about two
1 For the twofold division of hostilities into "perfect” and “imperfect” war, see
Bas v. Tingy, 1800, 4 Dall. 37, cited in Gray's Adm. v. U. S., 1886, 21 Ct. Cl. 340, § 24,
ante, and Talbot v. Seeman, 1801, 1 Cr. 1. – ED.
472
MEASURES SHORT OF ACTUAL WAR. (PART II.
1
On :
hours, a regular pilot, in official uniforin, came on board ; that he
asked the pilot about the war; that the pilot told him it had been
declared two days ago; that he asked the pilot where he could
bring-to in safety, so that he might ascertain whether war was act-
ually declared or not; that the pilot offered to take him to Flushing,
or the Downs, or wherever he liked. The master elected to go to
the Downs; and he anchored there on Sunday morning, the 17th, at
10 o'clock. He says, that on that day he could obtain no advice or
information ; that on the Monday, the 18th, he was on shore at Deal,
and the German consul told him that war had broken out. He
telegraphed to the owner, who was his father, and received an
answer, forbidding him to go to Dunkirk; and on Tuesday the 19th
he took the ship into Dover, as the nearest port.
delivered to the Prussian Government at Berlin, which was known
the same day by telegraph in England. On the 23d of July, an
agent of the plaintiffs went to Dover, and required the master to
proceed to Dunkirk, which he refused to do. Afterwards, on the 1st
of August, the plaintiffs required the master to deliver them the
cargo at Dover, which he refused to do unless he was paid his
freight.
Under these circumstances, the plaintiffs allege that the master
has committed two breaches of contract or duty: first in refusing to
proceed to, and deliver the cargo at, Dunkirk; and secondly, they
complain that, when the performance of the contract became impos-
sible, and the contract was, as they allege, dissolved by the war, the
master was not justified in refusing to deliver the cargo to the plaint-
iffs at Dover without payment of freight.
The first question to be considered is, whether the master was
bound to have entered the port of Dunkirk on the 17th of July; and
on that question, the learned Judge (Sir R. PHILLIMORE) in the court
below has found that on the 16th of July, the Teutonia could not have
entered the port of Dunkirk with her cargo without being exposed
to the penalties of trading with the enemy of her country; but that,
if this was an erroneous application of the law to the facts at that
date, the circumstances justified the master in pausing and making
further inquiries as to the existing relations between his own coun-
try and France, and that he did not exceed the limits of a reasonable
time in making the inquiry.
Their Lordships have great difficulty in agreeing with the
learned Judge that the Teutonia could not have entered Dunkirk
without being exposed to the penalties of trading with the enemy of
its country on the 16th of July. There does not appear to their
CHAF. I.]
473
THE
TEUTONIA."
Lordships to be any satisfactory evidence that a state of war existed
between France and Prussia prior to the 19th of July.
Their Lordships do not think that either the declaration made
by the French Minister to the French Chambers on the 16th of
July, or the telegram sent by Count Bismarck to the Prussian Am-
bassador in London, in which he states that that declaration appears
to be equal to a declaration of war, amounts to actual declaration of
war. And though it is true, as stated by the learned Judge, that a
war may exist de facto without a declaration of war, yet it appears
to their Lordships that this can only be effected by an actual com-
mencement of hostilities, which, in this case, is not alleged.
It is, however, unnecessary further to consider this part of the
case, because their Lordships agree with the learned Judge that the
master of the Teutonic, when he was informed, on his arrival off
Dunkirk, by the pilot, although incorrectly, that war had been
actually declared two days before, was entitled to pause and to take
a reasonable time to make further inquiries, and that he did not
exceed the limits of a reasonable time in making inquiries.
If the master had entered Dunkirk, and it had turned out that
war had been previously declared, he would have entered it with
notice that he was entering an enemy's port, and this would have
obviously exposed his ship to condemnation, and might have exposed
himself to severe penalties when he returned to his own country.
It seems obvious that, if a master receives credible information that,
if he continues in the direct course of his voyage, his ship will be
exposed to some imminent peril, as, for instance, that there are
pirates in his course, or icebergs, or other dangers of navigation, he
must be justified in pausing and deviating from the direct course,
and taking any step which a prudent man would take for the
purpose of avoiding the danger. And their Lordships agree, if
authority was wanting, that the case of Pole v. Cetcovitch, 9 C. B.
(n. s.), 430, is an authority in point. It was argued, however, on the
part of the appellants, that, to justify this course, both ship and
cargo must be exposed to a common peril, whilst in the present case
the cargo, being the property of a neutral owner, would have been
in no danger from being carried into a French port, and it was
argued that though a master might be justified in deviating from
the direct course of the voyage for the purpose of avoiding a danger
to which both ship and cargo were exposed, although it might after-
wards turn out that the information upon which the master acted
was incorrect, yet that if the reported danger was a danger to the
ship alone, the master would commit a breach of contract by deviat-
ing from the direct course of the voyage unless the danger actually
474
[PART 11.
MEASURES SHORT OF ACTUAL WAR.
existed, and the master could allege that he was prevented by one
of the perils excepted in the bill of lading from pursuing his voyage
in the direct course. It appears to their Lordships, however, that
here is no sound ground for this listinction; if the cargo had been
a Prussian cargo it would have been exposed to the same danger as
the ship from entering the port at Dunkirk, and it appears to their
Lordships that when an English merchant ships goods on board a
foreign ship, he cannot expect that the master will act in any respect
differently towards his cargo than he would towards a cargo shipped
by one of his own country, and that it cannot be contended that the
master is deprived of the right of taking reasonable and prudent
steps for the preservation of his ship, because from the accident of
the cargo not belonging to his own nation, the cargo is not exposed
to the same danger as the ship.
On the whole, therefore, their Lordships are of opinion, on this
part of the case, that the master was justified in going to the Downs
for the purpose of ascertaining whether war had actually been
declared ; and they also entirely agree with the opinion of the
learned Judge, that the master was guilty of no unreasonable delay in
not returning to Dunkirk before war was actually declared on the 19th
of July.
[The Lords next consider “Whether the master was bound to
deliver the cargo at Dover without any payment in respect of
freight?”
The decision is made in accordance with English law, and, in sub-
stance, is as follows: While the breaking out of the war did render
it illegal for the Teutonia to enter a French port, yet the contract,
under the particular terms of the charter-party, could be legally per-
formed by the delivery of the cargo at some of the other ports men-
tioned in the charter-party—that the contract was not dissolved by
the impossibility of delivering the cargo at Dunkirk, and that the
ship-owner had not lost his chartered freight nor his lien for it at the
time when the cargo was demanded at Dover.]1
1 In the case of The Panama, decided at the same time as the Buena Ventura,
1898, 87 Fed. 927, 933, Locke, J., said : “ The Panama sailed from New York before
the 21st of April, 1898, and was upon the high seas at that time and at the tinie of
capture. The fact that there had been no formal proclamation or declaration of war
before she had sailerl or at the time she was capturert, or that she had at a recent date
left a port of the United States, cannot be consirlered as exempting her from the
liability of an enemy's property to capture, unless coming directly within the language
of the President's proclamation. The practice of a formal proclamation hefore recog.
nizing an existing war and capturing enemy's property las fallen into disuse in
modern times, and actual hostilities may determine the date of the commencement of
war, although no proclamation may have been issued, no declaration made or no action
CHAP, I.]
475
THE PRIZE CASES.
THE PRIZE CASES.
SUPREME COURT OF THE UNITED STATES, 1862.
(2 Black, 665.)
Mr. Justice GRIER. "There are certain propositions of law which
must necessarily affect the ultimate decision of these cases, and many
others, which it will be proper to discuss and decide before we notice
the special facts' peculiar to each.
"They are, 1st. Had the President a right to institute a block-
ade of ports in possession of persons in armed rebellion against the
government, on the principles of international law, as known and
acknowledged among civilized states?
“24. Was the property of persons domiciled or residing within
those States a proper subject of capture on the sea as 'enemies'
property?'
“I. Neutrals have a right to challenge the existence of a block
ade de facto, and also the authority of the party exercising the right
to institute it. They have a right to enter the ports of a friendly
of the legislative department of the government had. This date has been declared by
the act of Congress of April 25, 1898, and by the proclamation of the President of the
next day to have been April 21, 1898, including that day, so that any Spanislı property
afloat, captured from that time, became liable to condemnation, unless exempt by the
executive proclamation.” [Articles 4 and 5.]
This case was affirmed on appeal, The Panama, 1899, 176 U. S. 535.
While formal declaration is clearly unnecessary to create war and the rights and
obligations arising from such a status, it is of the gravest importance that it should be
known as soon as possible to belligerents and neutrals alike. The parties to the war
necessarily submit to its hardships and inevitable consequences with or without formal
declaration, but inasmuch as war affects and seriously limits the rights and privileges
of neutrals for the exclusive benefit of the belligerents : liability to confiscation for
carrying contraband; inhibition to trade with blockaded ports; the subjection of
neutral commerce on the high seas to visit and search, as will sufficiently appear later,
it would be thoughtlessness or indifference amounting to bad faith if the belligerents
failed to infurm the neutrals of the existence of war.
As a matter of fact, “there have been only eleven formal declarations of war be-
tween civilized states since 1700, whereas the present century has seen over sixty
words or acts of reprisal begun without formal notice to the power attacked.” Law-
rence's Int. Law, 300. See Hall's Int. Law, 391–399; Owen, Declaration of War, 1899.
No formal declaration of war by Congress, nor proclamation by the President is
necessary to define and characterize an Indian war; it is sufficient if hostilities exist
and military operations are carried on. Alire's Case, 1865, 1 Ct. CI. 233, 238; Jarks v.
U. S., 1893, 28 Ct. Cl. 147. — Ed.
1. Statement of the facts is omitted. The second part of the opinion is given in
§ 32, infra. -- ED.
176
[PART II.
MEASURES SHORT OF ACTUAL WAR.
9
nation for the purposes of trade and commerce, but are bound to
recognize the rights of a belligerent engaged in actual war, to use
this mode of coercion, for the purpose of subduing the enemy.
That a blockade de facto actually existed, and was formally de-
clared and notified by the President on the 27th and 30th of April, ?
1861, is an admitted fact in these cases.
That the President, as the Executive Chief of the Government
and Commander-in-chief of the Army and Navy, was the proper
person to make such notification, has not been, and cannot be dis-
puted.
The right of prize and capture has its origin in the jus belli,
and is governed and adjudged under the law of nations. To legiti-
mate the capture of a neutral vessel or property on the high seas, a
war must exist de facto, and the neutral must have a knowledge or
notice of the intention of one of the parties belligerent to use this
mode of coercion against a port, city, or territory, in possession of
the other.
Let us inquire whether, at the time this blockade was instituted,
a state of war existed which would justify a resort to these means of
subduing the hostile force.
War has been well defined to be, “That state in which a nation
prosecutes its right by force."
The parties belligerent in a public war are independent nations.
But it is not necessary to constitute war, that both parties should be
acknowledged as independent nations or sovereign states. A war
may exist where one of the belligerents claims sovereign rights as
against the other. Insurrection against a government may or may
not culminate in an organized rebellion, but a civil war always begins
by insurrection against the lawful authority of the Government. A
civil war is never solemnly declared; it becomes such by its acci-
dents—the number, power, and organization of the persons who
originate and carry it on. When the party in rebellion occupy and
hold in a hostile manner a certain portion of territory; have declared
their independence; have cast off their allegiance; have organized
armies; have commenced hostilities against their former sovereign,
the world acknowledges them as belligerents, and the contest a war:
They claim to be in arms to establish their liberty and independence,
in order to become a sovereign state, while the sovereign party treats
them as insurgents and rebels who owe allegiance, and who should
be punished with death for their treason.
The laws of war, as established among nations, have their
foundation in reason, and all tend to mitigate the cruelties and
misery produced by the scourge of war. Hence the parties to a civil
CHAP. I.]
477
THE PRIZE CASES.
war usually concede to each other belligerent rights. They exchange
prisoners, and adopt the other courtesies and rules common to public
or national wars.
“A civil war," says Vattel, “ breaks the bands of society and gov-
ernment, or at least suspends their force and effect; it produces in
the nation two independent parties, who consider each other as
enemies, and acknowledge no common judge. Those two parties,
therefore, must necessarily be considered as constituting, at least for
a time, two separate bodies, two distinct societies. Having no common
superior to judge between them, they stand in precisely the same
predicament as two nations who engage in a contest and have
recourse to arms.
“ This being the case, it is very evident that the common laws
of war—those maxims of humanity, moderation, and honor-ought
to be observed by both parties in every civil war. Should the
sovereign conceive he has a right to hang up his prisoners as rebels
the opposite party will make reprisals, etc., etc.; the war will become
cruel, horrible, and every day more destructive to the nation."
As a civil war is never publicly proclaimed, eo nomine against
insurgents, its actual existence is a fact in our domestic history
which the court is bound to notice and to know. The true test of
its existence as found in the writing of the sages of the common law,
may be thus summarily stated: “When the regular course of justice
is interrupted by revolt, rebellion, or insurrection, so that the Courts
of Justice cannot be kept open, civil war exists and hostilities may
be prosecuted on the same footing as if those opposing the Govern-
ment were foreign enemies invading the land."
By the Constitution, Congress alone has the power to declare a
national or foreign war. It cannot declare war against a State, or
any number of States, by virtue of any clause in the Constitution.
The Constitution confers on the President the whole executive
power. He is bound to take care that the laws be faithfully executed.
He is Commander-in-chief of the Army and Navy of the United
States, and of the militia of the several States when called into the
actual service of the United States. He has no power to initiate or
declare a war either against a foreign nation or a domestic State.
But by the Acts of Congress of February 28th, 1795, and 3d of
March, 1807, he is authorized to call out the militia and use the
military and naval forces of the United States in case of invasion by
foreign nations, and to suppress insurrection against the government
of a State or of the United States.
If a war be made by invasion of a foreign nation, the President is
not only authorized but bound to resist force by force. He does not
478
[PART II.
MEASURES SHORT OF ACTUAL WAR.
1
initiate the war, but is bound to accept the challenge without wait-
ing for any special legislative authority. And whether the hostile
party be a foreign invader, or States organized in rebellion, it is none
the less a war, although the declaration of it be “unilateral.' Lord
Stowell (1 Dodson, 247) observes, “It is not the less a war on that
account, for war may exist without a declaration on either side. It
is so laid down by the best writers on the law of nations. A decla-
ration of war by one country only, is not a mere challenge to be ac-
cepted or refused at pleasure by the other."
The battles of Palo Alto and Resaca de la Palma had been fought
before the passage of the Act of Congress of May 13th, 1846, which
recognized“a state of war as existing by the act of the Republic of
Mexico." This act not only provided for the future prosecution of
the war, but was itself a vindication and ratification of the Act of
the President in accepting the challenge without a previous formal
declaration of war by Congress. This greatest of civil wars was not
gradually developed by popular commotion, tumultuous assemblies,
or local unorganized insurrections. However long may have been
its previous conception, it nevertheless sprung forth suddenly from
the parent brain, a Minerva in the full panoply of war. The Presi-
dent was bound to meet it in the 'shape it presented itself, without
waiting for Congress to baptize it with a name; and no name given
to it by him or them could change the fact.
It is not the less a civil war, with belligerent parties in hostile
array, because it may be called an insurrection” by one side; and the
insurgents be considered as rebels or traitors. It is not necessary
that the independence of the revolted province or state be acknowl-
edged in order to constitute it a party belligerent in a war according
to the law of nations. Foreign nations acknowledge it as war by a
declaration of neutrality. The condition of neutrality cannot exist
unless there be two belligerent parties. In the case of the Santissima
Trinidad (7 Wheaton, 337), this Court say: “The Government of the
United States has recognized the existence of a civil war between
Spain and her colonies, and has avowed her determination to remain
neutral between the parties. Each party is therefore deemed by us
a belligerent nation, having, so far as concerns us, the sovereign right
(See also 3 Binn., 252.)
As soon as the news of the attack on Fort Sumter, and the
organization of a government by the seceding States, assuming to
act as belligerents, could become known in Europe, to wit, on the
13th of May, 1861, the Queen of England issued her proclamation of
neutrality,"recognizing hostilities as existing between the Govern-
ment of the United States of America and certain States styling them-
of war.
CHAP. I.]
479
THIC PRIZE CASES,
selves the Confederate States of America." This was immediately
followed by similar declarations or silent acquiescence by other
nations.
After such an official recognition by the sovereign, a citizen of a
foreign state is estopped to deny the existence of a war with all its
consequences as regards neutrals. They cannot ask a Court to affect
a technical ignorance of the existence of a war, which all the world
acknowledges to be the greatest civil war known in the history of the
human race, and thus cripple the arm of the Government and para-
lyze its power by subtle definitions and ingenious sophisms.
The law of nations is also called the law of nature; it is founded
on the common consent as well as the common sense of the world.
It contains no such anomalous doctrine as that which this Court are
now for the first time desired to pronounce, to wit: That insurgents
who have risen in rebellion against their sovereign, expelled her
Courts, established a revolutionary government, organized armies,
and commenced hostilities, are not enemies, because they are traitors;
and a war levied on the Government by traitors, in order to dismem-
ber and destroy it, is not a war, because it is an "insurrection."
Whether the President in fulfilling his duties as Commander-
in-chief, in suppressing an insurrection, has met with such armed
hostile resistance, and a civil war of such alarming proportions as
will compel him to accord to them the character of belligerents, is a
question to be decided by him, and this Court must be governed by the
decisions and acts of the political department of the Government to
which this power was entrusted. “He must determine what degree of
force the crisis demands." The proclamation of blockade is itself
official and conclusive evidence to the Court that a state of war
existed which demanded and authorized a recourse to such a measure,
under the circumstances peculiar to the case.
The correspondence of Lord Lyons with the Secretary of State
admits the fact and concludes the question.
If it were necessary to the technical existence of a war, that
it should have legislative sanction, we find it in almost every act
passed at the extraordinary session of the Legislature of 1861, which
was wholly employed in enacting laws to enable the Government to
prosecute the war with vigor and efficiency. And finally, in 1861,
we find Congress "exc majore cautela” and in anticipation of such
astute objections, passing an act "approving, legalizing and making
valid all the acts, proclamations and orders of the President, etc., as
if they had been issued and done under the previous express authority
and direction of the Congress of the United States."
Without admitting that such an act was necessary under the
780
[PART II.
MEASURES SHORT OF ACTUAL WAR.
circumstances, it is plain that if the President had in any manner
assumed powers which it was necessary should have the authority or
sanction of Congress, that on the well-known principle of law,"omnis
ratihabitio retrotrahitur, et mandato equiparatur," this ratification
has operated to perfectly cure the defect. In the case of Brown v.
United States (8 Cr., 131, 132, 133), Mr. Justice STORY treats of this
subject, and cites numerous authorities to which we may refer to
prove this position, and concludes, “I am perfectly satisfied that no
subject can commence hostilities or capture property of an enemy,
when the sovereign has prohibited it. But suppose he did, I would
ask if the sovereign may not ratify his proceedings, and thus by
a retroactive operation give validity to them ?”
Although Mr. Justice Story dissented from the majority of the
Court on the whole case, the doctrine stated by him on this point is
correct and fully substantiated by authority.
The objection made to this act of ratification, that it is ex post
facto, and therefore unconstitutional and void, might possibly have
some weight on the trial of an indictment in a criminal court. But
precedents from that source cannot be received as authoritative in
a tribunal administering public and international law..
On this first question, therefore, we are of opinion, that the Presi-
dent had a right, jure belli, to institute a blockade of ports in posses-
sion of the States in rebellion, which neutrals are bound to regard.
1
1 In Miller v. U. S., 1870, 11 Wall. 268, 307–8, Mr. Justice Strong said: “War exist-
ing, the United States were invested with belligerent rights in addition to the sovereign
powers previously held. Congress had then full power to provide for the seizure and
confiscation of any property which the enemy or adherents of the enemy could use for
the purpose of maintaining the war against the government. It is true the war was
not between two independent nations. But because a civil war, the government was
not shorn of any of those rights that belong to belligerency. Mr. Wheaton, in his
work on International Law ($ 296), asserts the doctrine to be that the general usage
of nations regards such a war as entitling both the contending parties to all the rights
of war as against each other and even as it respects neutral nations. It would be
absurd to hold that, while in a foreign war enemy's property may be captured and
confiscated as a means of bringing the struggle to a successful completion, in a civil
war of equal dimensions, requiring quite as urgently the employment of all means to
weaken the belligerent in arms against the government, the right to confiscate the
property that may strengthen such belligerent does not exist. There is no such dis-
tinction to be made. Every reason for the allowance of a right to confiscate in case
of foreign wars exists in full force when the war is domestic or civil. In the Amy
Warwick, 2 Sprague, 123, and in the Prize Cases, 2 Black, 673, it was decided that
in the war of the rebellion the United States sustained the double character of a bel-
ligerent and a sovereign, and had the rights of both. Rose v. Himely, 4 Cranch, 272;
Cherriot v. Foussat, 3 Binney, 252 ; Dobree v. Napier, 3 Scott, 225; Santissima Trinidad,
7 Wheaton, 306; United States. v. Palmer, 3 Wheaton, 635.” To the same effect,
CHAPTER II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
SECTION 27.- ENEMY'S PROPERTY WITHIN THE TERRITORY AND DEBTS
DUE TO THE ENEMY.
HAMILTON V. EATON.
CIRCUIT COURT OF THE CENTRAL STATES, N. CAROLINA DISTRICT, 1796.
(2 Martin's N. Carolina Reports, 83.)
ELLSWORTH, C. J. It is admitted that the bond on which this suit is
brought, was executed by the defendant to the plaintiffs ; and that the
plaintiffs have not been paid. But the defendant pleads, that since
the execution of the bond a war has existed, in which the plaintiffs
Tyler v. Defrees, 1870, 11 Wall. 331, 345, reiterating the doctrine and aiirning the
1870
judgment of Miller v. U. S.
In Stovall's Adm'r v. U. S., 1891, Ct. Cl. 226, 240, Chief Justice (then Justice) Nott,
said : "It has been held in an unbroken series of decisions (from the Prize Cases, in
1 Black's Reports to Young, Assignee of Collie, in 97 U. S. Reports) that the civil war in
all hostile operations must be regarded as international, and that all property within
enenıy's territory is in law enemy's property, just as all persons in the same territory
are enemies.' Chief Justice Waite, 97 U. S. R. 60. When the United States ac-
corded to the Confederate States the rights of a belligerent they became a hostile power
and their inhabitants public enemies. The obligations of the Constitution do not
extend across military lines nor into hostile territory. The law which governed the
transactions of the civil war was not constitutional law, but international. It has been
closely adhered to; so closely, that under the decisions of the court of last resort the
loyal citizens of the North were practically excluded from the benefits of the Captured
Property. Act, and after non-intercourse began could do nothing to save their property
in the South from Confederate confiscation; and though they acted in good faith, with
no purpose to aid the rebellion, seeking simply to save their own property in the South
by directing its investment there — sending nothing into the insurgent districts and
bringing nothing out, but leaving the resources of the rebellion precisely as they found
tliem — their acts were held to be intercourse between enemies, and the investments
of their agents illegal and void. Grossinayer's Cuse (9 Wall. R. 72); Dillon (5 Ct. CI.
1 Statement of facts omitted and only the opinion of Chief Justice Ellsworth is
given. - ED.
31
482
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
were enemies; and that during the war this debt was confiscated and
the money paid into the treasury of the State. And the plaintiffs
reply, that by the treaty which terminated the war, it was stipulated,
that “ creditors on either side should meet with no lawful impediment,
to the recovery of bona fide debts heretofore contracted."
Debts contracted to an alien are not extinguished by the interven-
tion of war with his nation. His remedy is suspended while the war
lasts, because it would be dangerous to admit him into the country, or
to correspond with agents in it; and also because the transfer of
treasure from the country to his nation, would diminish the ability of
the former, and increase that of the latter, to prosecute the war. But
with the termination of hostilities, these reasons and the suspension of
the remedy cease.
As to the confiscation here alleged it is doubtless true, that enemy's
property so far as consists in barring the creditor, and compelling pay-
ment from the debtors for the use of the public, can be confiscated; and
that on principles of equity, though perhaps not of policy, they may be.
For their confiscation as well as that of property of any kind, may serve
as an indemnity for the expenses of war, and as a security against future
aggression. That such confiscations have fallen into disuse, has
resulted not froin the duty which one nation, independent of treaties,
owes to another, but from commercial policy, which European nations
have found a common, and indeed a strong interest, in supporting.
Civil war, which terminates in a severance of empire, does, perhaps,
less than any other, justify the confiscation of debts; because of the
special relation and confidence subsisting, at the time they were con-
tracted, and it may have been owing to this confiscation as well as
others, that the American States, in the late revolution, so generally
forbore to confiscate the debts of British subjects. In Virginia, they
were only sequestered ; in South Carolina, all debts to whomsoever due
were excepted from confiscation; as were in Georgia, those of “ British
R. 586. Affirmed without opinion); Cutner (17 Wall. R. 617); Lapene (id. 601);
Montgomery (16 id. 395); Stoddard (6 id. 340)."
Of the many State cases, Hubbard v. Hornden Express Co., 1872, 10 R. I. 244, gives
an exhaustive survey of relation of insurgent to legitimate government; Smith v.
Brazelton, 1870,1 Heisk. 44, summarizes the authorities in a singularly interesting and
felicitous manner.
Article III., § 3 of the Constitution declares that “treason against the United
States shall consist only in levying war against them, or in adhering to their enemies,
giving them aid and comfort. No person shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on confession in open court.”
For the judicial construction of this section and the terms employed in the definition,
see U. S. v. Greathouse and others, 1863, 4 Sawy. 457. The same case is given in
abbreviated form in McClain's excellent Cases on Constitutional Law, 541. - ED.
CHAP. II.]
483
HAMILTON V. EATON.
merchants and others residing in Great Britain." And in the other
States, except this, I do not recollect that British debts were touched.
Certain it is, that the recommendation of Congress on the subject of
.confiscation did not extend to them. North Carolina, however, judg-
ing for herself, in a moment of severe pressure, exercised the sovereign
power of passing an act of confiscation, which extended, amongst
others, to the debts of the plaintiffs. Providing, however, at the same
time, as to all debts which should be paid into the treasury, under that
act, that the State would indemnify the debtors, should they be obliged
to pay thein.
Allowing, then, that the debt in question was in fact of right con-
fiscated, can the plaintiffs recover by the treaty of 1783 ?
The fourth article of that treaty is in the following words: “It is
agreed that creditors on either side shall meet with no lawful impedi-
ment to the recovery of the full value in sterling money, of all bona
fide debts heretofore contracted."
There is no doubt the debt in question was a “bona fide" debt, and
theretofore contracted, i. e., prior to the treaty. To bring it within the
article, it is also requisite that the debtor and creditors should have
been on different sides, with reference to the parties to the treaty, and
as the defendant was confessedly a citizen of the United States, it
inust appear that the plaintiffs were subjects of the King of Great
Britain; and it is pretty clear, from the pleadings and the laws of the
State, that they were so. It is true that on the 4th of July, 1776, when
North Carolina became an independent State, they were inhabitants
thereof, though natives of Great Britain ; and they might have been
claimed and holden as citizens, whatever were their sentiments or
inclinations. But the State afterwards, in 1777, liberally gave to them,
with others similarly circumstanced, the option of taking the oath of
allegiance, or of departing the State under a prohibition to return, with
the indulgence of a time to sell their estates, and to collect and remove
their effects. They chose the latter; and ever after adhered to the
King of Great Britain, and must therefore be regarded as on the
British side.
It is also pertinent to the inquiry, whether the debt in question be
within the before-recited article, to notice an object which has been
stated by the defendant's counsel, viz., that at the date of the treaty,
what is now sued for as a debt, was not a debt, but a nonentity ; pay-
ment having been made, and a discharge effected, under the act of con-
fiscation; and therefore that the stipulation concerning debts did not
reach it.
In the first place, it is not true that.in this case there was no debt
at the date of the treaty. A debt is created by contract, and exists till
.
484
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
the contract is performed. Legislative interference, to exonerate a
debtor from the performance of his contract, whether upon or without
conditions, or to take from the creditor the protection of law, does not.
in strictness destroy the debt, though it may, locally, the remedy for it.
The debt remains, and in a foreign country payment is frequently
euforced.
Secondly, it was manifestly the design of the stipulation, that where
debts had been therefore contracted, there should be no bar to their
recovery, from the operation of laws passed subsequent to the con-
tracts. And to adopt a narrower. construction, would be to leave
creditors to a harder fate than they have been left to, by any modern.
treaty.
Upon a view, then, of all the circumstances of this case, it must be
considered as one within the stipulation, that there should be “no law-
ful impediment to a recovery." And it is not to be doubted, that .
impediments created by the act of confiscation, are lawful impediments.
They must therefore be disregarded, if the treaty is a rule of decision.
Whether it is so or not, remains to be considered.
Here it is contended by the defendant's counsel, that the confiscation
act has not been repealed by the State ; that, the treaty could not.
repeal or annul it; and therefore that it remains in force, and secures.
the defendant. And further, that a repeal of it would not take from
him a right vested, to stand discharged.
As to the opinion, that a treaty does not annul a statute, so far as..
there is an interference, it is unsound. A statute is a declaration of
the public will, and of high authority; but it is controllable by the
public will and subsequently declared. Hence the maxim, that when
two statutes are opposed to each other, the latter abrogates the former.
Nor is it material, as to the effect of the public will, what organ it is
declared by, provided it be an organ constitutionally authorized to
make the declaration. A treaty when it is in fact made, is, with
regard to each nation that is a party to it, a national act, an ex-.
pression of the national will, as much as a statute can be. And it
does, therefore, of necessity, annul any prior statute, so far as there is
an interference. The supposition that the public can have two wills at
the same time, repugnant to each other, one expressed by a statute,
and another by a treaty, is absurd.
The treaty now under consideration was made, on the part of the
United States, by a. Congress composed of deputies from each State,
to whom were delegated by the articles of confederation, expressly,
“the sole and exclusive right and power of entering into treaties and
alliances ;” and being ratified and made by them, it became a com-
plete national act, and the act and law of every State.
CHAP. II.]
485
HAMILTON V. EATON.
If, however, a subsequent sanction of this State was at all necessary
to make the treaty law here, it has been had and repeated. By a
statute passed in 1787, the treaty was declared to be law in this State,
and the courts of law and equity were enjoined to govern their
decisions accordingly. And in 1789, was adopted here the present
Constitution of the United States, which declared, that all treaties
made, or which should be made, under the authority of the United
States, should be the supreme law of the land; and that the judges in
every State should be bound thereby; any act in the constitution or laws
of any State to the contrary notwithstanding. Surely, then, the treaty
is now law in this State, and the confiscation act, so far as the treaty
interferes with it, is annulled.
Still it is urged, that annulling the confiscation act cannot annul
the defendant's right of discharge, acquired while the act was in
force.
It is true, that the repeal of a law does not make void what has been
well done under it. But it is also true, admitting the right here
claimed by the defendant, to be as substantial as a right of property
can be, that he may be deprived of it, if the treaty so requires. It is
justifiable and frequent, in the adjustment of national differences,
to concede for the safety of the State, the rights of individuals. And
they are afterwards indemnified or not, according to circumstances.
What is most material to be here noted is, that the right or obstacle
in question, whatever it may amount to, has been created by law, and
not by the creditors. It comes within the description of “lawful
impediments; all of which, in this case, the treaty, as I apprehend,
removes.
1
Let judgment be for the plaintiffs.
1 A much more cited case is Ware v. Hylton, 1796, 3 Dall. 199, from which the most
important parts of the judgments and opinions of the Justices are given:
Chase, J. "The defendant in error, on the ... day of July, 1774, passed their
penal bond to Farrell and Jones for the payment of £2,976 11s. 6d., of good British
money. In 1777, the war of the revolution having broken out, the Legislature of Vir-
ginia passed a law to sequester British property ; the 3d section of which was as
follows:
«« That it should be lawful for any citizen of Virginia, owing money to a subject
of Great Britain, to pay the same, or any part thereof, etc., • . . into the loan-office,
taking thereout a certificate for the same, in the name of the creditor, with the in-
dorsement, under the hand of the commissioner of said office, expressing the name of
the payer.' The governor and council were to see to the safekeeping of such sums,
subject to the future directions of the Legislature. In 1780 the defendants (in error)
paid into the loan-office a part of their debt, in accordance with stipulations of the
above law. After the return of peace, they were sued in the above bond in the circuit
court of Virginia; and pleaded the said law of the Legislature of Virginia, and the pay-
ment thereunder, in bar of so much of the plaintiff's debt. The plaintiff, to avoid this
486
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
I.
BROWN V. THE UNITED STATES.
SUPREME COURT OF THE UNITED STATES, 1814.
7
(8 Cranch, 110.)
The Emulous, owned by John Delano and others, citizens of the
United States, was chartered to a company carrying on trade in
Great Britain, one of whoin was an American citizen, for the purpose
of carrying a cargo from Savannah to Plymouth (England). After
bar, replied the fourth article of the treaty of peace between Great Britain and the
United States, of 1783. For this replication there was a general demurrer and re-
joinder. The circuit court allowed the demurrer, and the plaintiff brought the present
writ of error.
“ The counsel for the plaintiff denied that the Virginia Legislature was competent
to pass such a law; first, because it was contrary to the law of nations, relying on
Vattel (lib. 3, c. 5, sec. 77); and, secondly, that the Legislature was not competent, in-
asmuch as all such power belonged exclusively to Congress. But it was held by the
court that at the time of passing the law, Virginia was a free and independent State,
inasmuch as Congress as well as the several individual States had declared their in-
dependence; and the articles of confederation had not yet been ratified. Supposing a
general right to confiscate British property is admitted to be in Congress, then the same
right belonged to the Legislature of Virginia at the time of passing the act. The
legislative power of every nation can only be restrained by its own constitution; and
it is the duty of its courts of justice not to question the validity of any law made in
pursuance of the constitution. In this case the law is obligatory on the courts of Vir-
ginia, and in my opinion on the courts of the United States. If Virginia, as a sov-
ereign State, violated the ancient or modern law of nations, in making the law of the
20th October, 1777, slie was answerable in her political capacity to the British nation,
whose subjects have been injured in consequence of that law.
“It appears to me that every nation at war with another is justified, by the general
and strict law of nations, to seize and confiscate all movable property of its enemy (of
any kind or nature whatever) wherever found, whether within its territory or not."
(Bynkershoek, R. J. P. de rebus bellices, lib. 1, c. 7, 175, 177; Vattel, B. 4, sec. 221;
Şir Thomas Parker's Rep. 267.)
" The right to confiscate the property of enemies during war is derived from a state
of war; and is called the rights of war. This right originates from self-preservation,
and is adopted as one of the means to weaken an enemy, and to strengthen ourselves.
Justice, also, is another pillar on which it may rest; to wit, a right to reimburse the
expense of an unjust war. Vattel, lib. 3, c. 8, sec. 138; and c. 9, sec. 161.
“Vattel is the only author relied on (or that can be found) to maintain the distinc-
tion between confiscating private debts, and other property of an enemy. Mr. Lee
says, ' By the law of nations, rights and credits are not less in our power than other
goods; why, therefore, should we regard the rights of war in regard to one, and not
as to the others? And when nothing occurs which gives room for a proper distinc-
tion, the general law of nations ought to prevail.' He gives many examples of confis-
CHAP. II.]
487
BROWN V. THE UNITED STATES.
the cargo was put on board, the vessel was stopped in port by the
embargo of the 4th of April, 1812. On the 25th of the same month,
cacing debts, and concludes (p. 119), 'All which prove, that not only actions, but all
other things whatever, are forfeited in time of war.' Lee on Capture, c. 8, p. 118. ***
"If a nation, during war, conducts herself contrary to the law of nations, and no
notice is taken of such conduct in the treaty of peace, it is thereby so far considered
lawful, as never afterwards to be revived, or to be a subject of complaint. ***
" The validity of such a law (the act of the Virginia Legislature) would not be
questioned in the Court of Chancery of Great Britain ; and the doctrine seemed strange
to me in an American court of justice.” See Lord Chancellor Thurlow in Wright v.
Nutt, 1782, H. Black. Rep. p. 135, 149; 3 Term. Rep. 726.
The other justices expressed their individual opinions in the case. Patterson, J.,
admitted, that in strict law, debts might be confiscated, but spoke strongly against the
policy of doing so.
Wilson, J., thought the confiscation of debts disreputable.
Cushing, J., adınitted the right to confiscate debts, but thought the fourth article
of the treaty annulled the statute of Virginia; and further that the State ought to be
responsible to the debtor for the amount paid into the loan-office.
The sixth article of the present Constitution of the United States, “That all treaties
made or which shall be made, under the authority of the United States, shall be the
supreme law of the land; and the judges in every State shall be bound thereby, any.
thing in the constitution, or laws, of any State to the contrary notwithstanding,” was
held to have a retroactive effect, and to be considered in the same light as if the Con-
stitution had been established before the making of the treaty of 1783; and that Con-
gress was competent to make the fourth article of the said treaty, which is to the
following effect: “It is agreed that creditors, on either side, shall meet with no lawful
impediment to the recovery of the full value, in sterling money, of all bona fide debts,
heretofore contracted.” And, further, the said fourth article of the treaty annulled the
act of confiscation of the Legislature of Virginia, and the payment under it. And on
that ground the judgment of the circuit court was reversed; and judgment on the
demurrer for plaintiff in error, with costs in the circuit court and the costs of the
appeal.
The case above referred to as reported in Parker (11 William III.) is Attorney-Gen-
eral y. Weeden and Shales. This was the case of a naturalized Frenchman who died
during the war, leaving in his will several legacies to Frenchmen living in Bordeaux.
A commission was issued to investigate the matter; but peace was made meantime,
ten days before the inquisition was found and returned. And after long debate it was
resolved : “First, that choses in action which belonged to an alien enemy were for-
feitable to the Crown.
Secondly, that this ought to be found by inquisition to make a title to the King
and that this was an inquisition of entitling, and not of instruction. Page's Case, 5
Co. 52.
“ Thirdly, that the peace, being concluded before the inquisition was taken, dis-
charged the.cause of forfeiture.
“Fourthly, that the inquisition taken afterwards did not relate to set up this for-
feiture, for the cause was but temporary; and that cause being removed before the
King's title was found, the finding after should not relate.”
See, also, Folliott v. Ogden, 1789, 1 H. Black. 123, in which it was held inter alin that
the State of New York, during the American Revolution possessed the right inherent
in a sovereign nation to confiscate the debts and private property belonging to the
enemy (loyalists). But see same case on error in K. B., 1790, 3 Term R. 725, where
188
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
it was agreed between the master of the ship and the agent of the
shippers, that she should proceed with her cargo to New Bedford,
where her owners resided. While the ship was lying at New Bed-
ford, war was declared (18th of June); and in October or Novem-
ber the cargo, consisting of pine timber, staves, and laths, was
unloaded, the timber being put in a salt-water creek — not navigable,
and on the 7th November was sold by the agent of the owners, an
American citizen, to the claimant, Armitz Brown, who was also an
American citizen. On the 19th April, 1813, a libel was filed by the
attorney for the United States in the District Court of Massachusetts
against the said cargo, as well on behalf of the United States as for
and in behalf of John Delano, and for all others concerned. The
attorney had no instructions from his superior, the President of the
United States, but acted at the instance of Delano, the owner of
the Emulous.
The District Court dismissed the libel. The Circuit Court (STORY,
Justice), reversed this sentence, and condemned the pine timber as
enemy's property forfeited to the United States.
The claimant ap-
pealed to the Supreme Court.1
MARSHALL, C. J., delivered the opinion of the court:-
The material question made at bar is this : can the pine timber,
even admitting the property not to be changed by the sale in No-
vember, be condemned as prize of war? The cargo of the Emulous
having been legally acquired and put on board the vessel, having
been detained by an embargo not intended to act on foreign property,
the vessel having sailed before the war, from Savannah, under a
stipulation to reland the cargo in some port of the United States,
the re-landing having been made with respect to the residue of the
cargo, and the pine timber baving been floated into shallow water,
where it was secured and in the custody of the owner of the ship, an
American citizen, the Court cannot perceive any solid distinction,
so far as respects confiscation, between this property and other
British property found on land at the commencement of hostilities.
it was distinctly held by Lord Kenyon, C. J., that acts of confiscation passed in the
several States of North America after the Declaration of Independence, 1776, and
before the treaty of peace, 1783, by which Great Britain acknowledged their inde-
pendence, are considered as a nullity in British courts of justice. See, however, the
comment on this case by Loughborough (as Lord Chancellor) in Barclay v. Russell,
1797, 3 Ves. Jr. 423, 428. This latter case, dealing with the claim of Maryland to
succeed to assets of the proprietary government, should be considered in connection
with the effect of change of sovereignty. -Ed.
1 The statement of the case is abridged and part of the opinion of the learned
chief justice has been omitted. -- ED.
CHAP. II.]
489
BROWN V. THE UNITED STATES.
It will therefore be considered as a question relating to such prop-
erty generally, and to be governed by the same rule.
Respecting the power of government no doubt is entertained.
That war gives to the sovereign full right to take the persons and
confiscate the property of the enemy, wherever found, is conceded.
The mitigations of this rigid rule, which the humane and wise policy
of modern times has introduced into practice, will more or less affect
the exercise of this right, but cannot impair the right itself. That
remains undiminished, and when the sovereign authority shall
choose to bring it into operation, the judicial department must give
effect to its will. But until that will shall be expressed, no power
of condemnation can exist in the court.
The questions to be decided by the court are:
1st. May enemy's property, found on land at the commencement
of hostilities, be seized and condemned as a necessary consequence
of the declaration of war?
2d. Is there any legislative act which authorizes such seizure
and condemnation ?
Since, in this country, from the structure of our government, pro-
ceedings to condemn the property of an enemy found within our
territory at the declaration of war, can be sustained only upon the
principle that they are instituted in execution of some existing law,
we are led to ask:
Is the declaration of war such a law? Does that declaration, by
its own operation, so vest the property of the enemy in the govern-
ment, as to support proceedings for its seizure and confiscation, or
does it vest only a right, the assertion of which depends on the will
of the sovereign power?
The universal practice of forbearing to seize and confiscate
debts and credits, the principle universally received, that the right
to them revives on the restoration of peace, would seem to prove
that war is not an absolute confiscation of this property, but simply
confers the right of confiscation.
Between debts contracted under the faith of laws, and property
acquired in the course of trade, on the faith of the same laws, reason
diraws no distinction; and, although, in practice, vessels with their
cargoes, found in port at the declaration of war, may have been
seized, it is not believed that modern usage would sanction the
seizure of the goods of an enemy on land, which were acquired in
peace in the course of trade. Such a proceeding is rare, and would
be deemed a harsh exercise of the right of war. But although
the practice in this respect may not be uniform, that circumstance
does not essentially affect the question. The inquiry is whether
490 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
such property vests in the sovereign by the mere declaration of
war, or remains subject to a right of confiscation, the exercise of
which depends on the national will: and the rule which applies to
one case so far as respects the operation of a declaration of war on
the thing itself, must apply to all others over which war gives an
equal right. The right of a sovereign to confiscate debts being
precisely the same with the right to confiscate other property found
in the country, the operation of a declaration of war on debts and
on other property found in the country must be the same. What,
then, is this operation ?
Even Bynkershoek, who maintains the broad principle, that in
war everything done against an enemy is lawful; that he may be
destroyed, though unarmed and defenceless; that fraud or even
poison, may be employed against him; that a most unlimited right
is acquired to his person and property; admits that war does not
transfer to the sovereign a debt due to his enemy; and, therefore,
if payment of such debt be not exacted, peace revives the former
right of the creditor;“ because,” he says, “the occupation which is
had by war consists more in fact than in law.” He adds to his
observations on this subject, “let it not, however, be supposed that
it is only true of actions, that they are not condemned ipso jure, for
other things also belonging to the enemy, may be conceded and
escape condemnation.”
Vattel says, that "the sovereign can neither detain the persons
nor the property of those subjects of the enemy who are within his
dominions at the time of the declaration."
It is true that this rule is, in terms, applied by Vattel to the
property of those only who are personally within the territory at
the commencement of hostilities; but it applies equally to things in
action and to things in possession; and if war did, of itself, with-
out any further exercise of the sovereign will, vest the property of
the enemy in the sovereign, his presence would not exempt it from
this operation of war. Nor can a reason be perceived for maintain-
ing that the public faith is more entirely pledged for the security
of property trusted in the territory of the nation in time of peace,
if it be accompanied by its owner, than if it be confided to the care
of others.
Chitty, after stating the general right of seizure, says, “but, in
strict justice, that right can take effect only on those possessions of
a belligerent which have come to the hands of his adversary after
the declaration of hostilities." (P. 67.)
The modern rule, then, would seem to be, that tangible property
belonging to an enemy and found in the country at the commence-
CHAP. II.]
491
BROWN V. THE UNITED STATES.
ment of war, ought not to be immediately confiscated; and in almost
every cominercial treaty an article is inserted stipulating for the
right to withdraw such property.
“This rule seems to be totally incompatible with the idea that
war does of itself vest the property in the belligerent government.
It may be considered as the opinion of all who have written on the
jus belli, that war gives the right to confiscate, but does not itself
confiscate the property of the enemy; and their rules go to the ex-
ercise of this right.
“ The Constitution of the United States was framed at a time when
this rule, introduced by commerce in favor of moderation and human-
ity, was received throughout the civilized world. In expounding that
Constitution, a construction ought not lightly to be admitted which
would give to a declaration of war an effect in this country it does
not possess elsewhere, and which would fetter that exercise of entire
discretion respecting enemy property, which may enable the Govern-
ment to apply to the enemy the rule that he applies to us.
“If we look to the Constitution itself, we find this general reasoning
much strengthened by the words of that instrument.
“That the declaration of war has only the effect of placing the two
nations in a state of hostility, of producing a state of war, of giving
those rights which war confers; but not of operating, by. its own
force, any of those results, such as a transfer of property, which are
usually produced by ulterior measures of government, is fairly de-
ducible from the enumeration of powers which accompanies that of
declaring war. Congress shall have power'-' to declare war,
grant letters of marque and reprisal, and make rules concerning cap-
tures on land and water.'
“It would be restraining this clause within narrower limits than the
words themselves import, to say that the power to make rules con-
cerning captures on land and water is to be confined to captures
which are exterritorial. If it extends to rules respecting enemy
property found within the territory, then we perceive an express
grant to Congress of the power in question as an independent sub-
stantive power, not included in that of declaring war.
“The acts of Congress furnish many instances of an opinion that the
declaration of war does not, of itself, authorize proceedings against
the persons or property of the enemy found, at the time, within the
territory.
War gives an equal right over persons and property; and if its
declaration is not considered as prescribing a law respecting the per-
son of an enemy found in our country, neither does it prescribe a law
for his property. The act concerning alien enemies, which confers
6
492
EFFECTS' OF WAR AS BETWEEN ENEMIES. (PART II.
on the President very great discretionary powers respecting their
persons, affords a strong implication that he did not possess those
powers by virtue of the declaration of war.
“The act for the safe-keeping and accommodation of prisoners of
war,' is of the same character.
“The act prohibiting trade with the enemy contains this clause:
« And be it further enacted, that the President of the United
States be and he is hereby authorized to give, at any time within six
months after the passage of this act, passports for the safe transpor-
tation of any ship or other property belonging to British subjects,
and which is now within the limits of the United States.'
“The phraseology of this law shows that the property of a British
subject was not considered by the legislature as being vested in the
United States by the declaration of war; and the authority which the
act confers on the President is manifestly considered as one which
he did not previously possess.
"The proposition that a declaration of war does not, in itself, enact
a confiscation of the property of the enemy within the territory of the
belligerent, is believed to be entirely free from doubt. Is there in
the act of Congress, by which war is declared against Great Britain,
any expression which would indicate such an intention?
“That act, after placing the two nations in a state of war, authorizes
the President of the United States to use the whole land and naval
force of the United States to carry the war into effect, and 'to issue
to private armed vessels of the United States commissions or letters.
of marque and general reprisal against the vessels, goods and effects
of the government of the United Kingdom of Great Britain and
Ireland, and the subjects thereof.'
"That reprisals may be made on enemy property found within the
United States at the declaration of war, if such be the will of the
nation, has been admitted; but it is not admitted that, in the decla-
ration of war, the nation has expressed its will to that effect.
"It cannot be necessary to employ argument in showing that when
the attorney for the United States institutes proceedings at law for
the confiscation of enemy property found on land, or floating in one
of our creeks, in the care and custody of one of our citizens, he is not
acting under the authority of letters of marque and reprisal, still less
under the authority of such letters issued to a private armed vessel.
"The act concerning letters of marque, prizes and prize goods,'
certainly contains nothing to authorize this seizure.
"There being no other act of Congress which bears upon the subject,
it is considered as proved that the legislature has not confiscated
enemy property which was within the United States at the decla-
CHAP. II.]
493
BROWN V. THE UNITED STATES.
ration of war, and that this sentence of condemnation cannot be
sustained.
“One view, however, has been taken of this subject which deserves
to be further considered.
“It is urged that, in executing the laws of war, the executive may
seize and the courts condemn all property which, according to the
modern law of nations, is subject to confiscation, although it might
require an act of the legislature to justify the condemnation of that
property which, according to inodern usage, ought not to be confis-
cated.
“This argument must assume for its basis the position that modern
usage constitutes a rule which acts directly upon the thing itself by
its own force, and not through the sovereign power. This position is
not allowed. This usage is a guide which the sovereign follows or
abandons at his will. The rule, like other precepts of morality, of
humanity, and even of wisdom, is addressed to the judgment of the
sovereign; and although it cannot be disregarded by him without
obloquy, yet it inay be disregarded.
“The rule is, in its nature, flexible. It is subject to infinite modifi-
cation. It is not an immutable rule of law, but depends on political
considerations which may continually vary.
“Commercial nations, in the situation of the United States, have
always a considerable quantity of property in the possession of their
neighbors. When war breaks out, the question, what shall be done
with enemy property in our country, is a question rather of policy
than of law. The rule which we apply to the property of our enemy
will be applied by him to the property of our citizens. Like all other
questions of policy, it is proper for the consideration of a department
which can modify it at will; not for the consideration of a department
which can pursue only the law as it is written. It is proper for the
consideration of the legislature, not of the executive or judiciary.
"It appears to the court, that the power of confiscating enemy prop-
erty is in the legislature, and that the legislature has not yet declared
its will to confiscate property which was within our territory at the
declaration of war. The court is therefore of opinion that there is
error in the sentence of condemnation pronounced in the Circuit
Court in this case, and doth direct that the same be reversed and
annulled, and that the sentence of the District Court be affirmed." i
1 Mr. Justice STORY, with a minority of the court, held that, the right of confisca-
tion existing, it was within the power of the executive to enforce confiscation, in the
same manner that the executive established blockades and authorized the capture of
the enemy's property at sea, and contraband goods.
Dr. Wharton, in his Commentaries on American Law (S 216, pp. 307-309), collects.
494
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
Ex Parte BOUSSMAKER.
CHANCERY, 1806.
(13 Vesèy Jun. 71.)
This was a petition to be admitted to prove a. debt under a com-
mission of bankruptcy; which the commissioners refused to admit,
upon the objection that the creditors applying to prove were alien
enemies.
the authorities and states the following as the result of his study and investigation:
“It has been held that the act of Congress declaring war against Great Britain did not
work such confiscation. The Juniata, Newberry, 352. In Brown v. U. Ş. ut sup., the
right to confiscate debt was asserted; and Ware v. Hylton, 3 Dall. 199, was relied on as
authority. But the better view iş that the property of the inhabitants of an invaded
country should not be taken by an invading army without remuneration.
U. S. v.
Slerenson, 3 Benedict, 119; Bluntschli, $ 657. In the United States Articles of War,
1863, § 2, art. 37, it is said: 'The United States acknowledge and protect, in hostile
countries occupied by them, religion and morality, strictly private property, the per-
sons of the inhabitants, especially those of women, and the sacredness of the domestic
relations. Offences to the contrary shall be rigorously punished.' To the effect that
private property cannot be seized by an invading army, unless contraband, see Kent's
Com., i. 93 et seq. ; U. S. v. Homeyer, 2 Bond, 217; Transactions of the National Asso-
ciation for the Promotion of Social Science, 1860, pp. 163, 279; id., 1861, pp. 126, 748,
794 ; id., 1862, pp. 89, 896, 899; id., 1863, pp. 851, 878, 884; id., 1864, pp. 596, 656;
id., 1868, pp. 168-187; Hautefeuille, Droits et Devoirs, i., 340-44; Martens, Essai sur les
Armateurs, s. 45; and other authorities given in Field, ut sup. Heffter (Volkerrecht,
s. 130, 132, 139, 140, 175, 192) holds that war gives only actual possession, but not the
legal property in such captures.
“Dr. Woolsey (Int. Law, § 118, note) after noticing Hamilton's argument against
confiscation (Hamilton's Works, Vol. VII., 19th letter of 'Camillus '), adds, speaking of
the confiscation of the private property of the subject of the enemy, 'The foreigner
brought his property here, it can at once be said, knowing the risk he might run in the
event of a war. Why should he not incur the risk ? He should incur it, say the older
practice and the older authorities. He should not, says the modern practice, although
international law in its rigor involves him in it. He should not, according to the true
principle of justice, because his relation to the state at war is not the same with the
relation of his sovereign or government; because, in short, he is not in the full sense
an enemy.' To this it may be added that when a foreigner invests property in a
country with the permission of its government, there is an implied understanding that
his title thereto will be respected unless dirested by his personal act.
" As sustaining the right of seizure of private property in an enemy's country, see
The Venus, 8 Cranch, 253; The Ann Green, 1 Gall. 274; The Lilla, 2 Sprague, 177;
The Freundschaft, 3 Wheat. 15, 4 Wheat. 105. That this does not impress with bel-
ligerency a neutral on motion to leave bona fide belligerent territory, see The Venus,
ut supra; The St. Lawrence, 1 Gall. 467. That neutrals and citizens are to be allowed
CHAP. II.]
EX PARTE BOUSSMAKER.
495
The Lord Chancellor, ERSKINE, said: "If this had been a debt
arising from a contract with an alien enemy, it could not possibly
stand; for the contract would be void. But, if the two nations were
at peace at the date of the contract, from the time of war taking
place the creditor could not sue; but the contract being originally
good, upon the return of peace the right would revive. It would be
contrary to justice, therefore, to confiscate this dividend: Though
the right to recover is suspended, that is no reason why the fund
should be divided among the other creditors. The point is of great
moment, from the analogy to the case of an action; and it is true, a
court of law would not take notice of the objection without a plea.
It must appear upon the record. * * * The policy, avoiding con-
tracts with an enemy is sound and wise; but when the contract
was originally good, and the remedy is only suspended, the proposi-
tion, that therefore the fund should be lost, is very different.
“Let the claim be entered; and the dividend reserved."
a reasonable time, after breaking out of war, to withdraw from a belligerent country,
see The Sarah Starr, Blatch. Pr. Ca. 650 ; The General Pinckney, ibid. 668.
“In Mitchell v. Harmony (13 Howard, 115), it was held that private property could
only be taken by a military commander in case of necessity, for public use, to prevent
it being used as contraband of war or falling into the enemy's hands. This, in the late
civil war, was held to be the case with cotton, which, as one of the chief military sup-
ports of the Confederacy, was regarded as contraband. Alexander's Cotton, 2 Wall.
404. In this case, Chief Justice Chase, giving the opinion, declared that the right of
capture 'may now be regarded as substantially restricted to 'special cases' (citing
Chancellor Kent), 'dictated by the necessary operation of war;? and as excluding, in
general, 'the seizure of the private property of pacific persons for the sake of gain.'
In U. S. v. Klein, 13 Wall. 128, he says: 'No titles were divested in the insurgent
States, unless in pursuance of a judgment rendered after due legal proceedings. The
Government recognized, to the fullest extent, the humane maxims of the modern law of
nations, which exempt property of non-combatant enemies from capture or booty of
war. To the same effect see Lamar v. Brown, 92 U. S. 194.
“In respect to real property the acquisition by the conqueror is not fully consum-
mated until confirmed by a treaty of peace, or by the entire submission of or destruc-
tion of the State to which it belonged.' Clifford, J., U. S. v. Huckabee, 16 Wall. 434.”
For a very recent formulation of the right of confiscation of private property of
enemies in war, see Magoon's Military Occupation, 264–281. — ED.
496
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
i
WOLFF v. OXHOLM.
KING'S BENCH, 1817.
(6 Maule and Selwyn, 92.)
Oxholm, a Danish subject, was indebted, February 7, 1800, to the
firm of Wolff & Dorville, English subjects, in the sum of £2,101 7s. 5d.
sterling money, for which a suit was instituted in the Danish courts
by Wolff & Dorville through their proctor, resident. in Denmark.
The defendant set up certain counter-claims in defense. To avoid
this, the plaintiffs in 1806 assigned the debt to a Danish subject,
who should sue and recover in his own name, thus avoiding some
technicality in the Danish laws which affected the case.
The defendant, in Sept., 1806, instituted a cross-suit. In 1807,
whilst these suits were pending, a war broke out between Great
Britain and Denmark; and an ordinance was made by the govern-
ment of Denmark, August 16, 1807, by which all ships, goods, money,
and money's worth, of or belonging to English subjects, were declared
to be sequestrated and detained ; and by, another law or ordinance
of the Danish government, dated Sept. 9, 1807, all persons were com-
manded with in three days after the publication thereof (wherever
it was not then already done) to transmit an account of the debts due
to English subjects, of whatsoever nature or quality they might be,
the whole of which were directed to be paid into the Danish treasury,
and in case of concealment the person so offending was to be pro-
ceeded against by the officers of the exchequer. In virtue of this
law and ordinance, commissioners were appointed to receive the
debts declared to be sequestrated: and as a consequence of the
ordinance, the suit of Mountford (the assignee of Wolff & Co.) against
the defendant was not further prosecuted, and in 1807, the proctor
gave information to the commissioners of the debt. The commis-
sioners authorized such payments at the then current rate of exchange,
six Danish dollars to the pound sterling.
In 1812 the defendant paid to the commissioners the amount of the
debt with the accrued interest, and took their receipt for the same;
upon the production of which, the court quashed the cause depending
between Mountford and the defendant. It is said the rate of ex-
change at the time of payment, was forty-five to fifty dollars to the
pound sterling. In 1814, the defendant arrived in this country and
was arrested, and held to bail by the plaintiffs for the debt.
CHAP. II.]
497
WOLFF V OXHOLM.
Lord ELLENBOROUGH, C. J. [after an elaborate examination of
the older authorities, Grotius, Puffendorf, Vattel and others), delivered
the opinion of the court.
It was admitted that, notwithstanding all the violent measures to
which recourse has been had during the extraordinary warfare, that
we have witnessed in our own times, this ordinance of the court of
Dennark stands single and alone, not supported by any precedent,
nor adopted as an example in any other state. The ordinance itself,
however, so far as we can learn from this case, was not followed up
by any practical measure of compulsion on the subjects of Denmark.
Nothing in the nature of the process against the defendant to enforce
the payment of this particular debt, nothing analogous to the seizure
or condemnation of corporeal things taken in the time of war occurred
on this occasion; and although the commissioners appointed under
the ordinance to receive the sequestered moneys were informed of this
debt as early as the year 1807, yet the defendant did not pay the
money until 1812.
An allusion was made in the course of the argu-
ment to a statute in our own country, the 34 G. 3, c. 79. This, how-
ever, was not an act of confiscation to the benefit of the state, but a
measure of policy not less generous than lawful, by which at the same
time that the transmission of money to the enemies of the state was
prevented, the money itself was called in, secured, and kept for those
to whom it was due, until the return of peace should enable them to
receive it. Considering, therefore, that the right of confiscating
debts contended for on the authority of these citations from Vattel is
not recognized by Grotius, and is impugned by Puffendorf and others,
that such confiscation was not general at any period of time, and that
no instance of it, except the ordinance in question, is to be found for
something more than a century, we think our judgment would be
pregnant of mischief to future times, if we did not declare, that in
our opinion, this ordinance, and the payınent to the commissioners
appointed under it, do not furnish a defence to the present action;
and if they cannot do this of themselves, neither can they do so by
the aid of the proceedings in the Danish court. The parties went
into that court expecting justice, according to the then existing laws
of the country, and are not bound by the quashing of their suit, in
consequence of a subsequent ordinance, not conformable to the usage of
nations, and which, therefore, they could not expect, nor are they or
we bound to regard.
Postea to the plaintiffs.
1 This decision is directly at variance with the American cases above quoted. Sir
Robert Phillimore (International Law, III., 723) in reviewing this judgment, slows
that the inferences from the language of Vattel, Grotius, and Puffendorf were not war-
32
498
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
a
SECTION 28. - PRIVATE CONTRACTS.
HOARE V. ALLEN.
SUPREME COURT OF PENNSYLVANIA, 1789.
(2 Dallas, 102.)
I
This was a scire facias on a mortgage given on the 4th December,
1773, for securing the payment of £16,000 sterling, with interest.
It was tried at Chester, Nisi Prius, on the 4th May, 1789, before the
Chief Justice [McKEAN], ATLEE and BRYAN, justices; when it ap-
ranted; while the authority of Bynkershoek and the Dutch tribunals was hardly
touched upon. That, moreover, to the high authority of Story and the American tri-
bunals no allusion appears to have been made by counsel or judge. “Perhaps," he
continues, " if the occasion should present itself, the decision of Lord Ellenborough
might be reversed in England. It was the decision of a single court not much ac-
customed to deal with questions of international law.”
The provocation for the act of the Danish Government was very great. An English
squadron had taken violent possession of the Danish fleet in time of peace between
the two countries (1807); and at the breaking out of war in consequence of this act
the English government had confiscated all the Danish ships found in English ports
as droits of admiralty.
In the case of the Jolunna Emilie, Spinks' Prize Cases, 14 (1854), Dr. Lushington
said. “If the property was on land, according to the ancient law, it was also seizable;
and certainly during the American war there were not wanting instances in which
such property was seized and condemned by law not by the authority of this court,
buc of another. That rigor was afterwards relaxed. I believe no such instance has
occurred from the time of the American war to the present day — no instance in which
property inland was subject to search or seizure, but no doubt it would be competent
to the authority of the Crown if it thought fit.'
During the civil war in the United States (1861), the Congress of the Confederate
States confiscated by act of Congress all property, movable or immovable, and all rights,
credits, and interests held within the Confederacy by or for any alien enemy, except
public stocks and securities. And all persons domiciled within the enenıy's country
were held to be subject to the provisions of the act. Act of August 6th, 1861.
McPherson, History of the Rebellion, 203.
It would seem to be clear that, by the strict law, tangible property and debts are
still subject to confiscation by a belligerent. But it is equally clear that the entire
drift of modern opinion and practice is opposed to the exercise of that right. In the
case of Hanger v. Abbott, 1867, 16 Wall. 532, the Supreme Court of the United States
said: “In strictness it (the right of confiscating such debts) may still be said to exist,
but it may well be considered as a naked and impolitic right, condemned by the en-
lightened conscience of modern times."
On the other hand, property of the enemy found afloat in ports at the outbreak of
war, as ships with their cargoes, has generally, in the absence of a contrary agreement,
CHAP. II.]
HOARE V. ALLEN.
499
peared that the plaintiff was a British subject, resident in London;
that Ainos Strettle was his attorney in fact, at the time of the execu-
tion of the mortgage and after; but it did not appear, whether he
continued to act as such subsequent to the war. He resided in the
State till his death, which was about * * * The question that was
made in this cause was, whether interest'should run during the war?
By the Court:- This action is brought on a mortgage for £16,000,
payable on 4th December, 1774. No suit could be brought on the
mortgage before the 4th December, 1775. Before that period the war
commenced, and on the 10th September, 1775, the Congress prohibited
the exportation of commodities, etc., to Great Britain, or any of her
dominions. This was obligatory on their constituents, and it became
unlawful to make any remittances after this to the enemy. During
à war all civil actions between 'enemies are suspended; debts are
suspended also, bat restored by the peace. For the term of seven
and a half years, viz., from the 10th September, 1775, to the 10th
March, 1783, the defendant could not have paid this money to the
plaintiff, who was an alien enemy, without a violation of the positive
laws of this country, and of the laws of nations. They ought not,
therefore, to suffer for their moral conduct, and their submission to
the laws.
Interest is paid for the use or forbearance of money. But in the
case before us, there could be no forbearance; because the plaintiff
·could not enforce the payment of the principal; nor could the defend-
ants pay him, consistent with law; nor could they pay it without
going into the enemy's country, where the plaintiff was. Where a
person is prevented, by law, from paying the principal, he shall not
be compelled to pay interest during the prohibition, as in the case of
a garnishee, in a foreign attachment.
It is urged, that a remittance in bills of exchange furnished the
enemy with no money. Yet, it is clear that it would furnish the
enemy with the means of carrying on the war, within the bowels of
the country, without bringing any money into it. It is well known
that the bills drawn by the British army were the principal bills that
were bought and sold; those drawn by American citizens were gen-
erally protested.
It has been said that it might have been paid to Strettle; but that
been confiscated, following the rules still in practice in respect of private property of
the enemy at sea. In Brown v. The United States, supra, the Supreme Court was care-
ful to exclude from the rule of the decision property found afloat in ports. But here,
too, there are strong indications of a milder rule, if indeed it is not already firmly.
established. The most recent practice of the United States appears in the President's
Proclamation of April 26, 1898; its official construction and judicial interpretation in
the case of the Buena Ventura, 1899, 175S. 384. – ED.
500
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
depended upon his pleasure, whether he chose to act as attorney or
not.
I have searched for precedents both in the civil law, and in the
books of reports; but could find none. We, therefore, determine on
principle and analogy, and are unanimously of opinion, that the
plaintiff is not entitled to interest from the 10th September, 1775, to
10th March, 1783; but during the rest of the time he must be allowed
full interest.
The jury adopted the principles of the charge; but struck off seven
and a half years' interest. I
HANGER V. ABBOTT.
SUPREME COURT OF THE UNITED STATES, 1867.
(6 Wallace, 532.)
Error to the Circuit Court for the Eastern District of Arkansas.
J. & E. Abbott, of New Hampshire, sued Hanger, of Arkansas, in
assumpsit. The latter pleaded the statute of limitations of Arkan-
sas, which limits such action to three years. The former replied the
rebellion, which broke out after the cause of action accrued, and
closed for more than three years all lawful courts. On demurrer,
and judgment against it, and error to this court, the question here
was, simply, whether the time during which the courts in Arkansas
were closed on account of the rebellion, was to be excluded from the
computation of time fixed by the Arkansas statute of limitations
within which suits on contracts were to be brought, there being no
exception by the terms of the statute itself for any such case.
Mr. Justice CLIFFORD delivered the opinion of the court:
'Proclamation of blockade was made by the President on the
1
1 In the interesting case of Foxcroft & Galloway v. Nagle, 1791, 2 Dall. 132, it
appeared that Galloway was with the enemy (British army) while they were in
Philadelphia and that Nagle, the defendant, then lived within three miles of the
city and might, therefore, have gone in and come out at pleasure (had such not
been expressly forbidden by statute). On these facts and allegations it was held :
“ By the court : It has been frequently settled, that the debt being suspended
during the war, no interest could arise upon it. If the plaintiffs mean to make it a
point, they will have an opportunity to do so, at the return of the postea. We are all
of opinion, however, that the interest during the war should be deducted; that is, for
seven and a half years. Verdict accordingly.” See, also, Thomas v. Hunter, 1868,
29 Md. 406; Roberts v. Cocke, 1877, 28 Gratt. 207; McVeigh v. Bk. of Old Dominion,
1875, 26 Gratt. 188. ED.
1 Only selected extracts are given from the opinion of the learned justice. --- Ed.
CHAP. II.]
HANGER V. ABBOTT.
501
nineteenth day of April, 1861, and, on the thirteenth day of July, in
the same year, Congress passed a law authorizing the President to
interdict all trade and intercourse between the inhabitants of the
States in insurrection and the rest of the United States. 12 Stat. at
Large.
“War, when duly declared or recognized as such by the war-mak-
ing power, imports a prohibition to the subjects; or citizens, of all
commercial intercourse and correspondence with citizens or persons
domiciled in the enemy's country. Upon this principle of public law
it is the established rule in all commercial nations, that trading with
the enemy, except under a government license, subjects the property
to confiscation, or to capture and condemnation.
“ Partnership with a foreigner is dissolved by the same event
which makes him an alien enemy, because there is in that case an
utter incompatibility created by operation of law between the part-
ners as to their respective rights, duties, and obligations, both public
and private, which necessarily dissolves the relation, independent of
the will or acts of the parties. Direct consequence of the rule as
established in those cases is, that as soon as war is commenced all
trading, negotiation, communication, and intercourse between the
citizens of one of the belligerents with those of the other, without
the permission of the government, is unlawful. No valid contract,
therefore, can be made, nor can any promise arise by implication of
law, from any transaction with an enemy. Exceptions to the rule
are not admitted; and even after the war has terminated, the de-
fendant, in an action founded upon a contract made in violation of
that prohibition, may set up the illegality of the trařsaction as a
defence. * * *
Executory contracts also with an alien enemy, or even with a
neutral, if they cannot be performed except in the way of commercial
intercourse with the enemy, are dissolved by the declaration of war,
which operates for that purpose with a force equivalent to an act
of Congress. Exposito v. Bowden, 4 Ellis & Blackburne, 963; same
case, 7 id. 778.
“In former times the right to confiscate debts .was admitted as an
acknowledged doctrine of the law of nations, and in strictness it
may still be said to exist, but it may well be considered as a naked
and impolitic right, condemned by the enlightened conscience and
judgment of modern times. Better opinion is that executed con-
tracts, such as the debt in this case, although existing prior to the
war, are not annulled or extinguished, but the remedy is only sus-
pended, which is a necessary conclusion, on account of the inability
of an alien enemy to súe or to sustain, in the language of the civil-
ians, a persona standi in judicio. Flint v. Waters, 15 East. 260.
66
502
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
“ Trading, which supposes the making of contracts, and which also
involves the necessity of intercourse and correspondence, is neces-
sarily contradictory to a state of war, but there is no exigency in
war which requires that belligerents should confiscate or annul the
debts due by the citizens of the other contending party. * * *
“Under the thirty-fourth section of the Judiciary Act, the statutes
of limitations of the several States, wherc no special provision has
been made by Congress, form the rule of decision in the courts of the
United States, and the same effect is given to them as is given in
the courts of the State. * * *
“When our ancestors immigrated here, they brought with them
the statute of 21 Jac. 1, c. 16, entitled "An act for limitation of ac-
tions, and for avoiding of suits in law, known as the statute of
limitations. * * *
“Persons within the age of twenty-one years, femes covert, non
compos mentis, persons imprisoned or beyond the seas, were excepted
out of the operation of the third section of the act, and were allowed
the same period of time after such disability was removed. Just
exceptions indeed are to be found in all such statutes, but when ex-
amined it will appear that they were framed to prevent injustice and
never to encourage laches or to promote negligence. Cases where
the courts of justice are closed in consequence of insurrection or
rebellion are not within the express terms of any such exception, but
the statute of limitations was passed in 1623, more than a century
before it came to be understood that debts due to alien enemies were
not subject to confiscation. Down to 1737, says Chancellor KENT,
the opinion of jurists was in favor of the right to confiscate, and
many maintained that such debts were annulled by the declaration
of war. Regarding such debts as annulled by war, the law-makers
of that day never thought of making provision for the collection of
the same on the restoration of peace between the belligerents. Com-
merce and civilization have wrought great changes in the spirit of
nations touching the conduct of war, and in respect to the principles
of international law applicable to the subject.
“ Constant usage and practice of belligerent nations from the ear-
liest times subjected enemy's goods in neutral vessels to capture and
condemnation as prize of war, but the maxim is now universally ac-
knowledged that free ships make free goods' which is another
victory of commerce over the feelings of avarice and revenge. Indi-
vidual debts, as a general remark, are no longer the subject of con-
fiscation, and the rule is universally admitted that if not confiscated
during the war, the return of peace brings with it both the right
and the remedy Wolf v. Oxholm, 6 Maule & Selwyn, 92. ***
CHAP. II.]
503
HANGER V. ABBOTT.
66 Old decisions, made when the rule of law was that war annulled
all debts between the subjects of the belligerents, are entitled to but
little weight, even if it is safe to assume that they are correctly
reported, of which, in respect to the leading case of Prideaux v. Webber,
1 Levinz, 31, there is much doubt. Miller v. Prideaux, 1 Keble, 157;
Lee v. Rogers, 1 Levinz, 110; Hally. Wybourne, 2 Salked., 420; Aubrey
v. Fortescue, 10 Modern, 205, are of the same class, and to the same
effect. All of those decisions were made between parties who were
citizens of the same jurisdiction, and most of them were made nearly
a hundred years before the international rule was acknowledged, that
war only suspended debts due to an enemy, and that peace had the
effect to restore the remedy. The rule of the present day is, that
debts existing prior to the war, but which made no part of the
reasons for undertaking it, remain entire, and the remedies are
revived with the restoration of peace. ***
“ Text writers usually say, on the authority of the old cases re-
ferred to, that the non-existence of courts, or their being shut, is no
answer to the bar of the statute of limitations, but Plowden says
that things happening by an invincible necessity, though they be
against common law, or an act of Parliament, shall not be prejudicial,
that, therefore, to say that the courts were shut, is a good excuse on
voucher of record. Exceptions not mentioned in the statutes have
sometimes been admitted, and this court held that the time which
elapsed while certain prior proceedings were suspended by appeal,
should be deducted, as it appeared that the injured party in the
meantime had no right to demand his money, or to sue for the recov-
ery of the same; and in view of those circumstances, the court de-
cided that his right of action had not accrued so as to bar it, although
not commenced within six years. Montgomery v. Hernandez, 12
Wheaton, 129.
“But the exception set up in this case stands upon much more solid
reasons, as the right to sue was suspended by the acts of the govern-
ment, for which all the citizens are responsible. Unless the rule be
so, then the citizens of a state may pay their debts by entering into
an insurrection or rebellion against the government of the Union, if
they are able to close the courts, and to successfully resist the laws,
until the bar of the statute becomes complete, which cannot for a
moment be admitted. Peace restores the right and the remedy, and
as that cannot be if the limitation continues to run during the period
the creditor is rendered incapable to sue, it necessarily follows that
the operation of the statute is also suspended during the same period.
“Judgment affirmed with costs.” 1
1 Semmes v. Hartford Ins. Co., 1871, 13 Wallace, 158 ; and Brown v. Hiatts, 1870,
1 Dill. 372. This latter was reversed by Supreme Court (15 Wall. 177) on a question
504
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
GRISWOLD V. WADDINGTON.
COURT OF ERRORS OF NEW YORK, 1819.
(16 Johnson's Report, 438.)
Before the breaking out of the war between the United States and
England, in 1812, Joshua Waddington, an American citizen residing
in New York, and Henry Waddington, a British subject residing in
London, were partners in a commercial business. During the war,
N. L. and G. Griswold had transactions with J. Waddington, in the
United States. After the close of the war, the. Griswolds sued to
recover a balance of account arising out of those transactions; and
their contention was that H. Waddington, the London partner, was
liable for the debt.1
The Chancellor [KENT]. -
“It appears to me, that the declaration of war did, of itself work
a dissolution of all commercial partnerships existing at the time be-
tween British subjects and American citizens.
“By dealing with either party, no third person could acquire a
legal right against the other, because one alien enemy cannot, in that
capacity, make a private contract binding upon the other. This con-
clusion would seem to be an inevitable result from the new relations
created by the war. It is a necessary consequence of the other prop-
osition, that it is unlawful to have communication or trade with an
enemy. To suppose a commercial partnership (such as this was) to
be continued, and recognized by law as subsisting, when the same law
had severed the subjects of the two countries, and declared them
enemies to each other, is to suppose the law chargeable with incon-
sistency and absurdity. For what use or purpose could the law
uphold such a connection, when all further intercourse, communica-
tion, negotiation, or dealing between the partners, was prohibited, as
unlawful? Why preserve the skeleton of the firm, when the sense
and spirit of it has fled, and when the execution of any one article of
of fact, not of law, and the case as reported in 1 Dill. 372 is an admirable statement
and exposition of the law on this subject. See, also, Stewart v. Kahn, 1870, 11 Wall.
493, h ng that an act of Congress providing a statute of limitations is constitutional
and binding on State as well as Federal courts ; Levy v. Stewart, 1870, 11 Wall. 244.
In O'Neal v. Boone, 1869, 53 Ill. 35, it was held that the benefit of the Statute of Limi-
tations did not accrue to a citizen of a loyal State who voluntarily crossed and resided
within Confederate lines. -- ED.
1 Short statement substituted for that of the report. -- Ed.
2 Only parts of the opinion of the learned Chancellor are given. - ED.
CHAP. II.]
GRISWOLD 2. WADDINGTON.
505
war.
it by either, would be a breach of his allegiance to his country? In
short, it must be obvious to every one, that a state of war creates
(lisabilities, imposes restraints, and exacts duties altogether incon-
sistent with the continuance of that relation. Why does war dissolve
a charter-party, or a commercial contract for a particular voyage ?
Because, says Valin, (tom. 1 p. 626,) the war imposes an insurmount-
able obstacle to the accomplishment of the contract; and this obsta-
cle arising from a cause beyond the control of the party, it is very
natural, he observes, that the charter-party should be dissolved, as
of course. Why should the contract of partnership continue by law
when equally invincible obstacles are created by law to defeat it? If
one alien enemy can go and bind his hostile partner, by contracts in
time of war, when the other can have no agency, consultation, or con-
trol concerning them, the law would be as unjust as it would be
extravagant. The good sense of the thing as applicable to this sub-
ject, is the rule prescribed by the Roman law, that a copartnership
in any business ceased when there was an end put to the business
itself. Item si alicujus rei societas sit, et finis negotio impositus est,
flinitur societas. (Inst. 3, 26, 6.)
“ The doctrine, that war does not interfere with private contracts,
is not to be carried to an extent inconsistent with the rights
“ Suppose that H. & J. W. had entered into a contract before the
war, which was to continue until 1814, by which one of them was to
ship, half yearly, to London, consigned to the other, a cargo of pro-
visions, and the other, in return, to ship to New York a cargo of
goods. The war which broke out in 1812, would surely have put an
end to the further operation of this contract, lawful and innocent as
it was when made. No person could raise a doubt on this point;
and what sanctity or magic is there in a contract of copartnership,
that it must not yield to the same power ?
“If we examine, more particularly, the nature and objects of com-
mercial partnerships, it would seem to be contrary to all the rules
by which they are to be construed and governed, that they should
continue to exist, after the parties are interdicted by the govern-
ment, from any communication with each other, and are placed in a
state of absolute hostility. It is of the essence of the contract that
each party should contribute something valuable, as money, or
goods, or skill and labor on joint account, and for the common
benefit; and that the object of the partnership should be lawful,
and honest business.
“But how can the partners have any unity of interest, or any
joint object that is lawful, when their pursuits, in consequence of
the war, and in consequence of the separate allegiance which each
owes to his own government, must be mutually hostile ?
506
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
0
“ The commercial business of each country, and of all its people,
is an object of attack, and of destruction to the other. One party
may be engaged in privateering, or in supplying the fleets and armies
of his country with provisions, or with munitions of war; and can
the law recognize the other partner as having a joint interest in the
profits of such business? It would be impossible for the one partner
to be concerned in any commercial business, which was not auxiliary
to the resources and efforts of his country in a maritime war. And
shall the other partner be lawfully drawing a revenue from such
employment of capital, and such personal services directed against
his own country? We cannot contemplate such a confusion of obli-
gation between the law of partnership and the law of war, or such a
conflict between his interest as a partner, and his duty as a patriot,
without a mixture of astonishment and dread. Shall it be said that
the partnership must be deemed to be abridged during war, to busi-
ness that is altogether innoxious and harmless ?
“But I would ask, how can we cut down a partnership in that
manner, without destroying it? The very object of the partnership,
in this case, was, no doubt, commercial business between England
and the United States, and which the hostile state of the two coun-
tries interdicted; or it may have been business in which the personal
communication and advice of each partner was deemed essential, and
without which the partnership would not have been formed. It is
one of the principles of the law of partnership, that it is dissolved
by the death of any one of its members, however numerous the asso-
ciation may be; and the reason is this; the personal qualities of
each partner enter into the consideration of the contract, and the
survivors ought not to be held bound without a new assent, when
perhaps, the character of the deceased partner was the inducement
to the connection.
“ Shall we say that the partnership continues during war, in
quiescent state, and that the hostile partners do not share in each
other's profits, made in carrying on the hostile commerce of each
country ?
“ It would be then most unjust to make the party who did not
share in profit to share in loss, and to be bound by the other's con-
tracts; but if one partner does not share in profit, that alone de-
stroys a partnership. It would be what the Roman lawyers called
Societas leonina, in allusion to the fable of the lion, who, having.
entered into a partnership with the other animals of the forest in
hunting, appropriated to himself all the prey.
“It is one of the fundamental principles of every commercial
partnership, that each partner has the power to buy and sell and
a
CHAP. II.]
GRISWOLD V. WADDINGTON.
507
$
pay and receive, and to contract and bind the firm. But then, again,
as a necessary check to this power, each partner can interfere and
stop any contract about to be made by any one of the rest. This
is an elementary rule, derived from the civil law. In re pari
potiorem causam esse prohibentis constat. (Pothier, Trait. du Cont.
sec. n. 90.)
“But if the partnership continues in war between hostile asso-
ciates, this salutary power is withdrawn, and each partner is left
defenceless. If the law continues the connection, after it has de-
stroyed the check, the law is then cruel and unjust.
“In speaking of the dissolution of partnerships, the French and
civil law writers say, that partnerships are dissolved by a change of
the condition of one of the parties which disables him to perform his
part of the duty, as by a loss of liberty, or banishment, or bank-
ruptcy, or a judicial prohibition to execute his business, or by confis-
cation of his goods.
“The English law of partnership is derived from the same source;
and as the cases arise, the same principles are applied. The princi-
ple here is, that when one of the parties becomes disabled to act,
or when the business of the association becomes impracticable, the
law, as well as common reason, adjudges the partnership to be dis-
solved. * * *
“Another objection was raised, from the want of notice of the
dissolution of the partnership. The answer to this is extremely
easy, and perfectly conclusive. Notice is requisite when a partner-
ship is dissolved by the act of the parties, but it is not necessary
when the dissolution takes place, by the act of the laws. The
declaration of war, from the time it was duly made known to the
nations, put an end to all future dealings between the subjects and .
citizens of the two countries, and, consequently, to the future opera-
tion of the copartnership in question.
“ The declaration of war was, of itself, the most authentic and
monitory notice. Any other notice, in a case like this, between two
public enemies, who had each his domicil in his own country, would
have been useless. All mankind were bound to take notice, of the
war, and of its consequence. The notice, if given, could only be
given by each partner in his own country; and there it would be
useless, as his countrymen could not hold any lawful intercourse
with the enemy. It could not be given as a joint act, for the
partners cannot lawfully commune together.
“But, it was said, that the peace had a healing influence, and
restored the parties to all their rights, and arrested all confiscations,
and forfeitures, which had not previously and duly attached. I do
508
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
not know that I differ from the counsel in any just applicatior of
this doctrine.
“ As far as the war suspended the right of action existing in the
adverse party prior to the war, that right revived; but if the contract
in this case was unlawful, peace could not revive it, for it never had
any legal existence. So, too, the copartnership being once dissolved
by the war, it was extinguished forever, except as to matters exist-
ing prior to the war.”
MATTHEWS V. MOSTEA.
SUPREME COURT OF THE UNITED STATES, 1875.
(91 United States, 7.)
}
Mr. Justice Strong delivered the opinion of the court.
The single question which this record presents for our considera-
tion is, whether a partnership, where one member of the firm resided
in New York and the others in Louisiana, was. dissolved by the war
of the rebellion prior to April 23, 1861.
That the civil war had an existence commencing before that date
must be accepted as an established fact. This was fully determined
in The Prize Cases, 2 Black, 635; and it is no longer open to denial.
The President's proclamation of April 19, 1861, declaring that he had
deemed it advisable to set on foot a blockade of the ports within the
States of South Carolina, Georgia, Alabama, Florida, Mississippi,
Louisiana, and Texas, was a recognition of a war waged, and conclu-
sive evidence that a state of war existed between the people inhabit-
ing those States and the United States.
It must also be conceded, as a general rule, to be one of the imme-
diate consequences of a declaration of war and the effect of a state of
war, even when not declared, that all commercial intercourse and
dealing between the subjects or adherents of the contending powers is
unlawful, and is interdicted. The reasons for this rule are obvious.
They are, that, in a state of war, all the members of each belligerent
are respectively enemies of all the members of the other belligerent;
and, were commercial intercourse allowed, it would tend to strengthen
the enemy, and afford facilities for conveying intelligence, and even
for traitorous correspondence. Hence it has become an established
doctrine, that war puts an end to all commercial dealing between the
citizens or subjects of the nations or powers at war, and "places every
individual of the respective governments, as well as the governments
CHAP. II.]
509
MATTHEWS V. MOSTEA.
themselves, in a state of hostility:" and it dissolves commercial part-
perships existing between the subjects or citizens of the two contend-
ing parties prior to the war; for their continued existence would
involve community of interest and mutual dealing between enemies.
Still further, it is undeniable that civil war brings with it all the
consequences in this regard which attend upon and follow a state
of foreign war. Certainly this is so when civil war is sectional.
Equally with foreign war, it renders commercial intercourse un-
lawful between the contending parties, and it dissolves commercial
partnerships.
But, while all this is true as a general rule, it is not without ex-
ceptions. A state of war may exist, and yet commercial intercourse
be lawful. They are not necessarily inconsistent with each other.
Trading with a public enemy may be authorized by the sovereign,
and even, to a limited extent, by a military commander. Such per-
missions or licenses are partial suspensions of the laws of war, but
not of the war itself. In modern times, they are very common.
Bynkershoek, in his Quæst. Jur. Pub., lib. 1, c. 3, while asserting as
a universal principle of law that an immediate consequence of the
commencement of war is the interdiction of all commercial intercourse
between the subjects of the states at war, remarks: "The utility,
however, of merchants, and the mutual wants of nations, have almost
got the better of the laws of war as to commerce. Hence it is alter-
natively permitted and forbidden in time of war, as princes think it
most for the interests of their subjects. A commercial nation is
anxious to trade, and accommodates the laws of war to the greater or
lesser want that it may be in of the goods of others. Thus sometimes
a mutual commerce is permitted generally; sometimes as to certain
merchandise only, while others are prohibited; and sometimes it is
prohibited altogether." Halleck, in his “Treatise on the Laws of
War," p. 676 et seq., discusses this subject at considerable length,
and remarks: “That branch of the government to which, from the
form of its constitution, the power of declaring or making war is
intrusted, has an undoubted right to regulate and modify, in its dis-
cretion, the hostilities which it sanctions. *** In England, licenses
are granted directly by the crown, or by some subordinate officer to
whom the authority of the crown has been delegated, either by special
instructions, or under an act of Parliament. In the United States,
as a general rule, licenses are issued under the authority of an act of
Congress; but in special cases and for purposes immediately con-
nected with the prosecution of the war, they may be granted by the
authority of the President, as commander-in-chief of the military and
naval forces of the United States.
510
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
It being, then, settled that a war may exist, and yet that trading
with the enemy, or commercial intercourse, may be allowable, we are
brought to inquire whether such intercourse was allowed between the
loyal citizens of the United States and the citizens of Louisiana until
the 23d of April, 1861, when the acceptance was made upon which
this suit was brought. And, in determining this, the character of
the war and the manner in which it was commenced ought not to be
overlooked. No declaration of war was ever made. The President
recognized its existence by proclaiming a blockade on the 19th of
April; and it then became his duty as well as his right to direct how
it should be carried on. In the exercise of this rigbt, he was at
liberty to allow or license intercourse; and his proclamations, if they
did not license it expressly, did, in our opinion, license it by very
coyent implications. It is impossible to read them without a con-
viction that no interdiction of commercial intercourse, except through
the ports of the designated States, was intended. The first was that
of April 15, 1861. The forts and property of the United States had,
prior to that day, been forcibly seized by armed forces. Hostilities
had commenced; and, in the light of subsequent events, it must be
considered that a state of war then existed. Yet the proclamation,
while calling for the militia of the several States, and stating what
would probably be the first service assigned to them, expressly de-
clared that, "in every event, the utmost care would be observed,
consistently with the repossession of the forts, places, and property
which had been seized from the Union, to avoid any devastation,
destruction of or interference with property, or any disturbance of
peaceful citizens in any part of the country." Manifestly, this dec-
laration was not a mere military order. · It did not contemplate the
treatment of the inhabitants of the States in which the unlawful com-
binations mentioned in the proclamation existed as public enemies.
It announced a different mode of treatment, — the treatment due to
friends. It is to be observed that the proclamation of April 15, 1861,
was not a distinct recognition of an existing state of war. The Presi-
dent had power to recognize it, The Prize Cases, supra; but he did
not prior to his second proclamation, that of April 19, in which he
announced the blockade. Even then the war was only inferentially
recognized; and the measures proposed were avowed to be "with a
view to *** the protection of the public peace and the lives and
property of quiet and orderly citizens pursuing their lawful occupa-
tions, until Congress shall have assembled.” The reference here was
plainly to citizens of the insurrectionary States; and the purpose
avowed appears to be inconsistent with their being regarded as public
enemies, and consequently debarred from intercourse with the inhabi-
CHAP. II.]
511
MATTHEWS V. MCSTEA.
0
tants of States not in insurrection. The only interference with the
business relations of citizens in all parts of the country, contemplated
by the proclamation, seems to have been such as the blockade might
cause.
And that it was understood to be an assent by the executive
to continued business intercourse may be inferred from the subsequent
action of the government (of which we may take judicial notice) in
continuing the mail service in Louisiana and the other insurrectionary
States long after the blockade was declared. If it was not such an
assent or permission, it was well fitted to deceive the public. But in
a civil more than in a foreign war, or a war declared, it is important
that unequivocal notice should be given of the illegality of traffic or
commercial intercourse; for, in a civil war, only the government can
know when the insurrection has assumed the character of war.
If, however, the proclamations, considered by themselves, leave it
doubtful whether they were intended to be permissive of commercial
intercourse with the inhabitants of the insurrectionary States, so far
as such intercourse did not interfere with the blockade the subse-
quent act of Congress, passed on the thirteenth day of July, 1861,
ought to put doubt at rest.
The act was manifestly passed in view of the state of the country
then existing, and in view of the proclamation the President had
issued. It enacts that, in a case therein described, a case that then
existed, "it may and shall be lawful for the President, by proclama-
tion, to declare that the inhabitants of such State, or any section or
part thereof where such insurrection exists, are in a state of insurrec-
tion against the United States; and thereupon all commercial inter-
course by and between the same and the citizens thereof, and the
citizens of the rest of the United States, shall cease and be unlawful
so long as such condition of hostility shall continue.”. Under au-
thority of this act, the President did issue such a proclamation on the
16th of August, 1861; and it stated that all commercial intercourse
between the States designated as in insurrection and the inhabitants
thereof, with certain exceptions, and the citizens of other States and
other parts of the United States, was unlawful. Both the act and
the proclamation exhibit a clear implication that, before the first was
enacted and the second was issued, commercial intercourse was not
unlawful; that it had been permitted. What need of declaring it
should cease, if it had ceased, or had been unlawful before? The
enactment that it should not be permitted after a day then in the
future must be considered an implied affirmation that up to that day
it was lawful; and certainly Congress had the power to relax any of
the ordinary rules of war.
We think, therefore, the Court of Appeals was right in holding
512 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
that the partnership of Brander, Chambliss & Co. had not been dis-
solved by the war, when the acceptance upon which the plaintiff in
error is sued was made.
The judgment is affirmed.
NEW YORK LIFE INS. CO. v. STATHEM.
SAME V. SEYMS.
MANHATTAN LIFE INS. CO. V. BUCK, EXECUTOR.
SUPREME COURT OF THE UNITED STATES, 1876.
(93 United States, 24.)
The first of these cases is here on appeal from, and the second
and third on writs of error to, the Circuit Court of the United
States for the Southern District of Mississippi.
The first case is a bill in equity, filed to recover the amount of a
policy of life assurance, granted by the defendant (now appellant)
in 1851, on the life of Dr. A. D. Stathem, of Mississippi, from the
proceeds of certain funds belonging to the defendant attached in
the hands of its agent at Jackson, in that State. It appears from
the statements of the bill that the annual premiums accruing on the
policy were all regularly paid, until the breaking out of the late
civil war, but that, in consequence of that event, the premium due
on the 8th of December, 1861, was not paid ; the parties assured
being residents of Mississippi, and the defendant a corporation of
New York. Dr. Stathem died in July, 1862.
The other cases are similar.
Each policy contained various conditions, upon the breach of
which it was to be null and void; and amongst others the following:
“That in case the said (assured) shall not pay the said premium on
or before the several days hereinbefore mentioned for the payment
thereof, then and in every such case the said company shall not be
liable to the payment of the sum insured, or in any part thereof,
and this policy shall cease and determine."
The Manhattan policy contained the additional provision, that, in
every case where the policy should cease or become null and void,
all previous payments made thereon should be forfeited to the com-
pany.
The non-payment of the premiums in arrear was set up in bar of
the actions; and the plaintiffs respectively relied on the existence
CHAP. II.]
513
NEW YORK LIFE INS. CO. 2. STATHEM.
of the war as an excuse, offering to deduct the premiums in arrear
from the amounts of the policies.
The decree and judgments below were against the defendants.
Mr. Justice BRADLEY, after stating the case, delivered the opinion
of the court.
“We agree with the court below, that the contract is not an
assurance for a single year, with a privilege of renewal from year to
year by paying the annual premium, but that it is an entire con-
tract of assurance for life, subject to discontinuance and forfeiture
for non-payment of any of the stipulated premiums. Such is the
form of the contract, and such is its character. * *
“Each instalment is, in fact, part consideration of the entire in-
surance for life. It is the same thing, where the annual premiums
are spread over the whole life. * * *
“ The case, therefore, is one in which time is material and of the
essence of the contract. Non-payment at the day involves absolute
forfeiture, if such be the terms of the contract, as is the case here.
Courts cannot with safety vary the stipulation of the parties by in-
troducing equities for the relief of the insured against their own
negligence.
“ But the court below bases its decision on the assumption that,
when performance of the condition becomes illegal in consequence of
the prevalence of public war, it is excused, and forfeiture does not
ensue. It supposes the contract to have been suspended during the
war, and to have revived with all its force when the war ended.
“Such a suspension and revival do take place in the case of ordi-
nary debts. But have they ever been known to take place in the
case of executory contracts in which time is material? If a Texas
merchant had contracted to furnish some Northern explorer a thou-
sand cans of preserved meat by a certain day, so as to be ready for
his departure for the North Pole, and was prevented from furnish-
ing it by the civil war, would the contract still be good at the close
of the war five years afterwards, and after the return of the ex-
pedition ?
“ If the proprietor of a Tennessee quarry had agreed, in 1860, to
furnish, during the two following years, ten thousand cubic feet of
marble, for the construction of a building in Cincinnati, could he
have claimed to perform the contract in 1865, on the ground that
the war prevented an earlier performance ?
“The truth is, that the doctrine of the revival of contracts sus-
pended during the war is one based on considerations of equity and
justice, and cannot be invoked to revive a contract which it would
be unjust or inequitable to revive.
33
514
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
“In the case of life insurance, besides the materiality of time in
the performance of the contract, another strong reason exists why
the policy should not be revived. The parties do not stand on
equal ground in reference to such a revival.
“It would operate most unjustly against the company. The
business of insurance is founded on the law of averages; that of
life insurance eminently so. The average rate of mortality is the
basis on which it rests. By spreading their risks over a large num-
ber of cases, the companies calculate on this average with reasonable
certainty and safety. Anything that interferes with it deranges the
security of the business. If every policy lapsed by reason of the
war should be revived, and all the back premiums should be paid,
the companies would have the benefit of this average amount of
risk.
“But the good risks are never heard from; only the bad are sought
to be revived, where the person insured is either dead or dying.
Those in health can get new policies 'cheaper than to pay arrearages
on the old. To enforce a revival of the bad cases, whilst the company
necessarily lose the cases, which are desirable, would be manifestly
unjust. An injured person, as before stated, does not stand isolated
and alone. His case is connected with and correlated to the cases of
all others insured by the same company.
“ The nature of the business, as a whole, must be looked at to
understand the general equities of the parties.
" We are of opinion, therefore, that an action cannot be maintained
for the amount assured on a policy of life-insurance forfeited, like
those in question, by non-payment of the premium, even though the
payment was prevented by the existence of the war.
“ The question then arises, Must the insured lose all the money
which has been paid for premiums on their respective policies ? If
they must, they will sustain an equal injustice to that which the
companies would sustain by reviving the policies. At the
At the very first
blush, it seems manifest that justice requires that they should have
some compensation or return for the money already paid, otherwise
the companies would be the gainers from their loss; and that from
a cause for which neither party is to blame. The case may be
illustrated thus : Suppose an inhabitant of Georgia had bargained
for a house, situated in a Northern city, to be paid for by instal-
ments, and no title to be made until all the instalments were paid, .
with a condition that on the failure to pay any of the instalments
when due, the contract should be at an end, and the previous pay-
ments forfeited ; and suppose that this condition was declared by
the parties to be absolute and the time of payment material. Now,
:
CHAI. II. NEW YORK LIFE INS. CO. V. STATHEM.
515
0
if some of the instalments were paid before the war, and others ac-
cruing during the war were not paid, the contract, as an executory
one, was at an end. If the necessities of the vendor obliged him to
avail himself of the condition, and to resell the property to another
party, would it be just for him to retain the money he had received ?
Perhaps it might be just if the failure to pay had been voluntary, or
could, by possibility, have been avoided.
“But it was caused by an event beyond the control of either party,
an event which made it unlawful to pay. In such case, whilst it
would be unjust, after the war, to enforce the contract as an execu-
tory one against the vendor contrary to his will, it would be equally
unjust in him, treating it as ended, to insist upon the forfeiture
of the money already paid on it. An equitable right to some
compensation or return for previous payments would clearly result
from the circumstances of the case. The money paid by the pur-
chaser, subject to the value of any possession which he may have
enjoyed, should, ex cquo et bono, be returned to him. This would
clearly be demanded by justice and right.
“ And so, in the present case, whilst the insurance company has a
right to insist on the materiality of time in the condition of payment
of premiums, and to hold the contract ended by reason of non-pay-
ment, they cannot with any fairness insist upon the condition, as it
regards the forfeiture of the premiums already paid ; that would be
clearly unjust and inequitable. The insured has an equitable right
to have this amount restored to him, subject to a deduction for the
value of the assurance enjoyed by him whilst the policy was in ex-
istence; in other words, he is fairly entitled to have the equitable
value of his policy: ***
“We are of opinion, therefore, first, that as the companies elected
to insist upon the condition in these cases, the policies in question
must be regarded as extinguished by the non-payment of the premi-
ums, though caused by the existence of the war, and that an action
will not lie for the amount insured thereon.
Secondly, that such failure being caused by a public war, without
the fault of the assured, they are entitled ex æquo et bono to recover
the equitable value of the policies with interest from the close of the
war. * * *
“In estimating the equitable value of a policy, no deduction should
be made from the precise amount which the calculations give, as is
sometimes done where policies are voluntarily surrendered, for the
purpose of discouraging such surrenders ; and the value should be
taken as of the day when the first default occurred in the payment
of the premium by which the policy became forfeited. In each case
516
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
the rates of mortality and interest used in the tables of the company
will form the basis of the calculation.
“The decree in the equity suit and the judgments in the actions
at law are reversed, and the causes respectively remanded to be pro-
ceeded with according to law and the directions of this opinion.
CLIFFORD, J., (with whom concurred HUNT, J.,) dissenting :
“ Where the parties to an executory money-contract live in
different countries, and the governments of those countries become
involved in public war with each other, the contract between such
parties is suspended during the existence of the war, and revives
when peace ensues; and that rule, in my judgment, is as applicable
to the contract of life-insurance as to any other executory con-
tract.
“ Consequently, I am obliged to dissent from the opinion and
judgment of the court in these cases.” 1
1 In New York Life Ins. Co. v. Davis, 1877, 95 U. S. 425, the facts were the same,
except that the Insurance Co. had an agent in the Confederacy to whom the insured, a
* Major in the Confederate service, vainly tendered the premium as it fell due. Under the
circumstances, the court, following the principal decision, said per Mr. Justice
Bradley :-
“We do not mean to say that, if the defendant had continued its authority to the
agent to act in the receipt of premiums during the war, and he had done so, a payment
or tender to him in lawful money of the United States would not have been valid;
nor that a stipulation to continue such authority in case of war made before its occur-
rence would not have been a valid stipulation; nor that a policy of life insurance on
which no premiuns were to be paid, though suspended during the war, might not have
revived after its close. We place our decision simply on the ground that the agency
of Garland was terminated by the breaking out of the war, and that, although by the
consent of the parties it might have been continued for the purpose of receiving pay-
ments of premiums during the war, there is no proof that such assent was given,
either by the defendant or by Garland; but that, on the contrary, the proof is positive
and uncontradicted that Garland declined to act as agent.”
In the course of the opinion the court considers and approves the following authori-
ties as payment to agents in an enemy's country: Conn v. Penn., 1818, Pet. C. C. 496
(the leading authority); Dennison v. Imbrie, 1818, 3 Wash. 396; Buchanan v. Curry,
1821, 19 Johns. 137; Ward v. Smith, 1868, 7 Wall. 447; Brown' v. Hiatts, 1872,
16 Wall. 177; Montgomery v. U. S., 1872, 15 Wall. 395; Fretz v. Stover, 1874,
22 Wall. 198.
In regard to the influence of war on life insurance policies it may be said that three
essentially distinct views have been held by courts of last resort, and reference is made
to Abell v. Penn. Mutual Life Ins. Co., 1881, 18 West Va. 400, 423-435 for their
enumeration, and criticism of the authorities cited.
In Semmes v. l/artford Ins. Co., 1871, 13 Wall. 158, the action was upon a policy of
fire insurance containing the express stipulation that no suit should be sustainable
thereunder unless brought within twelve months after the loss or damage occurred.
The civil war broke out during the twelve inonths within which the suit should and
no doubt would have been brouglat. As it was impossible to bring suit during the war,
CHAP. II.]
517
WARE V. JONES.
WARE V. JONES.
SUPREME COURT OF ALABAMA, 1878.
(61 Alabama, 288.)
BRICKELL, C. J. The instructions given the jury, and the first
instruction requested by the appellant and refused, involve the same
question — the validity of a contract made during the war, for the
sale of property, real and personal, the seller knew the purchaser was
buying, to be used in the making of iron for the Confederate States,
to aid and assist them in the prosecution of hostilities against the
United States. The question has been several times, in various
forms, presented to this court, and with one exception such contracts
have been declared void.
In Shepherd v. Reese, 42 Ala. 329, a horse was purchased, the note
given for the price, expressing that the horse was "to go in Captain
Smith's mounted company, the horse to be paid for as he draws his
money.” The proof showed the horse was purchased for use in the
service of the Confederate States. The question was, whether a
recovery could be had on the note. The court pronounced it void, as
opposed to the national policy and the Constitution. At the succeed-
ing term, in Patton v. Gilmer, 42 Ala. 548, the facts were that the
State of Alabama had advanced a large sum of money to an associa-
tion or corporation, organized for the manufacture of arms, upon a
contract to deliver to the State, arins of a certain number and descrip-
tion, and the corporation had given bond for the performance of the
contract. The action was upon the bond, assigning several breaches
of the contract, and it was held the action could not be maintained.
The principle of the decision is, that all contracts which are hostile
to, or violative of the Constitution or laws of the United States, are
invalid, whether made by individuals, or the State. And that though
the contract was made during the war, when the authority and laws
this condition was not performed. It was held by the court that the condition was
entire and not divisible; that as performance became impossible by operation of law,
the assured was entirely released from the obligation of bringing suit within the twelve
months; that the action could, therefore, be maintained at any time within the
statute of limitations. In other words, war suspends but does not extinguish con-
ditions of a contract, so that on the return of peace the entire conventional stipulation
as regards time revives as of right. In case of a statutory limitation within which the
suit may or must be brought, the period during which the courts were closed by
reason of war is deducted and the plaintiff is given the balance of time to bring
the action which the war prevented him from doing. See Wambaugh, Cases on In-
surance (1902), 651, note, for an exhaustive citation of adjudicated cases. ED.
518
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
of the United States were by force superseded, and the authority and
laws of the Confederate States were dominant, it cannot now be
enforced in the courts of the State, bound to the Constitution of the
United States, as the supreme law of the land. In Oxford Iron Com-
pany v. Quinchett, 44 Ala. 487, a contract for the loan or hire of
mules to a party, known at the time to be engaged in the manufacture
of iron for the Confederate government, with a knowledge on the part
of the bailor that they were to be employed in the work, was declared
invalid. In Oxford Iron Company v. Spradley, 46 Ala. 98, a promis-
sory note given by a corporation for the loan of money, to be used in
erecting iron works and making iron for the Confederate government,
if at the time of the loan the lender knew the purposes for which it
was borrowed, was pronounced void. In Milner v. Patton, 49 Ala.
423, the actiou was on an account for goods sold and delivered, the
seller knowing the purchaser intended to use them in clothing Con-
federate soldiers, and it was held the action was not maintainable.
Opposed to these cases stands the case of Thedford v. McClintock,
47 Ala. 423, which was expressly overruled in the case of Milner v.
Patton, supra. See, also, Bibb v. Commissioner's Court, 44 Ala. 119;
Speed v. Cocke, 57 Ala. 209.
These decisions must be taken as settling definitely, and finally,
the law of this State, upon the question now involved; as they are
supported by the decisions of the Supreme Court of the United
States, though they may be opposed to the decisions of other States,
we are not inclined to re-open a discussion of the reasoning on which
they proceed. Hanauer v. Doane, 12 Wall. 342; Hanauer v. Wood-
ruff, 15 Wall. 439. The act of Congress of August 6, 1861 (U. S.
Stat. Vol. XII, 319), subjected to confiscation property of any kind
or description purchased or acquired, or sold, with intent to use or
employ the same, or to suffer the same to be used or employed in
aiding or abetting or promoting the insurrection. The property in
this case was not only sold with a knowledge that it was to be so
used, but the seller was a member of the corporation formed to pro-
mote the use, and suffered it to be used first in the completion of a
contract he had made to supply a contractor with the Confederate
States with iron for making arms, and then in supplying the govern-
ment itself. Such, at least, there was evidence tending to show, and
it was in reference to the evidence the instructions were given and
refused. Contracts prohibited by a statute, even when a penalty is
not imposed for a violation, are void. McGehee v. Lindsay, 6 Ala.
16. It is said this statute was not operative in Alabama when this
contract was made. But it is now of force, and as obligatory on the
courts of justice within the State, as if Alabama had then, as now
CHAP. II.]
519
WARE V. JONES.
supreme law.
recognized the Constitution and laws of the United States, as the
The answer of Judge, J., to a similar argument in
Shepherd v. Reese, supra, was: "The contract stands, therefore, as
one executed in a foreign government; and testing its legality by the
lex loci contractus, it must be pronounced to have been a valid contract
at the time and place it was made. But can it be enforced in a court
acting under the authority and Constitution of the United States?
We understand the law to be well settled that it cannot be if it is
opposed to the national policy or national Constitution?” In the in-
structions given and refused, we are considering, the Circuit Court
did not err.
The second instruction requested by the appellant asserts there is
material difference between a sale to the Confederate States, or to its
agents for its use, and a sale to an individual who expected to profit
by it in making contracts for its use with the Confederate States.
The instruction does not point out in what the difference consists.
The guilty knowledge of the seller which avoids the contract may be
more apparent in the one instance than the other, from the character
of the person with whom the contract is made. But in the legal con-
sequences resulting from the contract there is no difference. The
reason in either instance the contract is held void is, because it can-
not be reasonably supposed, that a party knowing another intended
an illegal purpose, would directly or indirectly furnish the means of
accomplishing it, if he did not intend to aid and assist it. Degroot
v. Van Duger, 20 Wend. 390; Hanauer v. Doane, supra; Story's
Con. Laws, SS 253, 254.
Expressions may be found in judicial decisions, and in text-books,
which seem to cast reproach on a party resisting the performance of
contracts into which he has voluntarily entered, because of their
illegality, and would indicate that the law looks upon the defence
with disfavor. Similar expressions may be found in reference to the
statute of limitations, and at one time, courts were so far led astray
by them, that the statute lost much of its vigor. Such expressions
are the individual opinions of the judge, or the text-writer, employ-
ing them, and are not to be accepted as rules of law. The law does
not regard the defence with favor or disfavor - it does not inquire
whether there are or are not circumstances in the particular case,
which render the defence immoral and dishonest, or render it merito-
rious, and a shield to the party making it, from an unconscionable
demand by his adversary, who may be cruelly standing on the letter
of the bond. The law does not look with favor or disfavor to the one
party or the other, declares them in pari delicto, and abstains from all
interference between them.
520
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
The presumption of law is in favor of the legality of contracts, and
when on the court is devolved the duty of construction, if it is fairly
and reasonably susceptible of two interpretations ---one rendering it
legal, and the other illegal, that interpretation will be adopted which
will support, rather than that which will defeat it. 1 Brick. Dig.
386, § 164; 2 Chit. Con. 977. Following out the principle, illegality
of consideration will not be inferred, when the evidence is justly and
reasonably capable of being reconciled with the hypothesis of legal-
ity. The general rule applies, that fraud or illegality is not to be
presumed; the party affirming the one or the other, must prove it
clearly if it is denied. 2 Chit. Con. 978. It is enough, however,
if the evidence is sufficient to produce in the minds of the jury that
degree of conviction essential in civil cases — it is not necessary, as in
criininal cases, that it should remove all reasonable doubt. If the
appellant had requested the court simply to instruct the jury, that
the defence in the present case ought to be clearly proved, we do not
inquire whether the instruction ought to have been given — without
an explanation it would have probably misled; and instructions
requested which, without explanation, may mislead, are properly
refused. The instruction as to the clearness of the evidence was
connected with the affirmation that the law disfavored the defence
as immoral and dishonest, which was not correct, and being incorrect
in part, was refused properly; for it was not the duty of the court to
analyze the charge disconnecting the correct from the incorrect.
Let the judgment be affirmed.1
1 In Whitis v. Polk, 1871-2, 36 Tex. 602, a carefully considered and authoritative
case, it is said, at p. 627 : “The public policy of the United States during the war was
to stop all commerce or trade by the rebel States or the citizens thereof with the out-
side world, to prevent all intercourse whatever - even with neutral governments
- that all aid or confort might be cut off, to the end that the rebel power might the
sooner be put down and the citizens forced to their rightful allegiance. This was a
policy the government had a right to inaugurate, and to put in force to any extent.
The contract sued on was in direct conflict with this policy, and for that reason is en-
titled to no favorable consideration by the courts. That contracts against the law
and public policy cannot be enforced is fully recognized in Coppell v. Hall, 7 Wallace,
543, and in Hanauer v. Doane, 12 Wallace, 342; Hunt's heirs v. Hunt, 1 Texas, 758;
Goodman v. McGehee, 31 Texas, 253, and Griswold v. Waddington, 16 Julinson, 438.
'Again, if this contract was made in aid of the then existing rebellion, it was null
and void, and should not now be enforced. This doctrine has been so often and witlı
so great unanimity announced by almost every court in the country, that we deem it
unnecessary to refer to but few authorities. In the case of Hanauer v. Doune, 12
Wallace, Justice Bradley, after a very thorough examination of authorities on that
question, comes to the conclusion that he who, being bound by his allegiance to a
government, sells goods to an agent of an armed combination to overthrow that gov-
ernment, knowing that the purchaser buys them for that treasonable purpose,' or does
any other act to aid that combination, is himself guilty of treason or misprision
CHAP. II.]
521
THE
HOOP.”
SECTION 29.
TRADE WITH THE ENEMY,
THE “HOOP."
HIGH COURT OF ADMIRALTY, 1799.
(1 C. Robinson, 196.)
Judgment. — SIR W. SCOTT. "This is the case of a ship laden with
flax, madder, geneva, and cheese, and bound from Rotterdam osten-
sibly to Bergen; but she was in truth coming to a British port, and
took a destination to Bergen to deceive the French cruisers; and, as
thereof.' The appellee in this case, knowing that the only resource for the Confed-
erate army in obtaining clothing and supplies, consisted in the cotton of the country,
and knowing also that very rigid exactions were laid upon all cotton in the State by
the Confederate authorities, even to one-half of the entire crop, and knowing also that
no cotton could be got out of the country without satisfying those exactions in one
way or the other, voluntarily purchased Bowles's cotton for the purpose of sending
the same out of the country to market, and then made a bargain with the appellant to
pay the Confederate exactions, and procure what were known as perniits for sending
the same beyond the Confederate lines, and at the same time knowing that the
whole transaction was in direct violation of the laws and public policy of the United
States, can now hardly plead innocence, or an exemption from the legitimate conse-
quence of his acts. He is to all intents and purposes as culpable as though his con-
tract had been made directly with the Confederate authorities, in which he had bound
himself to buy cotton and give one-half to the Confederacy for permits to ship the other
half; and the one entered into was in direct aid of the rebellion, to a very large amount.
It is entirely immaterial how appellent procured the permits from the Confederate
agents, or whether the Confederacy was paid a part of the identical cotton turned over
by appellee, or whether it was paid out of other cotton, or in money; yet the permits
represented the interest of the Confederate authorities, and appellee agreed to give all
that they represented; and that agreement was in aid of the rebellion, and therefore
treasonable and void, and the courts cannot now be prostituted to take jurisdiction of
or aid either party in the enforcement of the execution of the same. Hanauer v.
Doane, 12 Wallace; Gooilman v. McGehee, 31 Texas, 254; Pridgcon v. Smith, 31 Texas,
171; Ransom v. Alexander, 31 Texas, 443; also, Emancipation Cases, 31 Texas, 534."
In Isaacs, Taylor & Williams v. City of Richmond, 1893, 60 Va. 30, 36, it is held, inter
aliu, that fifteen thousand dollars paid " on account of a house and furniture for Mr.
Davis" fell within expenditure in aid of rebellion and therefore illegal.
In Dewing v. Perdicaries, 1877, 96 U. S. 193, court said: "Nothing is better settled
in the jurisprudence of this city than that all acts. done in aid of the rebellion were
illegal and of no validity. The principle has become axiomatic. It would be a mere
waste of time to linger upon the point for the purpose of discussing it, Texas v. While,
7 Wall. 700; Hickman v. Jones, 9 id. 197; Ilanauer v. Doane, 12 id. 34%; Knox v. Lee,
id. 457 ; Hanauer v. Woodruff, 15 id. 439; Cornet v. Williums, 20 id. 226; Sprott v.
United Slates, id. 450." To which may be added, although axiomatic, the following
two authorities : U. S. v. Fuckbee, 1872, 16 Wall. 414; Whitfield v. U. S., 1875,
92 U. S. 165. See, also, Bragg v. Tuffts, 1887, 49 Ark. 454, 562. -- Ed.
522
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART 11.
the claim discloses (of which I see no reason to doubt the truth), the
goods were to be imported on account of British merchants, being
most of them articles of considerable use in the manufactures and
commerce of this country, and being brought under an assurance
from the commissioners of customs in Scotland that they might be
lawfully imported without any license, by virtue of the statute 35
Geo. 3, c. 15, $ 180. 1
“ It is said that these circumstances compose a case entitled to
great indulgence; and I do not deny it. But if there is a rule of law
on the subject binding the court, I must follow where that rule leads
me; though it leads to consequences which I may privately regret,
when I look to the particular intentions of the parties.
“In my opinion there exists such a general rule in the maritime
jurisprudence of this country, by which all trading with the public
enemy, unless with the permission of the sovereign, is interdicted.
It is not a principle peculiar to the maritime law of this country; it
is laid down by Bynkershoek as an universal principle of law.-
Ex naturâ belli commercia inter hostes cessare non est dubitandum.
Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen
jure belli commercia esse vetita, ipsæ indictiones bellorum satis de-
carant, etc. He proceeds to observe, that the interests of trade, and
the necessity of obtaining certain commodities have sometimes so
far overpowered this rule, that different species of traffic have been
permitted, prout e re sud, subditorumque suorum esse censent prin-
cipes' (Bynk. Q. J. P. B. 1, c. 3.) But it is in all cases the act, and
permission of the sovereign. Wherever that is permitted, it is a
suspension of the state of war quo ad hoc. It is, as he expresses it,
pro parte sic bellum, pro parte pax inter subditos utriusque principes.'
It appears from these passages to have been the law of Holland;
Valin, l. iii., tit. 6, art. 3, states it to have been the law of France,
whether the trade was attempted to be carried on in national or in
neutral vessels; it will appear in a case which I shall have occa-
sion to mention, The Fortuna, to have been the law of Spain ; and it
may, I think, without rashness be affirmed to have been a general
principle of law in most of the countries of Europe.
"By the law and constitution of this country, the sovereign alone
has the power of declaring war and peace. He alone therefore who
1 The 35 G. 3, c. 15 (March 16, 1795), enacts, "that it shall be lawful to import
such goods belonging to subjects of the United Provinces, or to any who were sub-
jects before the 19th of January, 1795, or to any subject of his Majesty, to be
landed and secured in warehouses for the benefit of the proprietor, and for the se-
curity of the revenue.” Subsequent acts contain further regulations for property
coming from Holland, in the ambiguous situation of the two countries at that time.
CHAP. II.]
523
66
THE
HOOP."
has the power of entirely removing the state of war, has the power
of removing it in part, by permitting, where he sees proper, that
commercial intercourse which is a partial suspension of the war.
There may be occasions on which such an intercourse may be highly
expedient. But it is not for individuals to determine on the expe-
diency of such occasions on their own notions of commerce, and of
commerce merely, and possibly on grounds of private advantage not
very reconcilable with the general interest of the state. It is for the
state alone, on more enlarged views of policy, and of all circum-
stances which may be connected with such an intercourse, to deter-
mine when it shall be permitted, and under what regulations. In
my opinion, no principle ought to be held more sacred than that this
intercourse cannot subsist on any other footing than that of the
direct permission of the state. Who can be insensible to the conse-
quences that might follow, if every person in a time of war had a
right to carry on a commercial intercourse with the enemy, and un-
der color of that, had the means of carrying on any other species of
intercourse he might think fit? The inconvenience to the public
might be extreme; and where is the inconvenience on the other side,
that the merchant should be compelled, in such a situation of the
two countries, to carry on his trade between them (if necessary) un-
der the eye and control of the government, charged with the care of
the public safety ?
“Another principle of law, of a less public nature, but equally general
in its reception and direct in its application, forbids this sort of com-
munication as fundamentally inconsistent with the relation at that
time existing between the two countries; and that is, the total in-
ability to sustain any contract by all appeal to the tribunals of the
one country, on the part of the subjects of the other. In the law of
almost every country, the character of alien enemy carries with it. a
disability to sue, or to sustain in the language of the civilians a per-
sona standi in judicio. The peculiar law of our own country applies
this principle with great rigor. The same principle is received in
our courts of the law of nations; they are so far British courts, that
no man can sue therein who is a subject of the enemy, unless under
particular circumstances that pro hac vice discharge him from the
character of an enemy; such as his coming under a flag of truce, a
cartel, a pass, or some other act of public authority that puts him in
the King's peace pro hac vice. But otherwise be is totally ex lex;
even in the case of ransoms which are contracts, but contracts aris-
ing ex jure belli, and tolerated as such, the enemy was not permitted
to sue in his own proper person for the payment of the ransom bill ;
but the payment was enforced by an action brought by the impris-
524
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
i
oned hostage in the courts of his own country, for the recovery of
his freedom. A state in which contracts cannot be enforced, cannot
be a state of legal commerce. If the parties who are to contract
have no right to compel the performance of the contract, nor even to
appear in a court of justice for that purpose, can there be a stronger
proof that the law imposes a legal inability to contract? To such
transactions it gives no sanction; they have no legal existence; and
the whole of such commerce is attempted without its protection and
against its authority. Bynkershoek expresses himself with great
force upon this argument in his first book, chapter 7, where he lays
down that the legality of commerce and the mutual use of courts of
justice are inseparable; he says, that cases of commerce are undis-
tinguishable from cases of any other species in this respect. Si hosti
semel permittas actiones exercere, difficile est distinguere ex quâ
causâ oriunter, nec potui animadvertere illam distinctionem usu
fuisse servatam.'
“Upon these and similar grounds it has been the established rule
of law of this court, confirmed by the judgment of the Supreme
Court, that a trading with the enemy, except under a royal license,
subjects the property to confiscation ;-and the most eminent persons
of the law sitting in the Supreme Court have uniformly sustained
such judgments. * * *1
“I omit many other cases of the last and the present war merely
on this ground that the rule is so firmly established, that no one case
exists which has been permitted to contravene it,-for I take upon
me to aver, that all cases of this kind which have come before that
tribunal have received an uniform determination. The cases which
I have produced, prove that the rule has been rigidly enforced :-
where acts of parliament have on different occasions been made to
relax the navigation-law and other revenue acts; where the govern-
ment has authorized, under the sanction of an act of parliament, a
homeward trade from the enemy's possession, but has not especially
protected an outward trade to the same, though intimately con-
nected with that homeward trade, and almost necessary to its exist-
ence; that it has been enforced where strong claim not merely of
1 In support of this rule Sir W. Scott reviews a large number of cases decided on
appeal by the Lords of Appeal. These cases are the following: The Ringende
Jacob, 1750; The Lady Jane, 149; Deergaden, 1747; The Elizabeth, 1749; The
Juffrow Louisa Margaretha, 1781; The St. Louis, 1781; The Victoria, 1781; The
Comte de Wohrougoff, 1781; The Guidila, 1785; The Eenigheid, 1795; The F’ortund,
1795; The Freedom, 1795; The William, 1795.
These were all cases in which the property in question was condemned, though
sone of them, like the case of the Hoop, were cases of great hardship upon
British werchants. - Ed.
CHAP. II.]
525
POTTS V. BELL.
convenience, but almost of necessity, excused it, on behalf of the
individual; that it has been enforced where carriages have been laden
before the war, but where the parties have not used all possible dili-
gence to countermand the voyage after the first notice of hostilities;
and that it has been enforced not only against the subjects of the
crown, but likewise against those of its allies in the war, upon the
supposition that the rule was founded on a strong and universal
principle, which allied states in war had a right to notice and apply,
mutually, to each other's subjects. Indeed it is the less necessary
to produce these cases, because it is expressly laid down by Lord
Mansfield, as I understand him, that such is the maritime law of
England.” (Gist v. Mason, 1 T. R., 85.)
[In conclusion, Sir W. Scott held that the acts of Parliament in
question were not intended to legalize the trade without special
licenses; and that the law advisers of the commissioners were wrong
in their conclusions to that effect. The property was therefore con-
demned according to the strict rule of law.]
POTTS v.
7. BELL.
KING'S BENCH, 1800.
(8 Term Reports, 548.)
This was the case of a neutral ship captured by a French cruiser on
a voyage from Rotterdam to Hull, for having on board enemy property
(English). These goods were bought in Rotterdam by the agent
of an English house, after the breaking out of hostilities between
France and England, and insured in an English company. An action
was brought on the insurance policy.
The defendant insisted that the plaintiff was not entitled to re-
cover; because the policy was void, inasmuch as it was not lawful
to trade with the enemy. The Common Pleas found for the plaint-
iffs. But on appeal, this judgment was reversed:
Judgment,-Lord KENYON, Ch., J.:-_“The court had very fully con-
sidered the case immediately after the very learned argument which
had been made by the King's advocate, Sir J. Nicholl, in the last
term. That the reasons which he had urged and the authorities he
had cited were so many, so uniform, and so conclusive to show that
a British subject's trading with an enemy was illegal, that the ques-
tion might be considered as finally at rest. That those authorities,
it was true, were mostly drawn from the decisions of the admiralty
526
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
courts; and that though all diligence had been used, there was only
one direct authority on the subject to be found in the common-law
books, and that one was to the same effect. But that the circum-
stances of there being that single case only was strong to show
that the point had not been since disputed, and that it might now be
· taken for granted that it was a principle of the common law that
trading with an enemy without the King's license was illegal in
British subjects. That it was therefore needless in this case to
delay giving judgment for the sake of pronouncing the opinion of
the court in more formal terms; more especially as they could do
little more than recapitulate the judgment with the long train of
authorities, already to be found in the clearest terms in the principal
report of the case of the Hoop published by Dr. Robinson. That
the consequence was that the judgment of the court of Common
Pleas must be reversed."
FLINDT V. SCOTT.
SAME y. CROCKATT.
IN THE EXCHEQUER CHAMBER, 1814.
(5 Taunton, 674.)
THOMSON, C. B. His lordship stated the declaration and the
special verdict at large. The merits of this case must mainly, if not
entirely, depend on the effect and operation of the license, under
which the cargo, the subject of the insurance in question, was
shipped. If the shipment made under the sanction of the license is
legal, then the insurance on it must be so, too, and the underwriter is
responsible for the loss that has happened by the seizure of the cargo,
unless he can establish some good ground for being discharged from
that responsibility. It is proper to consider the nature and end of
such a license as the present, issued by the government of this coun-
try during hostilities with foreign nations; there can be no doubt
that the sovereign may, during a war, equally license the trading of
any of his subjects with an enemy, or license enemies to trade with
his subjects. The great object of obtaining such an intercourse hy
such license was to provide the means of exporting, notwithstanding
the pressure of war, the manufacturers of this country, and to
receive in returu from the other country such articles as we most
stood in need of; and that was particularly the case with respect to
Russia: we wanted the produce of that country in general, and espe-
CHAP. II.]
527
FLINDT V. SCOTT.
1
cially the article of naval stores. And these licenses to trade, how-
ever they may have been formerly construed strictly, are now in all
courts construed more liberally, and favorably to trade, in order to
effectuate the benefits intended to result from them. There is in the
present instance nothing, either in the terms of the license, or in the
principles of public policy, which ought to restrict the operation of
the authority given to the exportation of property belonging to the
subjects of this country only; on the contrary, the license is granted
to Gustavus Flindt and Co. of London, merchants, on behalf of them-
selves and others, to export a cargo from London to Archangel, being
an enemy's port, and to import from thence in the same ship a cargo
of such goods as are permitted by law to be imported (with some
exceptions), to any port in the United Kingdom, notwithstanding all
the documents which accompany the ship and cargo may represent
the same to be destined to any neutral or hostile port, and to whom-
soever such property may appear to belong: terms, which to me suffi-
ciently indicate that the cargo, either outwards or homewards, might
legally comprehend the property of enemies. And these terms have
been adopted for that very purpose, which terms in the opinion of
the very learned judge of the Court of Admiralty (as appears from
the case of the Cousine Marianne), have in that court been held to
exclude all inquiry in whom the property is vested. Our government,
in licensing a trade directly with the enemy at this port, must have
had a view both to exportation and importation. Why may not the
license be construed to permit the exportation of a cargo by an enemy
to that hostile port, from whence the return cargo is to be imported ?
The cargo exported from this country must necessarily be consigned
to, and ultimately become the property of a foreigner at that port:
why then may it not be permitted to the foreigner at once to acquire
the property here, and to export the goods by his agent in this
country? In Feise and Another v. Bell, 4 Taunt. 4, under a license
to a British merchant by naine, on behalf of himself and others, to
export a cargo to St. Petersburg, and to import a cargo from thence;
though an alien enemy was interested both in the exported and im-
ported cargoes, yet the Court of Common Pleas held that it was no
objection to the plaintiff's recovering on their insurance. In Morgan
V. Oswald, 3 Taunt. 554, a question arose upon a license granted to a
British merchant, that a ship might go to an hostile port, and bring
home a cargo of goods. It permitted a vessel, bearing any flag except
the French, to proceed in ballast from any port north of the Scheldt,
to Archangel, or any other port in the White Sea, there to load a
cargo of such goods as were permitted by law to be imported (with
some exceptions), and to proceed with the same to a port of the
528
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
United Kingdom. It was held, that license authorized the importa-
tion of goods, the property of an alien enemy, the subject of that
hostile country; and therefore authorized him to insure and to en:
force his contract of insurance in the courts of this country. In the
case of Robinson v. Touray, 1 Maule & Selw. 217, which arose on the
same ship, license and policy, the Court of King's Bench adopted
the same doctrine. In the case of Fenton and Another, Assignees of
Rennauds, Bankrupts, v. Pearson, 15 East, 419, the Court of King's
Bench determined that a trading license from the crown to British
merchants to send a ship in ballast to an enemy's port, there to
receive and load a cargo, and import it into this country, by legaliz-
ing the purchase by the subject, legalized the sale by the enemy, and
impliedly legalized his right to stop the goods in transitu, after their
arrival in port here, upon the intermediate insolvency of the vendees,
the whole price not being paid, and the part that had been paid being
offered to be refunded; and that the alien enemy was permitted to
employ an agent here for that purpose. The assignees of the ven-
dees, who had become bankrupts, were therefore not allowed to
recover against him in an action of trover. The second objection
made to the plaintiff's recovering in this case was, that the under-
writers were not answerable for this loss, because it was occasioned
by the act of the Russian Government, to which the persons interested
must be supposed to have given their assent, they being Russians.
And in support of that position two cases were cited, Touteng v. Hub-
bard, 3 Bos. & Pull. 291, and Conway v. Gray, 10 East, 554. The
first was a case where a British merchant chartered a Swedish ship
on à voyage to. St. Michael's for a cargo of fruit, and the charter-
party contained the usual exception against the restraint of princes;
and the ship being prevented from reaching St. Michael's within the
fruit season by an embargo laid on Swedish vessels by the British
Government, the question was, whether the Swedish owner acquired
a right, by proceeding on the voyage after the embargo was taken off
(when it was too late to obtain a cargo), to recover the freight against
the British merchant. The court determined that he had no such
right; and they went farther, and determined, what was not then a
question before them, that an insurance upon the property of a for-
eigner against a loss remotely occasioned by an act of his own state
wonld be illegal. It was not the main question in that case, though
certainly it was so decided. The case of Conway v: Gray proceeded
in a degree on the authority of Touteng v. Hubbard. In that case it
was decided, that an American subject could not recover for a loss
sustained by reason of an embargo laid on in one of the ports of his
own country by his own government. But these decisions, even sup-
.
CHAP. II.]
529
FLINDT V. SCOTT.
posing them to be correct as applied to the cases in which they were
made, do not affect the present case; for if this license is to be
deemed (which I think it is) sufficient to cover the Russian property,
and authorizes a trading to the enemy's port, that incidentally legal-
izes the insurances made on that property, which must protect it
throughout, till the conclusion of that risk, just as if it had belongeil
to British subjects. The underwriters, knowing that these goods are
going to Russia, to an enemy's port, and being willing that the
adventure should proceed with simulated papers and documents,
assent to the design of the owners of the goods to contravene the
regulations of that country, to which they are to be consigned, and
take on themselves the risk of confiscation in the event of the fraud
being detected. The effect of the license is, to convert this Russian,
though an alien enemy, as it were, into an alien friend, and so far to
separate him from the acts of his government, as concerns the subject
matter of this license. Lord Ellenborough, in the case of Usparicha
v. Noble, 13 East, 332, has delivered himself so forcibly and clearly
on that point, and the circumstances of that case in many respects
resemble the present so much, that I shall make no apology for stat-
ing that judgment at large. [His lordship then stated that case,
and read the whole of Lord Ellenborough's judgment thereon), add-
ing, This opinion seems to go all the length of establishing the right
of this plaintiff to sue and recover in the present cause, though it is
perfectly well known that his lordship has not entirely adhered to
the judgment he had formerly given, but that, on the contrary, in
the case now in judgment he contrasts it with the opinion he had
given in the case that has been cited. The result of the whole is,
that we are clearly' of opinion (though the reasons of that opinion, I
ought to say, are my own only) that as the case appears, the license
legalizes the whole transaction, the insurance in question was prop-
erly made, and the circumstance that the confiscation of the property
was made by the Russian Government, will not affect the plaintiff's
right to recover in this action. And therefore the judgment of the
Court of King's Bench ought to be reversed, and judgment ought to
be given for the plaintiff. I should add, that Mr. Baron Wood, who
is prevented from attending by indisposition, concurs in the judgment
of the court. 1
Judgment for the plaintiff. 1
i This case was learnedly argued, the judgment carefully considered, and it has
been repeatedly cited and approved. The case of Usparicha v. Noble, 1811, 13 East,
322, held that a native Spaniard domiciled in Great Britain in time of war between
Great Britain and Spain, having been licensed in general terms by the King of Great
Britain to ship goods in a neutral vessel to certain points of Spain, such commerce is
31
530
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
WILLIAMS V. MARSHALL.
COMMON PLEAS, 1815.
(6 Taunton, 390.)
GIBBS, C. J. I should have been exceedingly glad to find that this
license was substantially complied with. The voyage to be performed
was illegal without a license: one of the terms on which the license
was granted is, that the goods shall be exported on or before the
10th September: these goods were not cleared at the custom house
till the 9th of September: the ship had not sailed on the 10th of Sep-
tember. On the 12th she was at Gravesend, but when she weighed
it does not appear. Whether she was covered by this license, or not,
depends on the question whether she sailed on the 10th. I cannot
say, however I may be disposed to favor the plaintiffs, that the
clearing at the custom house is an exportation. Considerable light
is thrown on the question by the fact, that by the regulations, or at
least by the practice of this country, the drawback is not paid till
after the passing Gravesend; and therefore upon the interpretation,
which has prevailed, of those acts of Parliament which give a draw-
back, it appears that ships are not considered as having exported till
after passing Gravesend; therefore, with every disposition to favor
this action, we cannot say that the plaintiffs are entitled to recover.
Rule absolute for a new trial, the defendant admitting the two
policies as stated in the declaration.
1
legalized for all purposes of its due and effectual prosecution, either for the benefit of
the party himaself or of his correspondents, although residing in the enemy's country.
ED.
1 A license to trade is not assignable (unless clearly general in its terms and intent)
Feise v. Thompson, 1807, 1 Taunt. 121; The Acteon, 1815, 2 Dod. 48; if subject
to condition, license is void if condition is not complied with, Camelo v. Britten, 1820,
4 B. & Ald. 184:
“ We have arrived at this conclusion with great reluctance; because it appears that
in this case there was no intention to violate the law, and that this was the usual mode of
carrying on the trade. We, however, feel ourselves obliged to say that the terms of the
license have not been complied with: The consequence of which is, that the plaintiff
cannot recover” (per Abbott, C. J.); License to one set of British merchants cannot
be used to cover trading by other British merchants, without connecting them together,
Bush v. Bell, 1812, 16 East, 3; importation of more goods than license warrants will
not vitiate insurance on goods licensed, Prischell v. Allnut, 1813, 4 Taunt. 792 ; Keir v.
Andrade, 1816; 2 Marsh. 196 ; license as to goods in ship will legalize insurance on
ship and competent for British agent of both parties, in whose name insurance was
CHAP. II.]
531
THE
66
SEA: LION."
THE "SEA LION."
SUPREME COURT OF THE UNITED STATES, 1866.
(5 Wallace, 630.)
An act of Congress passed during the late rebellion (July 13th,
1861), prohibited all commercial intercourse between the inhabitants
of any State which the President might declare in a state of insur-
rection, and the citizens of the rest of the United States; and
enacted that all merchandise coming from such territory into other
ports of the United States with the vessel conveying it should be
forfeited.
The act provided, however, that “the President” might "in his
discretion license and permit commercial intercourse" with any such
part of a State the inhabitants of which had been so declared in a
state of insurrection, “in such articles, and for such time, and by
such persons, as he, in his discretion, may think most conducive to
thc public interest.” And that, “such intercourse, so far as by him
licensed, shall be conducted and carried on only in pursuance of rules
and regulations prescribed by the secretary of the treasury.”
The President having soon after declared several Southern States,
and among them Alabama, in a state of insurrection, and the Secre-
tary of the Treasury having issued a series of commercial regula-
tions on the subject of intercourse with them, Brott, Davis & Shons,
à commercial firm of New Orleans, obtained from Mr. G. S. Den-
nison, special agent of the Treasury Department, and acting Col-
effected, to sue upon the policy in time of war, Kensington v. Ingliss, 1807, 8 East, 273,
290.
“While it is true that conditions of license must be complied with and that trading
may not extend beyond time limited in the license, perils of the sea, absence of laches
and fraud will extend for the completion of the voyage the time of the license, Sifflcin
v. Glover, 1813, 4 Taunt. 717; Siffkin v. Allnut, 1813, 1 M. & S. 39; Freeland v. Walker,
1812, 4 Taunt. 478, (in which Gibbs, J., observed, in the course of the argument,
p. 482), that "there had been at least fifty cases in the King's Bench, where the plaintiff
had recovered, although the license had expired at the time of loss, and it had never
been attempted to put the case upon the point of the license being expired at the tinie
of the capture.”
In Leevin v. Cormac, 1811, 4 Taunt. 483, Sir James Mansfield, C. J., said in speaking
of the question of license, p. 486: “The merits of the case have never yet been
examined into. The cases decided by Sir W. Scott (The Goede Hoop, Edw. Adm. 327 ;
Johan Pieter, ib. 354) deserve the greatest attention.” Compare the language of the
learned chief justice at page 487 of the same case. - ED.
532
EFFECTS OF WAR 'AS BETWEEN ENEMIES. [PART II.
lector of Customs at New Orleans, a paper, dated February 16th, 1863,
as follows:
"The United States military and other authorities at New Orleans permit cotton
to be received here from beyond the United States military lines, and such cotton
is exempt from seizure or confiscation. An order is in my hands from Major-
General Banks approving and directing this policy. The only condition imposed
is that cotton or other produce must not be bought with specie. All cotton or
other produce brought hither from the Confederate lines by Brott, Davis & Shons
will not be interfered with in any manner, and they can ship it direct to any for-
eign or domestic port."
This paper was indorsed by Rear-Admiral Farragut, in con-
mand of the blockading force on that coast, “ approved." The Rear-
Admiral had given also the following instructions to his commanders
of the Mobile blockade:
“Should any vessel come out of Mobile and deliver itself up as the property of a
Union man desiring to go to New Orleans, take possession and send it into New
Orleans for an investigation of the facts, and if it
, be shown to be as represented,
the vessel will be considered a legal trader, under the general order permitting all
cotton and other produce to come to New Orleans."
With this paper of the collector of New Orleans in their hands,
Brott, Davis & Shons had, through their agents in Mobile, seventy-
two bales of cotton shipped at that port on the vessel Sea Lion to
be carried to New Orleans.
The vessel was captured by the blockading fleet off Mobile, and
taken to Key West, and there libeled as prize. The district court
condemned the property, and an appeal was taken to the Supreme
Court.
Mr. Justice SWAYNE, in delivering the opinion of the court, said as
to the question of license :-
“The effect of this paper depends upon the authority under which
it was issued. The fifth section of the act of July 13th, 1861, author-
ized the President to proclaim any State or part of a State in a
condition of insurrection, and it declared, that thereupon all com-
mercial intercourse between that territory and the citizens of the
rest of the United States, should cease and be unlawful, so long as
the condition of hostility should continue, and that all goods and
merchandise coming from such territory, into other parts of the
United States, and all proceeding to such territory by land or water,
and the vessel or vehicle conveying them, or conveying persons to or
CHAP. II.]
THE
66
533
SEA LION."
from such territory, should be forfeited to the United States : Pro-
vided, however, That the President may, in his discretion, license
and permit commercial intercourse with any such part of said State
or section, the inhabitants of which are so declared in a state of in-
surrection in such articles, and for such time, and by such persons,
as he, in his discretion, may think most conducive to the public
interest; and such intercourse, so far as by him licensed, shall be
conducted and carried on only in pursuance of rules and regulations
prescribed by the Secretary of the Treasury.'
“There is no other statutory provision bearing upon the subject
material to be considered.
“On the 16th day of August, 1861, the President issued his procla-
mation declaring the inhabitants of the rebel States, including
Alabama, to be in a state of insurrection.
“On the 28th of the same month the Secretary of the Treasury,
pursuant to the provisions of the act referred to, issued a series of
regulations upon the subject of commercial intercourse with those
States.
“These regulations continued in force until the 31st of March,
1863, when a new series were issued by the same authority. The
former were in force when the alleged license bears date; the latter
when the vessel and cargo left Mobile and when they were captured.
It is unnecessary to analyze them. It is sufficient to remark that
they contain nothing which affords the slightest pretext for issuing
such a paper. It is in conflict with rules and requirements contained
in both of them. It finds no warrant in the statute. The statute
prescribes that the President shall license the trade. The only
function of the Secretary was to establish the rules by which it
should be regulated, when thus permitted. The order of General
Banks is not produced. If it were as comprehensive as the special
agent assumed it to be, it covered shipments to New Orleans from
Wilmington, Charleston, and all points in the rebel States. It em-
braced merchandise, coming alike from places within, and places be-
yond his military lines. With respect to the latter it was clearly
void. The President only could grant such a license. Mobile was
then in possession of the enemy. The vessel and cargo bore the
stamp of the enemy's property. The paper relied upon was a
nullity, and gave them no protection. They were as much liable to
capture and condemnation as any other vessel or cargo, leaving a
blockaded port and coming within reach of a blockading vessel.
“The decree below was rightly rendered, and it is
66 Affirmed.”
1
534
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
Mr. Justice GRIER:
"I do not concur in this judgment. The vessel went out of Mobile
by permission of the commander of the blockade there. To con-
demn such property would be a violation of good faith. No English
court has ever condemned under such circumstances.” 1
1 For the theory and practice of the United States in the matter of licensing trade
with the enemy and for a résumé of the decisions of courts in this country and in Eng-
land, see U. S. v. One Hundred Barrels of Cement, 1862, 27 Fed. Cas. 292 (3 Am.
Law Register, 735).
In Coppell v. Hall, 1868, 7 Wall. 542, the subject was considered and it was held,
inter alia, that it was for the sovereign's prerogative to allow or disallow trade and to
prescribe the manner in which trade, if permitted, might be exercised ; that such powe ,
being sovereign in its nature, could only be exercised by the sovereign or his duly
authorized agent, and that a military commander, as such, could not arrogate to him-
self nor exercise such power. In the course of the opinion authorities, English and
American, are cited and analyzed.
Perhaps the clearest assertion and application of the sovereign right to regulate
trade during war is found in Hamilton v. Dillin, 1874, 21 Wall. 73. Under the act of
July 13, 1861, the President was authorized to permit trade in his "discretion," but
that such trade when pernitted was to be under rules and regulations prescribed by
the Secretary of the Treasury. By virtue of this authority, cotton was permitted to
be purchased in an insurrectionary State and shipped to any loyal district upon payment
to the government of tax of four cents per pound purchased. One Hamilton secured
permits from August, 1863, to July, 1864 ; purchased and shipped over seven million
pounds from Nashville at a time when Tennessee was occupied by the Federal forces.
On suit to recover the various sums thus paid, the Supreme Court held that such
regulation was binding as flowing from the war power; that Naslıville, though within
the national military lines in 1863 and 1864, was nevertheless hostile territory, within
the prohibition of commercial intercourse, being within the terms of the President's
proclamation: that the civil war affected the status of the entire territory of the States
declared to be in insurrection except as modified by the declaratory acts of Congress or
proclamation of the President. In addition to authorities cited, the case is valuable
for an enumeration and examination of the various acts and proclamations affecting
trade with the enemy.
In Magoon's Military Occupation, 210-255, the power of the President to regulate
trade with the enemy in time of war is elaborately considered, in the course of which
it is said (p. 221): "The question of the right of the Federal authorities to thus exer-
cise the war powers of the nation in the matter of trade with the rebellious States was
presented to the Supreme Court of the United States in many forms and by many
cases.
. In each instance the court held that business intercourse between the States at
war is unlawful without express declaration of the sovereign, the existence of the
condition of war being sufficient to create the inability to lawfully engage in trade
with public enemies. United States v. Grossmayer, 9 Wall. 72; Hanger v. Abbott,
6 Wall. 532; McKee v. United States, 8 Wall. 163; Mitchell ĭ. United States, 21 Wall.
350; Jecker v. Montgomery, 18 How. 110; The Prize Cases, 2 Black, 635; Hamilton v.
Dillin, 21 Wall. 73; The Reform, 3 Wall. 617; The Sea Lion, 5 Wall. 630; The
Ouachita Cotton, 6 Wall. 521 ; Coppell v. Hall, 7 Wall. 542; Mrs. Alexander's Cutton,
2 Wall, 404.” And the same learned author concludes: " It would therefore
seem
"1. That in a territory rendered hostile by the existence of an insurrection against
CHAP. II.]
535
KERSHAW V. KELSEY.
KERSHAW V. KELSEY.
SUPREME COURT OF MASSACHUSETTS,
1868.
(100 Massachusetts, 561.)
A citizen of Massachusetts, residing in Mississippi during the civil
war, leased a plantation and planted it with crops; but was driven
away by soldiers of the Confederate States, and returned to Massa-
chusetts. The lessor then took charge of the plantation, harvested
the crops, and delivered to the lessee's son, in Mississippi, cotton of
the value of $10,000. The cotton was shipped to the lessee at Bos-
ton by his son. After the close of the war, the lessor sued to recover
rent, etc., and the question was, as between lessor and lessee, whether
there was trading between enemies.
Judgment. - GRAY, J.:1-
“ The defendant, a citizen of Massachusetts, in February, 1864, in
Mississippi, took from the plaintiff, then and ever since a citizen and
resident of Mississippi, a lease for one year of a cotton plantation in
that state, and therein agreed to pay a rent of ten thousand dollars,
half in cash, and half out of the first part of the cotton crop, which is
to be fitted for market in reasonable time.' The lessor also agreed to
deliver, and the lessee to receive and pay the value of the corn then
on the plantation. It does not appear whether the defendant went in-
to Mississippi before or after the beginning of the war of the rebellion;
and there is no evidence of any intent on the part of either party to
violate or evade the laws or oppose or injure the government of the
United States. The defendant paid the first instalment of rent, took
possession of the plantation and corn, used the corn on the planta-
tion, provided it with supplies to the amount of about five thousand
its authority the United States may exercise the war powers of the nation, known to
international law and the laws and usages of war as belligerent rights.
“2. That the payment of customs duties, if considered as taxes levied by a govern-
ment resulting from military occupation of hostile territory; or as a condition imposed
upon the right to trade; as military contributions required from liostile territory; or
as a condition imposed upon tlie riglt of trade with hostile territory, are each and all
legitimate and lawful requirements imposed by exercise of belligerent right.
"3. The military occupier of districts in hostile or enemies' territory is authorized
to regulate trade in the districts subject to his occupation, as his discretion, with
reference to the military situation, shall determine.
“4. That the President is authorized to exercise the authority to regulate trade
with hostile territory in the absence of Congressional provision in regard thiereto."
- ED.
1 Only a few extracts are given from the judgment of the learned judge. — Ed.
536.
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
dollars, and planted and sowed it, but early in March was driven
away by rebel soldiers and never returned to the plantation, except
once in April following, after which he came back to Massachusetts.
The plaintiff continued to reside on the plantation, raised a crop of
cotton there, and delivered it in Mississippi to the defendant's son,
by whom it was forwarded in the autumn of the same year to the
defendant; and he sold it and retained the profits amounting to
nearly ten thousand dollars.
- The plaintiff sues for the unpaid instalment of rent and the
value of the corn. The claims made in the other counts of the decla-
ration have been negatived by the special findings of the jury.
"The defendant, in his answer, denied all the plaintiff's allegations;
and at the trial contended that the lease, having been made during
the civil war, was illegal and void, as well by the principles of inter-
national law, as by the terms of the act of Congress of 1861, c. 3, 85,
and the proclamation issued by the President under that act, (de-
claring all intercourse with states in rebellion unlawful). 1 *
“ The result is, that the law of nations, as judicially declared,
prohibits all intercourse between citizens of the two belligerents
which is inconsistent with the state of war between their countries ;
and that this includes any act of voluntary submission to the enemy,
or receiving his protection; as well as any act or contract which
tends to increase his resources ; and every kind of trading or commer-
cial dealing or intercourse, whether by transmission of money or goods,
or by orders for the delivery of either, between the two countries,
directly or indirectly, or through the intervention of third persons
or partnerships, or by contracts in any form looking to or involving
such transmission, or by insurances upon trade with or by the enemy.
Beyond the principle of these cases the prohibition has not been car-
*
*
1 Gray, J., then reviews the authorities on the subject at great length. The fol-
lowing are the principal cases reviewed : -
The Hoop, 1799, 1 C. Rob. 196; Bell v. Chapman, 1813, 10 Johns. 183; Ricord v.
Bettenham, 176:, 1 W. Black. 563; Hutchinson v. Brock, 1814, 11 Mass. 119; Sparenburg
v. Bannatyne, 1797, 1 B. & P. 163; Putts v. Bell, 1800, 8 Term. R. 548; Antoine v.
Morshead, 1815, 6 Taunt. 237; Willison v. Patterson, 1817, 1 Moore, 1:3; E.cposito v.
Bowden, 1857, 7 El. & Bl. 763; Kennett v. Chumbers, 1852, 14 How. 38; Bentzen
V. Boyle, 1815, 9 Cr. 191; Prize Cases, 1862, 1 Black, 635; The Rapid, 1812, 1 Gall.
295; The Julia, 1813, 1 Gall. 594; The Emulous, 1813, 1 Gall. 563; Brown v. U. S.,
1814, 8 Cr. 110; The Joseph, 1813, 1 Gall. 545; Jecker v. Montyomery, 1855, 18 How.
110; Hunger v. Abbott, 1867, 6 Wall. 532; The Ouachita Cotton, 1867, 6 Wall. 521; V. S.
v. Lane, 1868, 8 Wall. 185; McKee v. U. S., 1868, 8 Wall. 163; Griswold v. Wadding-
ton, 1819, 16 Johns. 438; Mrs. Alexander's Cotton, 1864, 2 Wall. 404; Ex parte Bouss-
maker, 1806, 13 Ves. Jr. 71; Coolidge v. Inglee, 1816, 13 Mass. 26; Paton v. Nicholson,
1818, 3 Wheat. 204 ; Musson v. Fales, 1820, 16 Mass. 332; Capen v. Barrows, 1834,
1 Gray, 380. — Ed.
CHAP. II.]
KERSHAW V. KELSEY.
537
ried by judicial decision. The more sweeping statements in the text
books are taken from the dicta which we have already examined, and
in none of them is any other example given than those just men-
tioned. At this age of the world, when all the tendencies of the law
of nations are to exempt individuals and private contracts from in-
jury or restraint in consequence of war between their governments,
we are not disposed to declare such contracts unlawful as have not
been heretofore adjudged to be inconsistent with a state of war.
“ The trading or transmission of property or money which is pro-
hibited by international law is from or to one of the countries at war.
An alien enemy residing in this country may contract and sue like a
citizen. 2. Kent, Com., 63. When a creditor, although a subject of
the enemy, remains in the country of the debtor, or has a known
agent there authorized to receive the amount of the debt, throughout
the war, payment then to such creditor or his agent can in no respect
be construed into a violation of the duties imposed by a state of war
upon the debtor; it is not made to an enemy, in contemplation of
international or municipal law; and it is no objection that the agent
may possibly remit the money to his principal in the enemy's coun-
try; if he should do so, the offence would be imputable to him, and
not to the person paying him the money. (Conn v. Penn., Peters, C.
C., 496; Denniston v. Imbrie, 3 Wash. C. C., 396; Ward v. Smith, 7
Wall., 447; Buchanan v. Curry, 19 Johns., 137.)
“The same reasons cover an agreement made in the enemy's terri-
tory to pay money there, out of funds accruing there, and not agreed
to be transmitted from within our own territory; for, as was said by
the Supreme Court of New York—the last case cited, This rule is
founded in public policy, which, forbids, during war, that money or
other resources shall be transferred so as to aid or strengthen our
enemies. The crime consists in exporting the money or property, or
placing it in the power of the enemy.
“ The lease now in question was made within the rebel territory
where both parties were at the time, and would seem to have con-
templated the continued residence of the lessee upon the demised
premises throughout the term. No agreement appears to have been
made as part of a contract contemporaneously with the lease, that
the cotton crop should be transported, or the rent sent back, across
the line between the belligerents, and no contract or communication
appears to have been made across that line, relating to the lease, the
delivery of possession of the premises or of the corn, or the payment
of the rent of the one or the value of the other. The subsequent for-
warding of the cotton by the defendant's son from Mississippi to
Massachusetts may have been unlawful; but that cannot affect the
538
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART 11.
our own.
validity of the agreements contained in the lease. Neither of these
agreements involved or contemplated the transmission of money or
property, or other communication, between the enemy's territory and
We are therefore unanimously of opinion that they did
not contravene the law of nations or the public acts of the govern-
ment, even if the plantation was within the enemy's lines; and that
the plaintiff, upon the case reported, is entitled to recover the unpaid
rent, and the value of the corn." 1
SMALL'S ADM’R V. LUMPKIN'S EX'X et als.
COURT OF APPEALS OF VIRGINIA, 1877.
(28 Grattan, 832.)
BURKS, J. In a foreign or international war, from the time it is
declared or recognized, all the people in the territory and subject to
the dominion of each belligereut, without regard to their feelings,
dispositions or natural relations, become, in legal contemplation, and
so continue to the close of hostilities, the enemies of all the people
resident in the territory of the other belligerent; and all negotiation,
trading, intercourse or communication between them, unless licensed
by the governinent, is unlawful. Such a war, as between the citizens
or subjects of the respective belligerents, ipso facto dissolves all com-
mercial partnerships and all contracts wholly executory and requiring
for their continued existence commercial intercourse or communica-
tion; and while it does not abrogate, yet it suspends all other exist-
ing contracts and obligations and the remedies thereon, and renders
all contracts, with rare exceptions, entered into pending hostilities,
illegal and void.
These familiar principles of public law., regulating conduct in
foreign wars, have been applied by the courts of this country, State
and Federal, to the late war between the United States and the Con-
1 It is perhaps not too much to say that this is the leading American case on this
subject. It has been repeatedly cited and followed: Brown v. Gardner, 1879, 4 Lea
(Tenn.), 145; Barton Co. v. Newell, 1880, 64 Ga. 699 (case not cited, but same principle
involved); Montgomery v. U.S., 1872, 15 Wall. 395; Williams v. Paine, 1897, 169 U. S. 55,
72, wliere Mr. Justice Peckham, for the court, said: “In the case of Kershaw v. Kelsey,
100 Mass. 561, the general subject of contracts and business entered into and trans-
acted between the citizens of the different States at war with each other is examined,
and the question treated with great care by Mr. Justice Gray in delivering the opinion
of the Supreme Judicial Court of Massachusetts, and numerous authorities are referred
to and commented upon in the opinion.” – Ed.
CHAP. II.]
539
SMALI'S ADM'R V. LUMPKIN'S EX'X.
federate States. Griswold v. Waddington, 16 Johns. R. 438; Prize
Cases, 2 Black's U. S. R. 635; Mrs. Alexander's Cotton, 2 Wall. U.
S. R. 404; The William Bagaley, 5 Wall. U. S. R. 377; Hanger v.
Abbott, 6 Wall. U. S. R. 532; Matthews v. MoStea, 91 U. S. Rep.
(1 Otto), 7; Billgerry v. Brunch & Sons, 19 Gratt. 393; Walker v.
Beauchler, 27 Gratt. 511.
Limited agencies in the enemy's country may lawfully continue,
provided they can be and are exercised without intercourse or com-
munication between the citizens or subjects of the contending powers
--- such as agencies to collect and preserve, but not to transmit money
or property. Buchanan v. Curry, 19 John. R. 136; Ward v. Smith,
7 Wall. U. S. R. 447; Manhattan Life Ins. Co. v. Warwick, 20 Gratt.
614; Hale v. Wall, 22 Gratt. 424; Mutual Benefit Life Ins. Co. v.
Atwood's Adm'x, 24 Gratt. 497; The N. Y. Life Ins. Co. v. Hendren,
id. 536.
Such agencies, however, to be lawful, must, it seems, be created
before the war begins, for there is no power, it is said, to appoint any
agent for any purpose after hostilities have actually commenced, and
that to this effect are all the authorities. United States v. Gross-
mayer, 9 Wall. U. S. R. 72; United States v. Lapine, 17 Wall. U. S.
R. 602.
Relying upon the principles recognized by these authorities, the
counsel for the appellant contends that the decree complained of in
this case is erroneous and should be reversed.
The bill of the appellant was filed against the personal representa-
tive and heirs at law of Robert Lumpkin, to recover the amount of
a bond alleged to have been given by Lumpkin in his lifetime to the
appellant's testator, Thomas B. Small. The defendants answered
that the debt was paid. The chancellor was satisfied that the defence
was made good by the proofs, and decreed accordingly; and in this,
I think, he committed no error. Lumpkin was a citizen of Virginia,
and died in 1866. Small, a citizen of Maryland, died there in March,
1861. He left a wife and two sons (minors), entitled under the laws
of Maryland to his estate. After the payment of his debts, which
were inconsiderable, and two pecuniary legacies given by his will,
the estate was worth upwards of sixty thousand dollars. The widow
and two other persons qualified in Baltimore as representatives of the
estate with the will of the testator annexed. She also qualified there
as guardian of the children. The administration of the estate, except
the Lumpkin debt, seems to have been conducted exclusively by her
co-administrators. The Lumpkin bond was left with her and com-
mitted to her sole management.
Some time during the year 1861, the exact date not distinctly ap-
540
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
pearing, C. W. Small (the elder of the two sons) came to Virginia
and enlisted as a soldier in the Confederate army, and continued in
that service until the end of the war. While in Virginia, and during
the war, he undertook to collect, and did collect, of Lumpkin, the
amount of his bond.
The greater part was collected while he was
under age. He became of age on the 30th day of December, 1863;
and on the 6th day of January, 1864, he collected the remnant of the
debt, amounting to $1,875.26. The collections were all made in
Confederate currency, taken at its par value. When he made the
last collection he executed his covenant to Lumpkin, reciting all the
payments made to him, ratifying the collections made while he was a
minor, and directing his guardian to charge him with what he had
collected as a part of his distributive share of his father's estate,
acknowledging the receipt thereof as if the same had been paid to
him by the representatives of the estate on account of his interest
therein.
When these payments were made, Lumpkin (the debtor) was resid-
ing in Virginia, and Mrs. Small, the guardian of her son and repre-
sentative of her husband's estate, was a resident of Maryland.
In the light of the authorities before cited, it may be conceded, for
the purposes of this case, that under the harsh rules of war, the
mother and son are to be considered as bearing to each other the
unnatural relation of alien enemies; that the occasional correspond-
ence between them, which is proved to have taken place during the
conflict of arms then raging, was forbidden and unlawful;' and that,
pending hostilities, she could confer no valid power upon him, as her
agent, to make the collections which he did make. With this con-
cession, however, it by no means follows that the payments made by
Lumpkin to C. W. Small were unlawful, and that the obligation of
Lumpkin to Small's estate was not discharged.
Lumpkin and C. W. Small were both Confederates, both within
the territory and under the dominion of the same belligerent power.
They, at least, were not alien enemies to each other, and it was
therefore perfectly competent for them to deal and contract as be-
tween themselves. They did so deal and contract.
The war being over he returned to Maryland, and there, with his 7
mother and brother, the only parties interested in the estate in the
absence of Lumpkin, and without his agency or influence, the whole
matter of the Lumpkin debt was satisfactorily arranged and adjusted
amongst them. Mrs. Small caused her accounts, as guardian of her
two children, to be regularly and formally stated, settled and re-
corded. The Lumpkin debt was embraced in the settlement, and
each of the wards gave her a full acquittance under seal, which was
2
1 See last note on next page.
Ep.
CHAP. II.]
541
SMALL'S ADM'R V. LUMPKIN'S EX'X.
also duly recorded. This settlement appears to have been complete
and final. The parties were all severally sui juris, acted with their
eyes open, the facts fresh in their recollection, and with a full knowl-
edge of their rights.
If, therefore, the appellants were permitted to recover the amount
of the debt claimed of Lumpkin's estate, it would be with distribu-
tion to Mrs. Small and her two sons. It has already been distributed
amongst thein, as shown by their own recorded admissions. It ought
not to be collected and distributed a second time.
Decree affirmed.
1
" It
1 U. S. v. Grossmayer, 1869, 9 Wall. 72, clearly established this principle, which, as
seen in the text, is of universal application. A very interesting case to the same effect
is Douglas (the minor children of Senator Stephen A. Douglas) v: U. S., 1878, 14 Ct. Cl. 1.
In the well-considered case of Rodgers v. Bass, 1877, 46 Tex. 505, 515, it is said :
cannot be questioned that it is a universally recognized general rule of international
law that war suspends for the time all friendly intercourse between citizens of hostile
States; that while it continues no kind of business or commercial intercourse can be
legitimately transacted or carried on by citizens of the one with those of the other,
unless specially authorized by government; and so general and pervading is this
principle, that war is held to dissolve ipso facto commercial partnerships existing at the
breaking out of hostilities between citizens of States at war with each other, and to
revoke or supersede authority of agents in regard to transactions not agreed upon and
in part executed, and especially such as confer authority to buy and sell property.
But, nevertheless, it seems to be equally well settled that war does not revoke or sus-
pend authority for the collection of a debt, given previously to the beginning of hos-
tilities, by a citizen of one of the hostile States to an agent, who, as well as the
debtor, resides in the other. Clarke v. Morey, 10 Johns., 73; Paul v. Christie, 4 H.
& McH. 161; Dennison v. Imbrie, 3 Wash. C. C. 396 ; Mouseaux v. Urquhart, 19 La.
485; Griswold v. Waddington, 15 Johns. 64; Buchanan v. Curry, 19 id. 137; Conn. v.
Penn. 1 Pet. 496; Word v. Smith, 7 Wall. 44; Fisher v. Krutz, 9 Kan. 501; Grover v.
Carter, 3 Hawk. 328, and cases previously cited.” The court likewise holds that
payment might be made in Confederate currency. See, also, Filor's Case, 1867,
3 Ct. Cl. 25.
In Shacklett v. Polk, 1875, 51 Miss. 378, 391, it is said (citing numerous anthori-
ties): “To show the rigor of the principle of strict non-intercourse, and for its appli-
cation in various circumstances, we refer to Hoare v. Allen, 2 Dall. 102; Brown v.
Hiatts, 15 Wall. 177; Potts v. Bell, 8 Term, 548; Antoine v.. Morshead, 6 Taunt. 237;
The Rapid, 8 Cranch, 155; Coppell v. Hall, 7 Wall. 544; United States v. Grossmayer,
9 id. 74."
It may not be without interest to note that a friendly letter written by Mr. Caleb
Cushing to Mr. Jefferson Davis, after outbreak of the Civil War, both having been
members of President Peirce's Cabinet, — prevented Cushing's confirmation as Chief
Justice of the United States in 1874 (7 Richardson, Messages and Papers, 259). — Ed.
si
542
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
DE JARNETT et al. V. DE GIVERSVILLE et al.
SUPREME COURT OF MISSOURI, 1874.
(56 Missouri, 440.)
WAGNER, Judge, delivered the opinion of the court.
In this case, the petition sets out a purchase by the plaintiffs from
the defendants, in the year 1857, of certain real estate in the City of
St. Louis, and the giving of notes for the consideration, secured by
deed of trust, payable in one, two, three and four years, the last
becoming payable on the 30th of April, 1861; a failure to pay the
last note, and a sale by the trustee in consequence on the 9th of June,
1861, after publication of notice as required by the deed of trust. It
was alleged, that all the notes were paid except that which matured
on the 30th of April, 1861, and that the plaintiffs were ready and
willing to pay this also, but were prevented by a state of war existing
at that time, between the United States of America, of which Mis-
souri was a part, and the Confederate States, of which Virginia was
a part; and that the plaintiffs were, in 1857 and in 1861, and during
the whole of the war which followed, citizens and residents of the
county of Caroline, Va. By reason of the war existing, it was al-
leged, the notice and sale under the deed of trust were fraudulent and
void. It was averred, that as soon as peace was restored, the plain-
tiffs tendered to the purchaser of the land the amount due under the
deed of trust, which was refused, and they prayed that the deed
made by the trustees under the sale of June 9, 1861, be set aside and
annulled. To this petition the defendants demurred, assigning for
causes of demurrer, that the petition showed no cause of action; that
it appeared that at the time the default was made there was no sus-
pension of intercourse between the citizens of Virginia and those of
Missouri, and that even when the sale was made under the deed of
trust, there was no such suspension, and that there was no excuse for
the
non-payment of the note of the plaintiffs. The court below over-
ruled the demurrer and gave judgment for the plaintiffs; and the case
is brought up for review on writ of error.
Whether there was any real or actual suspension of the relations
theretofore existing prior to the act of Congress of July 12, 1861,
empowering the President to prohibit, by proclamation, all commer-
cial intercourse between the rebellious and the loyal States, and the
proclamation of the President in pursuance thereof, issued August
16, 1861, I will not stop to inquire. The case has been argued here
CHAP. II.]
DE JARNETT V. DE GIVERSVILLE.
513
upon the theory that, at the time the sale took place, Virginia had
passed her ordinance of secession, and was out of the Union, and was
among the number waging war against the general government. If
so, her citizens were entitled to belligerent rights, and were clothed
with all the characteristics of alien enemies.
Since the decisions in the Supreme Court of the United States in
the cases of the Venice, 2 Wall. 258; Mrs. Alexander's Cotton, 2
Wall. 404; Maurun v. Insurance Company, 6 Wall. 1; Ouachita
Cotton, 6 Wall. 521; Hanger v. Abbott, 6 Wall. 532; Coppell v. Hall,
7 Wall. 542; McKee v. United States, 8 Wall. 163; United States v.
Grossmayer, 9 Wall. 72, the question must be regarded as settled,
that the late war between the Confederate States and the United
States was a public war; and a war, not only between the respective
governments, but between all the inhabitants of the one territory, on
the one side, and all the inhabitants of the other territory on the
other side, so that all the people of each occupied the respective posi-
tions of enemies during the continuance of the war.
The consequence of a state of war is the interruption and inter-
diction of all commercial intercourse, correspondence and dealing
between the subjects of the hostile countries. Kent says the inter-
diction flows necessarily from the principle that a state of war puts
all the members of the two nations, respectively, in hostility to each
other, and to suffer individuals to carry on a friendly and commercial
intercourse while the two governments were at war, would be placing
the act of government and the acts of individuals in contradiction to
each other. 1 Kent's Com. 66.
As a corollary of this doctrine the principle is well established that
an alien enemy cannot sue a friendly citizen in the courts of the
latter's country. Bac. Abr. Alien, D.; Alcinous v. Nigreu, 4 El. and
Bl. 217; De Wahl v. Braune, 1 H. & N. 178; Whelan v. Cook, 29
Md. 1; U. S. v. 1756 Shares of Stock, 5 Blatch. 231. His disability
is temporary in its nature, and personal, and founded upon reason
and policy, and in a great measure upon necessity. But no such
reason or policy forbids judicial proceedings against an alien enemy
in favor of a friendly citizen, and the rule is therefore settled that
while an alien enemy may not sue, he may be sued at law.
The question has frequently been brought up in our courts in
regard to matters arising out of the late rebellion, and the adjudica-
tions in the courts of last resort have all been in accordance with the
principles above announced.
In Mixer v. Sibley, 53 Ill. 61, it was decided that when a party
residing in the State of Illinois, holding a promissory note against a
person residing in one of the States in rebellion, in the year 1862,
544
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
after the act of Congress and the President's proclamation prohibit-
ing commercial intercourse between the adhering States and those in
rebellion, commenced a suit thereon by attachment, which was levied
on real estate situated in that State belonging to the maker, and
obtained a judgment, and procured a sale to be made of the premises
attached, that the court had jurisdiction of the cause, and the judg-
ment and proceedings thereunder were valid and binding, notwith-
standing the defendant resided in one of the rebellious States, and
the war at the time was in active progress.
In the case of Dorsey v. Kyle, 30 Md. 512, the court holds that a
person who, by his own voluntary act, assumed the attitude of an
alien enemy to his State, and to the Government of the United States,
going from Maryland to Virginia during the late civil war, allying
himself with the Southern cause and joining the Confederate ariny,
.cannot claim exemption from process of attachment in behalf of ante-
cedent creditors against his property remaining in the State, on the
ground that he was an alien enemy, and that all legal remedies were
suspended during the period of hostilities. It is emphatically de-
clared that neither reason nor policy forbids judicial proceedings
against an alien enemy in favor of a friendly citizen, and therefore
while an alien enemy may not sue he may be sued at law. The same
question again arose in Dorsey v. Dorsey, id. 522, and the same prin-
ciple was again asserted and re-affirmed.
The same conclusion was arrived at in the case of Thomas v.
Mahone, in the Court of Appeals of Kentucky, 12 Am. Law Reg.,
N. S. 433. There the civil code of Kentucky authorized the cred-
itors of a citizen who departed from the county of his residence and
remained absent thirty days within the Confederate lines, to attach
his property and sell the same for the payment of their debts. The
plaintiff left his home and joined the Confederate service, and while
so absent attachments were procured and his property sold, and the
court held that the fact that the debtor was a soldier in the Confed-
erate army would not deprive the court of jurisdiction under the
code. Lindsay, J., in delivering the opinion of the court, pointedly
remarks: “It does not follow, because appellant was at the time a
soldier in the army of the belligerent power, and that all unlicensed
communication with him by the people of the States adhering to the
Federal Union was inhibited, not only by the laws of war, but by
express statute, that resident creditors might not sue him in the
courts of this State, and subject to the judgment of their debts such
of his property as might be found within the local jurisdiction of the
courts in which he was sued. The right of resident creditor's so to
proceed against parties indebted to them, residing within the lines of
CHAP. II.]
545
DE JARNETT V. DE GIVERSVILLE.
the hustile power, and held to be public enemies by reason of their
participation in the Southern movement, was recognized by the Fed-
eral Congress in the act of March 3, 1863, 2 Brightley's Digest, 1238,
providing for the seizure and confiscation of the property of such
persons.
In Crutcher v. Hord and wife, 4 Bush, 363, the same court held
that a proceeding by a Kentucky creditor to enforce his lien on land
situated in that State was not interdicted, notwithstanding the exist-
ence of the war and the residence of the debtors within the Confed-
erate lines. The Supreme Court of the United States in the case of
Mc Veigh v. the United States, 1 11 Wall. 259; after citing Albretcht v.
Sussmann, 2 Vės. and Bea. 324; Bacon's Abridgment and Story's
Equity Pl., $ 53, for authority, says: “Whatever may be the extent
of the disability of an alien enemy to sue in the courts of the
hostile country, it is clear that he is liable to be sued.”
It is contended that the case of Dean v. Nelson, 10 Wall. 158, ,
asserts a contrary doctrine. That case was a proceeding within an
insurrectionary district, but held by the national military forces, in
a court established by military orders alone. It was a proceeding to
foreclose a mortgage on personal property, and it was instituted
against parties who had been expelled by military force from their
residence, and who were forbidden absolutely by the order which
expelled them from coming back again within the lines of the mili-
tary authority which organized the court. They were not voluntarily
within the Confederate lines, but were sent there against their will,
and inasmuch as without their consent and against their will they
were thus driven from their homes and forbidden to return by the
arbitrary act of the military power, it was held that a judicial decree
by which their property was sold during the continuance in force of
this order was void as to them.
I "It was likewise held in this case that the right to be sued involved the right to
appear in the suit, and that, inasmuch as the court refused McVeigli's appearance by
counsel, the judgment of the lower court was reversed. In the case of Clarke v.
Morey, 1813, 10 Johns. 69, so often cited in the text, it was held by Kent, C. J., that
aliens residing in the United States at the time of war breaking out between their own
country and the United States, or who come to reside in the United States after the
breaking out of war, under an express or implied permission, may sue and be sued as
in time of peace; that it is not necessary, for this purpose, that such aliens should have
letters of safe conduct, or actual license to remain in the United States, but that license
and protection will be implied from their being suffered to remain, without being
ordered out of the United States by the executive. See Seymour v. Bailey, 1872, 66 III.
288, wliere authorities are collected. Consult U. S. v. One Hundred Barrels of Cement,
1862, 27 Fed. Cas. 292 (Treat, J.), for an admirable digest of cases on alien enemy.
The United States as a sovereign, independent nation possesses the right and the
power to expel aliens on outbreak of war. Rev. St. $$ 4067-4070. -ED.
35
546
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
But in the subsequent case of Ludiow v. Ramsey, 11 Wall. 581, it
was adjudged that the doctrine of Dean, V. Nelson, that a judicial
proceeding on a mortgage carried on within the Union lines against
a person driven, by way of retaliation for outrages committed by
others, outside of those lines, and prohibited from returning within
them, did not apply to a person who went and remained voluntarily
in rebellion. Such a person could not complain of legal proceedings
regularly prosecuted against him as an absentee.
But there is another aspect in which this case must be considered,
and which really presents the principal point, and upon which I
would have been satisfied to have placed it had not the counsel for
the defendants in error, plaintiffs in the court below, insisted in
their briefs that the war produced an entire suspension of all pro-
ceedings whatever between the citizens of the respective sides and
avoided all judicial process.
The salc was made under a deed of
trust containing an agreement that in default of payment when the
notes matured, the trustee, upon giving the requisite notice, should
proceed to sell the property to satisfy the debt. It contained a power
coupled with an interest, which was irrevocable in its character, and
when the contingency arose calling forth its execution, the trustee
was authorized to execute it regardless of the status of the grantors
at the particular time. So far as the authority of the trustee was
concerned to go on and make a sale of the property in satisfaction of
the debt, it made no difference whether the grantors were in the
Confederate lines or in the jungles of India, or even if they were
dead. It may be conceded that they were in a place or in a condi-
tion where it was physically impossible for notice to reach them, but
that would not alter the case, as the notice was not designed to be
given for their benefit in the sense of notice to them. It was in-
tended to notify the community that the sale would take place in
order that bidders might be present to purchase the property.
In the case of Beatie v. Butler, 21 Mo. 313, it appears that Beatie
borrowed a certain sum of money, and, to secure its payment, he
executed a mortgage, on real estate, containing a power of sale.
Before the note was paid off Beatie died, and after his death the
mortgagee sold the property. Neither the widow nor children of
Beatie were notified of the sale. Afterwards they moved to set aside
the sale, but the court denied the motion, holding that the death of
the mortgagor did not extinguish or suspend the power of sale in the
mortgage. Scott, J., in writing the opinion of the court, says:
“The argument that the death of Beatie should have suspended all
proceedings under the mortgage, in analogy to the suspension of all
process of execution under the administration law against the estate
CHAP. II.]
547
DE JARNETT V. DE GIVERSVILLE.
I
of defendants, cannot be maintained. The law may suspend its own
process. As it gives the process, it may regulate it. But deeds of
trust, and mortgages with a power of sale, arise from the consent and
agreement of parties, and there is no propriety in depriving creditors
of the fruits of their foresight and caution. The statute of the 25th
of January, 1847, is an answer to the argument. That statute, not-
withstanding the death of the grantor, in a deed of trust, recognizes
a right of sale in the trustee, though it is postponed for nine months
after the death of the maker of the deed.
The precise question now under consideration arose in Harper v.
Ely, 56 Ill. 179, where the court decided that the remedy of the
holder of a mortgage in that State to make sale of the mortgaged
premises in case of default, under a power in the mortgage, was in
nowise impaired or suspended during the existence of hostilities in
the late war of the rebellion, on account of the residence of the
mortgagor and his grantee, subsequent to the mortgage, within the
rebellious States; and that the rule applied as well to the grantee of
the mortgagor, who always resided within one of the States, which,
after conveyance to him, joined in the rebellion, as to the mortgagor
himself, who, after making the mortgage, left his residence in one of
the loyal States for the purpose of engaging in hostilities against the
government
The very recent decision of the Supreme Court of the United
States, in Washington University v. Finch, 18 Wall. 106, is in point.
In that case the facts are that Daly and Chambers purchased of W.
G. Eliot in March, 1860, certain real estate in the City of St. Louis,
and gave a deed of trust to secure the purchase money. In this deed
Ranlett was trustee. The purchasers were citizens and residents of
Virginia. Ranlett, as trustee, advertised and sold the premises in
December, 1862, after the establishment of non-intercourse between
the government and Confederate States. The United States Circuit
Court declared the sale to be unlawful because of this non-inter-
course, and set aside the deed made by the trustee. The Supreme
Court unanimously reversed the judgment, and directed the Circuit
Court to dismiss the bill. Mr. Justice Miller, who wrote the opinion,
in commenting upon Dean v. Nelson, supra, said that the court had
"never decided nor intentionally given expression to the idea that
the property of citizens of the rebel States, located in the loyal
States, was, by the mere existence of the war, exempt from judicial
process for debts due to citizens in the loyal States contracted before
the war.” Upon the merits of the immediate case under considera-
tion, the learned judge remarked: "The debt was due and unpaid.
The obligation which the trustee had assumed on a condition had
548
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
become absolute by the presence of that condition. If the complain-
ants had been dead, the sale would not have been void, for that
reason, if made after the nine months during which a statute of
Missouri suspends the right to sell in such cases. "If they had been
in Japan, it would have been no legal reason for delay. The power
under which the sale was made was irrevocable. The creditor had
both a legal and a moral right to have the power, made for his
benefit, executed. The enforced absence of the complainants, if it
be conceded that it was enforced, does not, in our judgment, afford a
sufficient reason for arresting his agent and the agent of the creditor
in performing a duty which both of them imposed on him before the
war began. *** The interest of the complainants in the land might
have been liable to confiscation by the government; yet we are told
that this right of the creditor could not be enforced, nor the power of
the trustee lawfully exercised. No authority in this country, or any
other, is shown us for this proposition. It rests upon inference from
the general doctrine of absolute non-intercourse between citizens of
States which are in a state of public war with each other, but no case
has been cited of this kind even in such a war.
“It is said that the power to sell in the deed of trust required a
notice of the sale in a newspaper; that this notice was intended to
apprise the complainants of the time and place of sale, and that, as
it was impossible for such notice to reach the complainants, no sale
could be made. If this reasoning were sound, the grantors in such a
deed need only go to a place where the newspapers could not reach
them, to delay the sale indefinitely, or defeat it altogether. But the
notice is not for the benefit of the grantor in the sense of notice to
him. It is only for his benefit, by giving notoriety and publicity of
the time, terms and place of sale, and of the property to be sold, that
bidders may be invited, competition encouraged, and a fair price
obtained for the property. As to the grantor, he is presumed to know
that he is in default, and his property liable to sale at any time, and
no notice to him is required. * * * We are of the opinion that the
sale hy the trustee in the case under consideration was a lawful and
valid sale, and that complainants' bill should have been dismissed.”
This argument, it seems to me, is unanswerable, and is so remark-
ably clear and satisfactory, that nothing remains to be added. The
judgment should be reversed, and the petition dismissed. Judges
VORIES and SHERWOOD concur; Judges Napton and ADAMS dissent."
1 See, also, on this subject the case of Haymond v. Camden, 1883, 22 West Va. 180,
in which authorities are cited at length and discussed. — ED.
CHAP. II.]
519
FURTADO V. RODGERS.
FURTADO V. RODGERS.
COMMON PLEAS, 1802.
(3 Bos. of Pull. 191.)
This was the case of the ship Petronelli, which sailed from Bayonne
in France, Oct., 1792, for Martinique insured in an English company,
the policy dating 19th Oct., 1792. The next year, while still at Mar-
tinique the war between France and England broke out; and the
island of Martinique with all the shipping in the harbors was cap-
tured by the English. After the peace of Amiens in 1802, the owner
of the ship brought suit in Common Pleas in England, to recover
the insurance on the ship.
Judgment,-Lord ALVANLEY, C. J.:-
“As it is of infinite importance to the parties that this case should
be decided as speedily as possible, and as we entertain no doubts
upon the subject, we think it right to deliver the judgment of the
court without any further delay; at the same time considering the
magnitude of the question we shall allow the parties to convert this
case into a special verdict, in order that the opinion of the highest
court in this kingdom may be taken, if it should be thought nec-
essary. There are two questions for our consideration : 1st, whether
it be lawful for a British subject to insure an enemy from the
effect of capture made by his own government ? 2dly, whether, if
that be legal, the insurance in this case having been made previous
to the commencement of hostilities will make any difference? As
to the first point, it has been understood for some years to have
been the opinion of all Westminster-Hall, and I believe of the nation
at large, that such insurances are not strictly legal or capable of
being enforced in a court of justice.
“ The cases upon the subject are all brought into a small compass
in the two valuable books of Mr. Park and my Brother Marshall.
Mr. Park seems to consider the cases of Brandon v. Nesbitt and
Bristow v. Towers as having decided the point; but after looking
very accurately into all the cases, I am ready to admit that there is
no direct determination. The above two cases proceeded on the
short ground of alienage, which was sufficient to support the decision
of the Court without entering into the other question; and I do not
think the latter words of Lord Kenyon in Brandon v. Nesbitt,
applied as they are to the case of Ricord v. Bettenham, support
the inference which has been drawn by my Brother Marshall, the
550
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
Law of Insurance, pp. 37, 600, viz., that his Lordship thought that a
policy effected previous to the war might be sued upon in the event
of peace, even though the loss sustained by the assured arose from
British capture. It is well known that for a considerable time,
not only some politicians entertained an opinion that insurances on
enemy's property was beneficial, but that a great Judge went so far
as to try causes in which this point directly appeared, and permitted
foreigners in their own names, and for their own benefit during the
war, to recover on policies of insurance on foreign goods against
British capture. The opinion of that learned Judge, as to the policy
of such insurances, is well known, and it was supposed he would
not have sanctioned them unless his opinion in point of law had
been equally favorable. But we have now the best evidence that
his sentiments in that respect were different from what they were
supposed to be. Though he did try causes upon such insurances,
he always entertained doubts upon the law, and endeavored to
keep out of sight a question which might oblige him to decide against
what he thought for the benefit of the country. This takes off
materially from the effect of those cases which have been cited, to
induce a supposition that the law of England had tolerated such
insurances. How far it is consistent with good faith, after so long
an acquiescence, to set up a defence which the foreigner may say he
had no reason to expect, is a question for the decision of defendant
and not that of the Court. We can only say, that although many
persons have recovered in such actions it is equally true that doubts
have been entertained by many persons as to their right to recover,
and that most of those who were informed upon the subject were
firmly persuaded that the objection might have been made with
success. This affords a sufficient vindication to the courts of this
country in now deciding this point against a foreigner.
“In 1748 an act, 21 Geo. 2, c. 4, passed prohibiting the insurance
of French ships and goods during the war; this was at least a legis-
lative declaration of the impolicy of such insurances at that time.
From the expiration of that act to the passing of the 33 Geo. 3, c. 27,
S. 4, no legislative interference upon the subject ever took place,
and previous to the last mentioned act the policy in question was
effected. By the terms of the policy, the underwriters certainly un-
dertake to indemnify the plaintiff against all captures and detentions
of princes, without any exception in respect of the acts of the gov-
ernment of their own nation. The question then is, whether the
law does not make that exception, and whether it be competent to an
English underwriter to indemnify persons who may be engaged in
war with his own sovereign against the consequences of that war?
CHAP. II.]
551
FURTADO V. RODGERS.
We are all of opinion, that on the principles of the English law, it is
not competent to any subject to enter into a contract to do anything
which may be detrimental to the interests of his own country; and
that such a contract is as much prohibited as if it had been expressly
forbidden by an act of parliament. It is adınitted that if a man con-
tract to do a thing which is afterwards prohibited by act of parlia-
ment, he is not bound by his contract. This was expressly laid down
in Brewster v. Kitchell, 1 Salk., 198. And on the same principle,
where hostilities commence between the country of the underwriter
and the assured, the former is forbidden to fulfil his contract. With
respect to the expediency of these insurances, it seems only necessary
to cite a single line from Bynkershoek (Quaes. Juris. Pub. lib. 1, c.
21) and part of a passage from Valin, p. 32.
passage from Valin, p. 32. The former says, ,
Hostium pericula in se suscipere quid est aliud quam eorum commercia
maritima promovere,' and the latter, speaking of the conduct of the
English during the war of 1756, who permitted these insurances,
says, "The consequence was, that one part of that nation restored to
us by the effect of insurance, what the other took from us by the
rights of war. Lord Hardwicke indeed, in Henckle v. The Royal
Exchange Assurance Company, 1 Ves., 320, uses these words : No
determination has been that insurance on enemies' ships during the
war is unlawful; it might be going too far to say all trading with
enemies is unlawful, for that general doctrine would go a great way,
even where only English goods are exported, and none of the enemies
imported, which may be very beneficial. I do not go on a founda-
tion of that kind, and there have been several insurances of this sort
during the war which a determination upon that point might hurt.
This however is but a doubtful opinion as to the legality of such in-
surances, and not very favorable to them. In Plancke v. Fletcher,
Lord MANSFIELD is certainly reported to have said, "It is indifferent
whether the goods were English or French, the risk insured extends
to all captures, which seems at first to go a great way towards giving
effect to insurances against British capture. But we must suppose
this to have been said because the defendant did not press the objec-
tion; and if the party acquiesced, the expression gives no more
weight to the case than belongs to any of the other cases which have
been cited, such as Bermon v. Woodbridge, Eden v. Parkinson, and
Tyson V. Gurney, in which the question was not raised at all. On
the other hand, the cases of Brandon v. Nesbitt and Bristow v.
Towers certainly proceed on the ground of alienage. There is no
express declaration therefore of the Court of King's Bench, either
for or against the legality of such insurances, and the question comes
now to be decided for the first time. We are all of opinion that to
5.32
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
insuré enemies' property was at the common law illegal, for the
reasons given by the two foreign jurists (Bynkershoek and Valin) to
whom I havë referred. If this be so, a contract of this kind entered
into previous to the commencement of hostilities must be equally
unavailing in a court of law, since it is equally injurious to the in-
terests of the country; for if such a contract could be supported, a
foreigner might insure previous to the war against all the evils in-
cident to war. But it is said that the action is suspended, and that
the indemnity comes so late that it does not strengthen the resources
of the enemy during the war. The enemy however is very little in-
jured by captures for which he is sure at some period or other to be
repaid by the underwriter. Since the case of Beli v. Potts, it has
been universally understood that all commercial intercourse with
the enemy is to be considered as illegal at common law [though
previous to that case a very learned judge (Mr. Justice BULLER, in Bell
v. Gitson, 1 Bos. & Pull., 345) appears to have entertained doubts on
that subject], and that consequently ah insurances founded on such
intercourse are also illegal. Why are they illegal ? Because they
are in contravention of his Majesty's object in making war, which
is by the capture of the enemies' property, and by the prohibition of
ány beneficial intercourse between them and his own subjects to
cripple their commerce. The same reasoning which influenced the
Court of King's Bench in their decision in Bell against Potts, seems de-
cisive in the present case. For it being determined that during war
all commercial intercourse with the eneiny is illegal at common law,
it follows that whatever contract tends to protect the enemy's prop-
erty from the calamities of war, though effected antecedent to the
war, is nevertheless illegal. It has been supposed that the doctrine
which has prevailed respecting ransom bills tends to favor these in-
surances; but no action was ever maintained upon a ransom bill in
a court of common law until the case of Ricord.v. Bettenham, 3 Bur.,
1734; 1 Bl., 563, and I have the authority of Sir Wm. Scott for saying,
that in the Admiralty Court the suit was always instituted by the
hostage. The case of Ricord v. Bettenham, however, certainly tended
to show that such an action might be maintained in the courts of
common law at the suit of an alien enemy. In consequence of this,
a similar action was brought in Cornu v. Blackburn (Doug., 641), and
after argument, the Court of King's Bench held that it might be
sustained. But in Anthon v. Fisher (Doug., 649, 650, in notes), the
contràry was expressly determined upon a writ of error in the Ex-
chequer Chamber. I forbear to enter into the arguments suggested
at the bar in favor of the defendant, that the law will not enforce a
contract founded on a transaction detrimental to the public policy
CHAP. II.]
FURTADO V. RODGERS.
553
of the state. The ground upon which we decide this case is, that
when a British subject insures against captures, the law infers that
the contract contains an exception of captures made by the govern-
ment of his own country; and that if he had expressly insured against
British capture, such a contract would be abrogated by the law of
England. With respect to the argument insisted upon by way of
answer to the public inconvenience likely to arise from permitting
such contracts to be enforced, viz., that all contracts made with an
enemy enure to the benefit of the King during the war, and that he
may enforce payment of any debt due to an alien enemy from any of
his subjects, we think it is not entitled to much weight. Such a
course of proceeding never has been adopted; nor is it very probable
that it ever will be adopted, as well from the difficulties attending it,
as the disinclination to put in force such a prerogative. The plaint-
iff, I am sorry to say, is not entitled to a return of premium, because
the contract was legal at the time the risk commenced, and was a
good insurance against all other losses but that arising from capture
by the forces of Great Britain.
Judgment for the defendant."
assurer.
1 See, further, the excellent case of Brandon v. Cushing, 1803, 4 East, 410, in which
Ellenborough, C. J., held that an insurance on goods from London to Bayonne in
France, shipped on board a neutral ship on account and at the risk of Frenchimen before
the declaration of hostilities between Great Britain and France, but exported after-
wards, cannot be enforced against the underwriter even after the restoration of peace,
to recover a loss by capture of a co-belligerent (though not stated to be an ally) during
the war; that every insurance on alien property by a British subject must be under-
stood with tliis implied exception that it shall not extend to cover any loss happening
during the existence of hostilities between the respective countries of the assured and
Of this case, Mr. Duer says (1 Marine Insurance, 473): “Thus, it was finally
determined, that a supervening war between the countries of the assurers and assured,
from the time that it occurs, renders a prior insurance illegal and void, precisely for
the same reasons that render the contract illegal in its origin, when made during a
war.” However, in the very recent case of Driefontein, &-c., Mines, Lim. V: Janson
[1901], 2 K. B. 419, it was held that the insurance of the plaintiff's property against
such a seizure was not against public policy and the action was maintained. The
facts were : that gold, the property of a Transvaal mining company, was insured with
British underwriters against capture, amongst other risks, during transit from the
mines in the Transvaal to the United Kingdom. The gold was seized by the govern-
ment of the Transvaal, at a time when the Transvaal troops were in the field, and war
was imminent, although not declared.
In 15 Harv. Law Rev. 237, the following criticism appears :
Acts done in con-
templation of war are, if war ensues, regarded as if done in time of war. The Jun
Frederick, 5 Rob. 128; The Boedes Lust, 5 Rob. 233. The question, then, is whether it
is against public policy for an insurance company to insure an alien enemy against
seizure of his property by his own government. No decided case covers this.. It lias
been held that insurance of an enemy's subject against capture of his goods by ships
of the insurer's government is void. Furtado v. Rodgers, 3 B. & P. 191; Gamba v. Le
ac
554
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
.
PERKINS v. ROGERS, 1871.
(35 Indiana, 124, 167.) 1
BUSKIRK, J. The foregoing authorities clearly establish the fol-
lowing propositions: First, that the war-making power is, by the Con-
stitution, vested in Congress, and that the President has no power to
declare war or conclude peace, except as he may be empowered by Con-
gress. Second, that the existence of war and the restoration of peace
are to be determined by the political department of the government,
and that such determination is binding and conclusive upon the courts,
and deprives the courts of the power of hearing proof and determin-
ing as a question of fact either that war exists or has ceased to exist.
Third, that the courts will take judicial notice of the existence of
war or the restoration of peace when proclaimed by the President.
Fourth, that the late rebellion did not become a civil war and was not
governed by the rules of war, until the 16th of August, 1861, when
the President issued his proclamation under and in pursuance of the
act of Congress of July 13, 1861. Fifth, that civil war is governed
by the same rules as a foreign war, and that the legal consequences
are the same. Sixth, that the proclamation of the President placed
all the inhabitants of the State of Louisiana in a state of insurrec-
tion, made them the enemies of the United States and the inliabitants
of the adhering States, and rendered all commercial intercourse un-
lawful, except such as might be carried on under and by virtue of a
special license and permit of the President under the rules and regu-
lations prescribed by the Secretary of the Treasury. Seventh, that
all contracts made during the war by belligerents, and not licensed
and permitted by the President, were absolutely void. Eighth, that
contracts made prior to the war were suspended during the existence
Mesurier, 4 East, 407. The ground of the decisions was that a State could not put the
same pressure on its enemy if the enemy knew it could be recouped at the end of the
war by subjects of that state. This principle applies with equal if not greater force to
insurance on goods seized by the government of the assured. Payment of such in-
surance would be relieving the enemy's subject from the pressure put upon him by
his own government to carry on the war, and would in effect be paying the enemy's
expenses. On principle and authority the case is wrong, though it has the practical
advantage of affording relief to commerce.” – ED. .
1 On the question of trading with the enemy across the lines between Louisiana
and Indiana during the civil war, Mr. Justice Buskirk delivered an exceedingly elabo-
rate opinion, in which the authorities are considered at length. It digests admirably.
the doctrines of the previous sections. The part. of the opinion printed above con-
ciuded the judgment of the learned judge. — ED.'
CHAP. II.]
PERKINS V. ROGERS.
555
1
1
of such war; that the remedy upon such contracts was suspended
until the restoration of peace, when the debt and the remedy revived.
Ninth, that during the existence of the war an inhabitant of a State
in rebellion had no right to institute or maintain any suit in any
court in the adhering States, and that, consequently, the Statute of
Liinitations did not run against such person during the existence of
the war. Tenth, that the only legal effect of the occupation of the
City of New Orleans was to authorize the President to exercise the
discretionary power vested in him by the proviso to the 5th section
of act of Congress of July 13, 1861; that by said act of Congress the
President was authorized to license and permit limited commercial
intercourse; that such persons as had a license and permit from the
President might lawfully trade; that such license and permit did not
confer any right beyond that of trading; that no citizen of the State
of Louisiana had the lawful right to carry on commercial intercourse
without he had a license and permit from the President issued in
strict conformity to the rules and regulations prescribed by the Secre-
tary of the Treasury; that such occupation did not restore peace or
release the inhabitants thereof from the legal consequences of their
alienage and enmity, or give them a personal standing in our courts.
Eleventh, that the plaintiff, being an inhabitant of the State of
Louisiana during the war, was the enemy of all the inhabitants of
Indiana, and consequently had no right during the existence of the
war to institute and maintain an action on the contract sued on.
Twelfth, that while the courts will take judicial notice that all the
inhabitants of the State of Louisiana were in insurrection, they will
not take judicial notice that any of such inhabitants maintained a
loyal adhesion to the Union and Constitution, or that any part of
said State was occupied and controlled by the forces of the United
States engaged in the dispersion of the insurgents, or that any par-
ticular person had a license or permit from the President to carry on
commercial intercourse, but that a party relying upon such facts must
allege and prove them. Thirteenth, that while actual hostilities
ceased in April, 1865, peace with its legal consequences was not
restored until the 20th of August, 1866, when the President issued his
proclamation proclaiming that peace existed throughout the land.
Fourteenth, that no part of the account sued on was created during
the existence of civil war, and when commercial intercourse was
unlawful. Fifteenth, that the time that intervened between the 16th
of August, 1861, and the 20th of August, 1866, is not to be included
in determining whether this action is barred by the statute of limi-
tations, and that excluding such time the action is not barred. Six-
teenth, that when a statute of limitations contains no exceptions, and
appears upon the face of the complaint that the action is barred,
556
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
the question can be raised by demurrer, but where there are excep-
tions, the statute must be pleaded, so as to give the plaintiff the
opportunity of replying the facts that will bring it within the excep-
tion. Seventeenth, the conclusions that we have reached in this case
render it unnecessary to examine the question of whether this action
was taken out of the operation of the Statute of Limitations by a new
promise or acknowledgment, further than to say that when the letter
relied on was written, war existed, which rendered the parties ene-
mies, and made all contracts entered into between them absolutely
void.
COME HOME ON OUT-
SECTION 30. - DUTY OF SUBJECT OR CITIZEN TO
BREAK OF WAR.
STORY, J., in the brig Joseph, 1813, 1 Gall. 545, 552: It has been
farther argued, that a declaration of war is, in effect, a command to
the citizens of the belligerent country abroad at the time to return
home, and that the law allows a reasonable time and way to effect it.
I am not aware of any principle of public law which obliges every
absent citizen to return to his country, on the breaking out of the war,
nor has any authority been produced which countenances the position.
It may be admitted, that the sovereign power of the country has a
right to require the services of all its citizens, in time of war, and for
this purpose may recall them home under penalties for disobedience.
But until the sovereign power has promulgated such command, the
citizens of the country have a perfect right to pursue their ordinary
business and trade in and with all other countries, except that of the
enemy. Upon any other supposition all foreign commerce would, dur-
ing war, be suspended; for if it were the duty of absent citizens to
return, it would, upon the same principle, be the duty of those at
home to remain there. As to citizens in the hostile country, the dec-
laration of war imports a suspension of all farther cominerce with
such country, and obliges them to return, unless they would be in-
volved in all the consequences of the hostile character. If they wish
to return, they must do it in a manner which does not violate the
laws; and their property cannot be removed with safety from the
enemy country unless under the sanction of their own government.
But even if the position were generally true, that is contended for,
the law would never deem that a reasonable mode of conveying prop-
erty home which involved it in a noxious trade with the public enemy.
That can never be held to be a reasonable mode of returning a ship
to the United States which involves her in a traffic forbidden by the
laws.
CHAP. II.)
557
THE
66 RAPID."
THE “RAPID."
SUPREME COURT OF THE UNITED STATES, 1814.
(8 Cranch, 156.)
This was an appeal from the sentence of the circuit court, for the
district of Massachusetts.
The material facts in the case were these.
Jabez Harrison, a native American citizen, the claimant and ap-
pellant in this case, had purchased a quantity of English goods in
England, before the declaration of war by the United States against
that country, and deposited them on a small island, belonging to the
English, called Indian Island, and situated near the line between
Nova Scotia and the United States. Upon the breaking out of the
war, Harrison's agents in Boston hired the Rapid, a vessel licensed
and enrolled for the cod fishery, to proceed to the place of deposit
and bring away the goods. The Rapid accordingly sailed from Bos-
ton, on the 3d of July, 1812, with Harrison, the claimant, on board,
proceeded to Eastport, where Harrison was left, and from thence,
agreeably to Harrison's orders, to Indian Island, where the cargo in
question was taken on board. On the eighth of July, while on his
return, she was captured by the Jefferson Privateer, on the high
seas, and brought into Salem. The goods, being libeled as prize,
and claimed by Harrison as his property, were condemned in the
circuit court of Massachusetts to the captors, on the ground that
by “ trading with the enemy," they had acquired the character of
enemies' property.
A claim was also interposed by the United States, on the ground
of a violation, by the Rapid, of the non-intercourse act. This claim
was also rejected. From the decree of the circuit court the United
States and Harrison appealed; at the trial before the Supreme Court
the government of the United States did not interpose its claim.
The Court dwelt at considerable length upon the general princi-
ples of the rule which prohibited trading between enemies; and as
there was no question of the observance of this rule in international
law, this part of the opinion is omitted. The claimant contended,
however, that there was not a trading with the enemy in this case;
that on the breaking out of war, every citizen had a right to with-
draw property lying in the enemy's country and purchased before
the war. Only so much of the opinion as bears upon this point is
given.
558
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
Judgment,JOHNSON, J.:-
“* * * After taking this general view of the principal doctrine
on this subject, we will consider the points made in behalf of the
claimant in this case, and, 1. Whether this was a trading, in the eye
of the prize law, such as will subject the property to capture ?
“ The force of the argument.on this point depends upon the terms
made use of. If by tracing, in prize law, was meant that signifi-
cation of the term which consists in negotiation or contract, this
case would certainly not come under the penalties of the rule. But
the object, policy, and spirit of the rule is to cut off all communica-
tion or actual locomotive intercourse between individuals of the
belligerent states. Negotiation or contract has, therefore, no nec-
essary connection with the offence. Intercourse inconsistent with
actual hostility, is the offence against which the operation of the
rule is directed; and by substituting this definition for that of trad.
ing with an enemy, an answer is given to this argument.
“ 2. Whether, on the breaking out of a war, the citizen has a right
to remove to his own country with his property, is a question which
we conceive does not arise in this case. This claimaint certainly
had not a right to leave the United States, for the purpose of bring-
ing home his property from an enemy's country; much less could
he claim it as a right to bring into this country, goods, the importa-
tion of which was expressly prohibited. As to the claim for the
vessel, it is founded on no pretext whatever; for the undertaking,
besides being in violation of two laws of the United States, was al-
together voluntary and inexcusable. With regard to the importa-
tions from Great Britain about this time, it is well known that the
forfeiture was released on grounds of policy and a supposed obliga-
tion induced by the assurances which had been held out by the
American chargé d'affaires in England. But this claimant could
allege no such excuse.
“3. On the third point, we are of opinion that the foregoing obser-
vations furnish a sufficient answer.
“If the right to capture property thus offending, grows out of a
state of war, it is enough to support the condemnation in this case,
that the act of Congress should produce a state of war, and that the
commission of the privateer should authorize the capture of any
property that shall assume the belligerent character.
“ Such a character we are of opinion this vessel and cargo took
upon herself; or at least, she is deprived of the right to prove her-
self otherwise.
“We are aware that there may exist considerable hardship in this
case; the owners, both of vessel and cargo, may have been uncon-
scious that they were violating the duties which a state of war im-
CHAP. II.]
559
THE 66 ST. LAWRENCE.”
.
posed upon them. It does not appear that they meant a daring
violation either of the laws or belligerent rights of their country.
But it is the unenvied province of this court to be directed by the
head, and not by the heart. In deciding upon principles that must
define the rights and duties of the citizen and direct the future de-
cisions of justice, no latitude is left for the exercise of feeling."
.
THE "ST. LAWRENCE."
SUPREME COURT OF THE UNITED STATES, 1814-1815.
(8 Cranch, 434, and 9 Cranch, 120.)
This was an appeal from the sentence of the United States Circuit
Court for the district of New Hampshire.
The ship St. Lawrence was captured on the 20th of June, 1813,
and, with her cargo, libeled as prize, in the District Court of New
Hampshire. On the 5th of May, 1813, a license was granted by the
privy council of Great Britain to Thomas White of London, and
others, permitting them to export, direct to the United States, an
enumerated cargo in the St. Lawrence, provided she cleared out be-
fore the last day of that month. On the 30th of May, 1813, she sailed
from Liverpool for the United States with the cargo specified in the
license. Mr. Alexander M'Gregor and his family were passengers on
board.
It appeared from the examination of Mr. M'Gregor, that he was
born in Scotland, was naturalized in the United States in 1795, had
lived, the last seven years, in Liverpool, and was returning in the
St. Lawrence, with his family to the United States.
There were several claimants, but only so much of the case is
given as refers to the claims of M'Gregor and Penniman.
WEBSTER, for M'Gregor and Penniman, said:
“We contend that a distinction is to be taken between an American
citizen, domiciled in England at the breaking out of the war, with-
drawing his funds, and an American citizen who goes to England
after the declaration of war, for the same purpose. That the former,
whether a native or naturalized citizen, has a right and perhaps it
is his duty) to return to the United States with his effects. If he
has no such right, why should the law of nations have provided a
reasonable time for removing in case of war ?
“This rule of the law of nations has been founded upon the necessity
of the case, and upon the hardship which would attend the want of
such a rule. A citizen of one country may lawfully go to any other
560
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
!
delle Gracie
country, in time of peace, and take up his residence there; and it
would be very hard if he must suffer by the sudden and unexpected
breaking out of a war--an event over which he had no control. A
neutral would be permitted to withdraw his funds in such a case ;
and if we should allow the privilege to neutrals, why should we deny
it to our own citizens? 1 Rob., 1, The Vigilantia 1 ; Bos. and Pul.,
355, Bell v. Gitson.
“The case of Escott, cited in The Hoop, 1 Rob., 165, 196, may per-
haps be thought to make against our claim.
“But the cases are not alike. In that case, Escott sent for his prop-
erty: here M'Gregor came with his.
“A character gained by residence, is lost by non-residence. When
M'Gregor ceased to reside in England, his character, if hostile
before, no longer continued hostile. That it was not his intention
to continue his residence in England, is clearly evidenced by his
actual return to the United States with his family.
“With regard to his half of the ship, we contend that if he had a
right to return, he had a right to use the means necessary for that
purpose--he had a right to purchase a ship for the conveyance of
himself and his family. So if it was lawful for him to withdraw his
funds, he might lawfully invest those funds in merchandise, if ne
could not otherwise withdraw them. 4 Rob., 161, 195, The Madonna
President; 5 Rob., 84, 90, The Ocean ; 5 Rob., 60, The Diana.”
Judgment:
“It is not the intention, to express any opinion as to the right of
an American citizen, on the breaking out of hostilities, to withdraw
his property purchased before the war, from an enemy country.
Admitting such right to exist, it is necessary that it should be ex-
ercised with due diligence, and within a reasonable time after the
knowledge of hostilities. To admit a citizen to withdraw property
from an enemy country, a long time after the war, under the pretence
of its having been purchased before the war, would lead to the most
injurious consequences, and hold out strong temptations to every
species of fraudulent and illegal traffic with the enemy. To such an
unlimited extent we are all satisfied that the right cannot exist.
The present shipment was not made until more than eleven months
had elapsed after war was declared ; and we are all of opiniori that it
was then too late for the party to make the shipment, so as to exempt
him from the penalty attached to an illegal traffic with the enemy.
The consequence, is that the property of Mr. Penniman must be
condemned.
* And their decision is fatal, also, to the claim of Mr. M'Gregor.
Independent, indeed, of the principle, there are many circumstances
CHAP. II.
561
AMORY V. MCGREGOR.
in the case unfavorable to the latter gentleman. In the first place,
it is not pretended that the goods included in his claim were pur-
chased before the war. In the next place, he was the projector of
the present voyage, and became, as to one moiety, the charterer or
purchaser of the ship. Nearly all the cargo consisted of goods belong-
ing (as it must now be deemed) exclusively to British merchants.
He was, therefore, engaged in an illegal traffic of the most noxious
nature; a traffic not only prohibited by the law of war, but by the
municipal regulations of his adopted country. His whole property,
therefore, embarked in such an enterprise, must alike be inflicted
with the taint of forfeiture.”
AMORY AND OTHERS V. MCGREGOR.
SUPREME COURT OF NEW YORK, 1818.
(15 Johnson, 24.)
cases.
THOMPSON, C. J., delivered the opinion of the court.1
The first question that arises is, whether this shipment was not
made contrary to the non-intercourse act, so that the goods were there-
by forfeited, and the plaintiff's title gone. If the non-intercourse law
was in full force and operation at the time of the shipment, I do not
see why the principles which governed the case of Fontaine v. The
Phoenix Insurance Company, 11 Johns. Rep. 293, would not apply.
The forfeiture was incurred by the act of putting the goods on board,
with intent to import the same into the United States; and, according
to the principle adopted in that case, the owner loses his right to the
property immediately on the commission of the act which produces
the forfeiture. There is, however, a distinction between the two
Here the circumstances may warrant the conclusion that the
shipment was made, under an impression and belief that the repeal
of the orders in council would terminate the differences between the
two nations, and that the non-intercourse act would not be enforced.
And the subsequent act of the 2d of January, 1813, shows the reason-
ableness of such opinion by reinitting the forfeiture in cases where
the shipment was made under such belief. But it has been decided,
in the Supreme Court of the United States, that the declaration of wai
virtually repealed and annulled the non-intercourse act, as between is
and Great Britain. In the case of The Sally, 8 Cranch, 384, the court
say the municipal forfeiture, under the non-intercourse act, was ab-
sorbed in the inore general operation of the law of war.
erty of an enemy seems hardly to be within the purview of mere
1 Statement of facts omitted, together with last paragraph of the opinion. -- ED.
The prop-
36
562
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
municipal regulations, but is confiscable under the jus gentium. If,
by the declaration of war, on the 18th of June, 1812, the non-inter-
course act ceased to be in force, there was nothing making it unlawful
for the plaintiffs to import the goods in question, except the existence
of the war itself. The question is then presented as to the right of
an American citizen, at the breaking out of war, to withdraw his goods
from the enemy's country. Whether these goods were liable to British
capture is not the question before us. This branch of the defence
is placed on the ground that it was an illegal act, on the part of the
plaintiffs, to withdraw these goods; and that, therefore, a court of
justice will not enforce any contract growing out of such illegal con-
duct. That all trading with an enemy is illegal is a general and well-
settled rule. The principle is recognized and sanctioned, as well by
the cominon law as by the maritine codes of all the European nations,
8 Term. Rep. 554. It is a wise and salutary rule; but it would re-
quire the most direct and controlling authority, to satisfy my mind,
that the mere act of withdrawing goods from the enemy's country, at
the breaking out of a war, comes within the reason or policy of the
rule; and no case has fallen under my observation that has pressed
the principle thus far. Several cases, in the Supreme Court of the
United States, have been referred to as containing that doctrine; but,
ou examination, they will not be found to support it. The case of The
Rapid, 8 Cranch, 155, has been relied on as one of the strongest.
But that case was essentially different from the present, and decided
upon a very distinct principle. Harrison, the claimant, who was an
A nrerican citizen, had purchased a quantity of English goods, before
the declaration of war, and deposited them on a small island belonging
to the English, near the line between the United States and Nova
Scotia ; and after the declaration of war, he sent a vessel, licensed
and enrolled for the cod fishery, and brought the goods away, which,
on their return, were captured by an American privateer, and con-
demned, in the Circuit Court of Massachusetts, for trading with the
enemy. On appeal, this sentence was affirmed. Judge Johnson, in
delivering the opinion of the court, expressly waives giving any
opinion upon the point now under consideration, although in very
strong and emphatic language he interdicts all intercourse with the
eneiny. In a state of war, he says, nation is known to nation only
by their armed exterior, each threatening the other with conquest or
annihilation. The individuals who compose the belligerent states
exist, as to each other, in a state of utter occlusion. In war, every
individual of one nation must acknowledge every individual of the
other nation as his own enemy. Trading, says he, does not consist
in negotiation, or contract, but the object, policy, and spirit of the
rule is to cut off all communication, or actual locomotive intercourse,
CHAP. II.]
563
AMORY V. MCGREGOR.
between individuals of the belligerent states. Contract has no con-
nection with the offence. Intercourse inconsistent with actual hos-
tility is the offence against which the operation of the rule is directed.
But, after thus narrowing all intercourse, he says, whether on the
breaking out of a war the citizen has a right to reinove to his own
country, with his property, is not the question before the court. The
claimant had no right to leave the United States, for the purpose of
bringing home his property from an enemy's country. This was the
point on which the decision turned. So, again, in the case of The St.
Lawrence, 8 Cranch, 434, the court say they do not mean to decide on
the right of an American citizen, having funds in England, to with-
draw them, after a declaration of war, or as to the latitude which he
may be allowed in the exercise of such a right, if it exists. That
Judge Story did not mean to be understood as deciding this question,
in the case of The Rapid, is evident from what fell from himn in the
case of The St. Lawrence, when again before the court, 9 Cranch, 121;
he
says
that it is not the intention of the court to express any opinion,
as to the right of an American citizen, on the breaking out of hostili-
ties, to withdraw his property, purchased before the war, froin an
eneiny's country. Admitting such a right to exist, it should be ex-
ercised with due diligence, and within a reasonable time after the
knowledge of hostilities.
Thus it will be seen that this question never has been decided in
the Supreme Court of the United States. And, from the guarded and
cautious manner in which that court has reserved itself, upon this par-
ticular question, there is reason to conclude that, when it is distinctly
presented, it will be considered as not coming within the policy of the
rule that renders all trading or intercourse with the enemy illegal.
In Hallett & Bowne V. Jenks, 3 Cranch, 219, the question before the
court involved the inquiry as to what circumstances might excuse a
trading without incurring the penalties of the non-intercourse act of
1798. Ch. J. Marshall, in delivering the opinion of the court, observes
that, even if an actual and general war had existed between this
country and France, and the plaintiff had been driven into a French
port, a part of his cargo seized, and he had been permitted to sell the
residue, and purchase a new cargo, it would not have been deemed
such a traffic with the enemy as would vitiate the policy upon such
new cargo. According to this opinion, an actual trading with the
enemy may, under some circumstances, be deemed lawful. Inde-
pendent, however, of this general question, the withdrawing of the
goods in question may very fairly be considered as falling within
the principle settled by the Supreme Court of the United States, in the
case of The Thomas Gibbons, 8 Cranch, 421. It was there held that
a shipment made, even after a knowledge of the war, may well be
564
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
deemed to have been made in consequence of the repeal of the orders
in council, if made within so early a period, as would leave a reason-
able presumption that the knowledge of that repeal would induce a
suspension of hostilities on the part of the United States; and that
Congress had acted upon that principle, by the act of the 2d of Jan-
uary, 1813, ch. 149, and fixed the time, 15 Sept., 1812, before which
shipments might be reasonably made, upon the faith of that presum-
tion. The same doctrine is again recognized, and more liberally applied,
in the case of The Mary, 9 Cranch, 147. The shipment, in the case
now before the court, was on the 21st of July, and before the declara..
tion of war was known in England. From this view of the case, and
the law applicable to it, we are satisfied that withdrawing the goods,
under such circumstances, could not be considered an illegal act.
The next inquiry is, whether anything, afterwards, occurred to
exonerate the defendant from responsibility upon the bill of lading;
and we cannot perceive that there has. There can be no doubt that
the admiralty proceedings against the property at New Providence,
after the first release, were by the procurement of the agents of the
defendant. The case states that the process was procured by Peter
McGregor, who sailed on board the vessel from Liverpool, who was
the nephew of the defendant, and represented himself as his agent,
on the suggestion in his petition that if the goods were brought into
the United States they would be seized as imported contrary to law,
and would be lost to the owners and underwriters, who were, as he
alleged, British subjects. But, upon claim and answer, put in by the
master, the petition was dismissed, and the vessel and cargo again
liberated; and the ship being about to sail, she was again stopped by
a British armed vessel, by the solicitation and procurement of the
same Peter McGregor, and one William Stewart, who was on board
the ship and proceeding to New Orleans with her as the agent and
consignee of the defendant, they giving the captain of the British ship
an indemnity for such seizure. The ship and cargo were then libelled,
and claims interposed, by different persons, for different parts of the
cargo; and the goods in question were claimed as the property of
Maitland & Co. The claimants all alleged that if the goods were
transported to New Orleans, they would be seized and forfeited,
as imported contrary to law; and, in support of such allegation,
produced Mr. Gallatin's letter of the 26th of August, 1812, giving
instructions to the collectors on that subject. A decree was then pro-
nounced, ordering the goods to be given up to the claimants, and they
were sold, and the proceeds disposed of as has been stated. There is
no pretence that the persons who represented themselves to be the
agents of the defendant, and who acted as such, were not so in fact;
and if so, he must be answerable for their acts. Nor is it pretended
CHAP. II.]
565
AMORY V. MCGREGOR.
that the goods in question belonged to Maitland & Co. All the repre-
sentation on that subject was a mere cover to get hold of the property,
which it was supposed would be seized and forfeited, if sent on to
New Orleans. The goods have, therefore, been lost by the act of the
defendant; for if they had gone on, and the non-intercourse act had
been considered in force, there can be no doubt that, under the act of
the 2d of January, 1813, the forfeiture would have been remitted;
for the shipment was made within the time limited by that act, and
under circumstances bringing the case expressly within its provisions.
The only remaining question is as to the rule of damages by which
the amount of the recovery is to be regulated. This, we think, ought
to be the net value of the goods at New Orleans, the port of delivery.
That was the rule adopted by this court, in the case of Watkinson v.
Laughton, 8 Johns. Rep. 213.
Judgment for the plaintiffs.
CLIFFORD, J., in The William Bagalay, 1866, 5 Wall. 377, 408,
duty of a citizen when war breaks out, if it be a foreign war, and
he is abroad, is to return without delay; and if it be a civil war, and
he is a resident in the rebellious section, he should leave it as
soon as practicable and adhere to the regular established govern-
ment. Domicile in the law of prize becomes an important considera-
tion, because every person is to be considered in such proceedings as
belonging to that country where he has his domicile, whatever may be
his native or adopted country.
Personal property, except such as is the product of the hostile soil,
follows as a general rule the rights of the proprietor; but if suffered to
remain in the hostile country after war breaks out, it becomes im-
pressed with the national character of the belligerent where it is situ-
ated. Promptitude is therefore justly required of citizens resident in
the enemy country, or having personal property there, in changing
their domicile, severing those business relations, or disposing of their
effects, as matter of duty to their own government, and as tending to
weaken the enemy. Presumption of the law of nations is against one
who lingers in the enemy's country, and if he continues there for much
length of time, without satisfactory explanations, he is liable to be
considered as remorant, or guilty of culpable delay, and an enemy.
1 Reaffirmed in Gates v. Goodloe, 1879, 101 U. S. 612, 617.
In the case of the Gruy Jacket (1866), 5 Wall. 370, Mr. Justice Swayne, in giving
the opinion of the court, said: “The only qualification of these rules (property coming
from the enemy country to be condemned) is that when, upon breaking out of hos-
tilities, or as soon after as possible, the owner escapes with such property as he can
take with him, or in good faith thus early removes his property, with the view of put-
ting it beyond the dominion of the hostile power, the property in such cases is exempt
from the liability which would otherwise atiend it.
In the case of Fifty-two Bales Cotton, Blatchford's Prize Cases, 664 (1863), the cot-
566
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
SECTION 31. — RANSOM BILLS AND PERMISSIBLE TRADING.
CORNU V. BLACKBURNE.
KING'S BENCH, 1781.
(2 Douglas, 640.)
This was the case of an English vessel and cargo captured by a
French privateer and ransomed and a hostage taken as security;
but the privateer was in turn captured by two English frigates and
taken into an English port. The ransom bill was concealed, how.
ever, by the first captor, and not given up; and the present suit is.
on the ransom bill. This document is as follows:
“No. 66. Registered the present ransom bill at the Admiralty office, Boulogne,
the 25th October, 1779, and delivered in double to Captain Robert Cornu, com-
manding, the cutter, the Princesse de Robecq privateer, of this port, by me under-
written Chief Register. Signed, Merlin, Boulogne-We the underwitten Robert
Cornu of Boulogne, commander of the ship the Princesse de Robecq, privateer of
Boulogne, and Thomas Finchett of Liverpool, master of the ship the Dolly of Liver-
poole, have agreed as followeth, viz.— That I, Robert Cornu, commander of the
said privateer, acknowledge to have ransonied the said ship the Dolly of Liver-
poole, belonging to John Blackburne, burgher of Liverpoole, burthen 103, tons,
ton was captured on a flat-boat fastened to a wharf in Texas, and belonged to a citizen.
of New York, who went to Texas before the war to collect debts due to him. The
proceeds had been invested in this cotton, with a view to leave the hostile country after
the breaking out of the war.
Mr. Justice Nelson, in the circuit court for southern New York held that "the only
pretext for condemnation is that the property in question was enemy's property, which
I think is not sustained. It appears to me that the claimant used all diligence to col-
lect his effects, with a view to leave the hostile country, after the breaking out of the
war, and is brought fairly within the principle of international law that protects him.”
In the case of the Surah Starr and Cargo, 1863, Blatchford, 650, the same judge
held that after the breaking out of war, citizens of the loyal States resident in the
States in rebellion should be accorded a reasonable time to convert their property into
funds which could be conveniently carried, and to withdraw from their business con-
nections in the enemy's country. To the same effect the case of the John Gilpin, 1863,
Blatchford, 661, in which Nelson, J., overruled the decision of the District Court.
Mr. Justice Nelson would seem to be more lenient in this class of cases than the
majority of his colleagues on the supreme bench. In the Prize Cases, he dissented
from the opinion of the majority, and asserted that there could be no illegal trading
with the enemy prior to the proclamation of the President, on the 16th of August, 1861.
See further on the removal of property on the outbreak of war, the case of the
Ocean, 5 C. Robinson, 90 (1804); and the President, 5 C. Robinson, 277 (1804). — Ev.
CHAP. II.]
567
CORNU V. BLACKBURNE,
on the 6th of June, in the year 1780, at the heighth of Edinburgh, going from
Lynn to Liverpoole in England, under English colours, and passport of said Eng.
land, loaded with wheat, for the account of John Blackburne, burgher of Liver-
poole; which vessel I have agreed to ransom for the sum of 13001. sterling, to be
paid to Mr. Hauffoullier, fitter of the said privateer at Dunkirk; in consideration
of which I have set the said vessel at liberty to go to the port of Liverpoole, where
she is to be arrived in the time and space of three months, after the expiration of
which this present agreement shall not clear her from being taken by any other
privateers. For security of which ransom, I have received for hostage on board
of the said ship, John Butler, cousin to the captain of the said vessel, desiring all
friends and allies to let safely and freely proceed the said vessel to the port of
Liverpoole, without any let or molestation, during the said time or course of her
voyage; and I, Thomas Finchett, owner of the said ship and merchandizes, have
voluntarily submitted to the payment of the said ransom, viz. 13001. sterling; for
surety whereof I have delivered up the said John Butler of Liverpoole for hostage,
promising not to go against the conditions of this present contract, whereof each
of us have a copy by us, which we have signed, with the said hostage. Signed on
board the said ship, the 6th of June in the year 1780. And it is further expressly
covenanted and agreed, that I the said Thomas Finchett do bind and oblige myself,
and engage my vessel and cargo, to pay or cause to be paid to the owners of the
said privateer, the full amount of the said ransom, should the said hostage come
to die, or to desert, or that the said privateer should perish, or be taken with the
hostage on board, without which condition the captain of the said privateer would
not have consented to the above ransom, which, in all cases whatsoever, shall be
well and truly paid.—(Signed) Robert Cornu. Thomas Finchett. John Butler."
Lord MANSFIELD :-“ It is sound policy, as well as good morality, to
keep faith with an enemy in time of war. This is a contract which
arises out of a state of hostility, and is to be governed by the law of
nations, and the eternal rules of justice. The additional clause is
particularly adapted to this case. There is no pretext to impeach it,
on the ground of fraud or extortion. The bill was registered before
the French ship sailed, with this clause in it. Nor does any inference
arise, from its insertion, that the general law was understood to be
otherwise; for it is, also, stipulated, that the death of the hostage
shall not vacate the contract, which stipulation the parties must be
presumed to have known to be unnecessary, because the decision in
Ricord v. Bettenham was notorious over all Europe. Learned lawyers
were written to on that occasion, both in France and Holland, and
Mr. Justice BLACKSTONE shewed me several letters he had received
from abroad, on the subject. It is said, that, by the law of nations,
the recapture puts an end to the ransom bill; and the argument is,
that the court of Admiralty decrees salvage for retaking the ransom
bill.
“But what are the cases brought to prove this position ? None of
them were litigated but the last, and, there, no ransom bill was forth-
coming. Upon what was salvage given in that case? They seem
to have mistaken the nature of salvage. They seem to consider it
568
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
as a debt which may be exacted. But no man can be compelled to
pay salvage, unless he chooses to have the property back. They
have confounded distinct subjects. What is the eighth part of a
ransom bill? Can the eighth part of an hostage be claimed as salvage?
Could the recaptor make use of the ransom bill ?
“Could he bring an action on it in the foreign captain's name?
When the owner gets possession of the ransom bill, it may be a dif-
ferent consideration. But the present case is clear on two grounds.
1. The special clause is decisive; and, 2. Independent of that clause,
there never has been any capture of the ransom bill.
“ The authority from Grotius is very strong on this last ground.”
WILLES, and ASHHURST, Justices, “ of the same opinion.”
BULLER, Justice, “ of the same opinion.—The last ground goes all
the length; for the bill was never taken.
“ The Postea to be delivered to the plaintiff.”
THE “CHARMING NANCY."
OPINION OF G. HAY, 1761.
(ifarsden's Admiralty Cases, 398.)
The ship Charming Nancy (whereof James Fanneson now is or
lately was master) being taken as prize by the French, was with her
cargo ransomed by the master for the sum of £ ; and Francis
Burt and one of the crew, whose name is unknown, consented to go
as hostages for the payment of the said ransom; in consequence
whereof the said ship and cargo were released. The ship afterwards
arrived at her destined port, and has there unlivered part of her
cargo, but the said ransom has not been paid, and the said hostages
still remain prisoners. A suit is intended to be commenced in the
Court of Admiralty by the relations of Burt to compel the payment
of the said ransom, and thereby procure the release of the hostage,
and it is uncertain whether the ship, and that part of the cargo which
remains unlivered may be sufficient to answer the said ransom.
1 The case of Ricord v. Bettenham, 3 Burrow, 1734 (1762), referred to by Lord
Mansfield, was that of a British ship captured and ransomed by a French captor, a
hostage-Joseph Bell-being taken. The hostage died in prison ; and the present
action was subsequently brought on the ransom bill by the captor.
It was objected that, the plaintiff being an alien enemy at the time of the con-
tract, the ransom bill was void, the hostage alone being entitled to bring an action.
But the court overruled these objections and gave judgment for the plaintiff.—ED.
CAP. II.]
569
THE “PATRIXENT.”
Query.
.-" Have not Burt's relations a right to bring an action
against the master, for the performance of whose contract the
hostages became bound, as well [as] against the ship and goods, so
that they may, if necessary, proceed against both ? And can a war-
rant on such action be refused ? And, as the name of the other
hostage is not at present known, may not such action be entered in
the name of Burt and company as hostages ? "
Answer.—“I do not know any instance of a warrant issuing against
the master in such a case. The ship and goods are in the first place
answerable for the redemption of a hostage.
“These may be arrested, and the suit may be brought by Burt's
relations on behalf of both the hostages, naming the one and describ-
ing the other of name at present unknown.”
G. Hay, January 24, 1761.
“In the first instance I think you cannot proceed against the
master. If the ship and goods will not produce the sum stipulated
for the ransom, and you can show that the master fraudulently ran-
somed, I think he may then be prosecuted on behalf of the hostages."
THE 6 PATRIXENT."
OPINION OF WILLIAM WYNNE, 1781.
(Marsden's Admiralty Cases, 398.)
The ship Patrixent, Hannibal Lush, master, was taken by an
American privateer, and was ransomed for £5,500 sterling, and an
hostage delivered, who was carried to America. For the above sum
the captain of the ransomed ship drew a bill upon Messrs. John
Glassford & Co., merchants in Glasgow, a copy of which is under-
written, who are owners of the vessel.
The ransom-bill was sent to Amsterdam, and from thence remitted
to merchants in London, to recover the value of it. When it was
first presented to the gentlemen upon whom it was drawn, they
offered £1,000, part of it, as the value of the ship; but it not being
thought prudent to receive a part of the money, their offer was then
refused : since which the said gentlemen, together with the owners
of the cargo, have refused to pay the bill or any part of it.
Your opinion is desired whether the holder of this ransom bill can
maintain a suit in the Admiralty Court against the owners of the
ship and cargo for the recovery of the sum for which such bill was
570
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
given? And whether such suit must be brought against every in-
dividual owner of the ship and cargo.
COPY OF THE BILL.
“ £5,500.
On board the schooner Hanna.
July 26, 1779.
“At ninety days' sight my second bill of exchange, first and third
of the same tenor not paid, pay to Richard Jackson or order the sum
of five thousand five hundred pound sterling, for the ransom of the
ship Patrixent and her cargo,
HANNIBAL LUSH,
6 To Messrs. JOHN GLASSFORD & Co.,
“Merchants, Glasgow."
Answer.-“I think that the owner of this ransom-bill may main.
tain a suit in the Court of Admiralty for the recovery of the sum for
which the bill was given; but I apprehend they must make it appear
that the hostage is not at liberty, if he is living, before they can ob-
tain payment of the money. The proper way of commencing such a
suit would be by arresting the ransomed ship with the cargo on
board. But if that cannot be done, I think it will be sufficient to
bring the suit against Lush, the master, who drew the bill, and
Messrs. Glassford & Co., the owners of the vessel, upon whom it is
drawn."
WM. WYNNE, Doctors' Commons, July 25th, 1781.
1 Ransom Contracts. — In a subsequent case, Anthon v. Fisher, 2 Douglas, 649; note,
it was settled in English law that an alien enemy cannot sue on a ransom bill for want
of a persona standi in judicio.
And so in the case of The Hoop, 1 C. Rob. 201, Sir W. Scott said, “Even in the
case of ransoms which were contracts, but contracts arising ex juri belli, and toleratel
as such, the enemy was not permitted to sue in his own proper person for the payment
of the ransom bill; but the payment was enforced by an action by the imprisoned
hostage in the courts of his own country, for the recovery of his freedom.”
“ But the effect of such a contract," says Wheaton, Ed. of 1863, p. 695, “like that
of every other which may be lawfully entered into between belligerents, is to suspend
the character of an enemy, so far as respects the parties to the ransom bill; and, con-
sequently, the technical objection of the want of a person, standi in judicio cannot, on
principle, prevent a suit being brought by the captor, directly on the ransom bill."
And this appears to be the practice in the maritime courts of the European continent.
Valin, Ord. de la Marine, liv. 3, tit. I, art. 19; 1 Pistoye et Duverdy, 280 et seq.
* If the ransomed vessel,” says Wheaton, Ed. of 1863, p. 694, “is lost by the perils
of the sea, before her arrival, the obligation to pay the sum stipulated for her ranson
is not thereby extinguished. * * * Even where it is expressly agreed that the loss of
the vessel by these perils shall discharge the captured from the payment of the ran-
:
CHAP 14.3
571
GOODRICH AND DE FOREST V. GORDON.
GOODRICH & DE FOREST v. GORDON.
1
SUPREME COURT OF NEW YORK, 1818.
(15 Jolinson, 6.)
.
In 1813, the defendant, jointly with certain other persons, was
owner of the sloop Hope, and he authorized one Napier, the master of
the sloop, to ransom the vessel in case of capture, for a sum not ex-
ceeding two thousand dollars, and bound himself to honor the bill if so
drawn upon. During the voyage The Hope was captured by the Brit-
ish frigate Endymion, and was ransomed by the master pursuant to
defendant's instructions for the sum of $2,000, for which amount he
drew a bill upon the defendant.
THOMPSON, Ch. J., delivered the opinion of the court. There can be
no doubt that the contract for the ransom of the vessel was a lawful
contract. Such contracts are sanctioned by the laws of pations, and
are not deemned a trading with the enemy, 2 Azuni, 313, nor was the
passport given by the captors, upon the ransom, and accepted by the
master of the captured vessel, in violation of the act of Congress, 2d
August, 1818. It was merely a certificate, given by the captors, to
serve as a passport, and protect the ransomed vessel from all other
armed vessels belonging to the nation of which the captors were sub-
jects, and to prevent another capture, 2 Azuni, 316. It may, perhaps,
come within the exception to the act of Congress (2d sec.) which
declares that the act shall not prevent the acceptance of a passport,
granted by the commander of any ship of war of the enemy, to any
ship or vessel of the United States, which may have been captured
and given up, for the purpose of carrying prisoners, captured by the
enemy, to the United States. Admitting, however, that the instru-
som, this clause is restrained to the case of a total loss on the high seas, anii is not
extended to shipwreck or standing, which migłıt afford the master a temptation
fraudulently to cast away his vessel, in order to save the most valuable part of the
cargo, and avoid the payment of the ransom. *** So, if the captor, after having
ransomed a vessel belonging to the enemy, is himself taken by the enemy, together
with the ransom bill, of which he is the bearer, this ranson bill becomes a part
of the capture made by the enemy; and the persons of the liostile nation wlio were
debtors of the ransom are thereby discharged from the obligation."
On the subject of ransom generally, see Judge Story's opinion in Maisonnaire v.
Keating, 1815, 2 Gall. 324, 337.
In Miller v. Resolution, 1781, 2 Dall. 1, 15, it was held that ransom bills are not con-
tracts with the enemy and that they bind not only contracting parties but also their
allies.
572
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
Van
ment given in the case before us is not the one contemplated by this
provision, still, I think, the act does not at all extend to such certificates.
The only question in this case, then, is, whether the defendant is
chargeable as an acceptor of this bill. In Pillans & Rose v.
Mierop & Hopkins, 3 Burr. 1663, Lord Mansfield, and the whole
court go the full length of saying that a promise to accept a bill is
equivalent to an acceptance, whether it be before or after the bill is
drawn. Lord Mansfield, however, afterwards, in the case of Pierson
v. Dunlop, Cowp. 573, in some measure, limits and qualifies his former
doctrine. He observes that it has been truly said, as a general rule,
that the mere answer of a merchant to the drawer of a bill, saying,
I will duly honor it, is no acceptance, unless accompanied with cir-
cumstances which may induce a third person to take the bill by in-
dorsement; but if there are any such circumstances, it may amount
to an acceptance; thereby confining the rule to cases where third
persons have acted upon the faith of such assurances, and have been
induced, in consequence thereof, to take the bill. In Johnson v. Collins,
1 East, 98, the rule, as laid down in Pillans v. Van Mierop, is cer-
taivly overruled; and, from the observations of the judges, the limita-
tion and qualification, as contained in Pierson v. Dunlop, is not either
sanctioned or approbated; nor am I aware that it has been expressly
adopted, in any subsequent decision, in the English courts. But I
think it inay fairly be inferred, from the observations of the late chief
justice, in McEvers v. Mason, 10 Johns. Rep. 214, that the rule, as
laid down in Pierson v. Dunlop, is approved of by this court. It is
there said, every one will agree that an acceptance by a collateral
paper may be good; and if that paper be shown to a third person, so
as to excite credit, and induce him to advance money on the bill, such
third person ought not to suffer by the confidence excited. Whether
these observations were intended to apply to collateral acceptances of
a bill already drawn, or to be afterwards drawn, does not appear. But
I cannot see any sound principle upon which the cases can be dis-
tinguished. No question of want of consideration can arise in either
case, and it is the credit, which such acceptance or engagement to
accept has given to the bill, which gives to it its binding operation.
The testimony in the case before us is very full to show that this
letter of the defendant, authorizing the drawing of the bill, accom-
panied it, at all times, and that it was upon the credit of that letter
that the bill was taken by the plaintiff. It appears to me to be a
gross violation of good faith, in the defendant, now to disclaim the
authority of the captain to draw the bill. The letter may well be
considered an authority to draw, accompanied by a promise to accept.
It was an authority given for the express purpose of enabling the
CHAP. II.]
573
ANTOINE V. MORSHEAD.
captain to draw the bill, which was an act done for the benefit of the
defendant, and according to his instructions; and I think it binding
upon him as an acceptance; and this is the opinion of the court. The
plaintiff is, accordingly, entitled to judgment.
Judgment for the plaintiff.1
ANTOINE V. MORSHEAD.
COMMON PLEAS, 1815.
(6 Taunton, 332).
t
This was an action upon five bills of exchange, all drawn by the
father of the defendant, a British subject, on the 12th of September,
1806, while he was detained a prisoner at Verdun in France during
the late war with that country, payable, some to Tyndall, some to
Estwicke, both British subjects in like manner detained prisoners
there, at one year after date, indorsed to the plaintiff, who was a
French subject and a banker at Verdun, and accepted by the defend-
ant. The cause was tried at Guildhall at the sittings after Easter
term, 1815, before C. J., when it was contended on the part of the
defendant, that it would be treason to pay the bills, by the statute
34 G. 3, c. 9, SS 1, 4. GIBBS, C. J., refused to hear the objection: he
did not know to what extent it might be carried, but if it could be
supported to its full extent, many of our miserable fellow-subjects
detained in France must have starved. It was also objected, that
this being a contract with an alien enemy, was not merely suspended
during the war, but absolutely void; the Chief Justice thought
otherwise, and the jury found a verdict for the plaintiff.
Vaughan, Serjt., on a fornier day in this term moved for a rule
nisi on both these objections, when, it being suggested on the part of
the plaintiff, that the statute 34 G. 3, c. 9, had expired at the peace
of 1800 and never been re-enacted, the court gave time to ascertain
that fact, and that being found to be the case, Vaughan now moved
upon the second objection only, namely, that the indorsement of the
bill to an alien enemy was void. For this he cited Anthon v. Fisher,
where it is held that no action can be maintained by an alien in the
1 Vide Coolidge v. Payson, 2 Wheaton, 66, in which the Supreme Court of the
United States decided, “upon a review of the cases which are reported, that a letter
written within a reasonable time, before or after the date of a bill of exchange, de-
scribing it in terms not to be mistaken, and promising to accept it, is, if shown to the
person who afterwards takes the bill, on the credit of the letter, a virtual acceptance,
binding the person who makes the promise.”
571
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
courts of this country on a ransom bill, because it is a right claimed
to be acquired by him in actual war. Lord Ashburton's argument
in Ricord v. Bettenham, 3 Burr., 1734, which decision is overruled
by Anthon v. Fisher, is to be called in aid. If a bond be given to an
alien enemy, it is good quoad the obligor, that is, it enures only for
the benefit of the Crown. And if so of a bond, the law must be the
like on a bill of exchange. So is it of contracts of insurance made
with an alien enemy. Flindt v. Waters, 15 East., 266, Lord ELLEN-
BOROUGH, C. J., says the defense of alien enemy may go to the con-
tract itself, on which the plaintiff sues, and operate as a perpetual
bar; though in that case the contracting party having become an
enemy after the contract, it was held to be only a temporary suspen-
sion of the right to sue, but he showed a disposition to confirm the
cases of Brandon v. Nesbitt, 6 T.R., 23, and Bristow v. Towers, 6 T.R.,
35. No case has decided that a contract made with an alien enemy in
time of war may be ever afterwards enforced. Chief Baron Gilbert
lays it down, that upon the plea. of alien enemy the right of the
plaintiff is forfeited to the crown, as a species of reprisal upon the
state committing hostility.
GIBBS, C. J.:-" It will not be useless to consider what legal proposi-
tions can be deduced from the cases cited on behalf of the defendant,
and to try how far they are applicable to the present case. This is
no bill of exchange drawn in favour of an alien enemy, but by one
subject in favour of another subject, upon a subject resident here, the
two first being both detained prisoners in France; the drawer might
legally draw such a bill for his subsistence. After the bill is so
drawn, the payee indorses it to the plaintiff, then an alien enemy.
How was he to avail himself of the bill, except by negotiating it, and
to whom could he negotiate it, except to the inhabitants of that
country in which he resided ? I can recollect but two principles
from the cases cited by the counsel for the defendant, and they are
principles on which there never was the slightest doubt. First, that
a.contract made with an alien enemy in time of war and that of such
a nature that it endangers the security, or is against the policy of
this country, is void. Such are policies of insurance to protect an
enemy's trade. Another principle is, that however valid a contract
originally may be, if the party become an alien enemy he cannot sue.
The Crown, during the war, may lay hands on the debt, and recover
it, but if it do not, then, on the return of peace the rights of the con-
tracting alien are restored, and he may himself sue. No other prin-
ciple is to be deduced. The first may be laid out of the case, for this
was not in its creation a contract made with an alien enemy. The
second question is, whether the bill came to the hands of the plaintiff
CHAP. II.]
575
CRAWFORD V. THE
WILLIAM PENN.'
by a good title? Under the circumstances of this case, not meaning
to lay down any general rule beyond this case, I am of opinion that
the indorsement to the plaintiff conveyed to him a legal title in
this bill, on which the king might have sued in the time of the war,
and he not having so done, the plaintiff might sue after peace was
proclaimed."
HEATH, J., was absent.
CHAMBRE, J.—“I am perfectly of the same opinion, and it would
be of very mischievous consequence if it were otherwise."
DALLAS, J.—“This is not a contract between a subject of this
country and an alien enemy, nor is it a contract of that sort to which
the principle can be applied. That principle is, that there shall be
no communication with the enemy in time of war, but this is a con-
tract between two subjects in an enemy's country, which is perfectly
legal.
sé Ruled refused.?
1
CRAWFORD et al. v. THE “WILLIAM PENN."
UNITED STATES CIRCUIT COURT FOR PENNSYLVANIA. DISTRICT, 1819.
(3 Washington, Circuit Court, 484.)
WASHINGTON, Justice, delivered the opinion of the Court: 2
Having disposed of these preliminary points, we come to the consid-
eration of the main question, - whether this contract, being made with
an enemy, is void ?
The general rule is admitted, that contracts made with an alien
1 Accord, Daubuz v. Morshead, 1815, 6 Taunt. 332. This was an action upon a bill
of exchange for £2,020 drawn by Sir John.Morshead, Bart., deceased, at Verdun,
where he had during the late war been detained by the French Government, and
accepted by the defendant, his son, in favor of Borau Barti, and indorsed to the
plaintiff. Upon the trial of the cause, at the sittings at Guildhall after Trinity term,
1815, before GIBBS, C. J., one line of defence taken, and proved, was, that as to all the
contents of the bill, except .£80, the plaintiff was only a trustee for a alien enemy.
Gibbs, C. J., without pronouncing what would become of the money when recovered,
and whether the Crown might or might not lay hands on it, thouglit the plaintiff
entitled to recover the whole anıount, and the jury accordingly found a verdict for the
plaintiff.
Lens, Serjt., now moved to set aside the verdict, and have a new trial, not impugn-
ing the direction of the chief justice, but upon an affidavit that the bill was given, as
to all, except £80, for a gaming debt; but his affidavit stating only information and
belief, and there being evidence that the plaintiff had by letter asked for time, and
been indulged for several years, the court refused the rule- ED.
? For facts see next case. Part of opinion omitted. – ED.
$
576
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
enemy are void. Such is the law of nations, and of most, if not of
all, the civilized nations of the world. The English and American
decisions are positive in the establishment of this doctrine.
But to this, as to most general rules, there are exceptions. Con-
tracts made with an enemy, under the license of the government, are
valid; and may, in certain cases, be enforced even during the war; and
that, too, whether the contract arose directly or collaterally out of such
licensed trade. So, if the enemy with whom the contract is made be
in the hostile country by license of that government. So, a ransom
bond, given to an enemy, to procure the discharge of the property and
the person of the captured, we hold to be valid. Such was decided to
be the law of England, in the case of Ricard v. Bettenham, 3 Burr.
1734, and in Cornu v. Blackburn, Dougl. 641. Such, too, is the law of
other countries on the continent of Europe. We are aware of the
decision in the case of Anthon v. Fisher, iu the Exchequer, which is to
the contrary, Dougl. 649, note; but never having met with a full
report of the case, it is not easy to understand what were the particular
reasons which led to that decision. How far it may have been influ-
enced by the statute making it criminal to give a ransom bond, which
had passed prior to this decision, but after the ransoin, is not clear.
At all events, it was a case decided long after our Declaration of Inde-
pendence, and even after the treaty of peace; and is therefore not
to be considered as authority in the courts of this country, so as to
overrule the decision in Ricard v. Bettenham, which was made in 1765.
There are other cases, which are considered as exceptions, even in
England, where the general rule is upheld with considerable rigor,
founded upon the peculiar necessity of the case.
The case of the Madona delle Gracie, 4 Rob., is; to say the least of
it, a very liberal relaxation of the general rule. It would seem, from
the modern cases, that contracts made by prisoners of war in the
enemy's country have been supported. In the case of Sparenburgh v.
Bunnatyne, 1 Bos. & Pul. 163, Chief Justice Eyre observes that
“ modern civilization has introduced great qualifications to soften the
rigors of war, and allows a degree of intercourse with enemies, and
particularly with prisoners of war, which can hardly be carried on
without the aid of our courts of justice.". The other judges agree
with him.
Recoveries at Nisi Prius, we understand, are common, upon contracts
made with the enemy by prisoners of war, upon parol, for their sub-
sistence. Willison v. Patterson, East. term, 1817, C. P.
The case of Antoine v. Morehead, 6 Taunt. 237, is that of a bill of
exchange drawn on England, in the enemy's country, by one British
subject, a prisoner of war, in favor of another British subject, also a
CHAP. II.]
577
CRAWFORD V. THE
WILLIAM PENN."
prisoner of war, and by him indorsed to an alien enemy; in which
case the contract was supported. It is true that the court seem to rely
very much upon the circumstance that the original contract was he-
tween British subjects. But it is impossible not to perceive that the
right of the alien enemy to recover upon such bill, after the return of
peace, was founded upon a new contract with an alien enemy, by virtue
of the indorsement; and that, if in all cases a bill drawn by one sub-
ject in favor of another, may pass, by indorsement, into the hands of
an alien enemy, the general rule of law might be indirectly subverted.
We understand this case, therefore, as going the full length of estab-
lishing an exception to the general rule, in favor of prisoners of war,
in the country of the enemy, contracting for necessaries. Chief Justice
Gibbs seems to place it upon this ground; by saying that, “if the
objection could be supported, to its full extent, many of our miserable
fellow subjects, detained in France, must have starved." The case of
Daubuz v. Morshead, 6 Taunt. 332, is a case like the former, in
principle.
The principle on which this doctrine is founded is strongly sup-
ported by the decision of the Supreme Court of the United States, in
the case of Hallet and Brown V. Jenks, 3 Cra. 210. That was the case
of an insurance upon a cargo, purchased at St. Domingo, by the owner
of an Ajnerican vessel which had been forced into that island by dis-
tress, and was compelled by the government to dispose of her outward
cargo, with the proceeds of which the cargo insured was purchased.
The objection made to the recovery was that the cargo so insured was
purchased contrary to the express provisions of the non-intercourse
law; and that the trade, being therefore illicit, the policy was void.
But the Supreme Court maintained the validity of the contract, upon
the ground that the vessel having been forced into the island by a
cause which could not be resisted, and the owner having been compelled
by the government of the country to dispose of his cargo, it was not a
trading contrary to the spirit of the law to invest the proceeds in a
return cargo.
Now, that was the case of a trading as expressly prohibited by the
municipal laws of the United States, as a trading with the enemy is
by the law of nations; and found its justification in a necessity, not
imperious and irresistible, but one which was induced by a desire to
1 This case arose in New York, where it is reported as Jenks f others v. Hallet f.
Brown, 1803, 1 Caines' R. 60, and the next year on appeal was unanimously affirmed
in the Court of Errors. Fallet & Brown, 1804, 1 Caines Cases, 60.
The transaction was likewise affirmed in the United States Supreme Court, as cited
in the text. The cases were therefore carefully argued and considered, and may be
taken as the mature determination of the respective tribunals. — Ed.
37
578
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
save property. The owner might have avoided a breach of the law,
strictly construed, if he had chosen to abandon his property. But the
court was of opinion that he was not bound to do so, notwithstanding
the strong and unqualified expressions of the law. It is difficult to
discover a difference, in principle, between that case and the present.
In both, the vessel was forced into a forbidden port by a vis major –
in both, a voluntary trading was forbidden; and in both, the contract,
which would have been void, upon general principles of law, was
predicated upon a necessity, no otherwise indispensable than in order
to save property. There is, indeed, this difference between the two
cases, which, however, is all on the side of the validity of this con-
tract; - in the former, the master might have brought away bis vessel
and crew, with no other loss than that of the cargo, and that, too, from
a nation with which the United States were at peace; whereas in the
latter the departure of both depended upon the contract now objected
to, and that from the country of the enemy.
We cannot take leave of the case just referred to without citing
certain expressions of the chief justice, applicable to a case precisely
like the present. He observes that “even if an actual and general
war had existed between this country and France, and the plaintiff had
been driven into a French port, and a part of his cargo seized, and he
had been permitted by the officers of the port to sell the residue, and
to purchase a new cargo; I ain of opinion that it would not have been
deemed such a traffic with the enemy as would vitiate the policy upon
such new cargo." Had this hypothetical case been the very case before
the court, it would have been directly in point, and would have gone
on all fours with the present. It corresponds, however, in principle,
so precisely with the main case decided, that the opinion of this learned
and highly distinguished judge is entitled to more than ordinary
respect.
The ground which the court takes in deciding this case is, that the
contract grew out of a real necessity, produced by a state of war, and
was itself the offspring of an act of hostility. The vessel was captured
as prize of war, libelled as such, and on account of her having a British
license on board was acquitted. She was disabled from availing her-
self of this discharge and returning to her own country with her crew,
without being repaired and victualled. This could no otherwise be
effected than by hypothecating the vessel for those repairs and out-
fits. In a moral point of view, therefore, it cannot be said that this
was a voluntary contract. The decision in this case can never be
relied on to sanction contracts with the enemy, under cover of a pre-
tended necessity, or in which there is the slightest tincture of fraud,
upon the general rule of law.
CHAP. II.]
579
CRAWFORD V. THE
WILLIAM PENN."
Upon the whole, then, we are of opinion that this bottomry bond is
not void on the ground of its being a contract made with the enemy.
The next objection is that this bond is void — because the asserted
voyage to the United States to bring home prisoners was a new voyage;
and that the master had no authority to take up money on the security
of the vessel, unless it had been necessary to enable him to complete
his original voyage.
In support of this position the learned counsel referred to no
authority which appears to bear upon it; and it is certainly unsupported
by reason, or by any general principles of law. The master is the
servant of the owner; and from the nature of his station as such he
has authority to enter into contracts for the employment of the vessel,
as well as such as relate to the means of employing her. His duty is
to obey the orders of his owner, and to act with fidelity to him, and
with a view to his interest. He appears in this character to the world,
where it can never be known, by those who transact business with him,
what may be his private instructions. The consequences to commerce
would be disastrous, indeed, if the owner whose ship is repaired and
fitted to perform a voyage by means of advances made in a foreign port
could relieve his property from the security given on it by the master,
by asserting and showing that the voyage, for the performance of
which she was refitted, was not the real voyage which the inaster was
instructed to perform. In this case the vessel was captured and car-
ried into the enemy's country; and the original voyage to Lisbon was
thereby put an end to, by a compulsory sale of the cargo. The vessel
was released, but could not leave Jamaica upon any voyage without
considerable expense in refitting and victualling her. What was the
master to do? He could have her refitted, by agreeing to hypothecate
her as a security for the advances; but he is told that he cannot give
a valid hypothecation unless he will agree to go to Lisbon, at great
expense, and without an object; or will return empty to the United
States; although a freight had been offered him sufficient, perhaps, to
cover all her expenses and outfits. Is it possible that it can lie in the
mouth of the owner, who would alone be the victim of such a doctrine,
and is benefited by a rejection of it, to urge this as an objection against
the validity of the contract? It can only be necessary to state the
case to refute the argument. The truth is that the authority of the
master to hypothecate is not restricted to necessaries to enable him to
complete his original voyage. It extends to the obtaining of supplies
necessary for the safety of the vessel, and to enable him to perforın
any voyage which he is authorized by law to undertake; there being
no collusion between him and the lender to injure the owner. That
the master, in this case, was authorized, and that it was his duty to
580
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
cause.
return to the United States, under any legal contract intended for the
advantage of his owners, is indubitable.
Another objection was taken by the respondent's counsel, to the
sufficiency of the evidence to prove the debt for which this security
was given, which need not be examined until the final hearing of the
It may be sufficient, for the present, to observe that the libel-
lant, upon a bottomry bond, is always expected to prove, by evidence
other than the bond itself, that the money was lent, or the repairs
made and materials furnished, to the annount for which the vessel is
liable; that they were necessary to enable her to perform her voyage,
or for her safety, and could no otherwise be obtained, etc. He ought
to exhibit an account of those items, with the usual proofs to support
them, that the court may judge whether they were necessary for those
purposes; because, unless they were, the master exceeded his authority,
as such, to bind the property of his owners.
The parties then asked leave to amend the pleadings, which was
granted.
CRAWFORD & MCCLEAN V. THE "WILLIAM PENN."
UNITED STATES CIRCUIT COURT FOR PENNSYLVANIA DISTRICT, 1815.
(Peters, Circuit Court, 106.)
This was a libel in the district court, on a hypothecation of this
vessel, given at Jamaica, for repairs made on her, and advances for
her outfit, to enable her to perform her voyage to the United States.
The owner of the ship was admitted to claim; and he pleaded that
1 In Scholefield & Taylor v. Eichelberger, 1833, 7 Pet. 586 a case involving trad-
ing with the enemy – Mr. Justice Johnson, speaking for the court, said: “The doc-
trine at this day is not to be questioned that, during a state of hostility, the citizens
of hostile states are incapable of contracting with each other. For nearly twenty
years this has been the acknowledged doctrine of this court, and in a case which proves
it to be of very general and rigid application (The Rapid). Even the exception
commonly quoted of ransom bonds has been shown, I think, in the case of Potts v.
Bell, to be no exception; since it grows out of a state of war; is ex vi termini a con-
tract between belligerents; and from its nature carries with it the evidence of the
fidelity of the parties to their respective governments. To say that the rule is withi-
out exception would be assuming too great a latitude. The question hias never yet
been examined whether a contract for necessaries, or even for money to enable the
individual to get home, would not be enforced; and analogies familiar to the law, as
well as the influence of the general rule in international law, that the severities of war
are to be diminished by all safe and practical means, might be appealed to in support
of such an exception. But at present it may be safely affirmed that there is no
recognized exception but permission of a state to its own citizens, which is also im-
CHAP. II.] CRAWFORD & MOCLEAN v.
WILLIAM PENN." 581
THE
the instrument of hypothecation was executed during war; and
that the libellants are alien enemies, residing in Jamaica.
The replication stated that the vessel was employed, by the United
States, as a cartel, to bring to the United States, from Jamaica, a num-
ber of American prisoners; and having, as such, commenced her voy-
age, was compelled by stress of weather to put back to refit, and
procure provisions; on which account these advances were made, and
without which she would not have performed her voyage. To this rep-
lication, there was a demurrer and joinder by the libellants. The
District Court dismissed the libel, from which decision the cause came
by appeal to this court.
WASHINGTON, J. The general rule of the common law of England
is, that an alien enemy cannot maintain an action in the courts of that
country, during the war, in his own name. The rule is not founded
upon any legal objection to the contract or other ground of the action,
but, upon the disability of the party to sue; arising out of the hostile
character which the war has impressed upon him. This rule appears
to be inflexible, except where the alien enemy is under the protection
of the king; as where he comes into the kingdom after the war, by li-
cense of the sovereign ; or being there at the time of the war, is per-
mitted to continue his domicile.
Within the reason upon which the general rule was probably founded,
it has been also decided that, if the person beneficially interested in
the subject in dispute be an alien enemy, the action cannot be sup-
ported, even in the name of a British subject, his trustee, any more
than it could have been in that of the alien enemy himself. Public
policy, which forbids that the property sued for should be carried out
of the country to enrich the enemy, would be violated equally in the
one case as in the other.
But where the reason ceases, upon which this doctrine is founded,
which forbids the interest of an alien enemy to be asserted by his
trustee, though a subject, the rule does not prevail; and therefore if
plied in any treaty stipulation to that effect entered into by the belligerents. Nor
do the learned gentlemen who argued this cause controvert the general rule; they only
attempt to except this case from its application : First, by an imputed permission on
behalf of the United States ; Second, by shifting the creation of the contract from the
date, which appears on its face, to the time of delivery of the goods, which, in point
of tinie, were not slipped until after the peace. * **
“It will be perceived liere that the court does not deny the power of the bellig-
erent states so to modify the relations of a state of war as to permit commercial
intercourse or other intercourse according to their will. They who give the law may
modify it, and except from its operation whatever ground they choose to declare
neutral. The language of jurists is uniform on this subject, and reason, policy and
humanity sustain the exercise of such a power." ED.
582
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
the contract on which the suit is brought, arise directly or collaterally
out of a trade licensed by the sovereign authority of the government,
in whose courts redress is sought, enemy interest in the subject in con-
troversy will not defeat the action depending in the name of the sub-
ject as trustee. Thus, it has been held that action upon an insurance
made upon a licensed trade with the enemy for the use of an enemy,
may be supported in the common-law courts of England, in the name
of the agent who effected the insurance, he being a British subject.
For all the purposes of this trade, the person for whose benefit the
license was granted, is to be regarded, virtually, as an adopted subject
of Great Britain; and his trade under such license as British trade :-
and, the end being licensed, the ordinary legitimate means of attaining
that end is considered as being also licensed. 13 East, 332 ; Uspa-
richa v. Noble, 8 East, 273; Kensington v. Inglis, 15 East, 419.
It is clear, therefore, that wherever the trade with an enemy, and
consequently a contract founded thereon, are rendered lawful by the
license of the sovereign, the objection to the person of the plaintiff,
on the ground of his being an alien enemy, is merely technical and
stricti juris. Although the reason on which the rule was founded does
not exist in such a case, the court being bound to support the beneficial
interest of such licensed alien enemy, yet it does not appear that any
judge of the common-law courts of England has thought himself at
liberty to entertain such a suit, if brought in the name of the alien
enemy. Yet I know of no case in which it has been decided, upon the
point coming directly in judgment, that such an action could not be
maintained. In the case of Cornu v. Blackburne, Dougl. 641, the
action was supported in the name of the alien enemy upon a ransom
bond; but no plea was put in to bar the right of the plaintiff to sue;
and the cause was decided upon another point. In Anthon v. Fisher,
Dougl. (note) 649, it was laid down generally, that an alien enemy cannot,
by the municipal laws of England, sue for the recovery of a right ac-
quired by him in actual war; but the particular case in which that
decision was given was that of a ransom bond; and of course the
decision of the court should be considered as applicable to such a case.
But the case of a ransom bond is very different from that of a con-
tract arising out of a licensed trade. In the former, the hostile char-
acter of the obligee is in no respect removed; on the contrary it is an
act of hostility which gives rise to it. In the latter case, the hostile
character of the party with whom the contract is made, does not attach
either to him or to the contract. “He is to be regarded in the words
of Lord Ellenborough) virtually as an adopted subject of Great Brit-
ain, and his trade as British trade.” If he is to be so considered, it
would seem to follow, that all objection to a suit being maintained in
CHAP. II.] CRAWFORD & MOCLEAN V. THE
66
WILLIAM PENN." 583
the name of such adopted subject, would be at an end; as much so
if the plaintiff were, at the time of bringing the suit, personally within
the British doininions. It must, nevertheless, be acknowledged that,
in the case of Kensington v. Inglis, 8 East, 273, the court seemed to be
of opinion that, even in the case of a licensed trade, the suit cannot be
maintained in the name of the alien enemy. But, as the suit was in
the name of a subject, the opinion, as to this point, was not essential
to the decision of the cause; and, of course, it ought not to rank
higher than an obiter dictum.
This examination of the subject has been intended to show that, in
cases where the contract upon which the suit is brought, arises out of
a licensed trade, an objection founded upon the disability of the noini-
nal plaintiff to maintain the action, on the ground of alien enemy, is ex-
tremely feeble; and can only be supported by a tenacious adherence to
a rigid rule of the common law, notwithstanding the reason of the rule
should, in this particular case, have ceased.
The question, then, is, does this rule apply in all its rigor to courts
acting under the general law of nations, and proceeding according to
the civil law? I think it does not. Bynkershoek (p. 55) appears
to be very strong upon this subject. He says that where commerce is
permitted amongst enemies,contracts, and actions founded upon them,
are perinitted; "for who," he asks, “ will sell and carry goods to an
enemy, without the right of recovering the price of them ? and what
hope can there be of recovering that price, if one cannot judicially com-
pel payment from his enemy purchaser." In cases of this nature, in
courts proceeding according to the civil law, the only question is, has
the plaintiff a persona standi in judicio ? Can he be heard as a plain-
tiff in that court? Bynkershoek, in the above quotations, gives the
The right to sue, and to compel payment, is a necessary inci-
dent to his right to trade and to contract. This doctrine of Bynker-
shoek has received the entire approbation of Sir William Scott, in the
case of the Hoop, in which he gives the sense of that learned jurist as
amounting to this, that the legality of commerce, and the mutual use
of courts of justice, are inseparable, 1 Rob. 168.
The distinction which I am endeavoring to maintain, founded upon
the peculiar rules which prevail in the courts of common law, and
those proceeding by the rules of the civil law, may be illustrated by
analogous cases of every day's practice. No rule is more rigidly ad-
hered to by the common-law courts of England, than that the assignee
of a chose in action cannot maintain a suit in those courts, in his own
naine, upon coinmon-law principles. Neither can a cestui que trust
bring an action in his own name; although, in both cases, the court
will, for certain purposes, take notice of those equitable interests. But
answer.
584
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
in a court of equity, where the strict rules of the common-law courts
do not obtain admission, the person having the beneficial interest is
admitted to sue, and to assert his right, in his own name. In like
manner, and within the same principle, it would seem reasonable that
where the party is divested of his hostile character, by which he ac-
quires a persona standi in judicio, the technical objection of the com-
inon-law courts to his being heard, as plaintiff, ought to be disregarded
in courts which proceed by different rules.
The only remaining question is, can a contract, made with an alien
enemy, by the owner or master of a cartel vessel, in relation to the
navigation of that vessel, upon the service in which she is engaged, be
enforced in a court proceeding according to the rules of the civil law,
and having jurisdiction of the subject matter? What is the character
of a cartel vessel, and of the persons concerned in her navigation ?
The flag of truce which she carries throws over her and them the
mantle of peace. She is, pro hac vice, a neutral licensed vessel; and
all persons concerned in her navigation, upon the particular service in
which both belligerents have employed her, are neutral, in respect to
both, and under the protection of both. She cannot carry on commerce
under the protection of her flag, because this was not the business for
which she was employed and for which the immunities of that flag
were granted to her. She is engaged in a special service, to carry
prisoners from one place to another; and, whilst so engaged, she is
under the protection of both belligerents, in relation to every act
necessarily connected with that service. It follows that all contracts
made for equipping and fitting her for this service are to be considered
as contracts made between friends, and consequently ought to be en-
forced in the tribunals of either belligerents, having jurisdiction of the
subject. The agreement of the two nations, by their agents to make
her a cartel, amounts to a license by both to perform the service in
which she is employed, and sanctifies all the means necessary to that
end.
Upon these principles, I am of opinion, that the libellants were
capable of maintaining this suit; and that the plea of the claimants
ought to be overruled.
The proceedings have not been regular; but I shall not go further,
after reversing the sentence below, than to direct the appellants to
answer the libel.1
1
1 The cartel need not be concluded during, but may be made in peace in anticipa-
tion of war, The Carolina, 1807, 6 C. Rob., 336; as it effects the exchange of prisoners,
it is confined to the belligerents, The Rose in Bloom, 1811, 1 Dod. 57, 60.
Vessels actually employed under the agreement are protected both going and
coming in the line of duty, but vessels about to enter or sailing with the intention
CHAP. II.]
585
THE "HARMONY."
SECTION 32.
COMMERCIAL DOMICILE.
THE “HARMONY."
High Court of ADMIRALTY, 1800.
(2 C. Robinson, 322.)
This was one of several American vessels in which a claim had
been reserved for part of the cargo, on further proof to be made of the
national character of G. W. Murray, who appeared in the original
case, as a partner of a house of trade in America, but personally
resident in France; restitution had been decreed in the several claims
to the house of trade in America, with a reservation of the share of
this partner.
G. W. Murray, a partner in a house of trade in New York, had
gone to France, in 1794, as supercargo of a vessel, in behalf of his
firm, to there dispose of the cargo; but with the exception of a brief
visit to America in 1795–96, he continued to reside in France, and
to receive and dispose of cargoes sent out from New York.
At the time of the first trial, Mr. G. W. Murray had not been in
France a year; but from the evidence of letters, etc., Sir W. SCOTT
thought the intention was to form a permanent residence and cor-
respondence in France. This belief was strengthened by the fact
of entering into the service on reaching a particular port are not thus privileged and
protected, The Duifjie, 1800, 3 C. Rob. 139, 141; a formal contract is the rule, but an
informal agreement followed by use as cartel ship will be enforced, La Gloire, 1804,
5 C. Rob. 192; a cartel ship is primarily for the ransom of prisoners, but not ex-
clusively so; it may therefore he used to carry into effect previous treaty stipulations
of the contracting parties, The Carolina, supra; the court construes the cartel liber-
ally and is satisfied with a bona fide and substantial performance of the require-
ments, but traile of all kinds carried on in the vessel subjects the cargo, La Rosina,
1800, 2 C. Rob. 372, and at times the vessel to confiscation, The Venus, 1803,
4 C. Rob. 355; merchandise carried by express permission will not, though goods
carried in excess of the permission will be confiscated, The Carolina, supra; pris-
oners carried home are bound to refrain from hostilities of all kinds on board, hence
capture or recapture from the enemy of a vessel of their own country is illegal and
vests no tiile in the captor, The Mary, 1804, 5 C. Rob. 200; a cartel is not a treaty
in the sense of the Constitution, and the cartel for the exchange of prisoners, between
the United States and Great Britain, in 1813, was ratified by the Secretary of State, not
the Senate (May 14), 2 Halleck, 320 ; but when concluded it is of such force that the
sovereign power may not annul it. Henderson's Case, 1863, 2 Pittsburg R. 440. See
case last cited for the question of parole, and for the matter of capitulation, see Rucker's
Case, 1866, 1 Am. Law. Rev. 217. – Ed.
586
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
that Mr. Murray had returned to France in 1796 and remained there
till 1800. Hence his return to America in 1795–96 was probably but
temporary, and he was considered to have had a residence in France
for six years.
Judgment,-Sir W. Scott:_1
“ This is a question which arises on several parcels of property
claimed on behalf of G. W. Murray; and it is in all of them a ques-
ition of residence or domicil, which I have often had occasion to ob-
serve, is in itself a question of considerable difficulty, depending on
a great variety of circumstances, hardly capable of being defined by
any general precise rules. The active spirit of commerce now abroad
in the world, still farther increases this difficulty by increasing the
variety of local situations, in which the same individual is to be
found at no great distance of time; and by that sort of extended cir-
culation, if I may so call it, by which the same transaction commu-
nicates with different countries, as in the present cases, in which the
same trading adventures have their origin (perhaps) in America,
travel to France, from France to England, from England back to
America again, without enabling us to assign accurately the exact
legal effect of the local character of every particular portion of this
divided transaction..
“In deciding such cases, the necessary freedom of commerce im-
poses likewise the duty of a particular attention and delicacy; and
strict principle of law must not be pressed too eagerly against it;
and I have before had occasion to remark, that the particular situa-
tion of America, in respect to distance, seems still more particularly
to entitle the merchants of that country to some favourable distinc-
tions. They live at a great distance from Europe; they have not
the same open and ready and constant correspondence with individ-
uals of the several nations of Europe, that these persons have with
each other; they are on that very account more likely to have their
mercantile confidence in Europe abused, and therefore to have more
frequent calls for a personal attendance to their own concerns; and
it is to be expected that when the necessity of their affairs calls them
across the Atlantic, they should make rather a longer stay in the
country where they are called, than foreign merchants who step
from a neighbouring country in Europe, to which every day offers a
convenient opportunity of return.
“In considering this particular case, it may not be improper to
remark, that circumstances occur in the evidence that address them-
selves forcibly to private commiseration, remarking, however, at the
1 Statement of case is varied and only part of the decision of the learned judge is
given.- Ev.
CHAP. II.
THE
587
HARMONY."
same time, that public duty can allow only a very limited effect to
such considerations, and still less to another, that has been pressed
upon me, that the money, if restored, is to go in payment of debts
due to British creditors, from the bankrupt estate of this unfortunate
person.
“My business is to inquire whether he is entitled to recover it,
without regard to the probable application of it, if it finds its way
again into his possession.
“Of the few principles that can be laid down generally, I may
venture to hold, that time is the grand ingredient in constituting
domicil. I think that hardly enough is attributed to its effects; in
most cases it is unavoidably conclusive; it is not unfrequently said,
that if a person comes only for a special purpose, that shall not fix a.
domicil. This is not to be taken in an unqualified latitude, and with-
out some respect had to the time which such a purpose may or shall
occupy; for if the purpose be of a nature that may, probably, or does
actually detain the person for a great length of time, I cannot but
think that a general residence might grow upon the special purpose.
“A special purpose may lead a man to a country, where it shall
detain him the whole of his life. A man comes here to follow a law-
suit, it may happen, and indeed is often used as a ground of vulgar
and unfounded reproach (unfounded as matter of just reproach
though the fact may be true, on the laws of this country, that it
may last as long as himself. Some suits are famous in our juridical
history for having even outlived generations of suitors. I cannot
but think that against such a long residence, the plea of an original
special purpose could not be averred; it inust be inferred in such a
case, that other purposes forced themselves upon him and mixed
themselves with his original design, and impressed upon him the
character of the country where he resided.
“Suppose a man comes into a belligerent country at or before
the beginning of a war; it is certainly reasonable not to bind him
too soon to an acquired character, and to allow him a fair time to
disengage himself; but if he continues to reside during a good part
of the war, contributing, by payment of taxes, and other means, to
the strength of that country, I am of opinion, that he could not plead
his special purpose with any effect against the rights of hostility.
If he could, there would be no sufficient guard against the fraud and
abuses of masked, pretended, original, and sole purposes of a long-
continued residence. There is a time which will estop such a plea;
no rule can fix the time a priori, but such a time there must be.
“In proof of the efficacy of mere time, it is not impertinent to
remark, that the same quantity of business, which would not fix a
588 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
domicil in a certain space of time, would nevertheless have that
effect, if distributed over a large space of time. Suppose an Ameri-
can comes to Europe, with six contemporary cargoes, of which he
had the present care and management, meaning to return to America
immediately; they would form a different case from that, of the same
American, coming to any particular country of Europe, with one
cargo, and fixing himself there, to receive five remaining cargoes,
one in each year successively. I repeat, that time is the great agent
in this matter; it is to be taken in a compound ratio, of the time and
the occupation, with a great preponderance on the article of time:
be the occupation what it may, it cannot happen, but with few ex-
ceptions, that were length of time shall not constitute a domicil.
THE “INDIAN CHIEF."
2)
High COURT OF ADMIRALTY, 1801.
(3 C. Robinson, 12.)
Judgment. Sir W. Scott: 1
“This is the case of a ship seized in the port of Cowes, where
she came to receive orders respecting the delivery of a cargo taken
in at Batavia, with a professed original intention of proceeding
to Hamburg; but on coming into this country for particular
orders, the ship' and cargo were seized in port. It does not ap-
pear clear to the court, that it might not be a cargo intended to
be delivered in this country, as many such cargoes have been, un-
der the Dutch property act: I mention this to meet an observation
that has been thrown out, that it is doubtful whether the ship
might not be confiscable on the ground of being a neutral ship com-
ing from a colony of the enemy, not to her own ports or the ports of
this country. I cannot assume it as a demonstrated fact in the case,
that the cargo was to be delivered at Hamburg. The vessel sailed
in 1795, and as an American ship with an American pass, and all
American documents; but nevertheless if the owner really resided
here, such papers could not protect his vessel ; if the owner was
resident in England, and the voyage such as an English merchant
could not engage in, an American residing here, and carrying on
trade, could not protect his ship merely by putting American docu-
ments on board; his interest must stand or fall according to the
1 Statement of the case is omitted. -- ED.
CHAP. II.]
THE
589
66 INDIAN CHIEF.”
determination which the court shall make on the national character
of such a person.
“ There are two propositions wirich are not to be controverted;
that Mr. Johnson is an American generally by birth, which is the
circumstance that first impresses itself on the mind of the Court;
and also by the part which he took on the breaking out of the
American war. He came hither when both countries were open to
him; but on the breaking out of hostilities, he made his election
which country he would adhere to, and in consequence thereof went
to France. As to the doubt that has been suggested, whether he
would be deemed an American, not having been personally there at
the time of the declaration of the independence of that country; I
think that is sufficiently cleared up, by the circumstances of his being
adopted as such by the act of the American government, declaring
him and his family to be American subjects, and by the official
character which that government has intrusted to him; I am of
opinion, therefore, that he has not lost the benefit of his native
American character. He came however to this country in 1783,
and engaged in trade, and has resided in this country till 1797;
during that time he was undoubtedly to be considered as an English
trader; for no position is more established than this, that if a person
goes into another country, and engages in trade, and resides there,
he is, by the law of nations, to be considered as a merchant of that
country; I should therefore have no doubt in pronouncing that Mr.
Johnson was to be considered as a merchant of this country, at the
time of sailing of this vessel on her outward voyage. That leads me
to take a view of the circumstances of this case; the ship went out
in 1795 with Mr. Hewlet on board, and Mr. Johnson says, he sent
out Mr. Hewlet as supercargo, and put the vessel under his control
to take freight for America, but that his designs were frustrated by
various circumstances;' and the ship actually went to Madeira,
Madras, Tranquahar, and Batavia, and from thence to Cowes where
she was arrested.
"Now there can be no doubt that if Mr. Johnson had continued
where he was at the time of sailing, if he had remained resident in
England, it must be considered as a British transaction; and there-
fore a criminal transaction, on the common principle that it is
illegal in any person owing an allegiance, though temporary, to
trade with the public enemy. But it is pleaded that he had
quitted this country before the capture, and that he had done
this in consequence of an intention he had formed of removing
much earlier, but that he had been prevented by obstacles that
obstructed his wish; to this effect the letter of March 1797, is ex-
590
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
hibited, which must have been preceded by private correspondence
and application to some of his creditors. It does, I think, breathe
strong expressions of intention, and of an ardent desire to get over
the restraint that alone detained him; and it affords conclusive reason
to believe that if he had been a free man, and at liberty to go where
he pleased, he would have removed long before; and that he was
detained here as a hostage, as he describes himself, to his creditors,
on motives of honor creditable to his character. On the 9th of
September 1797 he did actually retire; of the sincerity of his quit-
ting this country there can hardly be a doubt entertained; it is
almost impossible to represent stronger or more natural grounds for
such a measure; and I do not think the Court runs any risk of
encountering a fraudulent pretension, put forward to meet the cir.
cumstances of the moment, without anything of an original and bona
fide intention at the bottom of it.
The ship was sent out under the management of the supercargo,
and it is said that Mr. Hewlet exceeded his commission. The affidavit
does not go so far; it does not appear from that, that the agent had
not the power to enter into such an engagement; but this, I think,
appears clearly, that it was the understanding both of Mr. Johnson,
and of his agent, Mr. Hewlet, who had been his clerk, and to whom
he refers for a confirmation of his avowed design of removing, that
before the completion of such a voyage Mr. Johnson would be in
America ; therefore if the illegality of the voyage must be supposed
to have presented itself to their minds, as a British transaction, owing
to Mr. Johnson's residence in England, there was reason enough for
them to conclude that Mr. Johnson would be removed; and, on that
view of the matter, although it is certain that an agent would bind
his employer in such a case, there is ground sufficient to presume that
the agent acted fairly and bona fide, and under the expectation that
Mr. Johnson would be returned to America.
“The ship arrives a few weeks after his departure; and taking it
to be clear, that the national character of Mr. Johnson as a British
merchant was founded in residence only, that it was acquired by
residence, and rested on that circumstance alone; it must be held
that from the moment he turns his back on the country where he
has resided, on his way to his own country, he was in the act of re-
suming his original character, and is to be considered as an Amer-
ican: The character that is gained by residence ceases by residence:
It is an adventitious character which no longer adheres to him, from
the moment that he puts himself in motion, bona fide, to quit the
country, sine animo revertendi. The courts that have to apply this
principle, have applied it both ways, unfavorably in some cases, and
CHAP. II.]
591
THE
VENUS.'
favorably in others. This man had actually quitted the country.
Stronger was the case of Mr. Curtissos (The Snelle Zeylder, Lds. Ap.
25, 1783); he was a British born-subject, that had been resident in
Surinain and St. Eustatius, and had left those settlements with an
intention of returning to this country; but he had got no farther
than Holland, the mother country of those settlements, when the war
broke out. It was determined by the Lords of Appeal, that he was
in itinere, that he had put himself in motion, and was in pursuit of
his native British character: and as such, he was held to be entitled
to the restitution of his property. So here, this gentleman was in
actual pursuit of his American character; and, I think, there can be
no doubt that his native character was strongly and substantially
revived, not occasionally, nor colorably, for the mere purpose of the
present claim; and therefore I shall restore the ship.” 1
THE “VENUS."
SUPREME COURT OF THE UNITED STATES, 1814.
(8 Cranch, 253.)
WASHINGTON, J., delivered the opinion of the majority of the
court.2
* * * The great question involved in this, and many other of
the prize cases which have been argued, is, whether the property of
these claimants who were settled in Great Britain, and engaged in
the commerce of that country, shipped before they had a knowledge of
the war, but which was captured, after the declaration of war, by
an American cruiser, ought to be condemned as lawful prize. It is
contended by the captors, that as these claimants had gained a
domicil in Great Britain, and continued to enjoy it up to the time
war was declared, and when these captures were made, they nust
be considered as British subjects, in reference to this property, and,
consequently, that it may legally be seized as prize of war, in like
manner as if it had belonged to real British subjects. But, if not so,
it is then insisted that these claimants, having, after their naturaliza-
tion in the United States, returned to Great Britain, the country of
1 The cargo of this vessel belonged to Mr. Millar, resident in Calcutta as American
consul. He was held to be a British merchant engaged in trade with the enemy, and
his goods were therefore condemned as droits of' admiralty, being seized in a British
port. His consular character made no difference whatever in protecting liis trade. —ED.
2 Statement of the case and part of the opinion of Washington, J., omitted. — Ev.
592 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART 11.
their birth, and there resettled themselves, they became redintegrated
British subjects, and ought to be considered by this court in the same
light as if they never had emigrated. On the other side it is argued,
that American citizens settled in the country of the enemy, as these
persons were, at the time war was declared, were entitled to a reason-
able time to elect, after they knew of the war, to remain there, or to re-
turn to the United States; and that until such election was, bona fide,
made, the courts of this country are bound to consider them as
American citizens, and their property shipped before they had an
opportunity to make this election, as being protected against Ameri-
can capture.
“ There being no dispute as to the facts upon which the domicil
of these claimants is asserted, the questions of law alone remain to
be considered. They are two. First, by what means and to what
extent, a national character may be impressed upon a person different
from that which permanent allegiance gives him ? and, secondly,
what are the legal consequences to which this acquired character
may expose him, in the event of a war taking place between the
country of his residence and that of his birth, or in which he had
been naturalized ?
“1. The writers upon the law of nations distinguish between a
temporary residence in a foreign country, for a special purpose, and
a residence accompanied with an intention to make it a permanent
place of abode. The latter is styled by Vattel, domicil, which he
defines to be, a habitation fixed in any place with an intention of
always staying there.' * * *
“ The question whether the person to be affected by the right of
domicil had sufficiently made known his intention of fixing himself
permanently in the foreign country, must depend upon all the cir-
cumstances of the case. If he had made no express declaration on
the subject, and his secret intention is to be discovered, his acts
must be attended to, as affording the most satisfactory evidence of
his intention. On this ground it is, that the courts of England have
decided, that a person who reinoves to a foreign country, settles
himself there, and engages in the trade of the country, furnishes by
these acts such evidence of an intention permanently to reside there,
as to stamp him with the national character of the state where he
resides. In questions on this subject, the chief point to be considered,
is the animus manendi ; and courts are to devise such reasonable
rules of evidence as may establish the fact of intention. If it suf-
ficiently appear that the intention of removing was to make a per-
manent settlement, or for an indefinite time, the right of domicil is
acquired by a residence even of a few days. This is one of the rules
CHAP. II.]
593
66
THE
VENUS."
of the British courts, and it appears to be perfectly reasonable.
Another is, that a neutral or subject, found residing in a foreign
country is presumed to be there animo manendi ; and if a state of
war should bring his national character into question, it lies upon him
to explain the circumstance of his residence-(the Bernon, 1 C. Rob.,
86, 102). * * *
“2. The next question is, what are the consequences to which
this acquired domịcil may legally expose the person entitled to it, in
the event of a war taking place between the government under
which he resides and that to which he owes a permanent allegiance ?
A neutral in his situation, if he should engage in open hostilities
with the other belligerent would be considered and treated as an
enemy. A citizen of the other belligerent could not be so considered,
because he could not by any act of hostility, render himself, strictly
speaking, an enemy, contrary to his permanent allegiance. But
although he cannot be considered an enemy, in the strict sense of
the word, yet he is deemed such, with reference to the seizure of
so much of his property concerned in the trade of the enemy, as is
connected with his residence. It is found adhering to the enemy.
He is himself adhering to the enemy, although not criminally so,
unless he engages in acts of hostility against his native country, or,
probably, refuses, when required by his country, to return. The
same rule, as to property engaged in the commerce of the enemy,
applies to neutrals; and for the same reason. The converse of
this rule inevitably applies to the subject of a belligerent state
domiciled in a neutral country; he is deemed a neutral by both
belligerents, with reference to the trade which he carries on with
the adverse belligerent, and with all the rest of the world.
“But this national character which a man acquires by residence
may be thrown off at pleasure, bý a return to his native country, or
even by turning his back on the country in which he has resided,
on his way to another. To use the language of Sir W. Scott, it is
an adventitious character gained by residence, and which ceases by
non-residence. It no longer adheres to the party from the moment
he puts himself in motion, bona ficle, to quit the country sine animo
revertendi (3 C. Rob., 17,12, The Indian Chief). The reasonable-
ness of this rule can hardly be disputed. Having once acquired a
national character by residence in a foreign country, he ought to be
bound by all the consequences of it, until he has thrown it off,
either by an actual return to his native country, or to that where
he was naturalized, or by commencing his removal bona fide, and
without an intention of returning. If anything short of actual
removal be admitted to work a change in the national character
38
594
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
acquired by residence, it seems perfectly reasonable that the evidence
of a bona fide intention to remove should be such as to leave no
doubt of its sincerity. Mere declaration of such an intention ought
never to be relied upon, where contradicted, or at least rendered
doubtful, by a continuance of that residence which impressed the
character. They may have been made to deceive; or, if sincerely
made, they may never be executed. Even the party himself ought
not to be bound by them, because he may afterwards find reason to
change his determination, and ought to be permitted to do so. But
when he accompanies those declarations with acts which speak a
language not to be mistaken, and can hardly fail to be consummated
by actual removal, the strongest evidence is afforded which the
nature of such a case can furnish. And is it not proper that the
courts of a belligerent nation should deny to any person the right
to use a character so equivocal, as to put it in his power to claim
whichever may best suit his purpose, when it is called in question ?
If his property be taken trading with the enemy, shall he be allowed
to shield it from confiscation, by alleging that he had intended to
remove from the country of the enemy to his own, then neutral,
and, therefore, that, as a neutral, the trade was lawful ? If war ex-
ists between the country of his residence and his native country, and
his property be seized by the former, or by the latter, shall he be
heard to say in the former case, that he was a domiciled subject of
the country of the captor, and in the latter, that he was a native
subject of the country of that captor also, because he had declared
an intention to resume his native character; and thus to parry the
belligerent rights of both? It is to guard against such inconsist-
encies, and against the frauds which such pretensions, if tolerated,
would sanction, that the rule above mentioned has been adopted.
Upon what sound principle can a distinction be framed between
the case of a neutral, and the subject of one belligerent domiciled in
the country of the other at the breaking out of the war? The prop-
erty of each, found engaged in the commerce of their adopted
country, belonging to them, before the war, in their character of
subjects of that country, so long as they continued to retain their
domicil; and a state of war takes place between that country and
any other, by which the two nations and all their subjects become
enemies to each other, it follows that all the property, which was
once the property of a friend, belongs now, in reference to that
property, to an enemy. This doctrine of the common-law and prize
courts of England is founded, like that mentioned under the first
head, upon national law; and it is believed to be strongly supported
by reason and justice. It is laid down by Grotius, p. 563, that all
CHAP. II.]
595
THE
VENUS."
the subjects of the enemy who are such from a permanent cause,
that is to say, settled in the country, are liable to the law of reprisals,
whether they be natives or foreigners; but not so if they are only
trading or sojourning for a little time.' And why, it may be con.
fidently asked, should not the property of such subjects be exposed
to the law of reprisals and of war, so long as the owner retains his
acquired domicil, or, in the words of Grotius, continues a permanent
residence in the country of the enemy? They were before, and
continue after the war, bound, by such residence, to the society of
which they are members, subject to the laws of the state, and owing
a qualified allegiance thereto; they are obliged to defend it (with
an exception in favor of such a subject, in relation to his native
country), in return for the protection it affords them, and the privi-
leges which the laws bestow upon them as subjects. The property
of such persons, equally with that of the native subjects in their
totality, is to be considered as the goods of the nation, in regard to
other states. It belongs, in some sort, to the state, from the right
which she has over the goods of its citizens, which make a part of
the sun total of its riches, and augment its power. Vatt., 147, and
also B., 1, c. 14., § 182. In reprisals, continues the same author, we
seize on the property of the subject, just as we would that of the
sovereign; everything that belongs to the nation is subject to
reprisals, wherever it can be seized, with the exception of a deposit
entrusted to the public faith. B., 2, c. 18, § 344. Now if a perma-
nent residence constitutes the person a subject of the country where
he is settled, so long as he continues to reside there, and subjects
his property to the law of reprisals, as a part of the property of the
nation, it would seem difficult to maintain that the same consequences
would not follow in the case of an open and public war, whether
between the adopted and native countries of persons so domi-
ciled, or between the former and any other nation. If, then, nothing
but an actual removal, or bona fide beginning to remove, can change
a national character acquired by domicil, and if, at the time of the
inception of the voyage, as well as at the time of capture, the prop-
erty belonged to such domiciled person in his character of a subject,
what is there that does, or ought to exempt it from capture by the
privateers of his native country, if, at the time of capture, he con-
tinues to reside in the country of the adverse belligerent? It is
contended that a native or naturalized subject of one country, who
is surprised, in the country where he was domiciled, by a declaration
of war, ought to have time to make his election to continue there, or
to remove to the country to which he owes a permanent allegiance,
and that, until such election is made, his property ought to be pro-
596
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
tected from capture by the cruisers of the latter. This doctrine is
believed to be as unfounded in reason and justice, as it clearly is in
law. In the first place, it is founded upon a presumption that the
person will certainly remove, before it can possibly be known whether
he may elect to do so or not. It is said that this presumption ought
to be made, because, on receiving information of the war, it will be
his duty to return home. This position is denied. It is his duty
to commit no acts of hostility against his native country, and to
return to her assistance when required to do so; lor will any just
nation, regarding the mild principles of the law of nations, require
him to take arms against his native country, or refuse her permis-
sion to him to withdraw whenever he wishes to do so, unless under
peculiar circumstances, which, by such removal at a critical period,
might endanger the public safety. The conventional law of nations
is in conformity with these principles. It is not uncommon to stipu.
late in treaties that the subjects of each shall be allowed to remove
with their property, or to remain unmolested. Such a stipulation
does not coerce those subjects either to remove or to remain. They
are left free to choose for themselves; and when they have made
their election, they claim the right of enjoying it under the treaty.
But until the election is made, their former character continues
unchanged
“Until this election is made, if his property found upon the high
seas, engaged in the commerce of his adopted country, should be
permitted by the cruisers of the other belligerent to pass free, under
the notion that he may elect to remove, upon notice of the war, and
should arrive safe, what is to be done in case the owner of it should
afterwards elect to remain where he is? or if captured and brought
immediately to adjudication, it must, upon this doctrine, be acquitted
until the election to remain is made known. In short, the point
contended for would apply the doctrine of relation to cases where
the party claiming the benefit of it may gain all, and can lose noth-
ing. If he, after the capture, should find it his interest to remain
where he is domiciled, his property embarked before his election was
made, is safe; and if he finds it best to return, it is safe of course. It
is safe whether he goes or stays. This doctrine, producing such
contradictory consequences, is not only unsupported by any authority,
but it would violate principles long and well established in the prize
courts of England, and which ought not, without strong reasons
which may render them inapplicable to this country, to be dis-
regarded by this court. The rule there is, that the character of the
property, during war, cannot be changed in transitu, by any act of
the party, subsequent to the capture. The rule indeed goes farther :
!
1
CHAP. II.]
597
THE
16
27
VENUS.”
1
as to the correctness of which in its greatest extension, no opinion
need now be given; but it may safely be affirmed that this charge
cannot and ought not to be affected by an election of the owner and
shipper of it m de subsequent to the capture, and, more especially,
after a knowlege of the capture is obtained by the owner. Observe
the consequences which would result from it. The capture is made
and known. The owner is allowed to deliberate whether it is his
interest to remain a subject of his adoptéd, or of his native country.
If the capture be made by the former, then he elects to be a subject
of that country; if by the latter, then a subject of that. Can such
a privileged situation be tolerated by either belligerent? Can any
system of law be correct, which places an individual who adheres
to one belligerent, and, to the period of his election to remove, con-
tributes to increase her wealth, in so anomalous a situation as to be
clothed with the privilege of a neutral, as to both belligerents? This
notion about a temporary state of neutrality impressed upon a sub-
ject of one of the belligerents, and the consequent exemption of his
property from capture by either, until he has had notice of the war
and made his election, is altogether a novel theory, and seems, from
the course of the argument, to owe its origin to a supposed hardship
to which the contrary doctrine exposes him. But if the reasoning
employed on this subject be correct, no such hardship can exist. For
it, before the election is made, his property on the ocean is liable to
capture by the cruisers of his native and deserted country, it is not
only free from capture by those of his adopted country, but is under
its protection. The privilege is supposed to be equal to the disad-
vantage, and is therefore just. The double privilege claimed seems
too unreasonable to be granted. * * * 1
I Condemnation was pronounced in all the cases.
Chief Justice Marshall dissented in a vigorous opinion from so much of that opinion
as subjects to confiscation the property of a citizen shipped before a knowledge of the
war, and which lisallows the defence founded on an intention to change hus domicile
and 10 return to the United States, manifested in such a manner, and within a reasona-
ble time after knowledge of the war, although it be subsequent to the capture.
this dissent, Livingston, J., concurred. For an elaborate suminary of this dissenting
opinion, which seems more in accordance with reason than the one laid down by the
majority of the bench, see 1 Duer's Marine Insurance, 505-509. -- ED.
In
598
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES,
BENTZEN V. BOYLE.
SUPREME COURT OF THE UNITED STATES, 1815.
(9 Cranch, 191.)
MARSHALL, Ch. J., delivered the opinion of the court.
“ The Island of Santa Cruz, belonging to the kingdom of Den-
mark, was subdued during the late war, by the arıns of his Britannic
Majesty. Adrien Benjamin Bentzen, an officer of the Danish
government, and a proprietor of land therein, withdrew from the
island on its surrender, and has since resided in Denmark. The
property of the inhabitants being secured to them, he still retained
his estate in the island under the management of an agent, who
shipped thirty hogsheads of sugar, the product of that estate, on
board a British ship, to a commercial house in London, on account
and risk of the said A. B. Bentzen. On her passage she was cap-
tured by the American privateer, the Comet, and brought into Bal-
timore, where the vessel and cargo were libelled as enemy property.
A claim for these sugars was put in by Bentzen; but they were con-
demned with the rest of the cargo ; and the sentence was affirmed
by the circuit court. The claimant then appealed to this court.
Some doubt has been suggested whether Santa Cruz, while in the
possession of Great Britain, could properly be considered as a British
island. But, for this doubt there can be no foundation. Although
acquisitions made during war are not considered as permanent until
confirmed by a treaty, yet to every commercial and belligerent pur-
pose, they are considered as a part of the domain of the conqueror,
so long as he retains the possession and government of them. The
island of Santa Cruz, after its capitulation, remained a British island
until it was restored to Denmark.
“Must the product of a plantation in that island, shipped by the
proprietor himself, who is a Dane residing in Denmark, be con-
sidered as British, and therefore enemy property?
“In arguing this question, the counsel for the claimant has made
two points. 1. That this case does not come within the rule applic
cable to shipments from an enemy country, even as laid down in the
British courts of admiralty. 2. That the rule has not been rightly
laid down in those courts and consequently will not be adopted in
this. 1. Does the rule laid down in the British courts of admiralty
embrace this case ?
CHAP. II.]
599
BENTZEN V. BOYLE.
“ It appears to the court that the case of the Phoenix 1 is precisely
in point. In that case a vessel was captured on a voyage froin Suri-
nam to Holland, and a part of the cargo was claimed by persons
residing in Germany, then a neutral country, as the produce of their
estates in Surinam.
“ The counsel for the captors considered the law of the case as
entirely settled. The counsel for the claiinant did not controvert
this position. They admitted it; but endeavoured to extricate their
case froin the general principle by giving it the protection of the
treaty of Amiens. In pronouncing his opinion, Sir William Scott
lays down the rule thus: Certainly nothing can be more decided
and fixed, as the principles of this court and the Supreme Court upon
very solemn arguinents, than that the possession of the soil does im-
press upon the owner the character of the country, whatever the
local residence of the owner may be. This has been so repeatedly
decided, both in this and the Superior Court, that it is no longer open
to discussion. No question can be made on the point of law, at this
day.
“Afterwards, in the case of the Vrow Anna Catharina, 5 C. Rob.,
167, Sir William Scott lays down the rule, and states its reason.
"It cannot be doubted,' he says, 'that there are transactions so radi-
cally and fundamentally national as to impress the national charac-
ter, independent of peace or war, and the local residence of the parties.
The produce of a person's own plantation in the colony of the enemy,
though shipped in time of peace, is liable to be considered as the
property of the enemy, by reason that the proprietor has incor-
porated himself with the permanent interests of the nation as a
holder of the soil, and is to be taken as a part of that country, in
that particular transaction, independent of his own personal resi-
dence and occupation.'
“This rule laid down with so much precision, does not, it is con-
tended, embrace Mr. Bentzen's claim, because he has not 'incorporated
himself with the permanent interests of the nation. He acquired
the property while Santa Cruz was a Danish colony, and he with
drew from the island when it became British.
“ This distinction does not appear to the court to be a sound one.
The identification of the national character of the owner with that
of the soil, in the particular transaction, is not placed on the disposi-
tion with which he acquires the soil, or on his general character.
The acquisition of land in Santa Cruz binds him, so far as respects
that land, to the fate of Santa Cruz, whatever its destiny may be.
While that island belonged to Denmark, the produce of the soil,
15 C. Rob., 20.
600
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
while unsold, was, according to this rule, Danish property, what-
ever might be the general character of the particular proprietor.
When the island became British, the soil and its produce, while that
produce remained unsold, were British.
“The general commercial or political character of Mr. Bentzen
could not, according to this rule, affect this particular transaction.
Although incorporated, so far as respects his general character, with
the permanent interests of Denmark, he was incorporated so far as
respects his plantation in Santa Cruz, with the permanent interests
of Santa Cruz, which was at that time British ; and though as a
Dane, he was at war with Great Britain, and an enemy, yet, as a
proprietor of land in Santa Cruz, he was no enemy; he could ship
his produce to Great Britain in perfect safety.
“ The case is certainly within the rule as laid down in the British
courts. The next inquiry is : how far that rule will be adopted in
this country?
“ The law of nations is the great source whence we derive those
rules, respecting neutral and belligerent rights, which are recognized
by all civilized and commercial states throughout Europe and America.
This law is in part unwritten, and in part conventional. To ascer-
tain that which is unwritten, we resort to the great principles of
reason and justice; but, as these principles will be differently un-
derstood by different nations under different circumstances, we con-
sider them as being in some degree, fixed and rendered stable by
a series of judicial decisions. The decisions of the courts of every
country, so far as they are founded on a law common to every
country, will be received, not as authority, but with respect. The
decisions of the courts of every country show how the law of nations,
in the given case, is understood in that country, and will be con-
sidered in adopting the rule which is to prevail in this.
“Without taking a comparative view of the justice or fairness of the
rules established in the British courts, and of those established in the
courts of other nations, there are circumstances not to be excluded from
consideration, which give to those rules a claim to our attention, that
we cannot entirely disregard. The United States having, at one
time, formed a component part of the British Empire, their prize law
was our prize law. When we separated, it continued to be our prize
law, so far as it was adapted to our circumstances and was not
varied by.the power which was capable of changing it.
“It will not be advanced, in consequence of this former relation
between the two countries, that any obvious misconstruction of
public law made by the British courts, will be considered as forming
a rule for the American courts, or that any recent rule of the British
CHAP. II.]
601
THE
"PRIZE CASES."
courts is entitled to more respect than the recent rules of other
countries. But a case professing to be decided on ancient principles
will not be entirely disregarded, unless it be very unreasonable, or be
founded on a construction rejected by other nations.
" The rule laid down in the Phoenix is said to be a recent rule, be-
cause a case solemnly decided before the Lords Commissioners in
1783, is quoted in the margin as its authority. But that case is not
suggested to have been determined contrary to former practice or
former opinions. Nor do we perceive any reason for supposing it to
be contrary to the rule of other nations in a similar case.
“ The opinion that the ownership of the soil does, in some degree,
connect the owner with the property, so far as respects that soil, is
an opinion which certainly prevails very extensively. It is not an
unreasonable opinion. Personal property may follow the person
anywhere; and its character, if found on the ocean, may depend on
the domicil of the owner. But land is fixed. Wherever the owner
may reside, that land is hostile or friendly according to the condition
of the country in which it is placed. It is no extravagant perversion
of principle, nor is it a violent offense to the course of human opinion
to say that the proprietor, so far as respects his interest in this land,
partakes of this character; and that the produce, while the owner
remains unchanged, is subject to the same disabilities. In condemn-
ing the sugars of Mr. Bentzen as enemy property, this court is of
opinion that there was no error, and the sentence is affirmed with
costs.”
THE “PRIZE CASES."
SUPREME COURT OF THE UNITED STATES, 1862.
(2 Black, 671.)
II.16 We come now to the consideration of the second question.
What is included in the term enemies' property ?'
“Is the property of all persons residing within the territory of the
states now in rebellion, captured on the high seas, to be treated as
enemy's property' whether the owner be in arms against the
government or not?
“The right of one belligerent not only to coerce the other by
direct force, but also to cripple his resources by the seizure or de-
struction of his property, is a necessary result of a state of war.
1 For first part of this case, see p. 475, ante. -- ED.
602
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART U.
Money and wealth, the products of agriculture and commerce, are
said to be the sinews of war, and as necessary in its conduct as
numbers and physical force. Hence it is, that the laws of war rec-
ognize the right of a belligerent to cut these sinews of the power of
the enemy, by capturing his property on the high seas.
“The appellants contend that the term 'enemy' is properly ap-
plicable to those only who are subjects or citizens of a foreign state
at war with our own. They quote from the pages of the common
law, wliich say, 'that persons who wage war against the king may
be of two kinds, subjects or citizens. The former are not proper
enemies, but rebels and traitors; the latter are those that come
properly under the name of enemies.'
“ They insist, moreover, that the President himself, in his proc-
lamation, admits that great numbers of the persons residing within
the territories in the possession of the insurgent government, are
loyal in their feelings, and forced by compulsion and the violence of
the rebellious and revolutionary party and its de facto government'
to submit to their laws and assist in their scheme of revolution ;
that the acts of the usurping government cannot legally sever the
bond of their allegiance; they have, therefore, a co-relative right to
claim the protection of the government for their persons and prop-
erty, and to be treated as loyal citizens, till legally convicted of
having renounced their allegiance and made war against the govern-
ment by treasonably resisting its laws.
They contend, also, that insurrection is the act of individuals,
and not of a government or sovereignty; that the individuals en-
gaged are the subjects of law. That confiscation of their property
can be effected only under a municipal law. That by the law of the
land such confiscation cannot take place without the conviction of
the owner of some offence, and finally that the secession ordinances
are nullities and ineffectual to release any citizen froin his allegiance
to the national government, and consequently that the constitution
and laws of the United States are still operative over persons in all
the states for punishment as well as protection.
“ This argument rests on the assumption of two propositions, each
of which is without foundation on the established law of nations.
“It assumes that where a civil war exists, the party belligerent
claiming to be sovereign, cannot for some unknown reason, exercise
the rights of belligerents, although the revolutionary party may.
Being sovereign, he can exercise only sovereign rights over the other
party.
“ The insurgents may be killed on the battle-field or by the ex-
ecutioner; his property on land may be confiscated under the munic-
CHAP. II.]
603
THE
"PRIZE CASES."
ipal law; but the commerce on the ocean, which supplies the rebels
with means to support the war, cannot be made the subject of capture
under the laws of war, because it is unconstitutional'!!! Now, it
is a proposition never doubted, that the belligerent party who claims
to be sovereign, may exercise both belligerent and sovereign rights;
(see 4 Cr., 272). Treating the other party as a belligerent and using
only the milder modes of coercion which the law of nations has in-
troduced to mitigate the rigors of war, cannot be a subject of com-
plaint by the party to whom it is accorded as a grace or granted as
a necessity. We have shown that a civil war such as that now
waged between the Northern and Southern states, is properly con
ducted according to the humane regulations of public law as regards
capture on the ocean.
“ Under the very peculiar constitution of this government, al-
though the citizens owe supreme allegiance to the Federal govern-
ment, they owe also a qualified allegiance to the state in which they
are domiciled.
“Their persons and property are subject to its laws.
Hence, in organizing this rebellion, they have acted as states
claiming to be sovereign over all persons and property within their
respective limits, and asserting a right to absolve their citizens from
their allegiance to the Federal government. Several of these states
have combined to form a new confederacy, claiming to be acknowl-
edged by the world as a sovereign state. Their right to do so is now
being decided by wager of battle.
“ The ports and territory of each of these states are held in hostility
to the general government. It is no loose, unorganized insurrection,
having no defined boundary or possession. It has a boundary marked
by lines of bayonets, and which can be crossed only by force,-south of
this line is enemies' territory, because it is claimed and held in pos-
session by an organized, hostile and belligerent power.
“ All persons residing within this territory whose property may
be used to increase the revenues of the hostile power are, in this
contest, liable to be treated as enemies, though not foreigners. 'They
have cast off their allegiance and made war on their government,
and are none the less enemies because they are traitors.
“But in defining the meaning of the term 'enemies' property,' we
shall be led into error if we refer to Fleta and Lord Coke for their
definition of the word enemy'. It is a technical phrase peculiar to
prize courts, and depends upon principles of public policy as distin-
guished from the common law.
“Whether property be liable to capture as enemies' property'
does not in any manner depend on the personal allegiance of the
604
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
owner. "It is the illegal traffic that stamps it as “enemies' prop-
erty.” It is of no consequence whether it belongs to an ally or a
citizen. 8 Cr., 384. The owner, pro hac vice, is an enemy.' ? Wash.
C. C. R., 183.
“ The produce of the soil of the hostile territory, as well as other
property engaged in the commerce of the hostile power, as the source
of its wealth and strength, are always regarded as legitimate prize,
without regard to the domicil of the owner, and much more so if he
reside and trade within their territory.” 1
1 Domicil. —"A commercial domicil," says Mr. Dicey, "is such a residence in a
country for the purpose of trading there as makes a person's trade or business contrib-
ute lo or forın part of the resources of such country, and renders it, therefore, reason-
able that his hostile, friendly, or neutral character should be determined by reference
to the character of such country. When a person's civil domicil is in question, the
matter to be determined is whether he has or has not so settled in a given country as
to have made it his home. When a person's commercial domicil is in question, the
matter to be determined is whether he is or is not residing in a given country with the
intention of continning to trade there."
(Dicey on Domicil, 345; Conflict of Laws, 86 et seq., especially appendix, note 3 on
Definition of Domicil, 727-735; note 4, on Commercial domicil in time of war, 735–740,
for reference to approved texts, cases, opinions, and criticisms thereof.)
In the case of the Antonia Johanna, 1816, 1 Wheaton, 159, the Supreme Court of
the United States held that the share of a partner in a neutral house is, jure belli, sub-
ject to confiscation where his own domicil is in a hostile country. 3 Wharton's
Digest, 343.
In the case of the Freundschaft, 1819, 4 Wheaton, 105, the court held, that the prop-
erty of a house of trade established in the enemy's country is condemnable as prize,
whatever may be the personal domicil of the partners. 3 Wharton's Digest, 343.
In Niyel Gold Mining Co., Lim. v. Hoode, 1901, 17 L. T. R. 711, it was held that the
company had only a commercial domicil in the Transvaal, and that this did not
invest it with enemy character. In a note to this case in 15 Harv. Law Rev. 237, it
is said : " The status of the corporation and not that of its members was in question,
and in the case of corporations, as in that of individuals, enemy character is deter-
mined by domicil. Society, &c. v. Wheeler, 2 Gall. 105, 131 ; The Danckelaar Afri-
caun, 1 Rob. 107. Even if the plaintiff company be regarded as merely commercially
domiciled, it takes enemy character on the outbreak of war, for when a foreign corpora-
tion establishes a permanent agency in a state, it is, in time of war, as to the business
transacted there, in the same position as a domestic corporation. Martino v. Interna-
tional Life Ins. Soc., 53 N. Y. 339. Yet the law covering such a company as the
plaintiff in the principal case is stronger still. An incorporated company that takes
letters of incorporation in a second state has a separate legal domicil in that state.
Martin v. Baltimore f. Ohio R. R. Co., 151 U. S. 673. The plaintiff company must
therefore be regarded as having enemy character. The court professes to bring the
case within the rule of the Venus, 8 Cranch, 253. In that case the owner had aban-
doned his foreign domicile and business bona fide ; but in the principal case there was
nothing equivalent to such abandoument by the corporation. The decision can be
explained only by the supposed humanitarian tendency of the present day in applying
the rules of war."
Other cases on Commercial Domicil are: Bell v. Reid, 1 Maul. & Selw. T26 (1813);
CHAP. II.]
605
MITCHELL V. UNITED STATES.
MITCHELL v. UNITED STATES.
SUPREME COURT OF THE UNITED STATES, 1874.
(21 Wallace, 350.)
Mr. Justice SWAYNE delivered the opinion of the court, as follows:
At the time when Mitchell passed within the rebel lines the war
between the loyal and the disloyal States was flagrant. It speedily
assumed the largest proportions. Important belligerent rights were
conceded by the United States to the insurgents. Their soldiers when
captured were treated as prisoners of war, and were exchanged and
not held for treason. Their vessels when captured were dealt with by
our prize courts. Their ports were blockaded and the blockades pro-
claimed to neutral nations. Property taken at sea, belonging to
persons domiciled in the insurgent States, was' uniformly held to be
confiscable as enemy property. All these things were done as if the
war had been a public one with a foreign nation. The Prize Cases,
2 Black, 687; Mrs. Alexander's Cotton, 2 Wallace, 417; Mauran v.
The Insurance Company, 6 id. 1. The laws of war were applied in
like manner to intercourse on land between the inhabitants of the
loyal and the disloyal States. It was adjudged that all contracts of
the inhabitants of the former with the inhabitants of the latter were
illegal and void. It was held that they conferred no rights which
could be recognized. Such is the law of nations, flagrante bello, as
administered by courts of justice. Vattel, $ 220; Griswold v. Wad-
dington, 16 Johuson, 438; Cooledge v. Guthrie, 8 American Law
Register, N. S. 20; Coppel v. Holl, 7 Wallace, 542; United States v.
Grossmayer, 9 id. 72; Montgomery v. United States, 15 id. 400;
United States v. Lapene, 17 id. 602 ; Cutner v. United States, id.
516.
While such was the law as to dealings between the inhabitants of
the respective-territories, contracts between the inhabitants of the
rebel States not in aid of the rebellion were as valid as those, between
Wilson v. Maryat, 8 T. R. 45 (1798); The San Jose Indiano, 2 Gall. 268 (1814); The
unge Klassina, 5 C. Rob. 302–304 (1804); The Herman, 4 C. Rob. 228 (1802); Sparen-
bury v. Bunnatyne, 1 Bos. & Pul. 163 (1797); The Abo, 1 Spinks, 349 (1854); The Ger-
asimo, 11 Moo. P. C. C. 88 (1857); The Balticą, 11 Moo. P. C. C. 141 (1857); Mrs.
Alexander's Colton, 2 Wall. 404 (1864); The Flying Scud, 6 Wall. 263 (1867).
For the view that a neutral merchant domiciled in a belligerent country.does not
acquire a belligerent character, and that his property at sea is neutral property, see
Le. Hardy v. La Voltigeante, Conseil des Prises, an ix. (1 Pistoye et Duverdy, 321). — Ed.
606
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
themselves, of the inhabitants of the loyal States. Hence this case
turns upon the point whether the appellant was domiciled in the
Confederate States when he bought the cotton in question.
When he took his departure for the South he lived and was in
business at Louisville. He returned thither when Savannah was
captured and his cotton was seized. It is to the intervening tract of
time we must look for the means of solving the question before us.
There is nothing in the record which tends to show that when he left
Louisville he did not intend to return, or that while in the South he
had any purpose to remain, or that when he returned to Louisville he
had any intent other than to live there as he had done before his
departure. Domicile has been thus defined : “A residence at a par-
ticular place accompanied with positive or presumptive proof of an
intention to remain there for an unlimited time.” Guger v. Daniel,
1 Binney, 349, note. This definition is approved by Phillimore in his
work on the subject. Pane 13. By the term domicile, in its ordinary
acceptation, is ineant the place where a person lives and has his hoine.
Story's Conflict of Laws, $ 41. The place where a person lives is
taken to be his domicile until facts adduced establish the contrary.
Bruce v. Bruce, 2 Bosanquet & Puller, 228, note; Bampde v. Johnstone,
3 Vesey, 201; Stanley v. Bernes, 3 Haggard's Ecclesiastical Reports,
437; Best on Presumptions, 235.
The proof of the domicile of the claimant at Louisville is sufficient.
There is no controversy between the parties on that proposition.
We need not, therefore, further consider the subject.
A domicile once acquired is presumed to continue until it is shown
to have been changed. Somerville v. Somerville, 5 Vesey, 787; Har-
vard Coll. v. Gore, 5 Pickering, 370; Wharton's Conflict of Laws, $ 55.
Where a change of domicile is alleged the burden of proving it rests
upon the person making the allegation. Crookenden v. Fuller, 1
Swabey & Tristam, 441; Hodgson v. De Buchesne, 12 Moore's Privy
Council, 288 (1858). To constitute the new domicile two things are
indispensable: First, residence in the new locality; and, second, the
intention to remain there. The change cannot be made except facto
et animo.
Both are alike necessary.
Either without the other is
insufficient. Mere absence from a fixed home, however long continued,
cannot work the change. There must be the animus to change the
prior domicile for another. Until the new one is acquired, the old
one renains.
Wharton's Conflict of Laws, § 55, and the authorities
there çited. These principles are axiomatic in the law upon the
subject.
When the claimant left Louisville it would have been illegal to take
up his abode in the territory whither he was going. Such a purpose
is
CHAP. II.]
607
THE
SALLY."
not to be presumed. The presumption is the other way. To be
established it must be proved. 12 Moore's Privy Council, supra.
Among the circumstances usually relied upon to establish the animus
manendi are: Declarations of the party; the exercise of political
rights; the payment of personal taxes; a house of residence, and a
place of business. Phillimore, 100; Wharton, $ 62, and post. All
these indicia are wanting in the case of the clainant.
The rules of law applied to the afirmative facts, without the aid of
the negative considerations to which we have adverted, are conclusive
against him. His purchase of the cotton involved the same legal
consequences as if it had been made by an agent whom he sent to
make it
Judginent affirmed.
SECTION 33. - OWNERSHIP OF GOODS IN TRANSIT.
THE “SALLY."
LORDS, 1795.
(3 C. Robinson, 300, note.)
The Sally was a case of a cargo of corn shipped March, 1793, by
Steward and Plunket, of Baltimore, ostensibly for the account and
risk of Conyngham, Nesbit & Co., of Philadelphia, and consigned to
them or their assigns: By an endorsement of the bill of lading, it
was further agreed that the ship should proceed to Havre de Grace,
and there wait such time as might be necessary, the orders of the
consignee of the said cargo (the mayor of Havre) either to deliver
the same at the port of Havre, or proceed therewith to any one port
without the Mediterranean, on freight at the rate of 58. per barrel on
delivery at Havre, and 5s. 6d. at a second port, the freight to be
settled by the shippers in America according to agreeinent.
Amongst the papers was a concealed letter from Jean Ternant, the
minister of the French Republic to the United States, in which he
informs the minister of foreign affairs in France. “The house of
Conyngham & Co., already known to the ministers, by their former
operations for France, is charged by me to procure without delay, a
consignment of 22,000 bushels of wheat, 8,000 barrels of fine flour,
900 barrels of salted beef from New England. The conditions stipu-
lated are the same as those of the contract of 2d November, 1792,
with the American citizens, Swan & Co., for a like supply to be
made to the Antilles, namely, that the grain, flour, and beef are to
be paid at the current price of the markets at the time of their
being shipped; that the freights shall be at the lowest course in the
608
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART IT.
ports; that an insurance should be on the whole; and that a com-
mission of five per cent. shall be allowed for all the merchants
expenses and fees. It has been, moreover, agreed, considering the
actual reports of war, that the whole shall be sent as American
property to Havre and to Nantes, with power to our government of
sending the ships to other ports conditional on the usual freight.
As you have not signified to me to whom these cargoes ought to be
delivered in our ports, I shall provide each captain with a letter to
the mayor of the place.”
There was also a letter from Jean Ternant to the mayor of the
municipality of Havre. “Our government having ordered me to
send supplies of provisions to your port, I inform you that the
bearer of this, commanding the American ship, the Sally, is laden
with a cargo of wheat, of which he will deliver you the bill of
lading."
To the 12th and 20th interrogatories the master deposed, “ that he
believes the flour was the property of the French government, and,
on being unladen, would have immediately become the property of the
French government.'
In the argument it was insisted, on the part of the claimants, that
the cargo was to be considered as the property of the American
merchants; that it had been ordered by them, to be supplied and
delivered at a certain place; and that under the general principle
of law, property was not considered to be divested between the
vendor and vendee till actual delivery.
It was contended, that the contract remained executory till the
completion by delivery in Europe; that the payment was contingent
on the completion of the contract in this form, and that no money
had passed, nor any compensation or agreement had intervened to
produce an absolute conversion of the property; and it was prayed
that the court would admit farther proof to ascertain that circum-
stance.
On the part of the captors it was replied, that the general rule of
law subsisting between vendor and vendee in a commercial trans-
action, referring only to the contracting parties, and not affecting
the rights of third persons, could not apply to contracts made in
time of war, or in contemplation of war, where the rights of a bellig-
erent nation intervened; that the effect of such a contract as the
present would be to protect the trade of the contracting belligerent
from his enemy; and that if it could be allowed, it would put an end
to all capture. It was said to be a known principle of the prize
court, that neutral property must be proved to be neutral at all
periods from the time of shipment, without intermission, to the
CHAP. II.]
609
THE PACKET " DE BILBOA.'
arrival and subsequent sale in the port of the enemy; that the twelfth
and twentieth interrogatories were framed with this view to inquire,
"whether on its arrival, etc., it shall and will belong to the same
owner and no other, etc.,” and a reference was made to the case of
the Charles Havenerswerth in 1741, in which the form of attestation
was directed to be prepared by the whole bar, and was established
in the present form to ascertain the property at the several periods
of shipment, and arrival in the enemy's ports,-in cases where affi-
davits were to be received to supply the defects of the original
evidence, in the place of plea and proof.
The Court :-" It has always been the rule of the prize courts, that
property going to be delivered in the enemy's country, and under a
contract to become the property of the enemy immediately on arrival,
if taken in transitu, is to be considered as enemies' property. Where
the contract is made in time of peace or without any contemplation
of a war, no such rule exists :—But in a case like the present, where
the form of the contract was framed directly for the purpose of ob-
viating the danger apprehended from approaching hostilities, it is a
rule which unavoidably must take place. The bill of lading expresses
account and risk of the American merchants; but papers alone make
no proof, unless supported by the depositions of the master. Instead
of supporting the contents of his papers, the master deposes, that
on arrival the goods would become the property of the French
government, and all the concealed papers strongly support him in
this testimony: The evidentia rei is too strong to admit farther
proof. Supposing that it was to become the property of the enemy
on delivery, capture is considered as delivery : The captors, by the
rights of war, stand in the place of the enemy, and are entitled to a
condemnation of goods passing under such a contract, as of enemy's
property. On every principle on which Prize Courts can proceed,
this cargo must be considered as enemy's property.
“ Condemned."
THE PACKET " DE BILBOA."
High COURT OF ADMIRALTY,
1799.
(2 C. Robinson, 133.)
Judgment,--Sir W. SCOTT:-
“ This is a claim of a peculiar nature for goods sent by British
subjects to Spain, shipped before hostilities, during the time of that
39
610
[PART 11.
EFFECTS OF WAR AS BETWEEN ENEMIES.
situation of the two countries, of which it was unknown, even to
our government, what would be the issue between them. There
appears to be no ground to say that this contract was influenced by
speculations on the prospect of a war, or that anything has been
specially done to avoid the risks of war. It is shown in the affida-
vit of the claimant that this is the constant habit and practice of
this trade;' whether it is the practice of the Spanish trade gen-
erally, or only the particular mode of these individuals in carry-
ing on commerce together is not material, as the latter would be
quite sufficient to raise the subject of this claim. The question is,
in whom is the legal title? Because, if I should find that the
interest was in the Spanish consignee, I must then condemn, and
leave the British party to apply to the Crown for that grace and
favor which it is always ready to shew; the property being con-
demnable to the Crown as taken before hostilities.
“ The statement of the claim sets forth that these goods have not
been paid for by the Spaniard ;--that would go but little way,--that
alone would not do; there must be many cases in which British
merchants suffer from capture, by our own cruisers, of goods
shipped for foreign account before the breaking out of hostilities.
It goes on to state, that, according to the custom of the trade, a
credit of six, nine, or twelve months is usually given, and that it is
not the custom to draw on the consignee till the arrival of the
goods; that the sea risk in peace as well as war is on the consignor;
that he insures, and has no remedy against the consignee for any
accident that happens during the voyage. Under these circum-
stances, in whom does the property reside? The ordinary state of
commerce is, that goods ordered and delivered to the master are
considered as delivered to the consignee, whose agent the master is
in this respect; but that general contract of the law may be varied
by special agreement or by a particular prevailing practice, that pre-
supposes an agreement amongst such a description of merchants.
In time of profound peace, when there is no prospect of approach-
ing war, there would unquestionably be nothing illegal in contract-
ing, that the whole risk should fall on the consignor, till the goods
came into possession of the consignee. In time of peace they may
divide their risk as they please, and nobody has a right to say they
shall not; it would not be at all illegal, that goods not shipped in
time of war, or in contemplation of war, should be at the risk of
the shipper. In time of war this cannot be permitted, for it would
at once put an end to all captures at sea; the risk would in all cases
be laid on the consignor, where it suited the purpose of protection;
on every contemplation of a war, this contrivance would be prae-
ticed in all consignments from neutral ports to the enemy's country,
("II.UP. II.]
611
THE PACKET "DE BILLBOA. "
to the manifest defrauding of all rights of capture; it is therefore
considered to be an invalid contract in time of war; or, to express it
more accurately, it is a contract which, if made in war, has this ef-
fect; that the captor has a right to seize it and convert the prop-
erty to his own use; for he having all the rights that belong to his
enemy, is authorized to have his taking possession considered as
equivalent to an actual delivery to his enemy; and the shipper who
put it on board during a time of war, must be presumed to know
the rule, and to secure himself in his agreement with the consignee
against the contingence of any loss to himself that can arise from
capture. In other words, he is a mere insurer against sea risk, and
he has nothing to do with the case of capture, the loss of which falls
entirely on the consignee. If the consignee refuses payment and
throws it upon the shipper, the shipper must be supposed to have
guarded his own interests against that hazard, or he has acted im-
providently and without caution.
“The present contract is not of this sort; it stands as a lawful
agreement, being made whilst there was neither war nor prospect of
war. The goods are sent at the risk of the shipper: if they had
been lost, on whom would the loss have fallen buton him? What surer
test of property can there be than this? It is the true criterion of
property that, if you are the person on whom the loss will fall, you
are to be considered as the proprietor. The bill of lading very
much favors this account. The master binds himself to the
shipper, to deliver for you and in your name,' by which it is to be
understood that the delivery had not been made to the master for
the consignee, but that he was to make the delivery in the name of
the shipper to the consignee, till which time the inference is that
they were to remain the property of the shipper: as to the payment
of freight, that is not material, as in the end the purchaser must
necessarily pay the carriage. The other consideration-who bears
the loss ? much outweighs that,—neither does the case put shew the
contrary. The case put is--supposing Spain and England both
neutral and that these goods had been taken by the French and sold
to great profit, to whose advantage would it have been? The
answer is, if the goods were to continue the property of the shipper
till delivery, it must have enured to his benefit, and not that of the
consignee. To make the loss fall upon the shipper in the case of
the present shipment would be harsh in the extreme. He ships his
goods in the ordinary course of traffic, by an agreement mutually
understood between the parties, and in no wise injurious to the
rights of any third party; an event subsequently happens which he
could in no degree provide against. If he is to be the sufferer he is
612
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
a sufferer without notice and without the means of securing him.
self; he was not called upon to know that the injustice of the other
party would produce a war before the delivery of his goods. The
consignee may refuse payment, referring to the terms of the con-
tract which was made when it was perfectly lawful; and under
what circumstances and on what principles the shipper could ever
enforce payment against the consignee is not easy to discover. The
goods have never been delivered in Spain; they were to have been
at the risk of the shipper until delivery, and this under a perfectly
fair contract. I must consider the property to reside still in the
English merchant. It is a case altogether different from other
cases which have happened on this subject flagrante bello. I am of
opinion that, on all just considerations of ownership, the legal prop-
erty is in the British merchant; that the loss must have fallen on
the shipper, and the delivery was not to have been made till the
last stage of the business, till they had actually arrived in Spain and
had been put into the hands of the consignee; and therefore I shall
decree restitution of the goods to the shipper."
On prayer that the captor's expenses might be paid, it was
answered that they had already had the benefit of the condemnation
of the ship.
Court.-"I think there has been a great service performed to the
shipper. If the goods had not been captured they would have gone
into the possession of the enemy. The captor did right in bringing
the question before the court, and he ought by no means to be a
loser. I shall not give salvage, but shall direct the expenses of the
captor to be paid out of the proceeds."
THE “ANNA CATHARINA."
HIGH COURT OF ADMIRALTY, 1802.
(4 C. Robinson, 107.)
This was a case of a cargo of dry goods, etc., taken October, 1801,
on a voyage from Hamburgh to La Guayra, and described in the
ostensible papers and depositions, “as going to take the chance of
the market." By the discovery of a letter, it afterwards appeared,
that these goods were going under a special agreement and contract
with the Spanish government of the Caracas.
Judgment. — Sir W. Scott: -
*** Taking the shippers to be neutral merchants “how does the
CHAP. II.]
613
THE
ANNA CATHARINA."
* * *
character of the goods stand in this transaction ? Was it not, in the
first place, a cargo going to become the property of the Spanish govern-
ment immediately on arrival? Was not the Spanish government en-
titled to possession? It was only on the violation of the contract, on
the part of the Spanish government, that these goods were to take the
chance of the market. The shippers considered themselves as bound
to deliver them to the use of the Spanish government, under the
agreement; as entitled to the benefit, and subject to the obligations
of that contract. Were there any intermediate acts to be done
after the arrival of the vessel? Or were the acts such, as would have
the effect of substantially distinguishing this case from the Sally,
and other cases ? Is there any act of ownership which the claimant
was at liberty to exercise, so as to prevent the delivery? If not the
goods must be considered as having substantially become, in itinere,
the property of the enemy.
" It is said * * * that these goods do not exactly correspond with
the enumeration in the agreement, that they are not contract goods ;
and consequently, that without any violation of public faith, the
acceptance of them was merely optional and contingent. But, I can-
not think, that it is now open to the parties to make this averment;
when it is evident, on the face of their own letters, that they had
relied on the clear and absolute obligation of the Spanish govern-
ment to take them as such. * * *
“These distinctions are, in my judgment, totally insufficient to
take the case out of the authority of the precedents alluded to.
Where the goods are sent under a contract by the party, it surely
cannot be permitted to the claimant himself to aver, that the goods
so sent are not contract goods. *** Under these circumstances, I
am strongly disposed to hold, that this cargo was going in time of
war to the port of a belligerent, there to become the property of the
belligerent, immediately on arrival, and that the legal consequence
of condemnation would on that ground alone attach upon it.” 1
1 Only so much of this case is given as refers to the shipment of goods under con-
tract to a belligerent port. — ED.
614
EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
THE “SAN JOSE INDIANO."
U. S. CIRCUIT COURT FOR MASSACHUSETTS, 1814.
(2 Gallison, 268.)
STORY, J.: 1
“ The next is the claim of Mr. J. Lizaur, of —, in Brazil.
“The shipment was made by Messrs. Dyson Brothers & Co., and
by the bill of lading the goods are consigned to Messrs. Dyson
Brothers and Finney, Rio de Janeiro.
“The accompanying invoices express the shipment to be made by
order and for account of Mr. J. Lizaur, and contain charges of
freight, commission and insurance, and an acknowledgment of giving
credit for three and six months. In a letter of the 4th of May, 1814,
addressed by the shippers to the consignees, they say, "for Mr.
Lizaur we open an account in our books here, and debit him 17641.
11s. 7d. for 16 cases of cambrics, etc., at three months' credit; we
cannot yet ascertain proceeds of his hides, etc., but find his order
will far exceed amount of these shipments, therefore consign the whole
to you, so as you may come to a proper understanding. We have
charged our usual commission of two and a half per cent. in the
invoices, but should you have made any stipulation to the contrary,
he can again bring same to our debit. Invoices, bills of lading and
patterns of what goods are requisite we forward as usual in a small
box to your address.
“The single question presented in this claim is, in whom the prop-
erty vested during its transit; if in Mr. Lizaur, then it is to be re-
stored ; if in the shippers, then it is to be condemned. It is con-
tended on behalf of the claimant, that the goods, having been pur-
chased by order of Mr. Lizaur, the property vested in him immedi-
ately by the purchase, and the contract being executed by the sale,
no delivery was necessary to perfect the legal title; that nothing
was reserved to the shippers, but a mere right of stoppage in tran-
situ, and that if they had been burnt before the shipment, or lost
during the voyage, the loss must have fallen on Mr. Lizaur.
“ As to the doctrine of stoppage in transitu, I do not conceive it
can apply to this case. That right exists in the single case of insolv-
ency, and presupposes, not only that the property in the goods has
passed to the consignee, but that the possession is in a third person
1 Statement of case omitted and only so much of the opinion is given as relates to
the question of stoppage in transitu. — ED.
CHAP. II.]
615
THE
SAN JOSE INDIANO."
in their transit to the consignee. It cannot, therefore, touch a case,
where the actual or constructive possession still remains in the
shipper or his exclusive agents.
“I agree also to the position, that in general the rules of the prize
court, as to the vesting of property, are the same as those of the
common law, by which the thing sold, after the completion of the
contract, is properly at the risk of the purchaser. But the question
still recurs, when is the contract executed ? It is certainly com-
petent for an agent abroad, who purchases in pursuance of orders, to
vest the property, immediately on the purchase, in his principal. This
is the case, when he purchases on the credit of his principal, or
makes an absolute appropriation and designation of the property for
his principal. But where a merchant abroad, in pursuance of orders,
sells either his own goods, or purchases goods on his own credit
(and thereby in reality becomes the owner), no property in the
goods vests in his correspondent, until he has done some notorious
act to divest himself of his title, or has parted with the possession
by an actual and unconditional delivery for the use of such corre-
spondent. Until that time he has in legal contemplation the exclu-
sive property, as well as possession; and it is not a wrongful act for
him to convert them to any use, which he pleases. He is at liberty
to contract upon any new engagements, or substitute any new con-
ditions in relation to the shipment. And this, I understand, not
only as the general law, but as the prize law pronounced by that
high tribunal, whose decisions I am bound to obey.
“In the Venus, 1814, on the claim of Magee and Jones, in deliver-
ing the opinion of the court, Mr. Justice WASHINGTON Observed : to
effect a change of property, as between seller and buyer, it is essen-
tial, that there should be a contract of sale agreed to by both par-
ties, and if the thing agreed to be purchased is to be sent by the
vendor to the vendee it is necessary to the perfection of the contract,
that it should be delivered to the purchaser or to his agent, which
the master (of a ship) to many purposes is considered to be.
“ And adverting to the facts of that claim he further says: “The
delivery of the goods to the master of the vessel was not for the use
of Magee and Jones, any more than it was for the shipper solely, and
consequently it amounted to nothing, so as to divest the property
out of the shipper, until Magee should elect to take them on joint
account, or to act as the agent of Jones.?”.
i Semble, that by the French rule the neutral shinner may assume the risk of goods
in transit to enemy country. (The Trois Frères, Comité dle Salut Public, An III.,
i P. et D. 357.) - ED.
616
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
SECTION 34.
- TRANSFERS IN TRANSITU.
THE “VROW MARGARETHA."
HIGH COURT OF ADMIRALTY, 1799.
(1 C. Robinson, 336.)
bas
Judgment,—Sir W. Scott:-
« This is a claim of Mr. Ph. Berkeymyer, of Hamburgli, for some
parcels of wine which were seized on board three Dutch vessels de-
tained by order of government in 1795. The ships have been since
condemned; the cargoes were described in the ship's papers, as far
as the property was expressed, as belonging to Spanish merchants.
It is material, in this case, to consider the relative situation of the
countries from which, and to which these cargoes were going.
Spain and Holland were then in alliance with this country and at
war with France; it might, therefore, be an inducement with a
Spanish merchant to conceal the property of his goods, although it
does not appear to have existed in any great degree, as the goods
were coming under an English convoy, and as they were shipped
Spanish wines,' and destined, avowedly, to Holland; there was,
therefore, nothing in this part of the case to mislead our cruisers.
Mr. Berkeymyer is allowed to be an inhabitant of Hamburgh,
although he had made a journey, a short time previous to the ship-
ment of these cargoes, to Spain (where he had resided some years
before), to settle his affairs, and bring off the property which he had
left behind him. He had quitted Spain, however, previous to the
breaking out of Spanish hostilities, and had resuined his original
character of a merchant of Hamburgh. The account which he gives
of his transactions in Spain, as far as they regard this case, is, that
he entered into a contract with two Spanish houses for some wines,
which were at the time actually shipped, and in itinere towards Hol-
land. The first objection that has been taken is, that such a transfer
is invalid, and cannot be set up in a Prize Court, where the property
is always considered to remain in the same character in which it was
shipped till the delivery. If that could be maintained there would
be an end of the question, because it has been admitted that these
wines were shipped as Spanish property, and that Spanish property
is now become liable to condemnation. But I apprehend it is a posi-
tion which cannot be maintained in that extent. In the ordinary
CHAP. II.]
617
THE
VROW MARGARETHA."
course of things in time of peace-for it is not denied that such it
contract may be made, and effectually made (according to the usage
of merchants,) such a transfer in transitu. might certainly be made.
It has even been contended that a mere delivering of the bill of
lading is a transfer of the property. But it might be more correctly
expressed, perhaps, if said that it transfers only the right of delivery;
but that a transfer of the bill of lading, with a contract of sale ac-
companying it, may transfer the property in the ordinary course of
things, so as effectually to bind the parties, and all others, cannot
well be doubted. When war intervenes, another rule is set up by
Courts of Admiralty, which interferes with the ordinary practice.
In a state of war, existing or imminent, it is held that the property
shall be deemed to continue as it was at the time of shipment till
the actual delivery; this arises out of the state of war, which gives
a belligerent a right to stop the goods of his enemy. If such a rule
did not exist all goods shipped in the enemy's country would be
protected by transfers which it would be impossible to detect. It is
on that principle held, I believe, as a general rule, that property.can-
not be converted in transitu; and in that sense I recognize it as the
rule of this Court. But this arises, as I have said, out of a state of
war, which creates new rights in other parties, and cannot be applied
to transactions originating, like this, in a time of peace. The trans-
fer, therefore, must be considered as not invalid in point of law, at
the time of the contract; and being made before the war it must be
judged according to the ordinary rules of commerce.
“It has been farther objected to the validity of this contract, that
a part of the wines did actually reach Hamburgh, where they
were sold, and the money was detained by the consignees in pay-
ment of the advances which they had made. It is said that this
annuls the contract—to the extent of that part it may do so, and the
deficiency must be made up to the purchaser by other means; but it
appears that it has been actually supplied by bills of exchange, and
an assignment of other wines sent to Petersburgh. It is not for me
to set aside the whole contract on that partial ground, or to construe
the defect in the execution of the contract so rigorously as to extend
it to those wines which never went to Holland, and which never be-
came de facto subject to be detained by the consignees. They are
free for the contract to act upon; and if the parties are desirous of
adhering to their contract in its whole extent, it does not become
other persons to obstruct them.
“It comes then to a question of fact, whether it was a bona fide
transfer or not? I think the time is a strong circumstance to prove
the fairness of the transaction. Had it happened three months
618
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
later there might have been reason to alarm the prudence of Spanish
merchants, and induce them to resort to the expedient of covering
their property. But at the time of the contract there seems to have
been no reason for apprehension, and therefore there is nothing to
raise any suspicion on that point.
“The instruments of sale have been produced, and no observation
has been made upon them. The correspondence has been exhibited,
and there is certainly some confusion in the dates. Explanations
have been given, which are probable enough; still they are but con-
jectural. If the counsel for the captors require it I will order the
original documents in proof of these explanations to be produced ;
although I must say, at the same time, that the impression upon my
mind is, that it is a fair transaction.
“The originals decreed to be produced.
« January 15th, 1800. The captors being satisfied with the farther
proof produced, Mr. Berkeymyer's claims were restored without
opposition."
THE “JAN FREDERICK." .
HIGH COURT OF ADMIRALTY, 1804.
(5 C. Robinson, 128.)
1
Judgment, -Sir W. SCOTT:
“This question arises on parts of several cargoes put on board
Dutch ships in January and February, 1803, and brought in under
the general embargo on Dutch property, previous to hostilities, in
the month of May. The property is documented for the account and
risk of certain estates in Surinam ; and certainly, if it was not al-
lowable under any considerations to aver against the evidence of the
ship's documents, it must be subject to condemnation as Dutch
property. But the Court has opened a door to such claims, in oppo-
sition to the averment of the ship's papers; and it has done this, on
a consideration of the fair course of mercantile speculation in time of
peace. It has even allowed a change of property in transitu, by the
transfer of the bills of lading; where it had been done without any
view of accommodation to relieve the seller from the pressure or
prospect of war. In the present instance, there is no proof of any
transfer of the bills of lading, except as to one or two parcels of
goods belonging to the widow Noble, which do, indeed, bear an en-
1 Facts are omitted and only extracts are given from the judgment.,- ED.
CHAP. II.]
619
THE
JAN FREDERICK."
dorsement, but whether they were so endorsed before or after the
war, it does not appear. This alone would be sufficient to defeat the
claim; since, till the bill of lading was so endorsed, the contract
would, I apprehend, be a thing remaining in covenant only: it might
subject the party to an action damni dati, but it would not amount
to a transfer, being only an engagement that the goods should be
transferred when they arrived. That a transfer may take place in
transitu, has, I have already observed, been decided in two or three
cases, where there had been no actual war, nor any prospect of war,
mixing itself with the transaction of the parties. But in time of
war this is prohibited as a vicious contract, being a fraud on bellig-
erent rights, not only in the particular transaction, but in the great
facility which it would necessarily introduce, of evading those rights
beyond the possibility of detection. It is a road that, in time of war,
must be shut up; for although honest men might be induced to
travel it with very innocent intentions, the far greater proportion of
those who passed would use it only for sinister purposes, and with
views of fraud on the rights of the belligerent.
"This, however, is not a contract made in time of war; and there-
fore an important question is raised, whether the contemplation of
war would have the same effect in vitiating these contracts as act-
ual war? It cannot be said that all engagements in the proximity
of war, into which the speculation of war might enter, as for in-
stance, with regard to the price, would therefore be invalid. The
contemplation of war is undoubtedly to be taken in a more restricted
sense. But if the contemplation of war leads immediately to the
transfer, and becomes the foundation of a contract, that would not
otherwise be entered into on the part of the seller; and this is known
to be so done, in the understanding of the purchaser, though on his
part there may be other concurrent motives, as in the case of the
Rendsborg (4 C. Rob., 121), such a contract cannot be held good, on the
same principle that applies to invalidate a transfer in transitu in
time of actual war. The motive may indeed be difficult to be proved
-but that will be the difficulty of particular cases. Supposing the
fact to be established, that it is a sale under an admitted necessity,
arising from a certain expectation of war; that it is a sale of goods
not in the possession of the seller, and in a state where they could
not, during war, be legally transferred, on account of the fraud on
belligerent rights. I cannot but think that the same fraud is commit-
ted against the belligerent, not, indeed as an actual belligerent, but as
one who was, in the clear expectation of both Cho contracting par-
ties, likely to become a belligerent before the arrivi..of the property,
which is made the subject of their agreement. The nature of both
1
620
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
*
*
contracts is identically the same, being equally to protect the prop-
erty from capture of war—not indeed in either case from capture
at the present moment when the contract is made, but from the
danger of capture, when it was likely to occur. The object is the
same in both instances, to afford a guarantee against the same crisis
In other words, both are done for the purpose of eluding a belliger-
ent right, either present or expected. Both contracts are framed
with the same animo fraudandi, and are, in my opinion, justly
subject to the same rule.
“I am of opinion, therefore, that if the papers and letters which
have been produced, do sufficiently establish the purpose attributed
to the contract, if it is proved to have been built immediately and
fundamentally on the contemplation of war, on the part of the seller,
and that it would not otherwise have fallen into the hands of the
purchaser, it is an illegal contract, and must be held on every
ground, on which similar contracts in time of war have been held to
be invalid.
"But taking it to be a bona fide contract, yet being formed in
transitu, for the purpose of withdrawing the property from capture,
it does intimately partake of the nature of those contracts, which have,
in the repeated decisions of this, and of the Supreme Court, Leen
pronounced null and invalid; and I pronounce this property subject
to condemnation."
*
*
THE SHIP "ANN GREEN."
U. S. CIRCUIT COURT FOR MASSACHUSETTS, 1812.
(1 Gallison, 274.)
STORY, J.:1-
“ It has been further argued, that this capture, being made while
the property was in transitu, and war intervening, it is to be consid-
ered as enemy's property, because it would have become such upon
arrival at the port of destination: and at all events it would have been
liable to seizure and confiscation. As to the fact that the property
was taken in transitu; I do not perceive how of itself it can affect
the rights of the parties either way; nor do I perceive how this
property was to have become enemy's property on its arrival. The
case proved is, that it was American property consigned for sale
1 Statement of the case is omitted and only so much of the opinion is given as
relates to transfer in transitu. — Ep.
CHAP. II.]
621
THE
BENITO ESTENGER.”
only, and not a consignment where the property was, at the time of
shipment or of arrival, to belong to the consignee. The cases are, as I
think, settled upon just principles, that decide that in time of war,
property shall not be permitted to change character in its transit;
nor shall property consigned, to become the property of the enemy
on arrival, be protected by the neutrality of the shipper. Such con-
tracts, however valid in time of peace, are considered, if made in war
or in contemplation of war, as infringements of belligerent rights, and
calculated to introduce the grossest frauds. In fact, if they could
prevail, not a single bale of enemy's goods would ever be found upon
the ocean.” (Vrow Margaretha, 1 C. Rob., 336; Carl Walter, 4 C.
Rob., 207; Jan Frederick, 5 C. Rob., 128; The Constantia, 6 C.
Rob., 321 ; The Anna Catharina, 4 C. Rob., 107; Packet De Bilboa,
2 C. Rob., 133.)
THE “BENITO ESTENGER."
SUPREME COURT OF THE UNITED STATES, 1899
(176 United States, 568.)
Mr. Chief Justice FULLER, after stating the case, delivered the
opinion of the court.
If the alleged transfer was colorable merely, and Messa was the
owner of the vessel at the time of capture, did the District Court err
in condemning the Benito Estenger as lawful prize as enemy
property ?
“Enemy property” is a technical phrase peculiar to prize courts, and
depends upon principles of public policy as distinguished from the
common law. The general rule is that in war the citizens or subjects
of the belligerents are enemies to each other without regard to individ-
ual sentiments or dispositions, and that political status determines the
question of enemy ownership. And by the law of prize, property en-
gaged in any illegal intercourse with the enemy is deemed enemy
property, whether belonging to an ally or a citizen, as the illegal
1 In the case of the ship Francis and Cargo, 1813, 1 Gallison, 445, approved by the
Supreme Court, 8 Cranch, 354 (1813), a shipment made by an enemy shipper to his
correspondent in America, to belong to the latter at his election, in twenty-four hours
after the arrival thereof, was held liable to condemnation as hostile property.
In war, property cannot change its character in transitu ; and in this case, an elec-
tion during the transit would not merge the hostile character of the property.
On the subject of the sale in transitu by a belligerent to a neutral, see an article by
T. S. M. Browne, in the Law Magazine and Review, 1870, Vol. xxix: p. 233. — Ed.
1
622
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
traffic stamps it with the hostile character and attaches to it all the
penal consequences. Prize Cases, 2 Black, 635, 674; The Sally,
8 Cranch, 382, 384; Jecker v. Montgomery, 18 How. 110; The Peter-
hoff, 5 Wall. 28; The Flying Scud, 6 Wall. 263.
Messa was a Spanish subject, residing at Santiago, and for years
engaged in business there. His vessel had a Spanish crew and Span-
ish officers, and he testified that he was on board of her as supercargo.
She had the Spanish flag in her lockers, though she was flying the
British flag at the moment, under a transfer, which, as presently to be
seen, was colorable and invalid. There was evidence tending to show
that Messa sympathized with the Cuban insurgents, but no proof
that he was himself a Cuban rebel or that he had renounced his
allegiance to Spain. The vessel carried to Manzanillo on this voy-
age a cargo of provisions, consisting principally of eleven hundred
barrels of flour.
Manzanillo was a city of several thousand inhabitants and the first
important place on the south Cuban coast between Santiago and
Cienfuegos, lying inside the bay formed by the promontory which
Cape Cruz terminates, and about sixty miles northeast of the cape.
Cape Cruz is about due north from Montegro Bay on the northwestern
shore of Jainaica, and about seventy-five miles distant, while Kings-
ton is on the southeastern coast of Jamaica. The record lacks evi-
dence of the condition of affairs there at that time, but official reports
leave no doubt that it was defended by several vessels of war and by
shore batteries, and was occupied by some thousands of Spanish sol-
diers. On the 6th of April, 1898, the Secretary of the Navy had
instructed Admiral Sampson, among other things, that the depart-
ment desired, “That in case of war, you will maintain a strict block-
ade of Cuba, particularly the ports of Havana, Matanzas, and, if
possible, Santiago de Cuba, Manzanillo and Cienfuegos.” Manzanillo
was the terminus of a cable which connected with Santa Cruz, Trini-
dad, Cienfuegos and Havana, and was subsequently cut by the forces
of the United States, in order to check the inland traffic with Man-
zanillo and to prevent the calling of re-enforcements to resist the cap-
ture of that place. And it appeared that Admiral Sampson had been
for some weeks endeavoring to stop blockade running on the south
coast of Cuba, and that a large vessel with a heavy battery was
stationed at Cape Cruz Manzanillo was not declared blockaded, how-
ever, until the proclamation of June 27, 1898; but the consul of the
United States at Kingston had warned Messa and Beattie that a
blockade in fact existed. The claimant testified that the vessel was
chartered by Flouriache, a Cuban merchant, and that the cargo was
consigned to Bauriedel and Company, at Manzanillo. The deposition
CHAP, II.]
623
66
THE
BENITO ESTENGER.
*
of neither of these was taken. According to the explicit testimony
of the consul, he was informed by both the claimant and his brother
that the flour was transferred by Bauriedel and Company, through a
communicating way from their warehouse to the Spanish Government
warehouse, immediately upon its delivery; and no evidence to contra-
dict this was introduced.
The instructions of the Navy Department to "blockading vessels
and cruisers," in the late war, included, among articles conditionally
contraband, “provisions, when destined for an enemy's ship or ships,
or for a place that is besieged.”
In The Commercen, 1 Wheat. 382, 388, Mr. Justice Story said:
“ By the modern law of nations, provisions are not, in general, deeined
contraband; but they may become so, although the property of a
neutral, on account of the particular situation of the war, or on account
of their destination.
If destined for the ordinary use of life
in the enemy's country, they are not, in general, contraband; but it is
otherwise if destined for military use. Hence, if destined for the
army or navy of the enemy, or for his ports of naval or military
equipment, they are deemed contraband."
In The Jonge Margaretha, 1 C. Rob. 189, 193, Sir William Scott dis-
cussed this question, and, after referring to many instances, concluded:
" And I take the inodern established rule to be this, that generally
they are not contraband, but may become so under circumstances aris-
ing out of the particular situation of the war, or the condition of the
parties engaged in it."
But, while alluding to this subject by way of illustration, we do not
feel called on to consider under what particular circumstances, gener-
ally speaking, provisions may be held contraband of war. It is enouglı
that, in dealing with a vessel adjudicated to have been an enemy
vessel, the fact of trade with the enemy, especially in supplies neces-
sary for the enemy's forces, is of well-nigh decisive importance.
In reply it is suggested that this cargo was intended for the Cuban
insurgents, and a quotation is nade from a letter of the consul to the
effect that he had been “ told privately by the president of the local
junta, who has performed valuable services for me, that the proceeds
of this cargo are to be forwarded to the Cuban Government and troops
through the Cuban agent at Manzanillo.” The suggestion derives no
support from the record, and the facts remain that the provisions were
delivered to the Spanish Government, and that the trade to this Span-
ish stronghold constituted, under the laws of war, illicit intercourse
with the euemy.
This brings us to consider the contention that Messa had rendered
important services to the United States; that he was the friend and
624
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
not the enemy of this government, and that there was an agreement
between him and the United States consul which operated to protect
the vessel from capture. But Messa's status was that of an enemy,
as already stated, and this must be held to be so notwithstanding
individual acts of friendship, certainly since there was no open adher-
ence to the Cuban cause, and allegiance could have been shifted with
the accidents of war. The legal conclusion was not affected by the
fact that Messa had, in cultivating friendly relations with the consul,
given the latter an old government plan of the province of Santiago
and an especially prepared chart of the harbor. Thus displaying his
amicable inclinations, he endeavored to obtain from the consul a letter
of protection for the voyage he was about to undertake, but this the
consul declined to furnish, and informed him at the same time that
Manzanillo was blockaded, and that the contemplated venture would be
at his own risk.
Nevertheless, the consul agreed to write the admiral, and did write
him, June 23, that Messa offered to give certain information that might
he valuable, and that he proposed to be off Cape Cruz on June 30,
when he could be picked up there and taken to the admiral if he
desired; but the consul said: “You quite understand that in dealing
with those people, one is always more or less liable to imposition. I.
therefore make no recommendation of Messa to you.” There was noth-
ing to show that the voyage was undertaken on the strength of this
letter or that it in any way contributed to the capture, nor that the
admiral intended to avail himself of the suggestion in regard to
Messa.
The claimant asserted and the consul denied that protection to the
voyage was extended by the latter. But we do not go at length into
this matter because we think that no engagement with the United
States nor any particular service to the United States was made out
in that connection, and so far as appears the vessel was captured in
the ordinary course of cruising duty at a time and under circum-
stances when her liability was not to be denied. Moreover, a United
States consul has no authority by virtue of his official station to
grant any license or permit the exemption of a vessel of an enemy
from capture and confiscation. This was so held by Judge McCaleb
in Rogers v. The Amado, Newberry, 400, in which he quotes the
language of Sir William Scott in The Hope, 1 Dodson, 226, 229:
" To exempt the property of enemies from the effect of hostilities,
is a very high act of sovereign authority; if at any time delegated
to persons in a subordinate situation, it must be exercised either by
those who have a special commission granted to thein for the par-
ticular business, and who, in legal language, are termed mundatories
CHAP. II.]
THE
625
BENITO ESTENGER.
or by persons in whom such a power is vested in virtue of any official
situation to which it may be considered incidental. It is quite clear
that no consul in any country, particularly in an enemy's country, is
vested with any such power in virtue of his station.
( Ei rei 12012
præponitur ;' and therefore his acts relating to it are not binding."
In The Joseph, 8 Cranch, 451, the vessel was condemned for trad-
ing with the enemy, and it was held that she was not excused by the
necessity of obtaining funds to pay the expenses of the ship, nor by
the opinion of an American minister expressed to the master, that by
undertaking the voyage he would violate no law of the United States.
The court said that these considerations, "if founded in truth, present
a case of peculiar hardship, yet they afford no legal excuse which it is
competent to this court to admit as the basis of its decision.”
This is equally true of the case before us, for even if the circuin-
stances may have justified liberal treatment, that cannot be permitted
to influence our decision. It belongs to another department of the
Government to extend such amelioration as appears to be demanded in
particular instances.
Neither the case Les Cinq Frères, 4 Lebau's Nouveau Code des
Prises, 63, nor that of The Maria, 6 C. Rob. 201, cited by counsel, is in
point. In the former, the Committee of Public Safety in the year 3
of the French calendar of the Revolution decreed the condemnation of
Les Cinq Freres as an enemy's vessel, and of her cargo, although
belonging to Frenchmen, but further decreed restitution of the cargo
or its value, as matter of grace, in consideration of services rendered
by the claimants in furnishing provisions to the republic, adding that
this should not be drawn into a precedent. The latter simply involved
the interpretation of an indulgence specifically granted by the British
Government.
Thus far we have proceeded on the assumption that the transfer of
the Benito Estenger was merely colorable, and this, if so, furnished in
itself ground for condemnation. A brief examination of the evidence,
in the light of well-settled principles, will show that the assumption
is correct.
Messa's story of the transfer was that the steamer had been owned
by Gallego, Messa and Company, and then by himself; that he was
coinpelled to sell in order to get money to live on; that he made
the sale for $40,000, for which, or a large amount of which, credit
was given on an indebtedness of Messa to Beattie and Company, and
that he was employed by Beattie to go on the vessel as his repre-
sentative and business manager.
In short, the statements as to price were conflicting; the reason
assigned for the sale was to get money to live on, and yet apparently
40
626
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
no money passed, and Messa said that he received credit for a large
part of the consideration on indebtedness to claimant’s firm; claimant
himself refused to describe the payment or payments; the Spanish
inaster and crew remained in charge; Messa went on the voyage as
supercargo; the vessel continued in trade, which, in this instance, at
least, appeared to be plainly trade with the enemy; and, finally, it is
said by claimant's counsel in his printed brief: “ It will not be con-
tended upon this appeal that all the interest of Mr. Messa in the
Benito Estenger ceased on June 9, 1898. The transfer was obviously
made to protect the steamer as neutral property from Spanish seizure.
That Mr. Messa, however, still retained a beneficial interest after this
sale and transfer of flags, and continued to act for the vessel as super-
cargo, has not been disputed.”
The attempt to break the force of this admission by the contention
that the change of flag was justifiable as made to avoid 'capture by
the Spanish is no more than a reiteration of the argument that Messa
was a Cuban rebel, and his vessel a Cuban vessel, which, as has been
seen, we have been unable to concur in. If the transfer were invalid,
she belonged to a Spanish subject, she was engaged in an illegal
venture, and her owner cannot plead his fear of Spanish aggression.
Trunsfers of vessels flagrante bello were originally held invalid, but
the rule has been modified, and is thus given by Mr. Hall, who, after
stiiting that in France “their sale is forbidden, and they are declared
to be prize in all cases in which they have been transferred to neutrals
after the buyers could have knowledge of the outbreak of the war,"
says: “In England and the United States, on the contrary, the right
to purchase vessels is in principle adınitted, they being in themselves
legitimate objects of trade as fully as any other kind of merchandise,
but the opportunities of fraud being great, the circumstances attend-
ing a sale are severely scrutinized, and the transfer is not held to be
good if it is subjected to any condition or even tacit understanding by
which the vendor keeps an interest in the vessel or its profits, a con-
trol over it, a power of revocation, or a right to its restoration at the
conclusion of the war.” International Law (4th ed.), 525. And to
the same effect is Mr. Justice Story in his Notes on the Principles and
Practice of Prize Courts (Pratt's ed.), 63; 2 Wheat. App. 30: "In
respect to the transfers of enemies' ships during the war, it is certain
that purchases of them by neutrals are not, in general, illegal ; but
such purchases are liable to great suspicion ; and if good proof be not
given of their validity by a bill of sale and payment of a reasonable
consileration, it will materially impair the validity of a neutral
claim; * * * and if after such transfer the ship be employed habitually
in the enemy's trade, or under the management of a hostile proprietor,
CHAP. II.]
THE “ BENITO ESTENGER.'
627
>>
1
the sale will be deemed merely colorable and collusive. *** Any-
thing tending to continue the interest of the enemy in the ship
vitiates a contract of this description altogether."
The Sechs Geschwistern, 4 C. Rob. 100, is cited, in which Sir William
Scott said : “ This is the case of a ship asserted to have been pur-
chased of the enemy; a liberty which this country has not denied to
neutral merchants, though by the regulation of France it is entirely
forbidden. The rule which this country has been content to apply is,
that property so transferred must be bona fide and absolutely trans-
ferred; that there must be a sale divesting the enemy of all further
interest in it; and that anything tending to continue his interest,
vitiates a contract of this description altogether.”
In The Jemmy, 4 C. Rob. 31, the same eminent jurist observed :
"This case has been admitted to farther proof, owing entirely to the
suppression of a circumstance, which if the court had kuown, it
would not have permitted farther proof to have been introduced ;
namely, that the ship has been left in the trade, and under the man-
agement of her former owner. Wherever that fact appears, the court
will hold it to be conclusive, because, froin the evidentia rei, the strong-
est presumption necessarily arises, that it is merely a covered and
pretended transfer. The presumption is so strong that scarcely any
proof can avail against it. It is a rule which the court finds itself
under the absolute necessity of maintaining. If the enemy could be
permitted to make a transfer of the ship, and yet retain the manage-
ment of it, as a neutral vessel, it would be impossible for the court
to protect itself against frauds."
And in The Omnibus, 6 C. Rob. 71, he said: “The court has often
had occasion to observe, that where a ship, asserted to have been
transferred, is continued under the former agency and in the former
habits of trade, not all the swearing in the world will convince it
that it is a genuine transaction.”
The rule was stated by Judge Cadwalader of the Eastern District
of Pennsylvania thus: “The rule of decision in some countries has
been that, as to, a vessel, no change of ownership during hostilities
can be regarded in a prize court. In the United States, as in Eng-
land, the strictness of this rule is not observed. But no such change
of property is recognized where the disposition and control of a vessel
continue in the former agent of the former hostile proprietors; more
especially when, as in this case, he is a person whose relations of
residence are hostile." The Island Belle, 13 Fed. Cases, 168.
So in The Baltica, Spinks Prize Cases, 264, several vessels had been
sold by a father, an enemy, to his son, a neutral, immediately before
the war, and only paid for in part, the remainder to be paid out of.
1
628
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
the future earnings thereof, and the Baltica, which was one of them,
was condemned on the ground of a continuance of the enemy's
interest.
In The Soglasie, Spinks Prize Cases, 104, Dr. Lushington held the
onus probundi to be upon the claimant, and made these observations:
“With regard to documents of a forinal nature, though when well
authenticated they are to be duly appreciated, it does not follow that
they are always of the greatest weight, because we know, without
attributing blame to the authorities under which they issue, they are
instruments often procured with extraordinary facility. What the
court especially desires is, that testimony which bears less the ap-
pearance of formality, -evidence natural to the transaction, but
which often carries with it a proof of its own genuineness; the
court looks for that correspondence and other evidence which natur-
ally attends the transaction, accompanies it, or follows it, and which
when it bears upon the face of it the aspect of sincerity, will always
receive its due weight."
In The Ernst Merck, Spinks Prize Cases, 98, the sale was to neutrals
of Mecklenburg shortly before the breaking out of war, and it was ruled
that the onus of giving satisfactory proof of the sale was on the
claimant, and without it the court could not restore, even though it
was not called on to pronounce affirmatively that the transfer was
fictitious and fraudulent. In that case the vessel was condemned
partly because of absence of proof of payment, Dr. Lushington say-
ing: “ We all know that one of the most important matters to be
established by a claimant is undoubted proof of payment.'
To the point that the burden of proof was on the claimant see also
The Jenny, 5 Wall. 183; The Amiable Isabella, 6 Wheat. 1; The Lilla,
2 Cliff, 169; Story's Prize Courts, 26.
We think that the requirements of the law of prize were not sat-
isfied by the proofs in regard to this transfer, and on all the evi-
dence are of opinion that the court below was right in the con-
clusion at which it arrived.
Decree affirmed.
Mr. Justice SHIRAS, Mr. Justice WHITE and Mr. Justice PECKHAM
dissented.1
1 It would seem that a slight inaccuracy has crept into the reported judgment of
the learned Chief Justice ; for The Ballica, 1855, Spinks P. C. 264, was reversed on
appeal, 11 Moore P. C. 1857, 141, where it was held by Rt. Hon. T. Pemberton Leigh,
affirming The Ariel, 1857, 11 id. 119, that the sale of a ship absolutely and bona fide by
an enemy to a neutral, imminente bello, or even flagrante bello, is not illegal. In the
case of The Ariel part only of the purchase money was paid at the time of the pur-
CHAP. II.]
629
TEE
VROW HENRICA."
SECTION 35. — FREIGHT AND LIENS.
THE, “ VROW HENRICA."
High COURT OF ADMIRALTY, 1803.
(4 C. Robinson, 343.)
This was a case of a Danish vessel taken on a voyage from
Valencia to London. The ship had been restored with freight to be
a charge on the cargo, which was condemned, but the proceeds not
being sufficient to pay the freight and the expenses of the captor, it
chase, the remainder being agreed to be paid out of the earnings of the ship. Before
all the stipulated price was paid, the ship was seized in a British port as prize, and
condemned in the High Court of Admiralty, on the ground that the enemy's interest
in the ship was not divested, as the residue of the purchase money was to be paid out
of the earnings. Such condemnation was reversed on appeal, as the non-payment of
part of the purchase money did not create a lien on the freight and ship in favor of
the seller, so as to render the ship in possession of a neutral owner liable to seizure
by a belligerent. It was further held that liens, whether in favor of a neutral or an
enemy's ship, or in favor of an enemy or a neutral ship, are equally to be disregarded
in a court of prize.
In the case of The Baltica, the vessel was at the time of the sale in the prosecu-
tion of a voyage from Libau, an enemy's port, to Copenhagen, a neutral port, where
she arrived and was taken possession of by the purchaser. It was held, reversing Dr.
Lushington's judgment in Spinks, 264, that the sale, though in transitu, was valid, as
the transitus had ceased when the vessel had come into possession of the purchaser,
which took place before the seizure. It was further held that a neutral, while war is
imminent, or even after it has commenced, is at liberty to purchase either goods or
ships (not being ships of war) from either belligerent, and the purchase is valid
whether the subject of it be lying in a neutral or an enemy's port.
See, also, The Georgia, 1868, 7 Wall. 32, citing with approval Rt. Hon. T. Pember-
ton Leigh's judgment in The Baltica, and holding that a bona fide purchase for a com-
mercial purpose by a neutral, in his own home port, of a ship of war of a belligerent
that had fled to such a port in order to escape from enemy vessels in pursuit, but
which was bona fide dismantled prior to the sale and afterwards fitted up for the mer-
chant service, does not pass a title above the right of capture by the other belligerent.
Perhaps the inexorable rule of law against transfers in transitu, unless (as Mr. Hall
expresses it, in his Int. Law, p. 526)," the transferee has actually taken possession” is
nowhere better put than by Mr. Justice Swayne in delivering the opinion of the court
in The Sally, 1865, 3 Wall. 451, 460: “ The ownership of property in such cases can-
not be changed while it is in transitu. The capture clothes the captors with all the
rights of the owner which subsisted at the commencement of the voyage, and any-
thing done thereafter, designed to incumber the property, or change its ownership, is
a nullity. Sound public policy and the right administration of justice forbid it. This
rule is rigidly enforced by all prize tribunals. The property was shipped to the
630
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
::
was prayed on the part of the neutral ship, that the priority of pay.
ment might be given to freight, on the authority of the Bremen
Flugge, 4 C. Rob., 90.
Judgment,—Sir W. SCOTT:-
“I have considered the cases which I directed to be looked
up, and I see no reason to alter the opinion which I before
expressed, that freight is, in all ordinary cases, a lien which
is to take place of all others. The captor takes cum onere:
It is the allowed privilege of neutral trade to carry the property of
the enemy, subject to its capture, and to the temporary detention of
his vessel; and if the party does not prevaricate, or conduct him-
self in any respect with ill-faith, he is entitled to his freight. This
is the rule which I am disposed to apply in all cases of neutral ships
carrying on their ordinary commerce. It is the general rule, which
may nevertheless be liable to be altered by circumstances. There is
one class of cases to which I think it ought not to be applied-I
mean the case of ships carrying on a trade between ports of allied
enemies--a trade which may be said to arise in a great measure
out of the circumstances of war, though not altogether: I say not
altogether, because such a trade exists in a limited degree in times
of peace.
“In such a course of trade, although the Court has not altogether
refused freight to the neutral ship, yet it may not think it unreason-
able that the captor should, in preference, be entitled to his expenses,
inasmuch as the nature of such a trade cannot but very much influ-
ence the judgment which he must unavoidably form of his duty to
bring in the cargo for adjudication. In the present case, the voyage
is not between the ports of allied enemies, but between the ports of
two belligerents, from Valencia to London; that constitutes, I
think, a sort of middle case, with respect to the obligation by which
the captor might conceive himself bound to bring the cargo to adju-
dication. There might be a presumption, undoubtedly, that the
property belonged to the enemy exporter; but there is a foundation
also for presuming that it might belong to the consignee, and that it
would not have been sent on a destination to this country, but under
the protection of a license.
“It is, therefore, a case of a mixed nature, to which I shall apply
enemy. It was diverted from its course by the capture. The allegation of a lien
wears the appearance of an afterthought. It strikes us as a scheme devised under
pressure, to save, if possible, something from the vortex which it was foreseen inevita-
bly awaited the vessel and cargo.”
On the question of colorable transfer in war, see, also, The Texan Star, 3 Moore
Int. Arb. 2360, and cases there cited. -- ED.
CHAP. II.]
631
THE
FORTUNA.”
a sort of a middle judgment. I will allow the captor his law
expenses, and direct the other expenses to be postponed to the pay-
ment of freight."
1
THE “FORTUNA."
HIGH COURT OF ADMIRALTY, 1802.
(4 C. Robinson, 278.)
1
This was a case on petition of the captors, praying to be allowed
freight for a cargo, which had been restored as neutral property. The
demand for freight was founded on a suggestion, that the ship,
which had been condemned, had actually performed the contract of
the original affreightment, by carrying the cargo to the place of its
destination.
Judgment --Sir W. SCOTT:-
“This is the case of a ship which had carried a cargo of corn to
Lisbon, the original port of destination. In such a case I appre-
hend the rule to be, that the captor is entitled to freight, and on the
same principle, on which he would be held not to be entitled, where
he does not proceed, and perform the original voyage. The specific
contract is performed in the one case, and not performed in the
other. It is the rule of practice laid down in the case of the Vrey-
heid, Lords, 1784, a case perfectly within my recollection as a case
very deliberately considered at the Cockpit. It is conformable to
the text law, and the opinion of eminent jurists. Quod additur de
vecturæ pretüs solvendis (says Bynkershoek), ejus juris rationem
non adsequor. Satis intelligo, qui navem hostilem occupant, etiam
occupasse omne jus quod navi, sive navarcho debebatur, ob merces
translatas in portum destinatum. Proponitur autem, navem in ipso
itinere fuisse captam. Eccur igitur capienti solvam mercedes ? Si
qui cepit navem, eam cum mercibus in locum destinatum perducere
paratus sit, ejus juris rationem intelligerem, ceteroquin non in-
telligo.'
“ In the case of the Vreyheid, all the considerations that could be
applied to this question were fully canvassed, and it was then recog-
nized as the true rule, that the captor who has performed the con-
tract of the vessel is, as a matter of right, and de cursu, entitled to
freight; although, if he has done anything to the injury of the prop-
erty, or has been guilty of any misconduct, he may remain answer-
1 The statement has been shortened and part of the opinion is omitted. — ED.
632 EFFECTS OF WAR AS BETWEEN ENEMIES. (PART II.
able for the effect of such misconduct, or injury, in the way of a set-
off against him.
'The case then is reduced to a question, whether the captor, in
this instance, has done anything to forfeit the right, which, under
the general rule, he had acquired.
Under the circumstances of this case, I am of opinion, that the
captor has not forfeited the interest which he had acquired.
“Freight decreed to the captor.” 1
*
THE 6 ANTONIA JOHANNA.”
SUPREME COURT OF THE UNITED STATES, 1816.
(1 Wheaton, 159.
A neutral ship was chartered for a voyage from London to St.
Michaels, thence to Fayal, thence to St. Petersburg or any port in
the Baltic, and back to London, at the freight of 1,000 guineas.
On her passage to St. Michaels she was captured and brought into the
port of Wilmington, N. C., for adjudication. A part of the cargo was
condemned, and part restored.?
STORY, J., delivered the opinion of the court.
- The next inquiry is, as to the freight decreed to the master. As
no appeal. was interposed to the decree of the District Court, allowing
the whole freight for the whole voyage, the question, whether more
than a pro rata freight was due (a question which would otherwise
have deserved grave consideration), does not properly arise. The
only discussion which can now be entertained is, whether the freight
so decreed ought not to have been charged upon the whole cargo,
instead of being charged upon a portion of it. And we are all of
opinion that it was properly a charge upon the whole cargo. Although
capture be deemed, in the prize courts, in many cases, equivalent to
1 Compare The Diana, 1803, 5 C. Rob. 67, and Vrow Anna Catharina, 1806, 6 C. Rob.
269, in which the special circumstances of The Diana are explained; the rule of the
text affirmed and restated and the rule pro rata itineris rejected. In Palmer v.
Lorillard, 1819, 16 Johns. 348, it was held by Chancellor Kent that a contract of
affreightment is not dissolved by a hostile blockade or investment of the port of
departure; the performance of it is merely suspended and the shipowner may detain
the goods until he can prosecute the voyage with safety or the freighter demand
them on tendering the full freight. It is only when the voyage is broken up, on the
part of the shipowner or master, or the completion of it has become unlawful, that
the contract is dissolved. See, also, The Commercen, 1816, 1 Wheat, 382, infra. — Ed.
2 Statement by the editor and only so much of the judgment is given as relates to
the question of freight. — ED.
.
CHAP. II.
THE
633
66
ANTONIA JOHANNA."
delivery, yet the captors cannot be liable for more than the freight
of the goods actually received by them. The capture of a neutral
ship, having enemy's property on board, is a strictly justifiable
exercise of the rights of war. It is no wrong done to the neutral,
even though the voyage be thereby defeated. The captors are not,
therefore, answerable in pænam to the neutral for the losses which he
may sustain by a lawful exercise of belligerent rights. It is the
misfortune of the neutral, and not the fault of the belligerent. By
the capture, the captors are substituted in lieu of the original owners,
and they take the property cum onere. They are, therefore, respon-
sible for the freight which then attached upon the property, of which
the sentence of condemnation ascertains them to be the rightful
owners succeeding to the former proprietors. So far the rule seems
perfectly equitable; but to press it farther, and charge them with the
freight of goods which they have never received, or with the burden
of a charter party into which they have never entered, would be
unreasonable in itself, and inconsistent with the admitted principles
of prize law. It might, in a case of justifiable capture, by the con-
demnation of a single bale of goods, lead the captors to their ruin by
loading them with the stipulated freight of a whole cargo.”
Decree affirmed, except as to the freight.
1
Davis, J., in Hooper, Adm'r, v. U. S., 1887, 22 Court of Claims, 408,
460. In case of capture the general rule is that the neutral carrier
of enemy's property is entitled to his freight (Story, J., in The Comer-
ceen, 1 Gallison, 264). Sir William Scott held very firmly by this
rule in the case of Der Mohr, 3 C. Rob. 129, and 4 C. Rob. 315, a case
1 It has been held that the charter-party is not the measure by which the captor is,
in all cases, bound, even where no fraud is imputed to the contract itself. When, by
the events of war, navigation is rendered so hazardous as to raise the price of freight
to an extraordinary height, captors are not, necessarily, bound to that inflamed rate
of freight. . When no such circumstances exist, when a ship is carrying on an ordinary
traile, the charter-party is undoubtedly the rule of valuation, unless impeached; the
captor puts himself in the place of the owner of the cargo, and takes with that specific
lien upon it. But a very different rule is to be applied, when the trade is subjected to
very extraordinary risk and hazard, from its connection with the events of war, and
the redoubled activity and success of the belligerent cruisers. The Twilling Riyet,
1804, 5 Rob. 82.
See the ship Nathaniel Hooper, 3 Sumn. 1839, 549, where there is an elaborate
review of authority that the doctrines of prize courts, in the administration of prize
law as to freight, are not generally applicable to cases of mere civil commercial ven-
tires, or cases of civil salvage. See, also, 3 Kent's Com. 249; Carver's Carriage of
Goods by Sea (3d ed. 1900), S$ 236, 237, 244–247, and cases cited in the rules to these
sections. -- ED.
634
[PART IT.
EFFECTS OF WAR AS BETWEEN ENEMIES.
of great hardship, appealing strongly to the sympathy of the court.
In that case he said:
" In an unfortunate case like the present, the court would certainly
be disposed to give the captor all possible relief. I need not add that
no relief is possible which cannot be given consistently with the
justice due to the claimant. The demand of freight is, I apprehend,
an absolute demand, in casės wliere the ship is pronounced to be
innocently employed. *** The freight is as much a part of the loss
as the ship, for he (the captor) was bound to answer equally for both.
The captor has, by taking possession of the whole cargo, deprived
the claimant of the fund to which his security was fixed. He was
bound to bring in that cargo subject to the demand for freight. He
was just as answerable for the freight of the voyage as for the ship
which was to earn it, or which was rather to be considered as having
already earned it. In the room of this fund the captor has substituted
his own responsibility, for loss accrues by the fault of his agent. I
see no distinction under which I can pronounce that the claimant is
not as much entitled to the freight as to the vessel." See, also,
1 Gallison, 274, the Anna Green.
Upon an open insurance policy gross freight is recoverable, 2
Phillips Ins. S 1238. As to insurance, the inchoate right to freight
vests directly “the ship has broken ground on the voyage described in
the charter-party," and there is an insurable interest “where there is
an expectancy coupled with a present existing title.” Lucena v.
Crawford, 2 Bos. and Pull. N. R. 269; 1 Phillips Ins., $ 334, p. 192.
Freight, then, is properly insurable and collectible. It has value,
though the right as against the freighter may be inchoate until
delivery. As to the freighter the shipowner is without redress, unless
there be delivery in accordance with the contract, but as to an insurer
or tort-feasor, there is a right to redress upon the happening of an
interruption of the voyage. The amount of that redress and the
inethod of computing it in the cases now submitted to us of illegal
capture are now to be decided. The shipowner has a right to a
reasonable return upon his investment, for the risk to which his
property is subjected, for its depreciation while engaged in the under-
taking, and for the expenses to which he is subjected in carrying it
out. The measure of that return, based upon the theory of a complete
voyage, he has himself fixed in his contract of affreightment. If his
voyage be not completed, but be interrupted and his property be lost
by the act of a wrongdoer, then, as against that wrongdoer, the
maxiin restutio in inte grum applies. If the voyage were completed
the difficulty would not be serious, for as a guide we should have
a contract made by parties opposed in interest and familiar with the
CHAP. II.] HOOPER, ADM'R, v. UNITED STATES.
635
business. As the voyage has not been completed, an allowance of
gross freight would be more than a restitutio in integrum, and would
neglect a deduction for expenses necessarily to be incurred in com-
pletiug the contract and in conveying the cargo to the point of
delivery. To allow gross freight under these circumstances would in
effect not merely reimburse the owner, but render the seizure a matter
of profit to him, and we do not understand that punitive damages
should be recovered in the cases now before us. The vessel having
been destroyed before the completion of the voyage, has not been
so long employed as the contract contemplated, her crew have received
less wages, and her hull and outfit have received less deterioration.
She has only earned freight pro tanto. On the other hand, the ex-
penses of freight earning are much greater at the beginning of the
voyage than at any other period, for then advances are made seamen,
stores are shipped, port charges and the cost of loading have to be
met. Therefore to divide the total freight by the number of days out
of port would not be fair to the shipowner; to deduct from the
total freight the cost of the voyage from the place of destruction to
port of destination would be a fairer rule, could those expenses be
ascertained.
To compute the amount of this freight in each instance is practi-
cally impossible, so that the court is forced to the adoption of some
general rule which in our opinion is a fair result. The difficulty is
not a novel one, and the method of solution not without precedent.
Those familiar with the proceedings of prize courts know that a
substantially arbitrary rule is there often adopted in practice to en-
force justice, and now, nearly a hundred years after the events from
which these claims arise, when all witnesses are dead and many
records destroyed, we are forced to this course, and it is evidently
impossible to estimate in every instance precisely the proportion of
freight earned. Where such an estimate can be made we shall make
it, in other cases we shall adopt a general rule.
In seeking for such a rule, we learn that in commercial cities, in
the adjustment of average losses, there is a practice to award arbi-
trarily two-thirds of the full freight on the immediate voyage. This
course was in effect followed by the commissioners under the treaty
of 1831 with France, who made a similar allowance as a fair measure
of the increase in value of the cargo by reason of the distance to
which it had been transported at the time of capture; and the award
was made to the shipper if he had paid freight; to the shipowner if
the freight had not been paid.
After carefully examining the cases before us we conclude that this
rule is substantially just, and we adopt it.
636
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
This brings us to another point. The Nancy was under charter for
à round voyage -- Baltimore to Jamaica and return. She was de-
stroyed on the outward voyage. Is she entitled to an allowance for
freight based upon the entire contract contained in the charter-
party?
Lucena v.
As against an insurer or tort-feasor the inchoate right to freight
vests when the vessel breaks ground “on the voyage described in the
charter-party” (supra). An insurable interest in freight cannot spring
from a mere "expectancy,” but may spring from an “expectancy"
when this is coupled with “a present existing title.”
Crawford, supra.
In cases of general average for jettison, Lowndes states the rule
to be that “when a ship is chartered to fetch or carry a cargo belong-
ing to the charter, the freight under the charter must contribute
to the general average, whether or not the cargo is on board the ship
at the time of the general average act, since the loss of the chartered
ship, whether laden or not, would deprive the shipowner of his ex-
pected freight.” Lowndes, on General Average, 236.
It has been held in this country that where a gross sum was to be
paid as freight for a voyage out and return, the principal object of the
voyage being to obtain a return cargo, the freight for the whole trip
must contribute to general average on the outward voyage. The
Mary, 1 Sprague's Decisions, 17. The same rule has been adopted in
cases of salvage. The Nathaniel Hooper, 3 Sumner, 542; The Prog-
ress, Edwards, 210; The Dorothy Foster, 6 C. Rob. 88; see, also,
Livingston v. Columbia Insurance Company, 3 Johns. (N. Y.), 49;
Hart v. Delaware Insurance Company, 2 Wash. C. C. 346.
The decisions on this question in the United States do not go so far
as those in England, but we lean to the doctrine of Sir William
Scott and Dr. Lushington, as better applicable to the cases now before
us, that when a vessel is actually under contract for a voyage from
one port to another, thence to proceed to a third, she has such “a
present existing title” in the freight money of the entire voyage
as to authorize a recovery based upon the total freight money for
the round trip.
Of course she is not entitled to gross freight, and we must not be
understood as intending any application of this principle to a vessel
proceeding under a mere "expectancy” of finding her cargo at her
first port of call. The principle only covers those cases where there
is an assurance of freight from her first port of call to her second, and
a price stipulated to be paid therefor.
CHAP. II.]
637
THE
CARLOS F. ROSES."
66
THE “CARLOS F. ROSES."
SUPREME COURT OF THE UNITED STATES, 1899.
(177 United States, 655.)
Mr. Chief Justice FULLER, delivered the opinion of the court.
The President's proclamation of April 26, 1898, declared the policy
of the government in the conduct of the war would be to adhere to
the rules of the Declaration of Paris therein set forth, one of them
being thus expressed: “Neutral goods not contraband of war are not
liable to confiscation under the eneniy's flag."
The question is whether this cargo when captured was enemy prop-
erty or not.
The district court held that both the title and right of
possession were in these neutral claimants at the time of the capture,
as evidenced by the indorsed bills of lading and the paid bills of
exchange," and, therefore, entered the decree in claimant's favor. As
the vessel was an enemy vessel the presumption was that the cargo
was enemy's property, and this could only be overcome by clear and
positive evidence to the contrary. The burden of proving ownership
rested on claimants. The London Packet, 5 Wheat. 132; The Sally
Magee, 3 Wall. 451; The Benito Estenger, 176 U. S. 568.
Further proofs on claimant's behalf were ordered to be furnished
within sixty days from June 2; and the time was enlarged to August
31; and again to October 15. The proofs tendered were three affi-
davits of claimants' manager sworn to September 27, October 12 and
October 21, 1898, respectively, with accompanying papers. Such ex
parte statements, where further proofs have been ordered, though ad-
mitted without objection, are obviously open to criticism, but without
pausing to comment on these in that aspect, we inquire whether they
satisfy the requirements of the law of prize in respect of the establish-
ment of the neutral character of this cargo under the circumstances.
Gibernau and Company were citizens of a neutral state; they were
evidently commission merchants, and in each invoice a charge for
their commission on the shipment appears. The invoices expressly
provided that the goods were shipped " to order for account and risk
and by order of the parties noted below." The consignees noted be-
low in the invoice of the jerked beef were the owners of the vessel,
“the expedition or voyage of the Carlos F. Roses” and “Mr. Pedro
Pagés of Havana," all Spanish subjects. The consignees of the gar-
lic were “Mr. Pedro Pagés” and the undersigned ; that is, Gibernau
1 Statement of the facts is omitted: – ED.
638
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
and Company. There were three sets of bills of lading issued by the
master to Gibernau and Company. One covered the portion of the
shipment of jerked beef made for the account of the vessel;
another, the portion of that shipment made for the account of
Pagés; the third, the shipment of garlic made for the joint
account of Pagés and Gibernau and Company. All the bills set
forth that the goods were taken for the account and at the
risk of whom it might concern. The ship's manifest, was signed
under date March 15, and the destination of the cargo was stated
thus: “Shipped by Pla Gibernau Co. To order.” The visé of the
counsel of Spain, dated the day before, was: “Good for Havana, with
a cargo of jerked beef and garlic." As the vessel had a share in the
shipment of the jerked beef, and the consignees were named in the
invoices, which set forth that the shipments were made by the
orders for their account and at their risk, it would appear that the
manifest was erroneous, and this and the fact that the bills of lading
stated that the goods were taken “for account of whom it may con-
cern,” should be especially noted, since the reasonable inference is
that the consignees must have been known to the master. And it also
should be observed that there was no charter-party, which would
have necessarily revealed the engagements of the vessel, but which
naturally would not be entered into if the commercial venture was
that of her owner. The general rule is that a consignor on delivering
goods ordered, to a master of a ship, delivers them to him as the agent
of the consignee so that the property in them is vested in the latter
from the moment of such delivery, though the rule may be departed
from by agreement or by a particular trade custom, whereby the goods
are shipped as belonging to the consignor and on his account and risk.
We think that on the face of the papers it must be concluded that
when these goods were delivered to the vessel they became the prop-
erty of the consignees named in the invoices. Hence the shipments of
jerked beef must be regarded as owned by Pagés, or by him and the
owners of the Carlos F. Roses. One half of the garlic belonged to
Pagés, the remaining half was consigned to Gibernau and Company,
and they did not claim, and have not claimed it, nor was it asserted
that Gibernau and Company retained the ownership of any part of the
cargo after its delivery to the vessel. Property so long unclaimed
may be treated as in any view good prize. The Adeline, 9 Cranch,
244; The Harrison, 1 Wheat. 298. In fact, claimants admit that the
whole cargo " was ultimately destined for Don Pedro Pagés of
Havana.” The bill of exchange drawn by Gibernau and Company
named Kleinwort Sons and Company as accepters, and directed them to
charge the amount to the account of “ Pedro Pagès of Havana as per
CHAP. II.]
THE
66
639
CARLOS F. ROSES."
advice.” The bill drawn by Maristany also named Kleinwort Sons
and Company as drawees, and directed them to charge the amount " to
P. Roses Valenti of Barcelona as per advice.". In neither of thein
was there any reference to the cargo, and, so far as appeared, the
amounts were at once charged up to the person named.
Harcke said that when the bills of exchange were accepted by
Kleinwort Sons and Company bills of lading covering the shipment of
110,256 kilos of jerked beef and of the garlic were delivered to them
in consideration of the acceptance of the draft for £2,714 13s 8d, and
that bills of lading for the 165,354 kilos of jerked beef were after-
wards delivered in consideration of the acceptance of the draft for
£3,583 11s 6d. But the date of the latter delivery was not given, and it
affirmatively appeared that whenever these bills of lading reached
Kleinwort Sons and Company they were retained “pending the dis-
posal of the cargo.” Both drafts were accepted April 6, and the bills
of lading for the 110,256 kilos of jerked beef and for the garlic were
forwarded to Gelak and Company on April 9, but the bills for the
165,384 kilos of jerked beef, whenever received, never were. The in-
structions to Gelak and Company were not put in evidence, nor any of
the correspondence with Valenti or Pagés. In June, Gelak and Coin-
pany cabled that the bills sent to them had not been received; in Sep-
tember they turned up, but no information was afforded as to how they
came into Gelak and Company's possession; and in October duplicates
were also received by claimants from Gelak and Company, with, so
far as disclosed, no accompanying explanation. And Harcke's affi-
davits failed to set forth the relations, transactions or correspondence
existing and passing between claimants and the enemy owners of the
cargo. This, although, as Sir William Scott said in The Magnus, 1 C.
Rob. 31, “the correspondence of the parties, the orders for purchase,
and the mode of payment, would have been the points to which the
court would have looked for satisfaction."
The affidavits alleged that claimants were wholly unindemnified ex-
cept by the proceeds of the cargo and the insurance thereon, by which
the insurers were subrogated to their own rights, but did not state
whether the insurance contemplated a war risk, or wlly the bills of
lading for the larger portion of the beef were retained by claimants and
not sent to their Havana agents, or whether they retained them upon
instructions from the enemy owners; or whether they came to claim-
ants from Spain; nor did anything appear in respect of the interest of
Pagés as consignee for himself, or in a representative capacity; nor of
Valenti, the owner of the enemy. vessel, who resided at Barcelona.
The evidence of enemy interest arising on the face of the documents
called on the asserted neutral owners to prove beyond question their
1
040
[PART 11.
EFFECTS OF WAR AS BETWEEN ENEMIES.
right and title. And still, for all that appears, the documents may
have been sent merely to facilitate delivery to the agent of the enemy
owners.
Bills of lading stand as the substitute and representative of the
goods described therein, and while quasi negotiable instruments, are
not negotiable in the full sense in which that term is applied to bills
and notes. The transfer of the bill passes to the transferee the
transferor's title to the goods described, and the presumption as to
ownership arising from the bill may be explained or rebutted by other
evidence showing where the real ownership lies. A pledgee to whom
a bill of lading is given as security gets the legal title to the goods and
the right of possession only if such is the intention of the parties, and
that intention is open to explanation. Inquiry into the transaction in
which the bill originated is not precluded because it came into the
hands of persons who may have innocently paid value for it.
Pollard v. Vinton, 105 U. S. 7; Shaw v. Railroad Company, 101 U. S.
557.
Generally speaking, in the purchase and shipment of goods on bills
of lading attached to bills of exchange drawn against them, the bill of
exchange is drawn on the consignee and purchaser, and sent forward
for collection through the banker at the place of shipment, who ad-
vances on the draft, and thereafter realizes on it through his corre-
spondents, or by sale as exchange; or the banker at some other point,
or at the general exchange centre, inay be the drawee of the bill of
exchange instead of the consignee or real owner, the banker standing in
the place of the owner, in virtue of some arrangement with his cus-
tomer, or on the faith of a running account, the pledge of other
securities, or the customer's personal liability, so that the draft may
be charged up at once, and, at all events, the control of the goods is
not the sole reliance of the banker.
In the case in hand, the captors succeeded to the enemy owners'
rights, and could have introduced evidence as to the real nature of the
transactions, and so have rebutted any presumption in favor of the
bankers as purchasers for value, and although they did not do this,
the question still reinains that in prize courts it is necessary for
claimants to show the absence of anything to impeach the transaction,
and at least to disclose fully all the surrounding circumstances. And
this we think claimants have failed to do.
The right of capture acts on the proprietary interest of the thing
captured at the time of the capture and is not affected by the secret
liens or private engagements of parties. Hence the prize courts have
rejected in its favor the lien of bottomry bonds, of mortgages, for sip-
plies, and of bills of lading. The assignment of bills of lading trans-
1
CHAP. II.]
THE
641
CARLOS F. ROSES.”.
*
fers the jus ad rem, but not necessarily the jus in rem. The jus in re
or in rem implies the absolute dominion, - the ownership inde-
pendently of any particular relation with another person. The jus ad
rem has for its foundation an obligation incurred by another. Sand.
Inst. Just. Introd., xlviii; 2 Marcadé, Expl. du Code Napoléon, 350; 2
Bouvier (Rawle's Revision), 73; The Young Mechanic, 2 Curtis, 404.
Claimants did not obtain the jus in rem, and, according to the
great weight of authority, the right of capture was superior.
In The Frances, 8 Cranch, 418, a New York merchant claimed two
shipments of goods, one in consequence of an advance made to enemy
shippers by him in consideration of the consignment, and the other in
virtue of a general balance of account due to him from the ship-
pers as their factor. Both consignments were at the risk of the enemy
shippers. The goods were condemned as enemy property, and the
sentence was affirmed. This court said :
“The doctrine of liens seems to depend chiefly upon the rules of
jurisprudence established in different countries. There is no doubt
but that, agreeably to the principles of the common law of England, a
factor has a lien upon the goods of his principal in his possession, for
the balance of account due to him; and so has a consignee for ad-
vances made by him to the consignor.
But this doctrine is
unknown in prize courts, unless in very peculiar cases, where the lien
is iinposed by a general law of the mercantile world, independent of
any contract between the parties. Such is the case of freight upon
enemies' goods seized in the vessel of a friend, which is always de-
creed to the owner of the vessel.
But in cases of liens
created by the mere private contract of individuals, depending upon
the different laws of different countries, the difficulties which an ex-
amination of such claims would impose upon the captors, and even
upon the prize .courts, in deciding upon them, and the door which such
a doctrine would open to collusion between the enemy owners of the
property and neutral claimants, have excluded such cases from the
consideration of those courts.
The principal strength of
the argument in" favor of the claimant seemed to be rested upon
the position that the consignor in this case could not have conn-
termanded the consignment after delivery of the goods to the
master of the vessel; and hence it was inferred that the captor had no
right to intercept the passage of the property to the consignee. This
doctrine would be well founded, if the goods had been sent to the
claimant upon his account and risk, except in the case of insolvency.
But when goods are sent upon the account and risk of the shipper, the
delivery to the master is a delivery to him as agent of the shipper,
not of the consignee; and it is competent to the consignor, at any
41
6+2
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
wal.
time before actual delivery to the consignee, to countermand it, and
thus to prevent his lien from attaching. Upon the whole, the court is
of opinion that, upon the reason of the case, as well as upon
authority, this claim cannot be supported, and that the sentence of the
court below must be affirmed with costs.
In The Mary and Susan, 1 Wheat. 25, an American merchantman
bound from Liverpool to New York, was captured by a privateer of the
United States during the war of 1812. In her cargo were certain
goods which had been shipped by British subjects to citizens of the
United States, in pursuance of orders received before the declaration of
Previous to the execution of the orders the shippers became
embarrassed, and assigned the goods to certain bankers to secure ad-
vances made by them, with a request to the consignees to remit the
amount to the bankers, who also repeated the same request, the in-
voices being for gain and risk of the consignees, and stating the goods
to be then the property of the bankers, and it was held that the goods
having been purchased and shipped in pursuance of orders from the
consignees, the property was originally vested in them, and was not
divested by the intermediate assignment, which was merely intended
to transfer the right to the debt due from the consignees.
In The Hampton, 5 Wall. 372, the schooner Hampton and her cargo
had been captured, libelled and condemned as prize of war. The
master of the vessel was her owner, but interposed no claim ; nor did
any one claim the cargo. One Brinckley appeared and claimed the
vessel as mortgagee. The bona fides of this mortgage was not dis-
puted, nor that he was a loyal citizen. But his claim was dismissed,
and, the case having been certified to this court, it was held that in
proceedings in prize, and under the principles of international law,
mortgages on vessels captured jure belli are to be treated only as liens
subject to be overriden by the capture. Mr. Justice Miller said:
“The ground on which appellant relies is, that the mortgage, being
a jus in re held by an innocent party, is something more than a mere
lien, and is protected by the law of nations. The mortgagee was not
in possession in this case, and the real owner who was in possession
admits that his vessel was in delicto by failing to set up any claiın for
her. It would require pretty strong authority to induce us to import
into the prize courts the strict common-law doctrines, which is some-
times applied to the relation of a mortgagee to the property mort-
gaged. It is certainly much more in accordance with the liberal
principles which govern admiralty courts to treat mortgages as equity
courts treat them, as a mere security for the debt for which they are
given, and therefore no more than a lien on the property conveyed.
But it is unnecessary to examine this question minutely, because an
CHAP. II.]
643
66
THE
CARLOS F. ROSES.
1
obvious principle of necessity must forbid a prize court from recog-
nizing the doctrine here contended for. If it were once admitted in
these courts, there would be an end of all prize condemnation. As
suon as a war was threatened, the owners of vessels and cargoes which
might be so situated as to be subject to capture, would only have to
raise a sufficient sum of money on them, by bona fide mortgages, to in-
demnify them in case of such capture. If the vessel or cargo was
seized, the owner need not appear, because he would be indifferent, hav-
ing the value of his property in his hand, already. The mortgagees
having an honest mortgage which he could establish in a court of
prize, would either have the property restored to him or get the amount
of the mortgage out of the proceeds of the sale. The only risk run by
enemy vessels or cargoes on the high seas, or by neutrals engaged in
an effort to break the blockade, would be the costs and expenses of
capture and condemnation, a risk too unimportant to be of any value
to a belligerent in reducing his opponent to terms. The principle
which thus abolishes the entire value of prize capture on the high seas,
and deprives blockades of all danger to parties disposed to break them,
cannot be recognized as a rule of prize courts."
In The Battle, 6 Wall. 498, the steamer Battle and cargo were cap-
tured on the high seas as prize of war, brought into port and con-
demned, for breach of blockade and also as enemy property. Two
claims were set up against the steamer in the court below, one for sup-
plies, and another for materials furnished and for work and labor in
building a cabin on the boat. These claims were dismissed, and the
decree affirmed by this court, Mr. Justice Nelson delivering the
opinion, saying: "The principle is too well settled that capture as
prize of war, jure belli, overrides all previous liens, to require examina-
tion."
Such is the rule in the British prize courts. The Tobago, 5 C. Rob.
218; The Marianna, 6 C. Rob. 24; The Ida, Spinks Prize Cases, 26.
The Tobago was a case of claim to a captured French vessel, made on
behalf of a British merchant as the holder of a bottomry bond
executed and delivered to him by the master of the ship before the
commencement of hostilities between Great Britain and France. Sir
William Scott said:
“The integrity of this transaction is not impeached, but I am called
upon to consider whether the court can, consistently with the prin-
ciples of law that govern its practice, afford relief. It is the case of a
bottomry bond, given fairly in times of peace, without any view of
infringing the rights of war, to relieve a ship in distress.
But can the court recognize bonds of this kind as titles of property, so
as to give persons a right to stand in judgment, and demand
*
*
*
.644
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
The person
*
*
restitution of such interests in a court of prize ?
advancing money on bonds of this nature, acquires, by that act, no
property in the vessel; he acquired the jus in rem, but not the jus in
re until it has been converted and appropriated by the final process of
a court of justice.
But it is said that the captor takes cum
onere, and, therefore, that this obligation would devolve upon him.
That he is held to take cum onere is undoubtedly true, as a rule which
is to be understood to apply where the onus is immediately and visibly
incumbent upon it. A captor who takes the cargo of an enemy on
board the ship of a friend, takes it liable to the freight due to the
owner of the ship; because the owner of the ship has the cargo in his
possession, subject to that demand by the general law, independent of
all contract.
But it is a proposition of much wider extent,
which affirms that a mere right of action is entitled to the same favor-
able consideration in its transfer from a neutral to a captor. It is
very obvious that claims of such a nature may be framed as that no
powers belonging to this court can enable it to examine them with
effect. They are private contracts, passing between parties who may
have an interest in colluding; the captor has no access whatever to
the original private understanding of the parties in forming such con-
tracts; and it is, therefore, unfit that he should be affected by them.
His rights of capture act upon the property, without regard to secret
liens possessed by third parties. * I am of opinion that
there is no instance in which the court has recognized bonds of this
kiud as titles of property, and that they are not entitled to be
recognized as such in the prize courts."
In The Marianna, the vessel had been sold at Buenos Ayres by
American owners to a Spanish merchant; the purchase-money, how-
ever, had not been paid in full, but was to be satisfied out of the
proceeds of a quantity of tallow on board the vessel for sale, consigned
to the agents of the American vendors at London. The vessel was
seized on her voyage to England, documented as belonging to a Span-
ish merchant, and sailing under the flag and pass of Spain. The
former American proprietors made claim to the cargo, but the claim
was disallowed because the claimants' interest was not sufficient to
support it ; and the court said:
“Captors are supposed to lay their hands on the gross tangible
property, on which there may be many just claims outstanding,
between other parties, which can have no operation as to them. If
such a rule did not exist, it would be quite impossible for captors to
know upon what grounds they were proceeding to make any seizure.
The fairest and most creditable documents, declaring the property to
belong to the enemy, would only serve to mislead them, if such
*
CHAP. II.]
645
THE
CARLOS. F. ROSES."
.
documents were liable to be overruled by liens which could not in any
inanner come to their knowledge. It would be equally impossible for
the court, which has to decide upon the question of property, to
admit such considerations. The doctrine of liens depends very much
on the particular rules of jurisprudence which prevail in different
countries. To decide judicially on such claims would require of the
court a perfect knowledge of the law of covenant, and the application
of that law in all countries, under all the diversities in which that law
exists. From necessity, therefore, the court would be obliged to shut
the door against such discussions and to decide on the simple title of
property, with scarcely any exceptions.
As to the title of
property in the goods, which are said to have been going as the funds
out of which the payment for the ship was to have been made. That
they were going for the payment of a debt will not alter the property;
there must be something more. Even if bills of lading are delivered,
that circumstance will not be sufficient, unless accompanied with an
understanding that he who holds the bill of lading is to bear the risk
of the goods as to the voyage, and as to the market to which they are
consigned; otherwise, though the security may avail pro tanto, it
cannot be held to work any change in the property.”
These cases were cited by Dr. Lushington in The Ida as settling the
law. In that case claim was made by a neutral merchant to a cargo
of coffee which had been consigned to him by an enemy on the credit
of certain advances, as security for payment of which bills of lading
covering the cargo had been delivered to him. But the court declined
to recognize the lien, and condemned the cargo as enemy property.
Dr. Lushington referred to The San Jose Indiano and Cargo, 2
Gallison, 267, and subscribed to what was there said by Mr. Justice
Story, but thought his remarks inapplicable to the case in hand.
The case referred to was affirmed by this court. 1 Wheat. 208.
Goods were shipped by Dyson, Brothers and Company of Liverpool
on board a neutral ship bound to Rio de Janeiro, which was captured
and brought into the United States for adjudication. · The invoice
was headed : “Consigned to Messrs. Dyson, Brothers and Finnie, by
order and for account of J. Lizaur.” In a letter accompanying the bill
of lading and invoice, Dyson, Brothers and Company wrote Dyson,
Brothers and Finnie: "For Mr. Lizaur we open an account in our
books here, and debit him, &c. We cannot yet ascertain the proceeds
of his hides, &c., but find his order for goods will far exceed the
amount of these shipments, therefore we consign the whole to you,
that you may come to a proper understanding with him.” The two
houses consisted of the same persons. It was held that the goods
were, during their transit, the property and at the risk of the enemy
646 EFFECTS. OF WAR AS BETWEEN ENEMIES. [PART II.
shippers, and therefore subject to condemnation. Lizaur's claim was
rejected although Dyson, Brothers and Company had the proceeds of
his hides in their hands.
The Lynchburg, Blatchford's Prize Cases, 57, and The Any War-
wick, 2 Sprague, 150, are cited on behalf of claimants, but, as we read
them, they do not sustain their contention. The schooner Lynchburg
with a cargo of coffee had been libelled during the civil war as enemy
property, and also for an atternpt to violate blockade. Brown
Brothers and Company, loyal citizens, intervened as claimants of 2,045
bags of coffee, part of the cargo. They alleged that they had made an
advance of credit to Maxwell, Wright and Company, neutral mer-
chants of Rio de Janeiro, for the purchase of the coffee, under which
credit Maxwell, Wright and Company drew drafts on Brown Brothers
and Coinpany for £6,000, on the condition expressed therein that
the coffee purchased by claimants should be held until their
advances were reimbursed thereon. It was admitted by the United
States attorney that 1,541 bags of the coffee should be released
to Brown Brothers and Company, and that was done. As to
the remaining 504 bags embraced in the general claim of Brown
Brothers and Company, in which Wortham and Company, of Virginia,
asserted an interest, it was held by the court that as no proof was
given by claimants that the value of 1,541 bags restored to them was
not equivalent to the sum of their advances used in purchasing the
whole 2,045 bags, the reasonable presumption was that the restoration
satisfied the entire advance. And Judge Betts said: “The claim to
an absolute ownership of the 2,045 bags was placed before the court in
the oral argument, and in the written points filed in the cause by the
counsel for the claimants upon the proposition of law that a bill of
lading, transmitted to them by the shipper to cover advances, passed
to them the title to the cargo purchased therewith. If this doctrine
be correct as to mere commercial transactions, it does not prevail in
prize courts, in derogation of the rights of captors, when the interest
of the claimants is only a debt, although supported by liens equitable
and tacit, or legal and positive, even of the character of bottomry
bonds, when not signified on the ship's papers at the time of her capture.
The Frances, 8 Cranch, 418; The Tobago, 5 C. Rob. 218; The
Marianna, 6 C. Rob. 24. Here the vessel was an enemy bottom; the
bill of lading consigned the cargo to order or assigns, at large, at an
enemy's port, and, on the surrender of the principal portion of the
consignment to the claimants, no other evidence was given in estab-
lishing the facts that the remainder of the shipment was owned by
them, or yet stood under hypothecation to them on the bill of lading."
The 504 bags were condemned, “because, by intendment of law, that
+
CHAP. II.]
647
THE
CARLOS F. ROSES.”
portion belonged to Wortham and Company, and was not shown by
the proofs to be exempt from capture as prize."
In The Amy Warwick, J. L. Phipps and Company of New York,
British subjects, purchased 4,700 bags of coffee, part of the cargo of an
enemy vessel, which they had purchased through Phipps Brothers and
Co., their firm at Rio, with funds of an enemy firm, and £2,000 of
their own money by draft on Phipps and Co., their firm at Liverpool.
They took from the master a bill of lading which stated that Phipps
Brothers and Company were the shippers of this coffee, and that it
was to be delivered to their order. Indorsed on the bill of lading was
a statement declaring that a portion of the coffee was the property of
British subjects. Phipps Brothers and Company indorsed the bill of
lading over to J. L. Phipps and Co. They also delivered to the
inaster another part of the bill of lading, an invoice of the coffee, and a
letter of advice to be conveyed to the firin in New York. This letter
stated that the coffee was shipped for account of merchants at
Richmond, Virginia, and that a bill of lading would have been sent
to them had it not been deemed advisable by reason of the unsettled
state of political affairs, for the better protection of the property, and
to prevent privateers from molesting the vessel, to have it certified on
the bill of lading that a portion of the coffee was British property, and
that this referred to the portion against which they had valued on
Liverpool. It was held that the facts led plainly to the conclusion
that claimants ought to be repaid the amount they had expended from
their own funds in the purchase of the coffee and that the residue of
the proceeds should be condemned. It was said that as the coffee was
purchased at Rio by the claimants, and shipped by them on board the
vessel under a bill of lading by which the master was bound to
deliver it to their order, and they ordered it to be delivered to J. L.
Phipps and Co., that is, to themselves, they were the legal owners of
the property, and could hardly be said to have a lien upon it. Their
real character was that of trustees holding the legal title and
possession with a right of retention until their advances should be
paid. The doctrine of liens was considered, and The Frances, The
Tobago, The Marianna and other cases examined. Judge Sprague
was of opinion that the rule in such cases ought not to be that
which stops at the mere legal title, but that which ascertains and deals
with the real beneficial interest, “ for, if the court were never to look
beyond the legal title, the result would be that when such title is held
by an enemy in trust for a neutral, the latter loses his whole
property; but, when the legal title is in a neutral in trust for an
enemy, the property is restored to the neutral, not for his benefit,
but merely as a conduit through which it is to be conveyed to
648
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
the enemy.
To refuse to look beyond the legal title is to close our
eyes for the benefit of the enemy. It would enable him always to
protect his property by simply putting it in the name of a neutral
trustee."
We agree with counsel for the United States that, notwithstanding
the indorsement of Gibernau and Company on the bills of lading, the
proof of a neutral title was not sufficient. Even if when the neutral
interest is adequately proven to be bona fide, the claim of the captors
may be required to yield, yet in this case the belligerent right
overrides the neutral claim, which must be regarded inerely as a
debt, and the assignment as a cover to an enemy interest.
Something was said in argument in relatiou to the character of the
cargo. It is true that by the modern law of nations, provisions, while
not generally deemed contraband, may become so, although belonging
to a neutral, on account of the particular situation of the war, or on
account of their destination, as, if destined for military use, for the
army or navy of the enemy, or ports of naval or military equipment.
The Benito Estenger, 176 U. S. 568; The Panama, 176 U. S. 535; The
Peterhoff, 5 Wall. 28; Grotius, De Jure Belli et Pacis, lib. III., c. 1,
$ 5; Hall, $ 236.
Doubtless, in this instance, the concentration and accumulation of
provisions at Havana might fairly be considered a necessary part
of Spanish military operations, imminente bello, and these particular
provisions were perhaps especially appropriate for Spanish military
use; but while these features may well enough be adverted to in
connection with all the other facts and circumstances, we do not place
our decision upon them.
We are of opinion that a valid transfer of title to this enemy
property to claimants was not satisfactorily made out, and that
The decree below must be reserved, and a decree of condemnation
directed and be entered, and it is so ordered.
i Dissenting opinion of Mr. SAIRAS, in which Mr. Justice BREWER concurred, omitted.
In The Siren, 1868, 7 Wall. 152, it was held that a claim for damages exists against
a United States vessel guilty of a maritime tort, as in the case of a merchant vessel ;
that such claim may not be enforced against the United States as a defendant, but if
the United States enters the court as plaintiff, the court will take jurisdiction to
the extent of the value of the property, but no judgment lies against the United
States beyond the value of the property or for costs. Where, therefore, a prize of the
United States ran into and sank another vessel, it was held that the owners of sunken
vessel and its cargo could intervene in prize proceedings and have their damages
assessed and paid out of the proceeds before distribution to the captors. -- ED.
CHAP. II.)
649
TAE
66
SANTA CRUZ."
SECTION 36.- RECAPTURE-RESCUE.
i
THE "SANTA CRUZ."
High COURT OF ADMIRALTY, 1798.
(1 C. Robinson, 49.)
1
(*
This was the case of a Portuguese vesssel taken by the French,
August 1, 1796, and retaken by English cruisers, on the 28th, after
being a month in the possession of the enemy.
Judgment,---Sir W. SCOTT:-
In the arguments of the counsel, I have heard much of
the rules which the law of nations prescribes on recapture, respect-
ing the time when property vests in the captor; and it certainly is
a question of much curiosity to inquire what is the true rule on this
subject; when I say the true rule, I mean only the rule to which
civilized nations, attending to just principles, ought to adhere; for
the moment you admit, as admitted it must be, that the practice of
nations is various, you admit there is no rule operating with the
proper force and authority of a general rule.
“ It may be fit there should be some rule, and it might be either
the rule of immediate possession or the rule of pernoctation and
twenty-four hours' possession; or it might be the rule of bringing
infra prcesidia; or it might be a rule requiring an actual sentence
of condemnation ; either of these rules might be sufficient for
general practical convenience, although in theory perhaps one
might appear more just than another; but the fact is, there is no
such rule of practice; nations concur in principle, indeed, so far as
require firm and secure possession ; but their rules of evidence re-
specting the possession are so discordant and lead to such opposite
conclusions that the mere unity of principle forms no uniform rule
to regulate the general practice. But were the public opinion of
European States more distinctly agreed on any principle as fit to
form the rule of the law of nations on this subject, it by no means
follows that any one nation would lie under an obligation to ob-
serve it.
“That obligation could arise only from a reciprocity of practice in
other nations; for from the very circumstance of the prevalence of
1 Statement abridged and only part of the judgment given. — Ed.
650
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
*
*
a different rule among other nations, it would become not only law.
ful, but necessary to that one nation to pursue a different conduct:
for instance, were there a rule prevailing among other nations that
the immediate possession and the very act of capture should divest
the property from the first owner, it would be absurd in Great
Britain to act towards them on a more extended principle; and to
lay it down as a general rule, that a bringing infra præsidia,
though probably the true rule should in all cases of recapture be
deemed necessary to divest the original proprietor of his rights; for
the effect of adhering to such a rule would be gross injustice to
British subjects.
“ If I am asked, under the known diversity of practice on this
subject, what is the proper rule for a State to apply to the recapt-
ured property of its allies, I should answer that the liberal and ra-
tional proceeding would be, to apply in the first instance the rule of
that country to which the recaptured property belongs.
“If there should exist a country in which no rule prevails, the
recapturing country must then of necessity apply its own rule and
rest on the presumption that that rule will be adopted and adminis-
tered in the future practice of its allies.
I understand [the law of England] to be clearly this: That the
maritime law of England, having adopted a most liberal rule of
restitution on salvage, with respect to the recaptured property of
its own subjects, gives the benefit of that rule to its allies, till it
appears that they act towards British property on a less liberal prin-
ciple. In such a case it adopts their rule and treats them according
to their own measure of justice. 1
THE "CARLOTTA."
HIGH COURT OF ADMIRALTY, 1803.
(5 C. Robinson, 54.)
This was a question of salvage, on the recapture of a Spanish
ship and cargo from a French cruiser.
Judgment. Sir W. SCOTT:
“The question now to be decided is, whether salvage is due on
the neutral property in this ship which has been recaptured out of
1 A8 Portugal had adopted the twenty-four-hour rule, that principle was applied
to those ships recaptured during the time that rule prevailed in Portugal, and the
rate of salvage decreed was the Portugese rate, one-eighth to ships of war and one-
fifth to privateers. The English rule allowed one-sixth to privateers. – ED.
CHAP. II.]
.651
THE “CARLOTTA."
A
*
*
*
the possession of the enemy. It certainly has not been the practice
of this court to decree salvage under such circumstances generally;
but, in consequence of the violent conduct of France during the last
war, it was thought not unreasonable on the part of neutral mer-
chants themselves, that salvage should be allowed.
"I am, therefore, not disposed to hold generally that neutral
property recaptured from French cruisers shall be subject to sal-
vage. The rule, so far as it can be considered a general rule, is
rather to be laid down the other way. At the same time, if any
edict can be appealed to or any fact established, by which it can be
shewn that the property would have been exposed to condemnation
in the courts of France, I shall hold that to be sufficient ground to
induce me to pronounce for salvage in that particular case. With
regard to the precedent of the Jonge Lambert (5 C. Rob., 54, note), I
think I am warranted to consider the authority of that case as in a
great measure done away by the subsequent decision of the Lords
in the late war, in which they have repeatedly pronounced for sal-
vage on the recapture of neutral property. In departing from the
old rule they have in some degree disclaimed the principle; and, I
think, with great propriety, as far as it could be considered as an
universal principle, governing the practice of our prize courts in all
possible cases, without any possible exception. In the present in-
stance there does not appear to me to be any grounds on which it
can be supposed that this property would have been condemned,
merely because it came out of the hands of a British privateer, or
because the original voyage had been the colony of Spain to
London. No edict has been produced from the French code to shew
that this property would have been subject to any such penalty on
either of those accounts, in the prize courts of France. The ex-
penses of the recaptors must be fully paid; but I shall not pro-
nounce salvage to be due.” 1
1 For an account of the laws of different countries on the subject of recapture and
salvage, see Dana's Wheaton, 466-472.-- ED.
652
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
+
THE "MARY FORD.”
SUPREME COURT OF THE UNITED STATES, 1796.
(3 Dallas, 188.)
The Mary Ford was a British vessel, captured in 1790 by a French
squadron and abandoned at sea. The George, an American vessel,
took possession of the Mary Ford, and brought it into Boston har-
bor, to save the ship and cargo, and then libelled it for salvage in the
District Court. From a judgment in favor of the libellants, an appeal
was taken to the Supreme Court.2
By the Court: We are unamimously of opinion, that the District
Court had jurisdiction upon the subject of salvage;, and that, conse-
quently, they must have a power of determining to whom the residue
of the property ought to be delivered.
In determining the question of property, we think that, immediately
on the capture, the captors acquired such a right, as no neutral nation
could justly impugn or destroy ; and, consequently, we cannot say that
the abandonment of the Mary Ford, under the circumstances of this
case, revived and restored the interest of the original British
proprietors.
Some doubts have been entertained by the court, whether on the
principles of an abandonment by the French possessors, the whole
property ought not to have been decreed to the American libellants, or,
at least, a greater portion of it by way of salvage; but as they have
not appealed from the decision of the inferior court, we cannot now
take notice of their interest in the cause.
Upon the whole, let the decree be affirmed.2
i This statement is substituted for that of the original report. — Ed.
2 In Hopner v. Appleby, 1828, 5 Mason, 71, 75, Story, J., said: “Some principles are
extremely clear, and indeed are so well settled that nothing more is necessary to com-
mand approbation than a simple enunciation of them. Neutral nations are bound
equally by their duty and their interest to consider the existing state of things be-
tween belligerents as rightful. The right of capture by the law of war cannot be dis-
puted, and the lawfulness of the possession thereby acquired cannot be inquired into
by the tribunals of a neutral nation, with the single exception of cases where the cap-
ture itself is an infringement of the jurisdiction or rights of the neutral nation itself.
In all other cases, the question of prize or no prize exclusively belongs to the
cognizance of the courts of the capturing power. The possession of the captors is to be
deemed a possession bona fide, and inviolable; and as was said by the Supreme Court
in the case of The Mary Ford, 3 Dall. R. 188, 198, immediately upon the capture the
captors acquire such a right as no neutral nation can justly impugn or destroy. The
Josefa Segunda, 5 Wheaton R. 338, 357.”
And in Booth v. L'Esperanza, 1798, Bee, 93 (3 Fed. Cas. 885), Bee, J., held, citing
CHAP. I.]
653
60
THE
BEAVER.
THE “ BILAVER."
High Court of ADMIRALTY, 1801.
(3 C. Robinson, 292.)
This was a case of a British merchant ship, taken with a cargo of
wine in sight of the English coast, by a French privateer; when all
the crew, except the master and one boy had been taken out: the
master seeing an opportunity rose upon five Frenchmen that had been
put on board, and by knocking down the prize master, and possessing
himself of his pistols, the only firearms on board, succeeded in driving
the rest of the crew down below, and gained possession of the vessel.
After he had steered a considerable time towards the English coast, a
storm came on, in which the vessel was nearly lost: a British frigate
coming in sight, the master obtained the assistance of twelve men, by
whose aid he kept possession till it was thought she must inevitably
perish: they then all returned to the frigate; but the storm afterwards
abating, the master requested that he might be permitted to go again
to the ship to try if he could not save her; and with the assistance of
a boat's crew from the frigate, he succeeded and brought the vessel
safe into port.
Judgment. Sir W. Scott. This is a case of very peculiar merit
on the part of the original salvors, the master and the boy, by whose
distinguished gallantry the property was rescued out of the hands of
the enemy. It is impossible to accede to the representation that has
been given on the part of the King's ship, that the vessel is to be con-
sidered as a derelict saved by their exertions. The vessel itself was
never in the state of a derelict the eye of the master was constantly
upon it; and if I may so say, kept a possession of it for the whole time,
under the spes ac animus recuperandi. The actual recovery is attribu-
table to him; he and the boy were the only parties, in the first service;
and his advice, seconded by his example, it was, which operated most
effectually to the final preservation of the vessel: from the beginning to
The Mary Ford, supra; that a vessel in distress, met with at sea, and brought into the
port of a neutral power, must be restored, after payment of salvage, to those who
were in possession of her when she was met.
And in L'Invincible, 1816, 1 Wheat. 238, 258, Mr. Justice Johnson cites and explains
the case in the text, holding that the courts of this country have no jurisdiction to
redress any supposed torts committed on the high seas upon the property of its citizens
by a cruiser regularly commissioned by a foreign and friendly power, except where
such cruiser has been fitted out in violation of our neutrality. -- ED.
654
[PART II:
EFFECTS OF WAR AS BETWEEN ENEMIES.
It was
the end, he is to be considered as most materially active in the whole
affair: he is the person whose service must stand highest in the esti-
mation of the court; and I do not recollect to have seen any case of
salvage in which personal merit of that species presented itself more
strongly for encouragement and reward. On this part of the case I
shall decree at least the usual salvage of a sixth.
With respect to the King's ship, I cannot admit the propriety of the
inflamed representation which has been offered of their services : It is
the duty of every King's ship, and indeed of every other ship, to give
assistance, as well against the elements as against the enemy.
properly performed in this instance; but what was the amount of their
exertions ? There were two acts; one of sending some men on
board, on the appearance of the vessel in distress, and the other of
sending a cable and anchor with some men, when the storm abated;
acts useful and meritorious, but ranking at the best but moderately in
the scale of utility and merit. In these acts of assistance there was
no personal danger: to call it a case of derelict, preserved by their in-
terposition, does not accord with any view that I have been used to
entertain of the legal nature of a derelict, or of a salvage service
applied to property in that situation. The value of the property
saved is about £6239. — I shall give a sixth of that sum, or £1000 to
the master and boy, in this proportion, £850 to the master, and £150
to the boy; who, I observe, is described "as his apprentice" and
rather above the condition of a common sea boy without articles : if
half as much, or £500 is given to the King's ship, to be distributed
amongst the whole number of persons on board, in the ordinary pro-
portions of a prize distribution, it is the utmost that can be allowed,
upon the most liberal justice that can be due to their services. The
expense of this application to the discretion of the court must be paid
by the owners.
1 In The Pennsylvania, 1809, 1 Act. 33, Sir William Grant held the master or crew
of a neutral vessel captured not bound to assist in carrying the vessel into port for
adjudication; that resistance to the captors by the master or crew must be proved to
have been actually made, in order to subject the vessel to condemnation on the prin-
ciple of rescue. See The War Onskan, 1799, 2 C. Rob. 299. In Bas v. Tingy,,1800,
4 Dall. 37, salvage was allowed for the recapture of an American vessel from French
captors, and in Talbot v. Seeman, 1801, 1 Cr. 1, for the capture of a neutral vessel ;
Clayton v. Ship Harmony, 1 Pet. Adm. Dec. 70; 3 Kent's Com. 247; Williams v. Suffolk
Ins. Co., 1838, 3 Sumn. 270, 275. Mr. Dana's digest of authority is as follows:-
"In a case of rescue of a vessel of commerce, the salvage is civil, and the cause
does not go into a prize court. - Recapture from an enemy is cognizable by a prize
court as a belligerent act, and presents a case of military salvage. If, in addition to the
belligerent recapture, there has been a voluntary act of saving from a distinct marine
peril, beyond the obligations of the parties, civil salvage may be combined with the
military, and incidentally adjudicated by the prize court having cognizance of the
CHAP. II.]
655
UNITED STATES V. RICE.
SECTION 37. -HOSTILE OCCUPATION, CONQUEST, AND CESSION.
UNITED STATES V. RICE.
SUPREME COURT OF THE UNITED STATES, 1819.
(4 Wheaton, 246.)
STORY, J., delivered the opinion of the court:
"The single question arising on the pleadings in this case is,
whether goods imported into Castine, during its occupation by the
enemy, are liable to the duties imposed by the revenue laws upon
recapture. It is the duty of persons in the naval service, in time of war, to recapture
as much as to capture ; but it is a duty they owe to their government; and the policy
and practice has always been, if the owner claims his vessel, to require him to pay
salvage to the recaptors, which is in lieu of the prize-money they would receive in case
the recaptured vessel had been condemned as prize. The mariner's contract with the
owners, in a vessel of commerce, does not oblige him to attempt a rescue, after capture
by a belligerent enemy, in such a sense that his refusal or failure to attempt it, in a
proper case, would be a breach of his contract. It is, therefore, always a case for
salvage. Two Friends, 1 Rob. 271; The Lilla, 2 Sprague's Decisions, and 25 Law
Reporter, 92; Helen, 3 Rob. 224.
"If cruiser takes a prize and loses it, whether by rescue, recapture, or otherwise, and
she is again captured by a second cruiser of the same nation, it is not a recapture for
the benefit of the first captor, subject to salvage, but an original capture. For these
and like cases of mixed recapture, see Valin, Traité des Prises, ch. vi. $ 1. The Polly,
Nov. 21, 1780, 4 Rob. 217, note; The Marguerite, April 3, 1781; Astrea, 1 Wheat. 125;
Lord Nelson, Edw. 79; Diligentia, 1 Dods. 404; John and Jane, 4 Rob. 216 ; Gage,
6 Rob. 272; Ordonnance de 1681, Des Prises, art. 9, ‘De Propriété,' No. 99; Azuni,
Partie II. ch. 4, $$ 8, 9; Emerigon, des Assurances, tit. i. pp. 504-5; 3 Phillimore's
Intern. Law, § 424; Chitty's Law of Nations, 91 ; The Short Staple, 9 Cranch, 55;
Bello, Princ. de Der. Nat. 193; Henry, Edw. 66.
“Salvage is not due to a public ship for extricating another public ship from danger
of capture, in a common enterprise. The Bell, Edw. 66. Sir W. Scott said it would
be converting every engagement into a struggle for salvage.
"As to right of revenue cutters and privateers in recaptures, see The Wanstead,
1 Edw. 369; The Providence, Id. 270; The Dorothy Foster, 6 Rob. 88; The Bellona,
Edw. 63; The Sedulous, 1 Dods. 253; U. S. Prize Act, 1864, ch. 174, $$ 10, 32, 33
(13 U. S. Law, 306).” Dana's Wheaton, note No. 184.
For the provisions of recapture, see U. S. Rev. St. $ 4652; English Prize Act of
27 and 28 Vict. c. 25, § 40.
The Emily St. Pierre, 1864, Dana's Wheaton, 475, note 183, established that it is not
the duty of a neutral government to restore a private vessel of one of its citizens which
has been rescued by her crew from a belligerent captor before condemnation. See
also Bernard, Neutrality of Great Britain, 325–329.
In the case of The Lone, 3 Op. Atty.-Gen. 377, this vessel had entered the port of
Matamoras while it was blockaded by a French squadron (1838), and sailed thence for
656
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
goods imported into the United States. It appears, by the pleadings,
that on the first day of September, 1814, Castine was captured by
the enemy, and remained in his exclusive possession, under the com-
mand and control of his military and naval forces, until after the rati-
fication of the treaty of peace, in February, 1815. During this period,
the British government exercised all civil and military authority
over the place; and established a custom-house, and admitted goods
to be imported, according to regulations prescribed by itself, and,
among others, admitted the goods upon which duties are now de-
manded. These goods remained at Castine until after it was evacu-
ated by the enemy, and upon the reëstablishment of the American
government, the collector of the customs, claiming a right to Amer-
ican duties on the goods, took the bond in question from the defend-
ant, for the security of them.
“ Under these circumstances, we are of opinion, that the claim
for duties cannot be sustained. By the conquest and military occu-
pation of Castine, the enemy acquired that firm possession which
enabled him to exercise the fullest rights of sovereignty over that
place. The sovereignty of the United States over the territory was,
of course, suspended, and the laws of the United States could no
longer be rightfully enforced there, or be obligatory upon the inhab-
itants who remained and submitted to the conquerors. By the sur-
render the inhabitants passed under a temporary allegiance to the
British government, and were bound by such laws, and such only, as
it chose to recognize and impose. From the nature of the case, no
other laws could be obligatory upon them; for where there is no
protection, or allegiance, or sovereignty, there can be no claim to obedi-
ence. Castine was, therefore, during this period, so far as respected
our revenue laws, to be deemed a foreign port; and goods imported
to it by the inhabitants, were subject to such duties only as the
British government chose to require. Such goods were, in no cor-
rect sense, imported into the United States. The subsequent evacu-
ation by the enemy, and resumption of authority by the United
States, did not, and could not, change the character of the previous
transactions.
“The doctrines respecting the jus postliminii are wholly inapplica-
New Orleans. On the voyage she was captured by a French cruiser; but sonie days
laier she was rescued by her captain, who brought her into New Orleans. A demand
was made on the President by the French Government for her return to the captors.
Attorney-General Grundy advised that the President had no power to grant the
demand, the case involving questions to be settled by the courts, and not by the
executive, and that the claimants must go into the courts. He also advised that if it
vessel, after escaping from her captors, terminated her voyage in safety, her liability
to condemnation for the escape entirely ceases. 3 Wharton's Digest, 179. -=- Ev.
CHAP. II.]
657
AMERICAN INSURANCE CO. V. CANTER.
ble to the case. The goods were liable to American duties, when
imported, or not at all. That they were not so liable at the time of
importation, is clear from what has been already stated; and when,
upon the return of peace, the jurisdiction of the United States was
reassumed, they were in the same predicament as they would have
been if Castine had been a foreign territory ceded by treaty to the
(nited States, and the goods had been previously imported there.
In the latter case, there would be no pretence to say that American
duties could be demanded ; and, upon principles of public or munic-
ipal law, the cases are not distinguishable.
« The authorities cited at the bar, would, if there were any doubt,
be decisive of the question. But we think it too clear to require any
aid from authority.” 1
THE AMERICAN INSURANCE COMPANY V. CANTER.
SUPREME COURT OF THE UNITED STATES, 1828.
(1 Peters, 511.)
MARSHALL, C. J.:2_6 The course which the argument has taken will
require, that, in deciding this question, the Court should take into
view the relation in which Florida stands to to the United States.
“The Constitution confers absolutely on the government of the
Union the powers of making war and of making treaties; conse-
quently, that government possesses the power of acquiring territory
either by conquest or by treaty.
“ The usage of the world is, if a nation be not entirely subdued, to
consider the holding of conquered territory as a mere military oc-
cupation, until its fate shall be determined at the treaty of peace.
If it be ceded by the treaty, the acquisition is confirmed and the
ceded territory becomes a part of the nation to which it is an-
nexed; either on the terms stipulated in the treaty of cession, or on
such as its new master shall impose. On such transfer of territory,
it has never been held, that the relations of the inhabitants with
each other undergo any change. Their relations with their former
sovereign are dissolved, and new relations are created between
them and the government which has acquired their territory. The
same act which transfers their country, transfers the allegiance of
1 In the United States v. Hayward, 1815, 2 Gall. 485, Mr. Justice Story hell
that Castine was to be considered a “ foreign port," with reference to the non-
importation acts. - Ed.
2 Facts omitied and only so much of the opinion is given as relates to the status of
Florida after the cession of that territory to United States in 1819. — Ed.
42
658
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
those who remain in it; and the law, which may be denominated po-
litical, is necessarily changed, although that which regulates the in-
tercourse and general conduct of individuals, remains in force until
altered by the newly-created power of the State.
“On the 2d of February, 1819, Spain ceded Florida to the
United States. The 6th article of the treaty of cession contains the
following provision: The inhabitants of the territories which his
Catholic majesty cedes to the United States by this treaty, shall be
incorporated in the Union of the United States as soon as may be
.consistent with the principles of the federal Constitution; and ad-
mitted to the enjoyment of the privileges, rights, and immunities of
the citizens of the United States,
« This treaty is the law of the land and admits the inhabitants of
Florida to the enjoyment of the privileges, rights, and immunities
of the citizens of the United States. It is unnecessary to inquire
whether this is not their condition, independent of stipulation.
They do not, however, participate in political power; they do not
share in the government, till Florida shall become a state. In the
meantime Florida continues to be a territory of the United States;
governed by virtue of that clause in the Constitution which em-
powers Congress to make all needful rules and regulations re-
specting the territory or other property belonging to the United
States.'
701
1 In the head-note to Cross v. Harrison, 1853, 16 How. 164, the following account is
given of the status of California under the military occupation of the United States.
“ In the war with Mexico the port of San Francisco was conquered by the arms of
the United States, in the year 1846, and shortly afterwards the United States had
military possession of all of Upper California. Early in 1847 the President of the
United States, as constitutional commander-in-chief of the army and navy, authorized
the military and naval commanders of the United States forces in California to
exercise the belligerent rights of a conqueror and to form a civil and military govern-
ment for the conquered territory, with power to impose duties on imports and tonnage
for the support of such government and of the arıny which had the conquest in
possession.
“ This was done, and tonnage and import duties were levied under a war tariff,
which had been established by the civil government for that purpose until official
notice was received by the civil and military governor of California, that a treaty of
peace had been made with Mexico by which Upper California had been ceded to the
United States.
Upon receiving this intelligence the governor directed that import and tonnage
duties should thereafter be levied in conformity with such as were to be paid in the
other ports of the United States, by the acts of Congress; and for such purpose
he
appointed the defendant in this suit collector of the port of San Francisco.
“ The plaintiffs now seek to recover from him certain tonnage duties and imposts ·
upon foreign merchandise paid by them to the defendant as collector between
the 3d of February, 1848 (the date of the treaty of peace), and the 13th of November,
CHAP. II.]
659
FLEMING V. PAGE.
FLEMING V. PAGE.
SUPREME COURT OF THE UNITED STATES, 1850.
(9 Howard, 603.)
This action is brought by the plaintiffs, merchants, residing in the
city of Philadelphia, against the defendant, the late collector of the
port of Philadelphia, to recover the sum of one thousand five hun-
dred and twenty-nine dollars, duties paid on the 14th of June, 1847,
under protest, on goods belonging to the plaintiffs, brought froin
Tampico while that place was in the military occupation of the
forces of the United States.
On the 15th of November, 1846, Commodore Conner took military
possession of Tampico, a seaport of the State of Tamaulipas, and
from that time until the treaty of peace it was garrisoned by Amer-
ican forces, and remained in their military occupation.
Justice was administered there by courts appointed under the
military authority, and a custom-house was established there, and a
collector appointed, under the military and naval authority.
Upon a certificate of division in opinion in the Circuit Court the
case came up to this court.
Judgment,-TANEY, C. J.:-
“The question certified by the Circuit Court turns upon the con-
struction of the act of Congress of July 30, 1846.
“The duties levied upon the cargo of the schooner Catharine were
duties imposed by this law upon goods imported from a foreign
country. And if at the time of this shipment Tampico was not a
foreign port, within the meaning of the act of Congress, then the
duties were illegally charged, and, having been paid under protest,
1849 (when the collector appointed by the President, according to law, entered upon
the duties of his office), upon the ground that they had been illegally exacted. The
formation of the civil government in California, when it was done, was the lawful
exercise of a belligerent right over a conquered territory. It was the existing govern-
ment when the territory was ceded to the United States, as a conquest, and did not
cease as a matter of course, or as a consequence of the restoration of peace ; and it
was rightfully continued after peace was made with Mexico), until Congress legislated
otherwise, under its constitutional power, to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the United States.
“ The tonnage duties and duties upon foreign goods imported into San Francisco
were legally demanded and lawfully collected, and afterwards, from the ratification of
the treaty of peace until the revenue system of the United States was put into
practical operation in California under the acts of Congress passed for that purpose.”
- ED.
660
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
A
was
the plaintiffs would be entitled to recover in this action the amount
exacted by the collector.
“The port of Tampico, at which the goods were shipped, and the
Mexican State of Tamaulipas, in which it is situated, were undoubt-
edly at the time of the shipment subject to the sovereignty and do-
minion of the United States. The Mexican authorities had been
driven out, or had submitted to our army and navy; and the country
in the exclusive and firm possession of the United States, and
governed by its military authorities acting under the orders of the
President. But it does not follow that it was a part of the United
States, or that it ceased to be a foreign country, in the sense in
which these words are used in the acts of Congress.
“The country in question had been conquered in war. But the
genius and character of our institutions are peaceful, and the power
to declare war was not conferred upon Congress for the purposes of
aggression or aggrandizement, but to enable the general government
to vindicate by arms, if it should become necessary, its own rights
and the rights of its citizens.
“A war, therefore, declared by Congress, can never be presumed
to be waged for the purpose of conquest or the acquisition of terri-
tory; nor does the law declaring the war imply an authority to the
President to enlarge the limits of the United States by subjugating
the enemy's country. The United States, it is true, may extend its
boundaries by conquest or treaty, and may demand the cession of
territory as the condition of peace, in order to indemnify its citizens
for the injuries they have suffered, or to reimburse the government
for the expenses of the war. But this can be done only by the
treaty-making power or the legislative authority, and is not a part
of the power conferred upon the President by the declaration of war.
His duty and his power are purely military. As commander-in-chief,
he is authorized to direct the movements of the naval and military
forces placed by law at his command, and to employ them in the
manner he may deem most effectual to harass and conquer and sub-
due the enemy. He may invade the hostile country, and subject
it to the sovereignty and authority of the United States. But his
conquests do not enlarge the boundaries of this Union, nor extend
the operation of our institutions and laws beyond the limits before
assigned to them by the legislative power.
“It is true, that, when Tampico had been captured, and the State
of Tamaulipas subjugated, other nations were bound to regard the
country, while our possession continued, as the territory of the
United States, and to respect it as such. For, by the laws and
usages of nations, conquest is a valid title, while the victor main-
CHAP. II.)
661
FLEMING V. PAGE.
tains the exclusive possession of the conquered country. The citi-
zens of no other nation, therefore, had a right to enter it without the
permission of the American authorities, nor to hold intercourse with
its inhabitants, nor to trade with them. As regarded all other
nations, it was a part of the United States, and belonged to them as
exclusively as the territory included in our established boundaries.
“ But yet it was not a part of this Union. For every nation which
acquires territory by treaty or conquest holds it according to its
own institutions and laws. And the relation in which the port of
Tampico stood to the United States, while it.was occupied by their
arms, did not depend upon the laws of nations, but upon our own
Constitution and acts of Congress. The power of the President,
under which Tampico and the State of Tamaulipas were conquered
and held in subjection, was simply that of a military commander
prosecuting a war, waged against a public enemy, by the authority
of his government. And the country from which these goods were
imported was invaded and subdued, and occupied as the territory of
a foreign hostile nation, as a portion of Mexico, and was held in pos-
session in order to distress and harass the enemy. While it was
occupied by our troops they were in an enemy's country, and not
in their own; the inhabitants were still foreigners and enemies, and
owed to the United States nothing more than the submission and
obedience, sometimes called temporary allegiance, which is due from
a conquered enemy, when he surrenders to a force which he is unable
to resist. But the boundaries of the United States, as they existed
when war was declared against Mexico, were not extended by the
conquest; nor could they be regulated by the varying incidents of
war, and be enlarged or diminished as the armies on either side
advanced or retreated. They remained unchanged. And every place,
which was out of the limits of the United States, as previously
established by the political authorities of the government, was still
foreign; nor did our laws extend over it. Tampico was, therefore,
a foreign port when this shipment was made.
“Again, there was no act of Congress establishing a custom-house
at Tampico, nor authorizing the appointment of a collector; and,
consequently, there was no officer of the United States authorized
by law to grant the clearance and authenticate the coasting manifest
of the cargo, in the manner directed by law, where the voyage is
from one port of the United States to another. The person who
acted in the character of collector in this instance, acted as such
under the authority of the military commander, and in obedience to .
his orders; and the duties he exacted, and the regulations he
adopted, were not those prescribed by law, but by the President in
662
(PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
his character of commander-in-chief. The custom-house was estab-
lished in an enemy's country, as one of the weapons of war. It was
established, not for the purpose of giving to the people of Tamauli-
pas the benefits of commerce with the United States, or with other
countries, but as a measure of hostility, and as a part of the military
operations in Mexico; it was a mode of exacting contributions from
the enemy to support our army, and intended also to cripple the
resources of Mexico, and make it feel the evils and burdens of the
war. The duties required to be paid were regulated with this view,
and were nothing more than contributions levied upon the enemy,
which the usages of war justify when an army is operating in the
enemy's country. The permit and coasting manifest granted by an
officer thus appointed, and thus controlled by military authority,
could not be recognized in any port of the United States, as the
documents required by the act of Congress when the vessel is en-
gaged in the coasting trade, nor could they exempt the cargo from
the payment of duties.
“This construction of the revenue laws has been uniformly given
by the administrative department of the government in every case
that has come before it. And it has, indeed, been given in cases
where there appears to have been stronger ground for regarding the
place of shipment as a domestic port. For, after Florida had been
ceded to the United States, and the forces of the United States
had taken possession of Pensacola, it was decided by the Treasury
Department, that goods imported from Pensacola before an act of
Congress was passed erecting it into a collection district, and author-
izing the appointment of a collector, were liable to duty. That is,
that although Florida had, by cession, actually become a part of the
United States, and was in our possession, yet, under our revenue
laws, its ports must be regarded as foreign until they were estab-
lished as domestic, by act of Congress; and it appears that this de-
cision was sanctioned at the time by the Attorney-General of the
United States, the law officer of the government. And, although
not so directly applicable to the case before us, yet the decisions of
the Treasury Department in relation to Amelia Island, and certain
ports in Louisiana, after that province had been ceded to the United
States, were both made upon the same grounds. And, in the latter
case, after a custom-house had been established by law at New
Orleans, the collector at that place was instructed to regard as for-
eign ports Baton Rouge and other settlements still in the possession
of Spain, whether on the Mississippi, Iberville, or the sea-coast.
The Department in no instance that we are aware of, since the
establishment of the government, has ever recognized a place in a
CHAP. II.]
FLEMING V. PAGE,
663
newly-acquired country as a domestic port, from which the coasting
trade might be carried on, unless it had been previously made so by
act of Congress.
“The principle thus adopted and acted upon by the executive
department of the government has been sanctioned by the decisions
in this court and the circuit courts whenever the question came
before them. We do not propose to comment upon the different
cases cited in the argument. It is sufficient to say, that there is no
discrepancy between them. And all of them, so far as they apply,
maintain, that under our revenue laws every port is regarded as a
foreign one, unless the custom-house from which the vessel clears is
within a collection district established by act of Congress, and the
officers granting the clearance exercise their functions under the
authority and control of the laws of the United States.
“In the view we have taken of this question, it is unnecessary to
notice particularly the passages from eminent writers on the laws
of nations which were brought forward in the argument. They
speak altogether of the rights which a sovereign acquires and the
powers he may exercise in a conquered country, and they do not
bear upon the question we are considering. For in this country the
sovereignty of the United States resides in the people of the sev-
eral States, and they act through their representatives according to
the delegation and distribution of powers contained in the constitu-
tion. And the constituted authorities to wliom the power of
making war and concluding peace is confided, and of determining
whether a conquered country shall be permanently retained or not,
neither claimed nor exercised any rights or powers in relation to the
territory in question but the rights of war. After it was subdued it
was uniformly treated as an enemy's country and restored to the
possession of the Mexican authorities when peace was concluded.
And certainly its subjugation did not compel the United States,
while they held it, to regard it as a part of their dominions, nor to
give to it any form of civil government, nor to extend to it our
laws.
“Neither is it necessary to examine the English decisions which
have been referred to by counsel. It is true that most of the States
have adopted the principles of English jurisprudence, so far as it
concerns private and individual rights, and when such rights are in
question we habitually refer to the English decisions, not only with
respect, but in many cases as authoritative. But in the distribution
of political power between the great departments of government,
there is such a wide difference between the power conferred on the
President of the United States and the authority and sovereignty
664
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
which belong to the English crown, that it would be altogether un-
safe to reason from any supposed resemblance between them, either
as regards conquest in war or any other subject where the rights
and powers of the executive arm of the government are brought
into question. Our own constitution and form of government must
be our only guide. And we are entirely satisfied that, under the
constitution and laws of the United States, Tampico was a foreign
port, within the meaning of the act of 1846, when these goods were
shipped, and that the cargoes were liable to the duty charged upon
them, and we shall certify accordingly to the circuit court.”
Mr. Justice MCLEAN dissented.
Order.— “ This cause came on to be heard on the transcript of
the record from the circuit court of the United States for the
eastern district of Pennsylvania, and on the point or question on
which the judges of the said circuit court were opposed in opinion
and which was certified to this court for its opinion, agreeably to
the act of Congress in such case made and provided, and was
argued by counsel.-On consideration whereof, it is the opinion of
this court, that Tampico was a foreign port within the meaning of
the act of Congress of July 30, 1846, entitled 'An act reducing the
duties on imports, and for other purposes, and that the goods,
wares, and merchandise as set forth and described in the record
were liable to the duties charged upon them under said act of Con-
gress. Whereupon it is now here ordered and adjudged by this
court that it be so certified to the said circuit court.??
JECKER. y. MONTGOMERY.
SUPREME COURT OF THE UNITED STATES, 1851.
(13 Howard, 498.)
After California had been occupied by the United States forces,
during the war with Mexico, a Prize Court was set up at Monterey,
at the request of Commodore Biddle, and sanctioned by the Presi-
dent.
An American vessel—the Admittance—was captured for trading
with the enemy, April 7, 1847, and condemned by this court at
Monterey; and the vessel and cargo were sold under the sentence.
The question finally came before the Supreme Court.
Chief Justice TANEY, in pronouncing the judgment, said in respect
of the power of establishing courts :-
CHAP. II.]
665
JECKER V. MONTGOMERY.
«* * * In relation to the proceedings in the court at Monterey,
which is the subject of the first demurrer, the decision of the circuit
court is correct.
" All captures jure belli are for the benefit of the sovereign under
whose authority they are made; and the validity of the seizure and
the question of prize or no prize can be determined in his own
courts only, upon which he has conferred jurisdiction to try the
question. And under the Constitution of the United States. the
judicial power of the general government is vested in one supreme
court, and in such inferior courts as Congress shall, from time to
time, ordain and establish. Every court of the United States, there-
fore, must derive its jurisdiction and its authority from the Consti-
tution or the laws of the United States. And neither the President
nor any military officer can establish a court in a conquered country,
and authorize it to decide upon the rights of the United States, or
of individuals in prize cases, nor to administer the law of nations.
· The courts established or sanctioned in Mexico during the war
by the commanders of the American forces were nothing more than:
the agents of the military power, to assist in preserving order in the
conquered territory, and to protect the inhabitants in their persons
and property while it was occupied by the American arms; they
were subject to the military power, and their decisions under its
control, whenever the commanding officer thought proper to inter-
fere. They were not courts of the United States, and had no right
to adjudicate upon a question of prize or no prize. And the sentence
of condemnation in the court at Monterey is a nullity, and can have
no effect upon the rights of any party.
“ The second demurrer denies the authority of the district court
to adjudicate, because the property had not been brought within its
jurisdiction. But that proposition cannot be maintained ; and a
prize court, when a proper case is made for its interposition, will
proceed to adjudicate and condemn the captured property or award
restitution, although it is not actually in the control of the court.
It may always proceed in rem whenever the prize or proceeds of the
prize can be traced to the hands of any person whatever.” 1
1 In Leitensdorfer v. Webb, 1857, 20 How. 176, 177–179, the court held that when
New Mexico was conquered it was only the allegiance of the people that changer;
that their relation to each other and their rights of property renained unchangeul;
that tlie executive authority properly establishedl a provisional government, winch
ordained laws and instituted a judicial system ; all of which continued after the war,
until modified by the direct legislation of Congress or by the territorial government
established by its authority, and that a suit brought in a court established by the pro-
visional government was properly transferred to a court created by the act of Con-
666
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
UNITED STATES V. MORENO.
(1 Wallace, 400, 404.)
Mr. Justice SWAYNE. California belonged to Spain by the rights
of discovery and conquest. The government of that country estab-
lished regulations for transfers of the public domain to individuals.
When the sovereignty of Spain was displaced by the revolutionary
action of Mexico, the new government established regulations upon
the same subject. These two sovereignties are the spring heads of all
1
gress establishing the territory of New Mexico, the jurisdiction of which was fixed
by a State statute.
In the case of the Grapeshot, 1869, 9 Wall. 129, the Supreme Court decided that,
during the civil war, when the national forces occupied parts of the revolted territory,
it was within the authority of the President, as commander-in-chief, to establish provi-
sional courts to try causes arising under the laws of the State or of the United States.
And as to the power of the military occupant, see New Orleans v. Steamship Co., 1874,
20 Wall. 387; Mechanics' of Traders' Bank v. Union Bank, 22 id. 226; Harrison v. Meyer,
1875, 92 U. S. 111; U. S. v. Diekelman, 1875, id. 520; Neal Dow v. Johnson, 1879, 100
id. 158; Gutes v. Goodloe, 1879, 101 id. 612. As regards private property destroyed by
military operations, see U. S. v. Pacific R. R., 1886, 120 U. S. 227, holding that the
United States is not responsible for the injury or destruction of private property
caused by its military operations during the late civil war, and that private parties
were not chargeable for works constructed on their property by the United States to
facilitate such operations. See also l'aylor v. Nashville f Chattanooga R. R. Co., 1869,
6 Cold. (Tenn.) 647. See also Magoon, Military Occupation, 345–350.
As for martial, as distinguished from military law, see Ex parte Milligan, 1867, 4
Wall, 2; Johnson v. Jones et al., 1867, 44 III., 142 (per Lawrence, J.); In re D. F.
Marais, [1902] A. C. 109. In this later case the facts briefly were: martial law liad
been proclaimed in Cape Colony owing to the Boer war, and the petitioner was
arrested and kept in custody by the military authorities. Neither the district in which
he was taken, nor in which he was held, was the scene of active operations, and the
ordinary courts were in session. The petitioner applied to the Supreme Court of the
colony to release him from military custody, and on the refusal of his application,
prayed the Judicial Committee of the Privy Council for special leave to appeal; but
the petition was denied (per Halsbury, L. C.). This case has created much comment,
anıl wide difference of opinion exists. In a temperate note in 15 Harv. Law Rev. 850,
it is said: “The Supreme Court of the United States has said [in Ex parte Milligan,
supra] that the continued sitting of the ordinary courts, and the absence of visible
disorder, absolutely preclude a lawful exercise of martial law. The Judicial Com-
mittee of the Privy Council takes an opposite view. It is submitted that the latter
view is preferable. Under modern conditions it cannot truly be said that the absence
of visible disorder shows there is no necessity for martial law. The continued sitting
of courts is too artificial a test to be serviceable. Martial law is the law of necessity.
The executive must be left unhampered in time of war to deal with problems sun-
marily, and to take protective measures without waiting for the machinery of the
courts." See martial law, military rule, in index to Magoon, op. cit., and an elaborate
series of discussion in 18 Law Quarterly Review, 117–158. — Ed.
CHAP. II.] FOURTEEN DIAMOND RINGS v. UNITED STATES.
667
the land titles in California, existing at the time of the cession of that
country to the United States by the treaty of Guadalupe Hildalgo.
That cession did not impair the rights of private property. They were
consecrated by the law of nations, and protected by the treaty.
The treaty stipulation was but a formal recognition of the pre-exist-
ing sanction in the law of nations. The act of March 3d, 1851, was
passed to assure to the inhabitants of the ceded territory the benefit of
the rights of property thus secured to them. It recognizes alike legal
and equitable rights, and should be administered in a large and liberal
spirit: A right of any validity before the cession was equally valid
afterwards, and while it is the duty of the court in the cases which
may come before it to guard carefully against claims originating in
fraud, it is equally their duty to see that no rightful claim is rejected.
No nation can have any higher interest than the right administration
of justice.
FOURTEEN DIAMOND RINGS v. UNITED STATES.
SUPREME COURT OF THE UNITED STATES, 1901.
(183 United States, 176.)
Mr. Chief Justice FULLER delivered the opinion of the court.
Emil J. Pepke, a citizen of the United States and of the State of
North Dakota, enlisted in the First Regiinent of the North Dakota
United States Volunteer Infantry, and was assigned for duty with his
regiment in the island of Luzon, in the Philippine Islands, and con-
tinued in the military service of the United States until the regiment
was ordered to return, and, on arriving at San Francisco, was dis-
charged September 25, 1899
He brought with him from Luzon fourteen diamond rings, which he
had there purchased, or acquired through a loan, subsequent to the
ratification of the treaty of peace between the United States and Spain,
February 6, 1899, and the proclamation thereof by the President of the
United States, April 11, 1899.
In May, 1900, in Chicago, these rings were seized by a customs
officer as having been imported contrary to law, without entry, or
declaration, or payment of duties, and an information was filed to
enforce the forfeiture thereof.
To this Pepke filed a plea setting up the facts, and claiming that the
rings were not subject to customs duties; the plea was held insuffi-
cient; forfeiture and sale were decreed; and this writ of error was
prosecuted.
668
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
The tariff act of July 24, 1897, 30 Stat. 151, in regulation of com-
merce with foreign nations, levied duties “upon all articles imported
from foreign countries."
Were these rings, acquired by this soldier after the ratification of
the treaty was proclaimed, when brought by him from Luzon to Cali-
fornia, on his return with his regiment to be discharged, imported from
a foreign country?
This question has already been answered in the negative, in respect
of Porto Rico, in De Lima v. Bidwell, 182 U. S. 1, and unless the cases
can be distinguished, which we are of opinion they cannot be in this
particular, that decision is controlling.
The Philippines, like Porto Rico, became, by virtue of the treaty,
ceded conquered territory or territory ceded by way of indemnity.
The territory ceased to be situated as Castine was when occupied by
the British forces in the war of 1812, or as Tampico was when occu-
pied by the troops of the United States during the Mexican war,
cases of temporary possession of territory by lawful and regular gov-
ernments at war with the country of which the territory so possessed
was part.” Thorington v. Smith, 8 Wall. 10. The Philippines were
not simply occupied but acquired, and having been granted and deliv-
ered to the United States, by their former master, were no longer
under the sovereignty of any foreign nation.
In Cross v. Harrison, 16 How. 164, the question was whether goods
imported from a foreign country into California after the cession were
subject to our tariff laws, and this court held that they were.
Iu De Lima v. Bidwell, the question was whether goods imported
into New York from Porto Rico, after the cession, were subject to
duties imposed by the act of 1897 on "articles imported from foreign
countries,” and this court held that they were not. That act regulated
commerce with foreign nations, and Porto Rico had ceased to be within
that category; nor could territory be foreign and domestic at the same
time.
Among other things it was there said: “The theory that a
country remains foreign with respect to the tariff laws until
Congress has acted by embracing it within the customs union, presup-
poses that a country may be domestic for one purpose and foreign for
another. It may undoubtedly become necessary for the adequate ad-
ministration of a domestic territory to pass a special act providing the
proper machinery and officers, as the President would have no author-
ity, except under the war power, to administer it himself; but no act
is necessary to make it domestic territory if once it has been ceded to
the United States. * * * This theory also presupposes that terri-
tory may be held indefinitely by the United States; that it may be
CHAP. II.]
669
FOURTEEN DIAMOND RINGS v. UNITED STATES.
treated in every particular, except for tariff purposes, as domestic ter-
ritory ; that laws may be enacted and enforced by officers of the United
States sent there for that purpose; that insurrections may be sup-
pressed, wars carried on, revenues collected, taxes imposed; in short,
that everything may be done which a government can do within its
own boundaries, and yet that the territory may still remain a foreign
country. That this state of things may continue for years, for a cen-
tury even, but that until Congress enacts otherwise, it still remains a
foreign country. To hold that this can be done as matter of law we
deem to be pure judicial legislation. We find no warrant for it in the
Constitution or in the powers conferred upon this court. It is true
the non-action of Congress may occasion a temporary inconvenience;
but it does not follow that courts of justice are authorized to remedy it
by inverting the ordinary meaning of words."
No reason is perceived for any different ruling as to the Philippines.
By the third article of the treaty Spain ceded to the United States
the archipelago known as the Philippine Islands,” and the United
States agreed to pay to Spain the sum of twenty million dollars within
three months. The treaty was ratified; Congress appropriated the
money ; the ratification was proclaimed. The treaty-making power,
the executive power, the legislative power, concurred in the completion
of the transaction.
The Philippines thereby ceased, in the language of the treaty, “to
be Spanish.” Ceasing to be Spanish, they ceased to be foreign coun-
try. They came under the complete and absolute sovereignty and do-
minion of the United States, and so became territory of the United
States over which civil government could be established. The result
was the same although there was no stipulation that the native inhabi-
tants should be incorporated into the body politic, and none securing
to them the right to choose their nationality. Their allegiance became
due to the United States and they became entitled to its protection.
But it is said that the case of the Philippines is to be distinguished
from that of Porto Rico because on February 14, 1899, after the ratifi-
cation of the treaty, the Senate resolved, as given in the margin, that
1 “ Resolved by the Senate and House of Representatives of the United States of
America in Congress assembled, That by the ratification of the treaty of peace with
Spain it is not intended to incorporate the inhabitants of the Philippine Islands into
citizenship of the United States, nor is it intended to permanently annex said islands
as an integral part of the territory of the United States; but it is the intention of the
United States to establish on said islands a government suitable to the wants and con-
ditions of the inhabitants of said islands to prepare them for local self-government,
and in due time to make such disposition of said islands as will best promote the
interests of the United States and the inhabitants of said islands.” Cong. Rec. 55th
Cong. 3d Sess. Vol. 32, p. 1847.
670
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
it was not intended to incorporate the inhabitants of the Philippines
into citizenship of the United States, nor to permanently annex those
islands.
We need not consider the force and effect of a resolution of this sort,
if adopted by Congress, not like that of April 20, 1898, in respect of
Cuba, preliminary to the declaration of war, but after title had passed
by ratified cession. It is enough that this was a joint resolution; that
it was adopted by the Senate by a vote of 26 to 22, not two thirds of a
quorum: and that it is absolutely without legal significance on the
question before us. The meaning of the treaty cannot be controlled
by subsequent explanations of some of those who may have voted to
ratify it. What view the House might have taken as to the intention
of the Senate in ratifying the treaty we are not informed, nor is it
material; and if any implication from the action referred to could
properly be indulged, it would seem to be that two thirds of a quorum
of the Senate did not consent to the ratification on the grounds indi-
cated.
It is further contended that a distinction exists in that while com-
plete possession of Porto Rico was taken by the United States, this was
not so as to the Philippines, because of the armed resistance of the
native inhabitants to a greater or less extent.
We must decline to assume that the government wishes thus to dis-
parage the title of the United States, or to place itself in the position
of waging a war of conquest.
The sovereignty of Spain over the Philippines, and possession under
claim of title had existed for a long series of years prior to the war
with the United States. The fact that there were insurrections against
her, or that uncivilized tribes may have defied her will did not affect
the validity of her title. She granted the islands to the United States,
and the grantee, in accepting them took nothing less than the whole
grant.
If those in insurrection against Spain continued in insurrection
against the United States, the legal title and possession of the latter
remained unaffected.
We do not understand that it is claimed that in carrying on the
pending hostilities the government is seeking to subjugate the people
of a foreign country, but, on the contrary, that it is preserving order
and suppressing insurrection in territory of the United States. It fol-
lows that the possession of the United States is adequate possession
under legal title, and this cannot be asserted for one purpose and
denied for another. We dismiss the suggested distinction as unten-
able.
But it is sought to detract from the weight of the ruling in De Lima
1
1
CHAP. II.]
671
FOURTEEN DIAMOND RINGS V. UNITED STATES.
v. Bidwell because one of the five justices concurring in the judgment
in that case concurred in the judgment in Downes v. Bidwell, 182
U. S. 244.
In De Lima v. Bidwell, Porto Rico was held not to be a foreign
country after the cession, and that a prior act exclusively applicable to
foreign countries became inapplicable.
In Downes v. Bidwell, the conclusion of a majority of the court was
that an act of Congress levying duties on goods imported from Porto
Rico into New York, not in conformity with the provisions of the
Constitution in respect to the imposition of duties, imposts, and excises,
was valid. Four of the members of the court dissented from and five
concurred, though not on the same grounds, in this conclusion. The
justice who delivered the opinion in De Lima's case was one of the
majority, and was of opinion that although by the cession Porto Rico
ceased to be a foreign country, and became a territory of the United
States and domestic, yet that it was inerely "appurtenant." territory,
and “not a part of the United States within the revenue clauses of the
Constitution."
This view placed the territory, though not foreign, outside of the
restrictions applicable to interstate commerce, and treated the power
of Congress, when affirmatively exercised over a territory, situated as
supposed, as uncontrolled by the provisions of the Constitution in
respect of national taxation. The distinction was drawn between a
special act in respect of the particular country, and a general and
prior act only applicable to countries foreign to ours in every sense.
The latter was obliged to conform to the rule of uniformity, which
was wholly disregarded in the former.
The ruling in the case of De Lima remained unaffected, and controls
that under consideration. And this is so notwithstanding four mem-
bers of the majority in the De Lima case were of opinion that Porto
Rico did not become by the cession subjected to the exercise of govern-
mental power in the levy of duties unrestricted by constitutional limi-
tations.
Decree reversed and cause remanded with directions to quash the
information.
Mr. Justice Brown, concurring :
I concur in the conclusion of the court in this case, and in the
reasons given therefor in the opinion of the Chief Justice.
The case is distinguishable from De Lima v. Bidwell, 182 U. S. 1, in
but one particular, viz., the Senate resolution of February 6, 1899.
With regard to this, I would say that in my view the case would not
be essentially different if this resolution had been adopted by a unani-
mous vote of the Senate. To be efficacious such resolution must be
672
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
}
a com-
considered either (1) as an amendment to the treaty, or (2) as a legis-
lative act qualifying or modifying the treaty. It is neither.
It cannot be regarded as part of the treaty, since it received neither
the approval of the President nor the consent of the other contracting
power. A treaty in its legal sense is defined by Bouvier as
pact made between two or more independent nations with a view to
the public welfare ” ( 2 Law Dic. 1136), and by Webster as “an agree-
ment, league, or contract between two or more nations or sovereigns,
formally signed by commissioners properly authorized, and solemnly
ratified by the sovereigns or the supreme power of each state." In its
essence it is a contract. It differs from an ordinary contract only in
being an agreement between independent states instead of private
parties. Foster v. Neilson, 2 Pet. 253, 314; Head Money Cases, 112
U. S. 580. By the Constitution (art. 2, sec. 2), the President“shall have
power, by and with the advice and consent of the Senate to make
treaties, provided two thirds of the Senators present concur.” Obviously
the treaty must contain the whole contract between the parties, and
the power of the Senate is limited to a ratification of such terms as
have already been agreed upon between the President, acting for the
United States, and the cominissioners of the other contracting power.
The Senate has no right to ratify the treaty and introduce new terms
into it, which shall be obligatory upon the other power, although it
may refuse its ratification, or make such ratification conditional upon
the adoption of amendments to the treaty. If, for instance, the
treaty with Spain had contained a provision instating the inhabitants
of the Philippines as citizens of the United States, the Senate might
have refused to ratify it until this provision was stricken out. But it
could not, in my opinion, ratify the treaty and then adopt a resolution
declaring it not to be its intention to admit the inhabitants of the
Philippine Islands to the privileges of citizenship of the United States.
Such resolution would be inoperative as an amendment to the treaty,
since it had not received the assent of the President or the Spanish
commissioners.
Allusion was made to this question in the New York Indians v.
United States, 170 U. S. 1, 21, wherein it appeared that, when a treaty
with certain Indian tribes was laid before the Senate for ratification,
several articles were stricken out, several others amended, a new arti-
cle added, and a proviso adopted that the treaty should have no force
or effect whatever, until the amendment had been subinitted to the
tribes, and they had given their free and voluntary assent thereto.
This resolution, however', was not found in the original or in the pub-
lished copy of the treaty, or in the proclamation of the President,
which contained the treaty without the amendments. With reference
CHAP. II.]
6.73
FOURTEEN DIAMOND RINGS V. UNITED STATES.
to this the court observed: “The power to make treaties is vested by
the Constitution in the President and the Senate, and, while this pro-
viso was adopted by the Senate, there was no evidence that it ever
received the sanction or approval. of the President. It cannot be con-
sidered as a legislative act, since the power to legislate is vested in
the President, Senate, and House of Representatives. There is some-
thing, too, which shocks the conscience in the idea that a treaty can be
put forth as embodying the terms of an arrangement with a foreign
power or an Indian tribe, a material provision of which is unknown to
one of the contracting parties, and is kept in the background to be
used by the other only when the exigencies of a particular case may
demand it. The proviso appears never to have been called to the
attention of the tribes, who would naturally assume that the treaty
embodied in the Presidential proclamation contained all the terms of
the arrangement."
In short, it seems to me entirely clear that this resolution cannot be
considered a part of the treaty..
I think it equally clear that it cannot be treated as a legislative act,
though it may be conceded that under the decisions of this court Con-
gress has the power to disregard or modify a treaty with a foreign
state. This was not done.
The resolution in question was introduced as a joint resolution, but
it never received the assent of the House of Representatives or the
signature of the President. While a joint resolution, when approved
by the President, or, being disapproved, is passed by two thirds of each
House, has the effect of a law. (Const. art. 1, sec. 7), no such effect can
be given to a resolution of either House acting independently of the
other. Indeed, the above clause expressly requires concurrent action
upon a resolution “ before the same shall take effect.”
This question was considered by Mr. Attorney-General Cushing in his
opinion on certain Resolutions of Congress (6 Ops. Attys.-Gen. 680),
in which he held that while joint resolutions of Congress are not dis-
tinguishable from bills, and have the effect of law, separate resolutions
of either House of Congress, except in matters appertaining to their
own parliamentary rights, have no legal effect to constrain the action
of the President or heads of departments. The whole subject is there
elaborately discussed.
In
any
view taken of this resolution it appears to me that it can be
considered only as expressing the individual views of the Senators
voting upon it.
I have no doubt the treaty might have provided, as did the act of
Congress annexing Hawaii, that the existing customs relations between
the Spanish, possessions ceded by the treaty and the United States
43
674
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
should remain unchanged until legislation had been had upon the sub-
ject; but in the absence of such provision the case is clearly controlled
by that of De Lima v. Bidwell.
Mr. Justice GRAY, Mr. Justice SHIRAS, Mr. Justice WHITE, and Mr.
Justice MCKENNA dissented, for the reasons stated in their opinions in
De Lima v. Bidwell, 182 U. S. 1, 200-220; in Dooley v. United States,
182 U. S. 222, 236-243; and in Downes v. Bidwell, 182 U. S. 244, 287–
347.1
1 De Lima v. Bidwell, 1900, 182 U. S. 1, is the present leading case on this subject;
its length prevents its insertion.
Leaving out of question its importance in constitutional and international law, it
should be consulted for a collation and examination of the authorities. In Dooley
v. U. S., 1900, 182 U. S. 222, and Armstrong v. U, S., id. 243, it was held (Justices
White, Gray, Shiras, and McKenna dissenting) that duties upon imports from the U. S.
to Porto Rico, collected by Military Commander and the President as Commander-
in-Chief, from time of taking possession of the island until ratification of the treaty
of peace, were legally exacted under war power, but the right to exact duties so
imposed ceased with the ratification of the treaty. In Downes v. U. S., 1901, 182
U. S. 244, it was held (Fuller, C. J., Harlan, Brewer, and Peckliam, JJ., dissent-
ing) that the Island of Porto Rico is “a territory appurtenant and belonging to the
United States but not a part of the United States within the revenue clauses
of the Constitution; that the Foraker act (April 12, 1900) is constitutional, so far
as it imposes duties upon imports from such islands and tliat the plaintiff cannot
recover back the duties exacted in this case.” Reaffirmed and applied in Dooley v.
U. S., 1901, 183 U. S. 151. As the judgment in Downes v. U. S., of vital importance
to the United States, deals largely with the powers of Congress over the internal
organization and governinent of ) domestic territory of the United States, no abstract
is here attempted. In Huus v. New York of Steamship Co., 1901, 182 U. S. 392, it was
held that vessels plying between Porto Rican ports and the U. S. mainland, engaged
in “Corsting," i. e. domestic, not foreign trade.
The following are some leading foreign cases on the subject: In the case of Guerin,
Court of Appeal of Nancy, 1872 (Dalloz, 1872, II. p. 185), it was held that the occupa-
tion of a department of France by the troops of the enemy does not suspend therein
the civil and criminal laws of France; that these continue obligatory upon all French-
men so long at least as they have not been expressly and specifically abrogated by the
exigencies of the war. This rule was enforced in respect to the custom laws, and even
in that part of the occupied territory where the Germans collected and appropriated
the duties. Dalloz, 1872, II. 185, notes 3, 4.
In Mohr & Haas v. Hatzfeld, Court of Appeals of Nancy, 1872, Dalloz, 1872, II.
p. 229, it was held that the military occupation of a territory confers upon the invader
the right only to the usufruct and revenues of the public domain; that the French
courts will not recognize as valid the sale of old trees (during the war of 1870–71) on
the public domain which were reserved at the time of the annual cutting; that they
are as inalienable as the soil of the forest itself. Cf. New Orleans v. Steamship Co., 20
Wall. 387, for an exposition of American policy towards the Southern States, and for
the attitude to Cuba the following two citations : “ It is understood that any obliga-
tions assumed in this treaty by the United States with respect to Cuba are limited to
the time of its occupancy thereof; but it will upon the termination of such occupancy
CHAP. II.]
675
BAIN V. SPEEDWELL.
SECTION 38. - TERMINATION OF WAR.
BAIN V. SPEEDWELL. .
FEDERAL COURT OF APPEALS, 1784.
(2 Dallas, 40.)
This was an appeal from the Admiralty of the State of Rhode
Island, where the schooner had been condemned as prize ; and the
record was submitted to the decision of the court, without argument.
On the 24th of May, 1784, GRIFFIN, Read, and LOWELL, the presiding
commissioners, delivered the following judgment:
By the court. It appearing, by the inspection of the record, that
the schooner in question was captured from the British, since the
operation of the preliminary articles of peace (to wit, on the
day of
) the condemnation cannot be sustained.
Decree reversed. 1
advise any Government established in the island to assume the same obligations."
Art. XVI. Treaty with Spain, 30 U. S. Statutes at Large, 1754-1761.
Thai no property, franchises, or concessions of any kind whatever shall be granted
by United States, or by any military or other authority whatever, in the Island of
Cuba during the occupation thereof by the United States.” 30 id. 1064, p. 1074.
Jo Villasseque's Case, Cour de Cassation, 1818 (Ortolan: Diplomatie de la Mer., 2d
ed., Vol. I 324; it was decided that a crime committed by a French citizen in Spanish
territory, occupied and administered by the French army, was a crime committed in a
foreign country. Cf. Neely v. Henkel, 1901, 180 U. S. 109.
Hesse Cassel was conquered by the First Napoleon in 1806, and remained for about
a year under his immediate control; when it was annexed to the new kingdom of
Westphalia, of which it remained a part until after the battle of Leipzig in 1813. It
was held in the Elector of Hesse Cassel's Case, that debts due the Elector were validly
discharged by payment to Napoleon and receiving from him a quittance in full. (III.
Phillimore's International Law, p. 841; Magoon, Military Occupation, 262-263 )
For an interesting and early case on this matter of payment, see discussion of occu-
pation of Naples by Charles VIII. 1425 (III. Phillimore, Int. Law, p. 838). – ED. .
i The Thetis was captured twenty-nine days after the signing of the treaty
of Lunéville, Feb. 9, 1801, but eight days before its ratification. It was restored on
the ground of illegal capture in time of peace. Conseil des Prises, 1801, 1 Pistoye et
Duverdy, 148. — ED.
676
[PART 1.
EFFECTS OF WAR AS BETWEEN ENEMIES,
THE MENTOR."
HIGH COURT OF ADMIRALTY, 1799.
(1 C. Robinson, 179.)
Judgment. - Sir W. Scott: -
The circumstances of the case, as far as it is necessary to state
them, are these : The ship, being American property, was on a voyage
from Havana to Philadelphia, in 1783; off the Delaware she was
pursued by his Majesty's ships, the Centurion and the Vulture, then
cruising off that river, under the command of the adıniral on that
station, Admiral Digby. All parties were in complete ignorance of
the cessation of hostilities; not only the persons on board the King's
ships, but the Americans, as well those on the shore, as those on
board the vessel. In the pursuit, shots were fired on both sides, and,
it is alleged on the part of the British, that the ship was set on fire
by her own crew, who took to the shore.
Now, I incline to assent to Dr. Lawrence's position, that if an act of
mischief was done by the King's officers, though through ignorance,
in a place where no act of hostility ought to have been exercised, it
does not necessarily follow that mere ignorance of that fact would
protect the officers from civil responsibility. If by articles, a place or
district was put under the King's peace, and an act of hostility was
afterwards committed therein, the injured party might have a right to
resort to a court of prize to show that he had been injured by this
breach of the peace, and was entitled to compensation; and if the
officer acted through ignorance, his own government must protect
him: for it is the duty of governments, if they put a certain district
within the King's peace, to take care that due notice shall be given to
those persons by whose conduct that peace is to be maintained ; and
if no such notice has been given, nor due diligence used to give it,
and a breach of the peace is committed through the ignorance of
those persons, they are to be borne harmless, at the expense of that
government whose duty it was to have given that notice.
1
1 The statement of facts is omitted and only a part of the judgment is given. This
case had been in the courts ten or more years previously, but no records of the pro-
ceedings were produced. On this account, and from the further fact that the present
action was brought against the admiral of the station, instead of the actual wrongdoer,
the court refused to give relief.
In the Treaty of Aniens, 1802, between Great Britain and France, it was stipulated
that two months should be allowed for the news of the close of the war to reach.
CHAP. II.]
677
66
THE SCHOONER
JOAN."
THE SCHOONER “JOHN."
UNITED
COMMISSION FOR SETTLEMENT OF CLAIMS BETWEEN THE
STATES AND GREAT BRITAIN, FEBRUARY 8, 1853.
(Report of the Commission, 427.)
UPHAM, United States Commissioner:
In the able argument addressed to us by her Majesty's counsel, the
British agent, some stress has been laid on the decision of Sir William
Scott (2 Dodson, 336) on a suit brought against the commander of the
Talbot for the capture of the John ; and that authority is considered
conclusive of this claim.
But, in that case, the learned judge declined determining whether
or not the claimant had a remedy elsewhere; he only decided, for
reasons which he gives at length, that the captor should be personally
exonerated.
On determining this question, he says: "I certainly go no further
than the expressions used by me warrant, that this individual captor
is not liable to this individual sufferer.”
"That does not exclude a liability elsewhere, if it exists. Whether
there be such a liability in the government is a question I am not
called upon to examine; I have neither the proper parties nor the
evidence before me. It is sufficient to observe, upon that matter, that
there may be such a liability; there doubtless would be, if the govern-
ment had not made due diligence in advertising the cessation of
hostilities, in the quarters and at the periods stipulated, if that were
practicable.”
“Where property, captured after peace has taken effect, is lost by
mere chance, without any fault on the part of the captor, whether an
obligation is incurred to restore in value what has been taken away by
their respective cruiser in the West Indies. A British vessel was captured before the
expiration of the two months, but after news of the peace had reached the captors,
through British sources, the ship was restored. The Nymph, 1801, Conseil des Prises,
Merlin : Repertoire de Jurisprudence, Vol. 25, p. 131.
The similar case of The Swineherd (le Porcher), 1 Pistoye et Duverdy, 149, was that
of an English vessel captured in the Indian seas by a French privateer, after the
signing the Treaty of Amiens, but before the expiration of the five months allowed
for the news of the peace to reach those seas.
In this case the English ship had been fitted out as a privateer. She sailed from
Calcutta after the news of the peace had reached that place, and informed the captor
of that fact. It was contended further by the claimant that the captor had received
notice of the peace from a Portuguese vessel. On the other hand, it was held by the
Conseil des Prises that no sufficient notice of peace had reached the captor. See Hall's
Int. Law, 582, 583. — Ed.
-678
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
mere misfortune, the terms of the contract have not specifically pro-
vided for; and just principle seems to point another way; that, how-
ever, is not the question before me for my decision.". Schooner John,
Beck, Master, 2 Dodson, 336.
This case conflicts with the opinion of the same learned judge in
The Mentor, 1 Robinson, 183. He there says, “that the seizure of a
vessel is a belligerent right which is not exercisable in time of peace.
When there is peace, a seizure, jure belli, is a wrongful act, and the
injured party is entitled to restitution and compensation." He further
says, “It is not so clear that the captor is liable to costs and damages,
when peace has not been notified. The better opinion seems to be,
that the captor is liable to costs and damages, and entitled to indem-
nification from his government, whose duty it was to have given notice.”
Both these cases sustain this point, that, when there is a want of
due diligence, in advertising the cessation of hostilities, the injured
party is clearly entitled to indemnification; and Vattel says, also,
" that those who shall, through their own fault, remain ignorant of the
publication of the truce, would be bound to repair any damage they
may have caused contrary to its tenor." Vattel, bk. 3, ch. 16.
There seems to be no doubt that the principle, thus laid down, is
correct. But what constitutes due diligence, under such circumstances,
is a question at times of difficult determination. It is, therefore, ex-
ceedingly desirable that it should be settled by the parties in advance.
Vattel says, in the same section, “ in order as far as possible to avoid
any difficulty,” on this point, “it is usual with sovereigns, in their
truces, as well as treaties of peace, to assign different periods for the
cessation of hostilities according to the situation and distance of
places."
The question then arises, whether this assignment of different periods
for the cessation of hostilities, according to the situation and distance
of places, was pot designed by the parties to establish the time to be
holden as reasonable notice within such limits. Such clearly is the
ground assigned by. Vattel for such provisions in treaties. What would
be reasonable, can be determined just as well before the treaty as after,
and the whole tenor of the treaty, in this case, goes to show that the
contracting parties had this question in view, in establishing the various
periods within which peace should take place in different localities.
The treaty provides that, "immediately after ratification, orders
shall be sent to the armies, squadrons, officers, subjects, and citizens
of the two powers, to cease from all hostilities; and, to prevent all
causes of complaint which may arise on account of prizes, which may
be taken at sea after said ratification, it is reciprocally agreed, that all
vessels and effects, which may be taken after the space of twelve days
CHAP. II.]
679
THE SCHOONER 66 JOHN.”
from the said ratification, upon all ports of the coast of North America,
from the latitude of 23° north, to the latitude of 50° north, and as far
eastward in the Atlantic ocean as the 36° of west longitude from the
meridian of Greenwich, shall be restored on each side; that the time
shall be thirty days in all other parts of the Atlantic ocean, north of
the equator, and the same time for the British and Irish channels, for
the Gulf of Mexico, and all parts of the West Indies; forty days for
the North Seas, for the Baltic, and for all parts of the Mediterranean;
sixty days for the Atlantic ocean, south of the equator, as far as tha
latitude of the Cape of Good Hope; ninety days for every part of the
world south of the equator, and one hundred and twenty days for all
the other parts of the world without exception.” United States
Statutes at Large, Vol. 8, p. 219. These several periods were un-
doubtedly agreed upon as equivalent to notice that peace existed within
the prescribed limits. It cannot be supposed that the contending
parties designed to append to these periods a further indefinite, un-
certain time, as to what should constitute due diligence in giving notice,
or to restrain or limit the fact in its consequences, that peace should
exist at the times named.
After the periods thus agreed upon, the obligation to cease from
hostilities was imperative.
Such being the case, we have the true starting-point from which to
consider the question of the respective rights of the parties. It is
manifest that collisions might then occur without the imputation of
any wilful wrong in the violation of the compact entered into. The
injury would, however, exist, and the actual loss sustained should, on
every principle of equity and justice, as well as of compact, be fully met.
The stipulation was, therefore, entered into by the parties, that “all
vessels and effects” that should be taken after the several times speci-
fied "should be restored.” The question then arises, what interpre-
tation we shall place on this provision ? Does it mean that vessel
property merely shall be returned, and where this has become im-
practicable that no restitution or satisfaction shall be had ? I cannot
believe that such was the intent of the parties. They acknowledge
theinselves bound by a constructive notice of the peace, and it was
their own fault that they did not take time enough, or did not use
diligence enough to give actual notice of the peace " to their armies,
squadrons, officers, subjects, and citizens,” as was specially provided
should be done by the treaty.
Under such circumstances, the doctrine of Vattel, adopted by Sir
William Scott, applies, “that those who through their own fault re-
main ignorant of the publication of the truce are bound to repair any
damage they may have caused contrary to its tenor.”
680
[PART II.
EFFECTS OF WAR AS BETWEEN ENEMIES.
The party injured is in the same situation as a neutral whose ves-
sel has been seized and destroyed as the property of a hostile power,
where it is holden the neutral can only be justified by a full restitu-
tion in value. 1 Wildman, Vol. 2, p. 175.
There is no other measure of damage that justly meets the require-
ments of the case. The treaty provides not only that “all vessels,"
but also “ their effects," which may be taken, after a certain specified
number of days, within certain described limits, shall be restored on
either side. But if the effects of a vessel, consisting of provisions or
other articles, are taken and consumed, or are otherwise disposed of, so
they cannot be restored specifically, it will hardly be contended that
no remuneration is to be made.
If this be so, the rule would equally follow in relation to the vessel.
Restoration and restitution are synonymous. One meaning of the
word “restore," as laid down by Webster is, “to make restitution or
satisfaction for a thing taken, by returning something else, or some-
thing of different value," and this is the meaning which should be
rightfully attached to the word in the treaty.
I do not understand that this is, in reality, denied; but the position
is taken by Great Britain in this case, that she is relieved froin re-
storing the vessel, for the reason that it was subsequently cast away
and lost by the act of God, and no one is accountable.
If the case can be brought within this principle the excuse might
avail, but there are circumstances connected with it that preclude such
defence. No one can plead the destruction of property as the act of
God, who is wrongfully in the use and control of such property. He
is a wrong-doer from the outset; he has converted the property from
the instant of possession, and the subsequent calamity which may
happen, however inevitable it may be, is no excuse for its loss.
The John was in the rightful pursuit of a lawful voyage, at a time and
place when peace existed by the express stipulations of the parties, after .
taking such period for notice as they held that the case required.
She had pursued her course northwardly some four or five hundred
miles out from harbor, on her way to her destined port. She was
there seized, placed under the charge of new men, and her course was
directly reversed, until she was taken back to the West Indies, and
through mismanagement, or inisadventure, was run on shore and lost.
It may have been the ordinary accident of the seas, or may not;
but, in any event, she was taken there without right, and subjected to
risks to which she was not legally and justly liable. The plea that
she was lost by the act of God is not, under the circumstances, admis-
sible. The vessel itself cannot be restored, but such compensation and
restitution should be made as the nature of the case admits of.
CHAP. II.]
681
NEUSTRA SEÑORA DE LOS DOLORES."
In 'the argument, considerable stress has been laid on a quotation in
Kent and Wheaton, said to be founded on Grotius, that where collisions
arise after peace exists, the governinents are not amenable in dam-
ages, but it is their duty to restore what has been captured, but not
destroyed.” The citation from Grotius is, however, erroneous. He
merely says, in the section referred to, that if any acts be done, in
violation of the truce, before notice can be given, “the government
will not be liable to punishment, but the contracting parties will be
bound to make good the damage.” Whewell's Grotius, lib. 3, ch.
21, $ 5.
What shall be the precise effect, as a matter of notice, where dif-
ferent periods of time are stipulated in which peace shall take place,
does not seem to have been fully considered and settled. If it shall be
held as an acknowledgment of notice, then every subsequent act of
violation of it is the act of a wrong-doer, and full compensation fol-
lows of necessity. I can see no possible mode of avoiding the justness
or soundness of the construction at which we have arrived, but think
it should prevail on every ground of public policy and right interpre-
tation of international compacts of this character.
I ain happy to say that my colleague, though he hesitates somewhat
as to the views presented, waives his objection to the allowance of the
claim, except on the score of interest, and this question is to be
submitted to the umpire.
Interest was allowed.
"NEUSTRA SEÑORA DE LOS DOLORES."
HIGH COURT OF ADMIRALTY, 1809.
(Edwards, 60.)
This was the case of a Spanish ship which had been captured before
Spanish hostilities, and restored with costs and damages; but no further
proceedings took place at the time, in consequence of the breaking out
of the war between the two countries. An application was now made
to the court for a reference to the registrar and merchants, on the
ground that hostilities having ceased, the Spanish claimant was en-
titled to the benefit of the former decree for costs and damages.
1 For a very careful and elaborate consideration of the captor's liability to the
claimant, in cases of probable cause and unlawful capture, see T. Pemberton Leigh's
[Lord Kingsdown's] judgment in The Ostee, 1855, 9 Moore, P. C. 150. This case should
likewise be considered in connection with § 48 on Prize Courts. - ED.
682
EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II.
Judgment. — Sir WILLIAM SCOTT:-
I am clearly of the opinion that the judgment is not sustainable; it
is true that the intervention of hostilities puts the property of the
enemy in such a situation that confiscation may ensue, but unless some
step is taken for that purpose, unless there is some legal declaration
of the forfeiture, the right of the owner revives on the return of peace.
This is an acknowledged principle in the Courts of Coinmon Law,
borrowed, in all probability, from the general law of nations, and I
see no reason for any distinction here. We know that, in captures at
sea, the general law is, that the bringing infra præfidia, and even a
sentence of condemnation, is necessary to convert the property; and
although in some instances positive institutions have deterinined that
a possession of a certain number of hours is sufficient, yet this proceeds
upon the ground that a possession of so many hours is an evidence of
firm possession. Here there was no bodily possession, nor indeed could
there be; but still some judicial act might have been done declaratory
of the forfeiture to the Crown of those rights which vested in the
claimant under the decree for costs and damages. It appears, how-
ever, that no step was taken for this purpose on the part of the Crown;
and I am, therefore, of the opinion that the rights of the Spanish pro-
prietor do revive, and I refer it to the registrar and merchants to
ascertain the amount of the compensation to which he is entitled under
the decree. 1
THE
6 PROTECTOR."
SUPREME COURT OF THE UNITED STATES, 1871.
(12 Wallace, 700.)
The question in this case was whether the suit was barred by the
statute of limitations in Alabama. As the statute did not run during
the period of the war, it was necessary to determine precisely the
dates of beginning and end of the war.
Judgment,_CHASE, C. J.:-
“The question, in the present case is, when did the rebellion begin
and end? In other words, what space of time must be considered
as excepted from the operation of the statute of limitations by the
war of the rebellion ?
“ Acts of hostility by the insurgents occurred at periods so various,
and of such different degrees of importance, and in parts of the
i Compare The Schooner. Sophie, 1805, 6 C. Rob. 138, in which the defective title
of the neutral purchaser was cured by an intervening peace. — ED.
CHAP. II.]
683
THE
>>
"
PROTECTOR.country so remote from each other, both at the commencement and the
close of the late civil war, that it would be difficult, if not impossible,
to say on what precise day it began or terminated. It is necessary,
therefore, to refer to some public act of the political departments of
the government to fix the dates; and, for obvious reasons, those of
the executive department, which may be, and, in fact, was, at the
commencement of hostilities, obliged to act during the recess of Con-
gress, must be taken.
“The proclamation of intended blockade by the President may,
therefore, be assumed as marking the first of these dates, and the
proclamation that the war had closed, as marking the second. But
the war did not begin or close at the same time in all the States.
There were two proclamations of intended blockade: the first of the
19th of April, 1861 (12 Stat. at Large, 1258), embracing the States
of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana
and Texas; the second, of the 27th of April, 1861 (12 Stat. at L.,
1259), embracing the States of Virginia, and North Carolina; and
there were two proclamations declaring that the war had closed; one
issued on the 2d of April, 1866, (14 Stat. at Large, 811), embracing
the States of Virginia, North Carolina, South Carolina, Georgia, Flor-
ida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas, and
the other issued on the 20th of August, 1866 (13 Stat. at Large,
814), embracing the State of Texas.
“ In the absence of more certain criteria, of equally general appli-
cation, we must take the dates of these proclamations as ascertain-
ing the commencement and the close of the war in the states men-
tioned in them. Applying this rule to the case before us, we find
that the war began in Alabama on the 19th of April, 1861, and ended
on the 2d of April, 1866. More than five years, therefore, had
elapsed from the close of the war till the 17th of May, 1871, when
this appeal was brought. The motion to dismiss, therefore, must be
6 Granted.”
a) 1
1 See Brown v. Hiatts, 1872, 15 Wallace, 177.
In the case of Philips v. Hatch, 1 Dillon, 571 (1871), tive United States Circuit Court
for Towa lield that a contract entered into in the spring of 1866 between a resident of
the State of Iowa and a resident of the State of Texas, was void as a contract between
enemies. — ED.
CHAPTER III.
RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS.
SECTION 39.
BELLIGERENT CAPTURE IN NEUTRAL WATERS.
THE “ANNA.”
HIGH COURT OF ADMIRALTY, 1805.
(5 C. Robinson, 373.)
This was the case of a ship under American colors, with a cargo of
logwood, and about 13,000 dollars on board, bound from the Spanish
main to New Orleans, and captured by the Minerva privateer near
the mouth of the river Mississippi. A claim was given under the
direction of the American Minister for the ship and cargo, as taken
within the territory of the United States, at the distance of a mile
and a half from the western shore of the principal entrance of the
Mississippi, and within view of a port protected by a gun, and where
is stationed an officer of the United States.
Judgment, Sir W. Scott:1-
“When the ship was brought into this country a clain was given
of a grave nature, alleging a violation of the territory of the United
States of America. This great leading fact has very properly been
made a matter of much discussion, and charts have been laid before
the court to show the place of capture, though with different repre-
sentations from the adverse parties. The capture was made, it
seems, at the mouth of the river Mississippi, and, as it is contended
in the claim, within the boundaries of the United States. We all
know that the rule of law on this subject is terræ dominium finitur,
ubi finitur armorum vis,' and since the introduction of fire-arms
that distance has usually been recognized to be about three miles
from the shore. But it so happens in this case, that a question
arises as to what is to be deemed the shore, since there are a number
of little mud islands composed of earth and trees drifted down by
the river, which form a kind of portico to the main-land. It is con-
tended that thëse are not to be considered as any part of the terri-
tory of America, that they are a sort of no man's land,' not of con-
i Part of the judgment of this remarkable and learned judge is omitted. — En.
CHAP. III.
685
THE
ANNA."
sistency enough to support the purposes of life, uninhabited, and re-
sorted to, only, for shooting and taking birds' nests. It is arguel
that the line of territory is to be taken only from the Balise, which
is a fort raised on made land by the former Spanish possessors. I
am of a different opinion; I think that the protection of territory is
to be reckoned from these islands; and that they are the natural
appendages of the coast on which they border, and from which, in-
deed, they are formed. Their elements are derived immediately
from the territory, and on the principle of alluvium and increment,
on which so much is to be found in the books of law. Quod vis
fluminis de tuo prædio detraxerit, and vicino prvedio attulerit, palam
tuum remanet, even if it had been carried over to an adjoining terri-
tory. Consider what the consequence would be if lands of this
description were not considered as appendant to the main-land, and
as comprised within the bounds of territory.
“If they do not belong to the United States of America, any other
power might occupy them; they might be embanked and fortified.
What a thoru would this be in the side of America! It is physi-
cally possible at least that they might be so occupied by European
nations, and then the command of the river would be no longer in
America, but in such settlements. The possibility of such a conse-
quence is enough to expose the fallacy of any arguments that are
addressed to show that these islands are not to be considered as part
of the territory of America. Whether they are composed of earth
or solid rock, will not vary the right of dominion, for the right of
dominion does not depend upon the texture of the soil.
“I am of opinion that the right of territory is to be reckoned from
those islands. That being established, it is not denied that the
actual capture took place within the distance of three miles from
the islands, and at the very threshold of the river. But it is said
that the act of capture is to be carried back to the commencement
of the pursuit, and that if a contest begins before, it is lawful for a
belligerent cruiser to follow, and to seize his prize within the terri-
tory of a neutral state. And the authority of Bynkershoek is cited
on this point. True it is, that that great man does intimate an opin-
ion of his own to that effect; but with many qualifications, and
as an opinion, which he did not find to have been adopted by
any other writers. I confess I should have been inclined to have
gone along with him, to this extent, that if a cruiser, which had
before acted in a manner entirely unexceptionable, and free from
all violation of territory, had summoned a vessel to submit to exam-
ination and search, and that vessel had fied to such places as these,
entirely uninhabited, and the cruiser had without injury or annoy-
686
[PART II.
BELLIGERENTS AND NEUTRALS.
ance to any person whatever, quietly taken possession of his prey,
it would be stretching the point too hardly against the captor, to
say that on this account only it should be held an illegal capture.
If nothing objectionable had appeared in the conduct of the captors
before, the mere following to such a place as this is, would, I think,
not invalidate a seizure otherwise just and lawful.
“But that brings me to a part of the case, on which I am of opin-
ion that the privateer has laid herself open to great reprehension.
Captors must understand that they are not to station themselves in
the mouth of a neutral river, for the purpose of exercising the rights
of war from that river, much less in the river itself. It appears
from the privateer's own log-book that this vessel has done both;
and as to any attempt to shelter this conduct under the example of
King's ships, which I do not believe, and which, if true, would be
no justification to others, captors must, I say, be admonished, that
the practice is altogether indefensible, and that if King's ships
should be guilty of such misconduct, they would be as much sub-
ject to censure as other cruisers.
“It is unnecessary to go over all the entries in the log. The cap-
tors appear by their own description to have been standing off and on,
obtaining information at the Balise, overhauling vessels in their
course down the river, and making the river as much subservient to
the purposes of war, as if it had been a river of their own country.
This is an inconvenience which the states of America are called upon
to resist, and which this court is bound on every principle to dis-
courage and correct.
“With respect to one vessel, it appears that the Bilboa, under
Spanish colors, and an undoubted Spanish ship, had been captured
and carried into the river; and it was stated in an affidavit which
was exhibited to account for the absence of the usual witnesses in
that case, that the prisoners had escaped. The cause was brought on
upon the evidence of the releasing witnesses under this representa-
tion. It now appears by an entry in this log, that the prisoners
were set on shore;' an act highly unjustifiable, in its own nature,
independent of the deception with which it has been accompanied.
The prisoners are the King's prisoners, and captors are particularly
enjoined by the instructions not to release any prisoners belonging
to the ships of the enemy, and they violate their duty whenever they
do. When I advert to the imposition that has been put upon the
court in that transaction, how can I trust myself to any representa-
tion coming from the same persons. Indeed, I think, I can perceive
strong traits of bad faith running throughout the whole conduct of
the captors in the present case. In answer to the complaint that
CHAP. III.]
· 687
THE 66
ANNA."
has been made against the captors for bringing this prize to Eng-
land, it was said, that it was done at the desire of the master of the
captured vessel; though in the affidavit of the master, which is not
contradicted, it is sworn, that the captors offered to set him on
shore, but that he refused to be separated from his cargo.'
66 The conduct of the captors has on all points been highly repre-
hensible. Looking to all the circumstances of previous misconduct,
I feel myself bound to pronounce, that there has been a violation of
territory, and that as to the question of property, there was not suf-
ficient ground of seizure; and that these acts of misconduct have
been further aggravated, by bringing the vessel to England, without
any necessity that can justify such a measure. In such a case it
would be falling short of the justice due to the violated rights of
America, and to the individuals who have sustained injury by such
misconduct, if I did not follow up the restitution which has passed
on the former day, with a decree of costs and damages.” 1
1 In The Twee Gebroeders, 1800, 3 C. Rob. 162, 164, the same great judge said: “I
am of opinion that no use of a neutral territory for the purposes of war is to be per-
mitted. I do not say remote uses, such as procuring provisions and refreshments, and
acts of that nature, which the law of nations universally tolerates; but that no proxi-
mate acts of war are in any manner to be allowed to originate on neutral grounds;
and I cannot but think that such an act as this, that a ship should station herself on
neutral territory, and send out her boats (as was done in this case) on hostile enter-
prises, is an act of hostility much too immediate to be permitted. For, suppose that
even a direct liostile use should be required to bring it within the prohibition of the
law of nations, nobody will say that the very act of sending out boats to effect a
capture is not itself an act directly hostile, not complete, indeed, but inchoate, and
clothed with all the characters of hostility. If this could be defended, it might as well
be said that a ship lying in a neutral station might fire shot on a vessel lying out of
the neutral territory; the injury in that case would not be consummated, nor receivel
on neutral ground; but no one would say that such an act would not be an hostile act,
innediately commenced within the neutral territory. And wliat does it signify to
the nature of the act, considered for the present purpose, whether I send out a camion-
shot which shall compel the submission of a vessel lying at 'two miles distance, or
whether I send out a boat armed and manned, to effect the very same thing at the
same distance? It is in both cases the direct act of the vessel lying in neutral ground.
The act of hostility actually begins, in the latter case, within the launching and
manning and arming the boat that is sent out on such an errand of force.”
See also an early American case, Soult v. L'Africaine, 1804, Bee's R. 204.
“In 1814 an American privateer, the General Armstrong, was found at anchor
in Fayal harbor by an English squadron. A boat detachment from the latter ap-
proached the privateer and was fired upon. The next day one of the vessels of the
squadron took up position near the General Armstrong to attack her. The crew,
1100 finding themselves able to resist, abandoned and destroyed her. The United
States alleged that the Portuguese governor had failed in his duty as a neutral, and
demanded a large compensation for the owners of the privateer. After much cor-
respondence the affair was submitted in 1851 to the arbitration of the President of the
French Republic, who held that as Captaiu Reid, of the privateer, 'had not applied at
688
(PART II.
BELLIGERENTS AND NEUTRALS.
THE "ANNE."
SUPREME COURT OF THE UNITED STATES, 1818.
(3 Wheutun, 435.)
1
This was the case of a British ship captured while Iying at anchor
near the Spanish part of the island of St. Domingo, by the American
privateer Ultor: 1
STORY, J.:--
“ The claim of the Spanish government for the violation of its
neutral territory being thus disposed of, it is next to be considered
whether the British claimant can assert any title founded upon that
circumstance.
“By the return of peace, the claimant became rehabilitated with
the capacity to sustain a suit in the courts of this country; and the
argument is, that a capture made in a neutral territory is void; and,
therefore, the title by capture being invalid, the British owner has
a right to restitution. The difficulty of this argument rests in the
incorrectness of the premises. A capture made within neutral waters
is, as between enemies, deemed, to all intents and purposes, rightful;
it is only by the neutral sovereign that its legal validity can be called
in question; and as to him and him only, is it to be considered void.
The enemy has no rights whatsoever, and if the neutral sovereign
omits or declines to interpose a claim, the property is condemnable,
jure belli, to the captors. This is the clear result of the authori-
ties; and the doctrine rests on well established principles of public
law.
« There is one other point in the case which, if all other difficulties
the beginning to the neutral, but had used force to repel an improper aggression of
which lie stated hiniself to be the object, he had himself disregarded the neutrality
of the territory in which he was, and had consequently released its sovereign from all
obligations to protect him otherwise than by his good offices; that from that moment
the Portuguese Government could not be responsible for the results of a collision which
had taken place in contempt of its sovereign rights.'” Hall's Int. Law, 648-619.
See criticism of the award in Dana's Wheaton, note 208, p. 526, and for an elaborate
account of the origin, history and final settlement of this interesting episode, see 2
Moore's Int. Arb. 1071-1132.
In an early French case, The Perle (Conseil des Prises, “An VIII," 1 Pistoye
et Duverdy, 100), it was decided that a belligerent capture in neutral waters is illegal
whether under the guns of a fort, or on the undefended coast; and the captured ship
will be restored by the courts (French) of the captor's country.- Ed.
1 Statement of the case is much abbreviated and only a part of the opinion is
given. – ED.
CHAP. III.]
689
THE
ANNE."
were removed, would be decisive against the claimant. It is a fact,
that the captured ship first commenced hostilities against the priva-
teer. This is admitted on all sides; and it is no excuse to assert
that it was done under a mistake of the national character of the
privateer, even if this were entirely made out in the evidence. While
the ship was lying in neutral waters, she was bound to abstain from
all hostilities, except in self-defence. The privateer had an equal
title with herself to the neutral protection, and was in no default in
approaching the coast without showing her national character. It
was a violation of that neutrality which the captured ship was bound
to observe, to commence hostilities for any purpose in these waters;
for no vessel coming thither was bound to submit to search, or to
account to her for her conduct or character. When, therefore, she
commenced hostilities, she forfeited the neutral protection, and the
capture was no injury for which any redress could be rightfully
sought from the neutral sovereign.
“ The conclusion from all these views of the case is, that the ship
and cargo ought to be condemned as good prize of war.” 1
1 In The Eliza Ann, 1813, 1 Dod. 244, three American ships were seized in Hanoe
Bay, by the British ship Vigo. A claim was given, under the direction of the
Swedish minister, for the ships and cargoes as taken within one mile of the mainland
of Sweden * * * contrary to and in violation of the law of nations, and the territory
and jurisdiction of his said [Swedish] Majesty." On these facts, Sir Wm. Scott said:
'A claim has been given by the Swedish Consul, for these ships and cargoes, as
having been taken within the territories of the King of Sweden, and in violation of his
territorial rights. This claim could not have been given by the Americans themselves;
for it is the privilege, not of the enemy, but of the neutral country, which has a right
to see that no act of violence is committed within its jurisdiction. When a violation
of neutral territory takes place, that country alone, whose tranquillity has been dis-
turbed, possesses the right of demanding reparation for the injury which she has
sustained (The Purissima Conception, 1805, 6 C. Rob. 45; The Diligentia, 1814, 1 Dod.
404, 412]. It is a principle that has been established by a variety of decisions, both in
this and in the Superior Court (The Etrusco, Lords, 1795), that the enemy, whose pro-
perty has been captured, cannot himself give the claim, but must resort to the neutral
for his remedy. Acts of violence by one enemy against another are forbidden within
the limits of a neutral territory, unless they are sanctioned by the authority of the
neutral state, which it has the power of granting to either of the belligerents, subject,
of course, to a responsibility to the other. A neutral state may grant permission for
such acts beforehand, or acquiesce in them after they shall have taken place, or it
may, as has been done in the present instance, step forward and claim the property."
In the case of The Lilla, 2 Sprague, 1862, 177, it is said that, “it is undoubtedly
true that no private person can rest a claim for the restoration of prize in the courts
of the captor on the ground that the capture was made in neutral waters, and that thie
neutral nation whose rights have been infringed alone can interpose.”
In the case of The Adela, 1867, 6 Wall. 266, Chief Justice Chase, in delivering the
judgment of the court, said: “It is claimed that the capture took place in British
waters. It was made, in fact, near Great Abaco Island, which belongs to Great
44
690
[PART II.
BELLIGERENTS AND NEUTRALS.
THE “FLORIDA."
SUPREME COURT OF THE UNITED STATES, 1879.
(101 United States, 37.)
Mr. Justice SWAYNE, after stating the facts, delivered the opinion
of the court.
The legal principles applicable to the facts disclosed in the record
are well settled in the law of nations, and in English and American
jurisprudence. Extended remarks upon the subject are, therefore,
unnecessary. See Grotius, De Jure Belli, b. 3, c. 4, sect. 8; Bynker-
shoek, 61, c. 8; Burlamaqui, vol. ii. pt. 4, c. 5, sect. 19; Vattel, b. 3,
c. 7, sect. 132; Dana's Wheaton, sect. 429 and note 208; 3 Rob. Ad.
Rep. 373; 5 id. 21; The Anne, 3 Wheat. 435; La Amistad de Rues, 5
id. 385; The Santissima Trinidad, 7 id. 283, 496; The Sir William
Peel, 5 Wall. 517; The Adela, 6 id. 266; 1 Kent, Com. (last ed.), pp.
112, 117, 121.
Grotius, speaking of enemies in war, says: “But that we may not
kill or hurt them in a neutral country, proceeds not from any privi-
leges attached to their persons, but from the right of the prince in
whose dominions they are.”
A capture in neutral waters is valid as between belligerents.
Neither a belligerent owner nor an individual enemy owner can be
Britain ; but the evidence is by no means convincing that it was made within three
miles from the land. On the contrary, while it is not, perhaps, certain that The
Adela was without the line of neutral jurisdiction when first required to lay to by
the Quaker City, it cannot be doubted that she had passed beyond it when she was
actually captured. If, however, the capture had been actually made in neutral waters,
that circumstance would not, of itself, prevent condemnation, especially in a case of
«capture made in good faith, without intent to violate neutral jurisdiction, or knowledge
that any neutral jurisdiction was in fact infringed, and in the absence of all interven-
tion or claim on the part of the neutral government (The Etrusco, 3 Robinson, 31;
Vrouw Anna Catharina, 5 id. 144). “It might,' as was observed in the case of The Sir
William Peel (5 Wallace, 535), 'constitute a ground of claim by the neutral power
wliose territory had suffered trespass, for apology or indemnity. But neither an
enemy, nor a neutral acting the part of a enemy, can demand restitution on the sole
ground of capture in neutral waters. »
In the case of the British ship Grange, captured in Delaware Bay by a French pri-
vateer (1793), it was held by Attorney-General Randolph (1 Op. Att.-Gen. 15), that if
the captured ship was brought within the jurisdiction of the United States, it was their
duty as neutrals to restore her to the owners. To the same effect, see La Estrella.
1819, 4 Wheaton, 298. – ED.
+
CHAP, III.
691
THE
FLORMA."
heard to complain. But the neutral sovereign whose territory has
been violated may interpose and demand reparation, and is entitled
to have the captured property restored.
The latter was not done in this case because the captured vessel had
been sunk and lost. It was, therefore, impossible.
The libellant was not entitled to a decree in his favor, for several
reasons.
The title to captured property always vests primarily in the govern-
ment of the captors. The rights of individuals, where such rights
exist, are the results of local law or regulations. Here, the capture
was promptly disavowed by the United States. They, therefore, never
had any title. .
The case is one in which the judicial is bound to follow the action of
the political department of the government, and is concluded by it.
Phillips v. Payne, 92 U. S. 130.
These things must necessarily be so, otherwise the anomaly would
be possible, that, while the government was apologizing and making
reparation to avoid a foreign war, the offending officer might, through
the action of its courts, fill his pockets with the fruits of the offence
out of which the controversy arose. When the capture was disavowed
by our government, it became for all the purposes of this case as if it
had not occurred.
Lastly, the maxim, " ex turpi causa non oritur actio," applies with full
force. No court will lend its aid to a party who founds his claim for
redress upon an illegal act.
The Brazilian Government was justified by the law of nations in
demanding the return of the captured vessel and proper redress other-
wise. It was due to its own character, and to the neutral position it
had assumed between the belligerents in the war then in progress, to
take prompt and vigorous measures in the case, as was done. The
commander was condemned by the law of nations, public policy, and
the ethics involved in his conduct.
Decree affirmed.1
1 See Hall, Int. Law, 644-645, for subsequent action of United States; Dana's
Wheaton, notes 208, 209, pp. 524-528.
On this whole subject, see note to The Twee Gebroeders in Tudor, Mercantile Cases,
3d ed. 879-888.- ED.
.692
$
(PART II.
BELLIGERENTS AND NEUTRALS.
SECTION 40. — EQUIPMENT OF VESSELS OF WAR IN NEUTRAL
TERRITORY.
UNITED STATES NEUTRALITY ACTS OF 1794 AND 1818..
(U. S. Statutes at Large, I., 381, and Revised Stat., § 5289.)
Act of June 5, 1794:
SECTION 3.-“If any person shall within any of the ports, harbors,
bays, rivers, or other waters of the United States, fit out and arm, or
attempt to fit out and arm, or procure to be fitted out and armed, or
shall knowingly be concerned in the furnishing, fitting out or arm-
ing of any ship or vessel with intent that such ship or vessel shall
be employed in the service of any foreign prince or state (or of any
colony, district or people], to cruise or commit hostilities upon the
subjects, citizens or property of another foreign prince or state (or
of any colony, district or people], with whom the United States are
at peace, or shall issue or deliver a commission within the territory
or jurisdiction of the United States for any ship or vessel to the in-
tent that she may be employed as aforesaid, every such person so
offending shall, upon conviction, be adjudged guilty of a high mis-
demeanor, and shall be fined and imprisoned at the discretion of the
court in which the conviction shall be had, so as the fine to be im-
posed shall in no case be more than five thousand [ten thousand by
the act of 1818] dollars, and the term of imprisonment shall not
exceed three years, and every such ship or vessel with her tackle, ap-
parel and furniture together with all materials, arms, ammunition
and stores which may have been procured for the building and equip-
ment thereof shall be forfeited, one-half to the use of any person who
shall give information of the offence, and the other half to the use
of the United States.
SECTION 7.-By this section the President is authorized to employ
the land and naval forces or militia to execute the law.
On account of the complaints of Spain and Portugal (1815–17), of
infractions of neutrality on the part of citizens of the United States
in the war which those states were then waging with their revolted
South American colonies, President Madison sent a special message
on the subject to Congress, and the result was the more stringent
act of April 20, 1818. From a suggestion of the Spanish Minister,
,.
CHAP. III.]
693
BRITISH FOREIGN ENLISTMENT ACTS.
that the South American provinces in revolt, and not recognized as
independent, might not be included in the word “ State,” the words
* colony, district, or people," were added, as given in brackets above.
The new clauses of the act of 1818 of chief importance are those
authorizing the detention of vessels on suspicion, and requiring the
owners to give bonds on clearance.
Act of 1818 (Revised Statutes, $ 5289):
SECTION 10.—“ The owners or consignees of every armed vessel
sailing out of the ports of the United States, belonging wholly or in
part to citizens thereof, shall, before clearing out the same, give bond
to the United States, with sufficient sureties, in double the amount
of the value of vessel and cargo on board, including armament, con.
ditioned that the vessel shall not be employed by such owners to
cruise or commit hostilities against the subjects, citizens, or property
of any foreign prince or state, or of any colony, district, or people,
with whom the United States are at peace.'
SECTION 11.—“The several collectors of customs shall detain any
vessel manifestly built for warlike purposes, and about to depart the
United States, the cargo of which principally consists of arms and
munitions of war, when the number of men shipped on board, or
other circumstances, render it probable that such vessel is intended
to be employed by the owners to cruise or commit hostilities upon
the subjects, citizens, or property of any foreign prince, etc., with
whom the United States are at peace, until the decision of the Presi-
dent is had thereon, or until the owner gives such bond and security
as is required of the owners of armed vessels by the preceding
section."
BRITISH FOREIGN ENLISTMENT ACTS, OF 1819 AND 1870.
(59 Geo. III., C. 69, and 33 and 34 Vict., 90.)
Act of July 3, 1819.-SECTION 7.
“If any person, within any part of the United Kingdom, or in any
part of His Majesty's dominions beyond the seas, shall, without the
leave and license of His Majesty for that purpose first had and ob-
tained as aforesaid, equip, furnish, fit out, or arm, or attempt or en-
deavor to equip, furnish, fit out, or arm, or procure to be equipped,
furnished, fitted out, or armed, or shall knowingly aid, assist, or be
concerned in the equipping, furnishing, fitting out, or arming of any
ship or vessel, with intent, or in order that such ship or vessel shall
be employed in the service of any foreign prince, state, or potentate,
694
(PART II.
BELLIGERENTS AND NEUTRALS.
or of any foreign colony, province, or part of any province, or people;
or if any person or persons exercising or assuming to exercise any
powers of government in or over any foreign state, colony, province,
or part of any province or people, as a transport or store-ship, or
with intent to cruise or commit hostilities against any prince, state,
or potentate, or against the persons exercising or assuming to exer-
cise the powers of government in any colony, province, or part of
any province or country, or against the inhabitants of any foreign
colony, province, or part of any province or country, with whom
His Majesty shall not then be at war; or shall, within the United
Kingdom, or any of His Majesty's dominions, or in any settlement,
colony, territory, island, or place belonging or subject to His
Majesty, issue or deliver any commission for a ship or vessel, to the
intent that such ship or vessel shall be employed as aforesaid, every
such person so offending shall be deemed guilty of a misdemeanor,
and shall, upon conviction thereof, upon any information or indict-
ment, be punished by fine and imprisonment, or either of them, at
the discretion of the court in which such offender shall be convicted;
and every such ship or vessel, with the tackle, apparel, and furni-
ture, together with all the materials, arms, ammunition, and stores,
which may belong to or be on board of any such ship or vessel,
shall be forfeited, and it shall be lawful for any officer of His
Majesty's customs or excise, or any officer of His Majesty's navy,
who is by law empowered to make seizures, for any forfeiture in-
curred under any of the laws of customs, or excise, or the laws of
trade and navigation, to seize such ships and vessels aforesaid, and
in such places and in such manner in which the officers of His
Majesty's customs or excise, and the officers of His Majesty's navy
are empowered respectively to make seizures under the laws of cus-
toms and excise, or under the laws of trade and navigation; and
that every such ship and vessel, with the tackle, apparel, and furni-
ture, together with all the materials, arms, ammunition, and stores
which may belong to or be on board of such ship, or vessel, may be
prosecuted and condemned in the like manner, and in such courts as
ships or vessels may be prosecuted and condemned for any breach
of the laws made for the protection of the revenues of customs and
excise, or of the laws of trade and navigation.
Section 8 imposes penalties for the augmentation of force in British
ports.
The defect in this act was in the procedure under it rather than
in the intention of the act itself. The evidence required in order to
arrest or detain a vessel must be sufficient to satisfy a jury of
the probable breach of the provisions of the act; and such evidence
CHAP. III.]
695
UNITED STATES V. GUINET.
may be difficult to obtain. The local officers were wary of taking
action for which they might be held liable in damages. The act of
1870 removed this defect of procedure, as well as any ambiguity
there might be in the act itself. The question of the breach of the
act is not to be determined by the mere “intent” of the builder.
Act of 1870:
SECTION 8.-" If any person within Her Majesty's dominions, etc.,
(1) Builds or agrees to build, or causes to be built, any ship with
intent or knowledge or having reasonable cause to believe that the
same shall or will be employed in the military or naval service of
any foreign State at war with any friendly State; or
(2) Issues or delivers any commission for any ship with intent
or knowledge, etc.; or
“ (3) Equips any ships with intent or knowledge, etc.; or
“(4) Despatches, or causes or allows to be despatched, any ship
with intent or knowledge, etc.
• Such persons shall be deemed to have committed an offence
against this Act, etc."
Section 23 empowers the Secretary of State on “reasonable and
probable cause for believing" that a ship is being built contrary to
this Act, to issue a warrant to seize and search such ship and to de-
tain the same until it has been either condemned or released by
process of law, or in manner hereinafter mentioned.
Section 24 provides that “where it is represented to any local
authority” that there is reasonable and probable cause for believing
that a ship has been or is being built, commissioned or equipped
contrary to this Act, it shall be the duty of such local authority to
detain such ship, and forthwith to communicate the fact of such
detention to the Secretary of State or chief executive authority, who
may then issue a warrant for detention, or release the vessel.
UNITED STATES V. GUINET.
UNITED STATES CIRCUIT COURT, PENNSYLVANIA DISTRICT, 1795.
(2 Dallas, 321.)
PATTERSON, Justice: This is an indictment against John Etienne
Guinet, for being, knowingly, concerned in furnishing, fitting out, and
arming Les Jumeaux, in the port and river Delaware, with intent that
she should be employed in the service of the French Republic, to
cruise, or commit hostilities, upon the subjects of Great Britain, with
whom the United States are at peace: And it is the province of the
696
[PART II.
BELLIGERENTS AND NEUTRALS.
1
jury to inquire, whether the proof exhibited on the trial, has fully
maintained the charge contained in the indictment.
Much has been said upon the construction of the 3d and 4th sections
of the act of Congress; but the court is clearly of opinion, that the
3d section was meant to include all cases of vessels, armed within our
ports by one of the belligerent powers, to act as cruisers against
another belligerent power in peace with the United States. Convert-
ing a ship from her original destination, with intent to commit hostili-
ties; or in other words, converting a merchant ship into a vessel of
war, must be deemed an original outfit; for the act would, otherwise,
become nugatory and inoperative. It is the conversion from the peace-
able use, to the warlike purpose, that constitutes the offence.
The vessel in question arrived in this port, with a cargo of coffee
and sugar, from the West Indies; and so appears to have been em-
ployed by her owner with a view to merchandise, and not with a view
.to war. The inquiry, therefore, is limited to this consideration,
whether, after her arrival, she was fitted out, in order to cruise
against any foreign nation, being at peace with the United States. It
is true, she left the wharf with only four guns, the number that she
had brought into the port; but it is equally true, that when she had
dropped to some distance below, she took on board three or four guns
more, a number of muskets, water-casks, &c.; and, it is manifest, that
other guns were ready to be sent to her by the pilot boat. These circum-
stances clearly prove a conversion from the original commercial design of
the vessel, to a design of cruising against the enemies of France; and,
of course, against a nation at peace with the United States, since the
United States are at peace with all the world. Nor can it be reason-
ably contended, that the articles thus put on board the vessel were
articles of merchandise; for, if that had been the case, they would
have been mentioned in her manifest, on clearing out of the port,
whereas it is expressly stated, that she failed in ballast. If they were
not to be used for merchandise, the inference is inevitable, that they
were to be used for war. No man would proclaim on the house-top,
that he intended to fit out a privateer: the intention must be collected
from all the circumstances of the transaction, which the jury will in-
vestigate, and on which they must decide. But if they are of opinion,
that it was intended to convert this vessel from a merchant ship into a
cruiser, every man who was knowingly concerned in doing so, is guilty
in the contemplation of the law.
It will only, thën, be necessary to ascertain, how far the defendant was
knowingly concerned; for, though he were concerned, if he did not act
with a knowledge of the real object, he would be innocent. It has been
alleged in his defence that he was merely an interpreter; and if, in fact,
CHAP. III.]
697
UNITED STATES V. RICHARD PETERS.
he had appeared in that character alone, we should not have thought it
a sufficient ground for conviction. But the jury will collect from the
other parts of the transaction, whether this is not used as a mask to
cover his efficient agency in the equipient of the vessel. He carried
orders from the owner to the ship carpenter; he told the pilot boy at
what time the guns should be taken on board bis boat, to be carried to
the ship; the account found in his possession states charges for supplies
of cannon, ball, muskets, and commissions for services; and the whole is
conducted in a secret and mysterious inanner, under the shade of night.
Would he have acted this part as a mere interpreter? If it had been
fair mercantile business, involving nothing repugnant to our laws,
would it have been so much a work of darkness ? This alone casts a
gloom over the transaction, that will impress every just and ingenuous
înind with an idea of fraud and delinquency.
If the defendant has been concerned in the offence, there is no doubt
that it is effected as far as it was in his power to complete it. The
illegal outfit of the vessel was accomplished; and that an additional
number of cannon was not sent to augment her force, was not owing to
his respect to the laws, but to the vigilance of the public police.
Upon the whole, the jury will consider the indictment; and give
such a verdict as shall comport with evidence and law.
Verdict Guilty .
•
UNITED STATES V. RICHARD PETERS.
SUPREME COURT OF THE UNITED STATES, 1795.
(3 Dallas, 121.)
RUTLEDGE, Chief Justice:- We have consulted together on this
motion; and, though a difference of sentiment exists, a majority of
the court are clearly of opinion, that the motion ought to be granted.
Therefore,
Let a prohibition issue.
The prohibition issued, accordingly, in the following forin:
“UNITED STATES, S.S. :
The President of the United States to the honorable Richard
Peters, Esquire, Judge of the District Court of the United States,
in and for the Pennsylvania district: It is shown to the judges of the
Supreme Court of the United States, by Samuel B. Davis, That
whereas by the laws of nations, and the treaties subsisting between
the United States and the Republic of France, the trial of prizes
698
[PART II.
BELLIGERENTS AND NEUTRALS.
taken on the high seas, without the territorial limits and jurisdiction
of the United States, and brought within the dominions and jurisdic-
tion of the said republic, for legal adjudication by vessels of war
belonging to the sovereignty of the said republic, acting under the
same, and of all questions incidental thereto, does of right, and
exclusively, belong to the tribunals and judiciary establishments of
the said republic, and to no other tribunal, or tribunals, court, or
courts, whatsoever: And whereas by the said law of nations, and
treaties aforesaid, the vessels of war belonging to the said French
Republic, and the officers commanding the same, cannot, and ought
not, to be arrested, seized, attached, or detained, in the ports of the
United States, by process of law, at the suit or instance of individ-
uals, to answer for any capture or captures, seizure or seizures, made
on the high seas, and brought for legal adjudication into the ports of
the French Republic, by the said vessels of war, while belonging to,
and acting under the authority and in the immediate service of the
said republic: And whereas by the laws and treaties aforesaid, the
District Courts of the United States have not, and ought: not, to
entertain jurisdiction or hold plea of such captures, made as aforesaid,
under the above circumstances: And whereas by the laws of nations,
the vessels of war of belligerent powers, duly by them authorized, to
cruise against their enemies, and to make prize of their ships and
goods, may, in time of war, arrest and seize the vessels belonging to
the subjects or citizens of neutral nations, and bring them into the
ports of the sovereign under whose commission and authority they
act, there to answer for any breaches of the laws of nations, concerning
the navigation of neutral ships, in time of war; and the said vessels
of war, their cominanders, officers and crews, are not amenable before
the tribunals of neutral powers for their conduct therein, but are only
answerable to the sovereign in whose immediate service they were, and
from whom they derived their authority: And whereas, on or before
the twentieth day of May, now last past, the said Samuel B. Davis,
was, and now is, a lieutenant of ships in the navy of the said French
Republic, and commander of a corvette, or vessel of war, called the
Cassius, then, and now, the property of the said republic, and in her
immediate service; and on the said twentieth day of May, was duly
commissioned, by and under the authority of the said republic, to
cruise against her enemies, and make prize of their ships (as by his
commission and the certificate of the minister plenipotentiary of the
said republic to the United States, to the court shown, more fully
appears). Nevertheless a certain James Yard, of the city of Phila-
delphia, merchant, not ignorant of the premises, but contriving and
intending to disturb the peace and harmony subsisting between the
CHAP. III.]
699
UNITED STATES V. RICHARD PETERS.
United States and the French Republic, and him, the said Samuel B.
Davis, wrongfully to aggrieve and oppress, and draw to another proof,
him, the said Samuel B. Davis, and the said corvette, or vessel of war,
of the French Republic, the Cassius, in the port of Philadelphia,
under the protection of the laws of nations, and of the faith of
treaties, has, by process out of the District Court of the United States,
in and for the district of Pennsylvania, attached and arrested him,
the said Samuel B. Davis, and the said corvette, or vessel of war, the
Cassius, before the judge of the said District Court, contrary to the said
law of nations, and treaties, and against the due form of the laws of
the United States, hath unjustly drawn in plea, to answer to a certain
libel, by him, the said James Yard, against him, the said Samuel B.
Davis, and against the said corvette, or vessel of war, the Cassius, her
tackle, apparel, and furniture, exhibited and promoted, craftily and
subtly therein alleging, articulating, and objecting, that on the
said twentieth day of May, now last past, the said Samuel B. Davis,
then commander of the said corvette, or vessel, the Cassius, did,
forcibly, violently, and tortiously, take on the high seas, a certain
schooner, or vessel, belonging to the said James Yard, called the
William Lindsey, and brought her into Port de Paix (in the dominion
of the French Republic), where she still remains; and also alleging
and articulating that the said corvette, or vessel called the Cassius,
was originally equipped and fitted for war, in the port of Philadelphia,
in the United States, and that the said Samuel B. Davis was at the time
of the said capture, and now is, a citizen of the United States: With-
out this, however, and the said James Yard, not in any manner
alleging, or articulating, that the said capture was made within the
territory, rivers, or bays, of the United States, or within a marine
league of the coast thereof, or that the said corvette or vessel, the
Cassius, was so fitted or equipped for war in the United States by the
said French Republic, her agent, or agents, with their knowledge, or
by the means, or procurement, or by the said Samuel B. Davis, or
that at the time of her being so equipped, or fitted for war, in the
United States (if ever there she was so in any manner fitted or
equipped), she was the property of the said French Republic, or that
the said Samuel B. Davis was in any manner in the said equipment,
or fitting for war, concerned ; and without this, also, and the said
James Yard, not in any manner alleging that the sail Samuel B.
Davis was retained, or engaged, in the service of the French Republic,
within the territory or jurisdiction of the United States : And that
the said James Yard, him, the said Samuel B. Davis, and the said
corvette, or vessel of war, called the Cassius, by force of the process
aforesaid, out of the said District Court, had and obtained, as aforesaid,
700
PART II.
BELLIGERENTS AND NEUTRALS,
still wrongfully detains, and the said Samuel B. Davis, and the French
Republic, owner of the said corvette, or vessel of war, thereupon in
the said District Court to answer, and in the premises, cause to be
condemned, with all his power, endeavors, and daily contrives, in
contempt of the government of the United States, against the laws of
nations, and the treaties subsisting between the United States and the
French Republic, and against the laws and customs of the United
States, to the manifest violation of the law of nations and treaties,
and to the manifest disturbance of the peace and harmony happily
subsisting between the United States and the French Republic :
Wherefore the said Samuel B. Davis, the aid of the said Supreme
Court most respectfully requesting, has prayed remedy by a writ of
prohibition, to be issued out of the said Supreme Court, to you to be
directed, do prohibit you from holding the plea aforesaid, the premises
aforesaid any wise concerning, further before you:- You, therefore,
are hereby prohibited, that you no further hold the plea aforesaid, the
premises aforesaid in any wise touching, before you, nor anything in
the said District Court attempt, nor procure to be done, which may be
in any wise to the prejudice of the said Samuel B. Davis, or the said
corvette, or vessel of war, called the Cassius; or in contempt of the
laws of the United States : And also, that from all proceedings
thereon you do, without delay, release the said Samuel B. Davis, and
the said corvette, or vessel of war, called the Cassius, at your peril.
Witness, the honorable JOHN RUTLEDGE, Esquire, Chief Justice of
the said Supreme Court, at Philadelphia, this twenty-fourth day of
August, in the year of our Lord one thousand seven hundred and ninety-
five, and of the independence of the United States, the twentiethi.
I. WAGNER, D. C. Sup. Ct., U.S.
1 On release of the vessel pursuant to the writ of prohibition, a new libel was imme-
diately filed in the Circuit Court by one of the former plaintiffs, on the ground of illegal
equipment of the vessel the year before. Ketland v. The Cassius, 2 Dall. 365.
At the October term, 1796, the question arose, whether the Circuit Court could take
original cognizance of information for forfeiture under the Act of 1794; and the court
dismissed the proceedings, on the ground that such proceedings must be instituted in
the District Court. Ketland v. The Cassius, 2 Dall. 365. No further action was taken
in the courts ; and it will thus be seen that the question of international law was left
undecided. The French minister, M. Adet, had dismantled the ship and had formally
abandoned her to the government of the United States. The practical result was that
a foreign ship of war was libelled and detained by the courts of the United States, and
the Federal Executive seemed unable to prevent it.
In the United States v. Guinet, ante, the accused was tried and condemned to fine
and imprisonment for aiding in fitting out the Cassius in contravention of the Act of
1794. - Ep.
CHAP. III.]
701
THE “SANTISSIMA TRINIDAD.”
THE “SANTISSIMA TRINIDAD."
SUPREME COURT OF THE UNITED STATES, 1822.
(7 Wheaton, 283.)
This was a libel filed by the consul of Spain, in the district court
of Virginia, in April, 1817, against eighty-nine bales of cochineal,
two bales of jalap, and one box of vanilla, originally constituting
part of the cargoes of the Spanish ships Santissima Trinidad and
St. Ander, and alleged to be unlawfully and piratically taken out of
those vessels on the high seas by a squadron consisting of two armed
vessels called the Independencia del Sud and the Altravida, and
manned and commanded by persons assuming themselves to be
citizens of the United Provinces of the Rio de la Plata. The libel
was filed, in behalf of the original Spanish owners, by Don Pablo
Chacon, consul of his Catholic Majesty for the port of Norfolk;
and as amended, it insisted upon restitution, principally for three
reasons:
(1) That the commanders of the capturing vessels, the Indepen-
dencia and the Altravida, were native citizens of the United States,
and were prohibited by our treaty with Spain of 1795, from taking
commissions to cruise against that power. (2) That the said capt-
uring vessels were owned in the United States, and were originally
equipped, fitted out, armed and manned in the United States, con-
trary to law. (3) That their force and armament had been illegally
augmented within the United States.
The district court, upon the hearing of the cause, decreed restitu-
tion to the original Spanish owners. That sentence was affirmed in
the circuit court, and from the decree of the latter the cause was
brought by appeal to this court.
Judgment,-STORY, J. :-
“ Upon the argument at the bar several questions have arisen,
which have been deliberately considered by the court; and its judg-
ment will now be pronounced. The first in the order, in which we
think it most convenient to consider the cause, is, whether the Indepen-
dencia is in point of fact a public ship, belonging to the government of
Buenos Ayres. The history of this vessel, so far as is necessary for
1 This statement of the case is substituted for that of the report and parts of the
judginent are onnitted. - ED.
.
702
[PART 11.
BELLIGERENTS AND NEUTRALS.
the disposal of this point, is briefly this: She was originally built
and equipped at Baltimore as a privateer during the late war with
Great Britain, and was then rigged as a schooner, and called the
Mammoth, and cruised against the enemy. After the peace she was
rigged as a brig, and sold by her original owners. In January, 1816,
she was loaded with a cargo of munitions of war, by her new own-
ers, who are inhabitants of Baltimore, and being armed with twelve
guns, constituting a part of her original armament, she was de-
spatched from that port, under the command of the claimant, on a
voyage, ostensibly to the Northwest Coast, but in reality to Buenos
Ayres. By the written instructions given to the supercargo on
this voyage, he was authorized to sell the vessel to the government
of Buenos Ayres, if he could obtain a suitable price. She duly
arrived at Buenos Ayres, having exercised no act of hostility,
but
sailed under the protection of the American flag, during the voy-
age. At Buenos Ayres the vessel was sold to Captain Chaytor and
two other persons; and soon afterwards she assumed the flag and
character of a public ship, and was understood by the crew to have
been sold to the government of Buenos Ayres; and Captain Chay-
tor made known these facts to the crew, and asserted that he had
become a citizen of Buenos Ayres; and had received a commission
to command the vessel as a national ship; and invited the crew to
enlist in the service; and the greater part of them accordingly
enlisted. From this period, which was in May, 1816, the public
functionaries of our own and other foreign governments at that port,
considered the vessel as a public ship of war, and such was her
avowed character and reputation. No bill of sale of the vessel to
the government of Buenos Ayres is produced, and a question has
been made principally from this defect in the evidence, whether her
character as a public ship is established. It is not understood that
any doubt is expressed as to the genuineness of Captain Chaytor's
commission, nor as to the competency of the other proofs in the
cause introduced, to corroborate it. We are of opinion that they do.
In general the commission of a public ship, signed by the proper
authorities of the nation to which she belongs, is complete proof of
her national character. A bill of sale is not necessary to be pro-
duced. Nor will the courts of a foreign country inquire into the
means by which the title to the property has been acquired. It
would be to exert the right of examining into the validity of the acts
of the foreign sovereign, and to sit in judgment upon them in cases
where he has not conceded the jurisdiction, and where it would be
inconsistent with his own supremacy. The commission, therefore,
of a public ship, when duly authenticated, so far at least as foreign
CHAP. III.]
703
THE
SANTISSIMA TRINIDAD."
*
*
*
courts are concerned, imports absolute verity, and the title is not
examinable. The property must be taken to be duly acquired, and
cannot be controverted. This has been the settled practice between
nations; and it is a rule founded in public convenience and policy,
and cannot be broken in upon, without endangering the peace and
repose, as well of neutral as of belligerent sovereigns. The com-
mission in the present case is nôt expressed in the most unequivocal
terms; but its fair purport and interpretation must be deemed to
apply to a public ship of the government. If we add to this the
corroborative testimony of our own and the British consul at Buenos
Ayres, as well as that of private citizens, to the notoriety of her
claim of a public character; and her admission into our own ports
as a public ship, with the immunities and privileges belonging to
such a ship, with the express approbation of our own government,
it does not seem too much to assert, whatever may be the private
suspicion of a lurking American interest, that she must be judicially
held to be a public ship of the country whose commission she
bears.
“ The next question growing out of this record, is whether the
property in controversy was captured in violation of our neutrality,
so that restitution ought, by the law of nations, to be decreed to the
libellants. Two grounds are relied upon to justify restitution :
First, that the Independencia and Altravida were originally equipped,
armed, and manned as vessels of war in our ports. Secondly, that
there was an illegal augmentation of the force of the Independencia
within our ports. Are these grounds, or either of them, sustained
by the evidence ?
“ The question as to the original illegal armament and outfit of
the Independencia may be dismissed in a few words. It is appar-
ent, that though equipped as a vessel of war, she was sent to Buenos
Ayres on a commercial adventure, contraband, indeed, but in no shape
violating our laws on our national neutrality. If captured by a
Spanish ship of war during the voyage she would have been justly
condemned as good prize, and for being engaged in a traffic prohib-
ited by the law of nations. But there is nothing in our laws, or in
the law of nations, that forbids our citizens from sending armed ves-
sels, as well as munitions of war, to foreign ports for sale. It is a
commercial adventure which no nation is bound to prohibit; and
which only exposes the persons engaged in it to the penalty of con-
fiscation. Supposing, therefore, the voyage to have been for com-
mercial purposes, and the sale at Buenos Ayres to have been a bona
fide sale (and there is nothing in the evidence before us to contradict
it), there is no pretence to say, that the original outfit on the voyage
*
704
[PART II.
BELLIGERENTS AND NEUTRALS.
*
*
*
*
was illegal, or that a capture made after the sale was, for that
cause alone, invalid.
66. The most material consideration is as to the augmentation of her
force in the United States, at a subsequent period.
“ The Court is, therefore, driven to the conclusion, that there was
an illegal augmentation of the force of the Independencia in our
ports by a substantial increase of her crew; and this renders it
wholly unnecessary to enter into an investigation of the question,
whether there was not also an illegal increase of her armament.
This view of the question renders it unnecessary to con-
sider another which has been discussed at the bar respecting what
is denominated the right of expatriation. *
“ And here we are met by an argument on behalf of the claimant,
that the augmentation of the force of the Independencia within our
ports, is not an infraction of the law of nations, or a violation of our
neutrality; and that so far as it stands prohibited by our municipal
laws the penalties are personal, and do not reach the case of restitu-
tion of captures made in the cruise, during which such augmenta-
tion has taken place. It has never been held by this court that an
augmentation of force or illegal outfit affected any captures made
after the original cruise was terminated. By analogy to other cases
of violations of public law the offence may well be deemed to be de-
posited at the termination of the voyage, and not to affect future
transactions. But as to captures made during the same cruise, the
doctrine of this court has long established that such illegal augmen-
tation is a violation of the law of nations, as well as of our own
municipal laws, and as a violation of our neutrality, by analogy to
other cases, it infects the captures subsequently made with the char-
acter of torts, and justifies and requires a restitution to the parties
who have been injured by such misconduct. It does not lie in the
mouth of wrongdoers to set up a title derived from a violation of our
neutrality.
“ The cases in which this doctrine has been recognized and applied,
have been cited at the bar, and are so numerous and so uniform, that
it would be a waste of time to discuss them, or to examine the l'ea-
soning by which they are supported. More especially as no inclina-
tion exists on the part of the court to question the soundness of these
decisions. If, indeed, the question were entirely new, it would de-
serve very grave consideration, whether a claim founded on a viola-
tion of our neutral jurisdiction could be asserted by private persons,
or in any other manner than a direct intervention of the government
itself. In the case of a capture made within a neutral territorial
jurisdiction, it is well settled, that as between the captors and the
CHAP. III.)
705
THE “SANTISSIMA TRINIDAD."
captured, the question can never be litigated. It can arise only upon
a claim of the neutral sovereign asserted in his own courts or the
courts of the power having cognizance of the capture itself for the
purposes of prize. And by analogy to this course of proceeding, the
interposition of our own government might seem fit to have been re-
quired before cognizance of the wrong could be taken by our courts.
But the practice from the beginning in this class of causes, a period
of nearly 30 years, has been uniformly the other way; and it is
now too late to disturb it. If any inconvenience should grow out of
it, from reasons of state policy or executive discretion, it is compe-
tent for Congress to apply at its pleasure the proper remedy. * * *
“Upon the whole, it is the opinion of the court that the decree of
the circuit court be affirmed, with costs.'
I In the case of La Amistad de Rues, 1820,5 Wheat. 385, it was held that a civil court
of a neutral country cannot adjudicate upon the validity of a capture jure belli, as
between the captor and the prize. Its only function is to vindicate the offended sove-
reignty of its own country, when the capture was made in violation of its neutrality.
In the case of The Nereyda, 8 Wheaton, 108 (1823), a Spanish ship of war was
captured by the privateer Irresistible, which was fitted out, owned and commanded by
American citizens, cruising under a commission from Artigas, as chief of the Oriental
Republic of Rio de la Plata. The prize was taken to Margarita, an island of Venezuela,
and there condenined as prize, Venezuela being an ally of the Oriental Republic. She
was there commissioned as a Venezuelan privateer, and came to Baltimore. Here she
was libelled on behalf of the King of Spain on the ground that the Irresistible had been
illegally fitted out in an American port. A claim was set up by one Francesche, who
alleged that he had bought her at the prize sale. The Supreme Court (Story, J.,
giving the opinion) held that this purchase was not proved, and that she was still in
the hands and ownership of the owners of the Irresistible ; that their title was not im-
proved by the condemnation, if valid otherwise; and restored her to the King of Spain.
Dana's Wheaton, 555, note.
Other early cases in the United States courts on this question are: The Betsey,
Bee, 67; The Brothers, Bee, 76; The Nuncy, Bee, 73; The Sloop Betsey, 1794, 3 Dallas, 6;
The Magdalena, 1796 (Talbot v. Jansen, 3 Dallas, 133); The Alfred, 1796, 3 Dallas, 307;
The Phoebe Ann, 1796, 3 Dallas, 319; The Alertu, 1815, 9 Cranch, 359; The Invincible,
1816, 1 Wlieaton, 238; The Estrella, 1819, 4 Wheaton, 298; La Conception, 1821, 6
Wheaton, 235; Bello Corrunes, 1821, 6 Wheaton, 152; Gran Para, 1822, 7 Wheaton,
471; Arrogante Barcelones, 1822, 7 Wheaton, 496; The Fanny, 1824, 9 Wheaton, 659.
For an admirable digest of these cases, the doctrines tliey establish and for principal
cases involving a breach of our neutrality acts, as well as Great Britain's shortcomings
in the civil war, see Dana's Wlieaton, note 215, pp. 535-581. -- ED.
45
706
[PART II.
BELLIGERENTS AND NEUTRALS.
UNITED STATES V. QUINCY.
SUPREME COURT OF THE UNITED STATES, 1832.
(6 Peters, 445.)
1
Mr. Justice THOMPSON delivered the opinion of the court:
" This case comes up from the Circuit Court of the United States
for the Maryland district, on a division of opinion of the judges, upon
certain instructions prayed for to the jury.
“The indictment upon which the defendant was put upon his
trial, contains a number of counts, to which the testimony did not
apply, and which are not now drawn in question. The twelfth and
thirteenth are the only counts to which the evidence applied ; and
the offence charged in each of these is substantially the same; to
wit, that the said John D. Quincy, on the 31st day of December,
1828, at the district of Maryland, etc., with force and arms, was
knowingly concerned in the fitting out of a certain vessel called the
Bolivar, otherwise called Las Damas Argentinas, with intent that
such vessel should be employed in the service of a foreign people,
that is to say, in the service of the United Provinces of Rio de la
Plata, to commit hostilities against the subjects of a foreign prince;
that is to say, against the subjects of his imperial majesty, the con-
stitutional emperor and perpetual defender of Brazil, with whom
the United States then were, and still are at peace, against the form
of the act of Congress in such case made and provided.
“ The act of Congress under which the indictment was found, 6th
Vol., Laws U. S., 321, sect. 3, declares, 'that if any person shall,
within the limits of the United States, fit out and arm, or attempt
to fit out and arm, or procure to be fitted out and armed, or shall
knowingly be concerned in the furnishing, fitting out, or arming of
any ship or vessel, with intent that such ship or vessel shall be em-
ployed in the service of any foreign prince or state, or of any colony,
district or people, to cruise or commit hostilities against the sub-
jects, citizens or property of any foreign prince or state, or of any
colony, district or people with whom the United States are at peace,
etc., every person so offending, shall be deemed guilty of a high mis-
demeanor, and shall be fined not more than ten thousand dollars,
and imprisoned not more than three years, etc.?
“The testimony being closed, several prayers, both on the part of
i Statement of the case omitted. -- ED.
CHAP. III.]
707
UNITED STATES V. QUINCY.
the United States and of the defendant, were presented to the court
for their opinion and direction to the jury; and upon which the
opinions of the judges were opposed, and which will now be noticed
in the order in which they were made.
“On the part of the defendant the court was requested to charge
the jury, that if they believe that when the Bolivar left Baltimore,
and when she arrived at St. Thomas, and during the voyage from
Baltimore to St. Thomas, she was not armed, or at all prepared for
war, or in a condition to commit hostilities, the verdict must be for
the defendant.
“The prayer on the part of the United States upon this part of
the case, was, in substance, that if the jury find from the evidence
that the defendant was, within the district of Maryland, knowingly
concerned in the fitting out the privateer Bolivar, with intent that
she should be employed in the manner alleged in the indictment,
then the defendant was guilty of the offence charged against him,
although the jury should find that the equipments of the said pri-
vateer were not complete within the United States, and that the
cruise did not actually commence until men were recruited, and
further equipments were made at the island of St. Thomas in the
West Indies.
“The instruction which ought to be given to the jury under
these prayers involves the construction of the act of Congress,
touching the extent to which the preparation of the vessel for cruis-
ing or committing hostilities must be carried before she leaves the
limits of the United States, in order to bring the case within the act.
« On the part of the defendant it is contended, that the vessel
must be fitted out and armed, if not complete, so far at least as to
be prepared for war, or in a condition to commit hostilities.
“ We do not think this is the true construction of the act. It has
been argued that, although the offence created by the act is a mis-
demeanor, and there cannot, legally speaking, be principal and ac-
cessory, yet the act evidently contemplates two distinct classes of
offenders. The principal actors, who are directly engaged in pre-
paring the vessel, and another class, who, though not the chief
actors, are in some way concerned in the preparation.
“The act, in this respect, may not be drawn with very great per-
spicuity. But should the view taken of it by the defendant's coun-
sel be deemed correct (which, however, we do not admit), it is not
perceived how it can affect the present case. For the indictment,
according to this construction, places the defendant in the second-
ary class of offenders. He is only charged with being knowingly
concerned in the fitting out the vessel, with intent that she should
be employed, etc.
T08
[PART 11.
BELLIGERENTS AND NEUTRALS.
“To bring him within the words of the act, it is not necessary to
charge him with being concerned in fitting out and arming. The
words of the act are, fitting out or arming. Either will constitute
the offence. But it is said such fitting out must be of a vessel
armed and in a condition to commit hostilities, otherwise the minor
actor may be guilty when the greater would not. For, as to the lat-
ter, there must be a fitting out and arming in order to bring him
within the law. If this construction of the act be well founded, the
indictment ought to charge, that the defendant was concerned in
fitting out the Bolivar, being a vessel fitted out and armed, etc. But
this, we apprehend, is not required. It would be going beyond the
plain meaning of the words used in defining the offence. It is suf-
ficient if the indictment charges the offence in the words of the act;
and it cannot be necessary to prove what is not charged. It is true,
that, with respect to those who have been denominated at the bar
the chief actors, the law would seem to make it necessary that they
should be charged with fitting out and arming. These words may
require that both should concur; and the vessel be put in a con-
dition to commit hostilities, in order to bring her within the law.
But an attempt to fit out and arm is made an offence. This is cer-
tainly doing something short of a complete fitting out and arming.
To attempt to do an act does not, either in law or in common par-
lance, imply a completion of the act, or any definite progress to-
wards it. Any effort or endeavor to effect it will satisfy the terms
of the law.
“ This varied phraseology in the law was probably employed with
a view to embrace all persons of every description who might be en-
gaged, directly or indirectly in preparing vessels with intent that
they should be employed in committing hostilities against any
powers with whom the United States were at peace. Different de
grees of criminality will necessarily attach to persons thus engaged.
Hence the great latitude given to the courts in affixing the punish-
ment, viz., a fine not more than ten thousand dollars and imprison.
ment not more than three years.
“We are, accordingly, of opinion, that it is not necessary that the
jury should believe or find that the Bolivar, when she left Balti-
more, and when she arrived at St. Thomas, and during the voyage
from Baltimore to St. Thomas, was armed, or in a condition to com“
mit hostilities, in order to find the defendant guilty of the offence
charged in the indictment.
"The first instruction, therefore, prayed on the part of the de-
fendant, must be denied, and that on the part of the United States
given.
CHAP. III.]
709
UNITED STATES V. QUINCY.
66 The second and third instructions asked on the part of the de-
fendant, were:
“ That if the jury believe that, when the Bolivar was fitted and
equipped at Baltimore, the owner and equipper intended to go to
the West Indies in search of funds, with which to arın and equip
the said vessel and had no present intention of using or employing
the said vessel as a privateer, but intended, when he equipped her, to
go to the West Indies, to endeavor to raise funds to prepare her for
a cruise; then the defendant is not guilty.
“Or if the jury believe that, when the Bolivar was equipped at
Baltimore, and when she left the United States, the equipper had
no fixed intention to employ her as a privateer, but had a wish so
to employ her, the fulfilment of which wish depended on his ability
to obtain funds in the West Indies, for the purpose of arming and
preparing her for war; then the defendant is not guilty.
“We think these instructions ought to be given. The offence
consists principally in the intention with which the preparations
were made. These preparations, according to the very terms of the
act, must be made within the limits of the United States; and it is
equally necessary that the intention with respect to the employ-
ment of the vessel should be formed before she leaves the United
States. And this must be a fixed intention; not conditional or con-
tingent, depending on some future arrangements. This intention is
a question belonging exclusively to the jury to decide. It is the
material point on which the legality or criminality of the act must
turn; and decides whether the adventure is of a commercial or
warlike character.
“The law does not prohibit armed vessels belonging to citizens of
the United States from sailing out of our ports; it only requires
the owners to give security (as was done in the present case) that
such vessels shall not be employed by them to commit hostilities
against foreign powers at peace with the United States. The col-
lectors are not authorized to detain vessels, although manifestly
built for warlike purposes, and about to depart from the United
States, unless circumstances shall render it probable that such vessels
are intended to be employed by the owners to commit hostilities
against some foreign power, at peace with the United States.
“All the latitude, therefore, necessary for commercial purposes, is
given to our citizens; and they are restrained only from such acts
as are calculated to involve the country in war.
“The second and third instructions, asked on the part of the
United States, ought also to be given. For, if the jury shall find
(as the instructions assume) that, the defendant was knowingly
710
[PART II.
BELLIGERENTS AND NEUTRALS.
60
concerned in fitting out the Bolivar within the United States, with
the intent that she should be employed as set forth in the indict-
ment, that intention being defeated by what might afterwards take
place in the West Indies, would not purge the offence, which was
previously consummated. It is not necessary that the design or in-
tention should be carried into execution in order to constitute the
offence.
“ The last instruction or opinion asked on the part of the de-
fendant, was:
That, according to the evidence in the cause, the United Prov-
inces of Rio de la Plata is, and was, at the time of the offence al-
leged in the indictment, a government acknowledged by the United
States, and thus was a state, and not a people, within the meaning
of the act of Congress, under which the defendant is indicted; the
word people in that act being intended to describe communities
under an existing government, not recognized by the United
States; and that the indictment cannot be supposed on this evi-
dence.
“ The indictment charges that the defendant was concerned in fit-
ting out the Bolivar, with intent that she should be employed in the
service of a foreign people; that is to say, in the service of the
United Provinces of Rio de la Plata. It was in evidence, that the
United Provinces of Rio de la Plata had been regularly acknowl-
edged as an independent nation by the executive department of the
government of the United States, before the year 1827. And, there-
fore, it is argued that the word people is not properly applicable to
that nation or power.
“ The objection is one purely technical, and we think not well-
founded. The word people, as here used, is merely descriptive of
the power in whose service the vessel was intended to be employed;
and it is one of the denominations applied by the act of Congress to
a foreign power. The words are, in the service of any foreign
prince or state; or of any colony, district or people. The applica-
tion of the word people is rendered sufficiently certain by what fol-
lows under the videlicet, that is to say, the United Provinces of
Rio de la Plata. This particularizes that which by the word people
is left too general. The descriptions are no way repugnant or in-
consistent with each other, and may well stand together. That
which comes under the videlicet, only serves to explain what is
doubtful and obscure in the word people.
“ This instïuction must therefore be denied, and the one asked on
the part of the United States, viz., that the indictment is sufficient
in law, must be given.
“These answers must accordingly be certified to the circuit court."
CHAP. III.]
711
UNITED STATES V. THE
METEOR.”
UNITED STATES V. THE 6 METEOR.'
92
.
UNITED STATES CIRCUIT COURT FOR So. NEW YORK, 1866.
(3 American Law Review, 173.)
The Meteor was built in the United States in 1865, during the war
then pending between Chile and Spain, and sold to the Chilean govern-
ment, without armament, and then, it was alleged, commissioned when
in the United States, as a Chilean privateer. She was libelled in New
York and seized January 23, 1866. Upon a hearing before Judge
Betts, that learned judge held that there must be a decree condemning
and forfeiting the property under seizure, in accordance with the
prayer of the libel.1
Mr. Justice NELSON :
“ This is an appeal in admiralty from a decree of condemnation in
a libel of information for the violation of the neutrality laws of the
United States. We have examined the pleadings and proofs in the case,
and have been unable to concur in the judgment of the court below,
but from the pressure of other business have not found time to write
out at large the grounds and reasons for the opinion arrived at. We
must, therefore, for the present, be content in the statement of our
conclusions in the matter.
“1. Although negotiations were commenced and carried on be-
tween the owners of the Meteor and agents of the Government of
Chile, for the sale of her to the latter, with the knowledge that she
would be employed against the Government of Spain, with which
Chile was at war, yet these negotiations failed and came to an end
from the inability of the agents to raise the amount of the purchase-
money demanded ; and if the sale of the vessel, in its then condition
and equipment, to the Chilean Government would have been a viola-
tion of our neutrality laws, of which it is unnecessary to express any
opinion, the termination of the negotiation put an end to this ground
of complaint.
“ 2. The furnishing of the vessel with coal and provisions for a
voyage to Panama, or some other port of South America, and the
purpose of the owners to send her thither, in our judgment, was not
in pursuance of an agreement or understanding with the agents of
the Chilean Government, but for the purpose and design of finding a
market for her, and that the owners were free to sell her on her
1 The above statement of the case is taken from 3 Wharton's Digest, 561. The
Case is briefly reported in the American Law Review, 401. - ED.
712
[PART II.
BELLIGERENTS AND NEUTRALS.
I
arrival there to the Government of Chile or of Spain, or of any other
Government or person with whom they might be able to negotiate
a sale.
“3. The witnesses chiefly relied on to implicate the owners in the
negotiations with the agents of the Chilean Government, with a view
and intent of fitting out and equipping the vessel to be employed in
the war with Spain, are persons who had volunteered to negotiate
on behalf of the agents with the owners in expectation of large com.
missions in the event of a sale, or persons in the expectation of em.
ployment in some situation in the command of the vessel, and very
clearly manifest their disappointment and chagrin at the failure of
the negotiations, and whose testimony is to be examined with con-
siderable distrust and suspicion. We are not satisfied that a case is
made out, upon the proofs, of a violation of the neutrality laws of
the United States, and must, therefore, reverse the decree below,
and enter a decree dismissing the libel.'
991
1 An appeal was taken by the government from the decision of the Circuit Court
to the Supreme Court of the United States, but was not prosecuted to a hearing, being
dismissed by consent, November 9, 1868.
For a criticism on Judge Betts' ruling, see an article in the “North American
Review" for October, 1866 (Vol. 103, p. 188).
Dana says of the Practice of the United States (note to Wheaton, p. 562): “ As
to the preparing of vessels within our jurisdiction for subsequent hostile operations,
the test we have applied has not been the extent and character of the preparations, but
the intent with which the particular acts are done. If any person does any act, or
attempts to do any act, toward such preparation, with the intent that the vessel shall
be employed in hostile operations, he is guilty, without reference to the completion of
the preparations, or to the extent to which they have gone, and although his attempt
may have resulted in no definite progress towards the completion of the preparations.
The procuring of materials to be used, knowingly and with the intent, etc., is an
offence. * * *
"On the point of the intent, more nicety and discrimination are necessary. If the
person charged has himself the control of the vessel, to put her into foreign belligerent
service, the question of the intent to employ hier is simple. If he has not, he is still
chargeable with doing acts, or being knowingly concerned in the doing of acts, of
or towards the preparation, with the intent that the vessel shall be so employed
though others may control her during the preparations. But the intent must be
that she shall be so employed; and the intent must be a fixed and present intent, and
not a wish or desire merely that she may be. If there is a contingency, it must,
to exculpate the party, be one which forms a condition precedent to the intent, and
not merely a condition precedent to the employment, or a condition subsequent which
may defeat the intent. Thus, if the owner of a vessel, not completely ready for
hostile operations, with instructions to her commander to complete her preparation
and obtain letters of marque in the port of destination, and, in case of failure in
obtaining the commission and equipment, to take a cargo and return, he would
doubtless be guilty; for he has entered on the execution of his purpose, and those
are only the ordinary contingencies to all employments, by which they may be
defeated. But the purpose to which he shall put his vessel after her arrival may
CHAP. III.]
713
THE
ALABAMA" CLAIMS AND AWARD.
THE “ALABAMA” CLAIMS AND AWARD, 1872.
TREATY BETWEEN THE UNITED STATES AND GREAT BRITAIN,
CONCLUDED May 8, 1871.
Article I. – Whereas differences have arisen between the Govern-
ment of the United States and the Government of her Britannic
Majesty, and still exist, growing out of the acts committed by the
several vessels which have given rise to the claims generically known
as the “ Alabama claims":
And whereas her Britannic Majesty has authorized her High Com-
missioners and Plenipotentiaries to express, in a friendly spirit, the
depend on circumstances so entirely contingent and fortuitous, as to relieve from the
charge of a fixed intent at the time he sends her out.
It will be seen at once, by these abstract definitions, that our rules do not interfere
with bona fide commercial dealings in contraband of war. An American merchant
may build and fully arm a vessel, and supply her with stores, and offer her for sale in
our own market. If he does any acts, as an agent or servant of a belligerent, or in
pursuance of an arrangement or understanding with a belligerent, that she shall be
employed in hostilities when sold, he is guilty. He may, without violating our law,
send out such a vessel, so equipped, under the flag and papers of his own country,
with no more force of crew than is suitable for navigation, with no right to resist
search or seizure, and to take the chances of capture as contraband merchandise, of
blockade, and of a market in a belligerent port. In such case, the extent and character
of the equipments is as immaterial as in the other class of cases. The intent is all.
The act is open to great suspicions and abuse, and the line may often be scarcely trace-
able; yet the principle is clear enough. Is the intent one to prepare an article of con-
traband merchandise, to be sent to the market of a belligerent, subject to the chances
of capture and of the market? Or, on the other hand, is it to fit out à vessel which
shall leave our port to cruise, immediately or ultimately, against the commerce of a
friendly nation ?. The latter we are bound to prevent. The former the belligerent
must prevent. In the former case, the ship is merchandise, under bona fide neutral
flag and papers, with a port of destination, subject to search and capture as contraband
merchandise by the other belligerent, or to the risks of blockade, and with no right to
resist search and seizure, and liable to be treated as a pirate by any nation, if she does
any act of hostility to the property of a belligerent, as much as if she did it to that of
a neutral. Such a trade in contraband, a belligerent may cut off by cruising the seas
and by blockading his enemy's ports. But, to protect himself against vessels sailing
out of a neutral port to commit hostilities, it would be necessary for him to liover off
the ports of the neutral; and, to do that effectually, he must maintain a kind of blockade
of the neutral coast; which, as neutrals will not permit, they ought not to give
occasion for.”
In the Terceira Affair, 1827, it appeared that an expedition left English ports to
attack the government of Portugal. A British squadron was despatched in pursuit,
and finding the vessels of the expedition in Portuguese waters, the English captain kept
a close watch upon them and finally ordered them out of the neighborhood. For
further details, see 3 Phillimore, Int. Law, 287. -Ed.
714
[PART II.
BELLIGERENTS AND NEUTRALS.
regret felt by her Majesty's Government for the escape, under what-
ever circumstances, of the Alabama and other vessels from British
ports, and for the depredations committed by those vessels :
Now, in order to remove and adjust all complaints and claims on the
part of the United States, and to provide for the speedy settlement of
such claims which are not admitted by her Britannic Majesty's Govern-
ment, the high contracting parties agree that all the said claims growing
out of acts committed by the aforesaid vessels and generically known
as the “ Alabama claims," shall be referred to a tribunal of arbitration
composed of five arbitrators, to be appointed in the following manner,
that is to say: One shall be named by the President of the United
States; one shall be named by her Britannic Majesty ; his Majesty
the King of Italy shall be requested to name one; the President of the
Swiss Confederation shall be requested to name one; and his Majesty
the Emperor of Brazil shall be requested to name one. ***
Article II. — The arbitrators shall meet at Geneva, in Switzerland,
at the earliest convenient day after they shall have been named, and
shall proceed impartially and carefully to examine and decide all
questions that shall be laid before them on the part of the Governments
of the United States and her Britannic Majesty respectively. All
questions considered by the tribunal, including the final award, shall
be decided by a majority of all the arbitrators. ***
Article VI. — In deciding the matters submitted to the arbitrators.
they shall be governed by the following three rules, which are agreed
upon by the high contracting parties, as rules to be taken as applicable
to the case, and by such principles of international law, not inconsistent
therewith, as the arbitrators shall determine to have been applicable
to the case.
“RULES,
“A neutral government is bound -
“First. To use due diligence to prevent the fitting out, arming, or
equipping, within its jurisdiction, of any vessel which it has reasonable
ground to believe is intended to cruise or to carry on war against a
power with which it is at peace; and also to use like diligence to pre-
vent the departure from its jurisdiction of any vessel intended to cruise
or carry on war as above, such vessel having been specially adapted, in
whole or in part, within such jurisdiction, to warlike use.
“Secondly. Not to permit or suffer either belligerent to make use of
its ports or waters as the base of naval operations against the other, or
for the purpose of the renewal or augmentation of inilitary supplies or
arms, or the recruitment of men.
" Thirdly. To exercise due diligence in its own ports and waters,
CHAP, III.]
715
THE
CLAIMS AND AWARD.
ALABAMA
and as to all persons within its jurisdiction, to prevent any violation
of the foregoing obligation and duties.
“ Her Britannic Majesty has coinmanded her high commissioners
and plenipotentiaries to declare that Her Majesty's Government can-
not assent to the foregoing rules as a statement of the principles of
international law which were in force at the time when the claims
mentioned in Article I. arose, but that Her Majesty's Government,
in order to evince its desire of strengthening the friendly relations
between the two countries, and of making satisfactory provision for
the future, agrees that in deciding the questions between the two
countries, arising out of those claims, the arbitrators should assume
that Her Majesty's Government had undertaken to act upon the
principles set forth in these rules.
“And the high contracting parties agree to observe these rules as
between themselves in future, and to bring them to the knowledge
of other maritime powers, and to invite them to accede to them."
DECISION AND AWARD,
,
“ The tribunal having since fully taken into their consideration
the treaty and also the cases, counter-cases, documents, evidence,
and arguments, and likewise all other communications made to them
by the two parties during the progress of their sittings, and having
impartially and carefully examined the same,
“ Has arrived at the decision embodied in the present award:
“Whereas, having regard to the sixth and seventh articles of the
said treaty, the arbitrators are bound under the terms of the said
sixth article, “in deciding the matters submitted to them, to be gov-
erned by the three rules therein specified and by such principles of
international law, not inconsistent therewith as the arbitrators shall
determine to have been applicable to the case;
“ And whereas the due diligence, referred to in the first and
third of the said rules, ought to be exercised by neutral govern-
ments in exact proportion to the risks to which either of the bellig-
erents may be exposed, from a failure to fulfill the obligations of
neutrality on their part;
“ And whereas the circumstances out of which the facts consti-
tuting the subject matter of the present controversy arose were of a
nature to call for the exercise on the part of Her Britannic
Majesty's Government of all possible solicitude for the observance
of the rights and duties involved in the proclamation of neutrality
issued by Her Majesty on the 13th day of May, 1861.
“And whereas the effects of a violation of neutrality, committed
716
[PART II.
BELLIGERENTS AND NEUTRALS.
1
by means of the construction, equipment, and armament of a vessel
is not done away with by any commission which the govern-
ment of the belligerent power, benefited by the violation of
neutrality, may afterwards have granted to that vessel; and
the ultimate step, by which the offense is completed, cannot be
admissible as a ground for the absolution of the offender, nor can
the consummation of his fraud become the means of establishing
his innocence.
“And whereas the privilege of extra-territoriality, accorded to
vessels of war, has been admitted into the law of nations, not as an
absolute right, but solely as a proceeding founded on the principle
of courtesy and 'mutual deference between different nations, and,
therefore, can never be appealed to for the protection of acts done in
violation of neutrality;
“And whereas the absence of a previous notice cannot be re-
garded as a failure in any consideration required by the law of na-
tions, in those cases in which a vessel carries with it its own con-
demnation;
And whereas, in order to impart to any supplies of coal'a charac-
ter inconsistent with the second rule, prohibiting the use of neutral
ports or waters, as a base of naval operations for a belligerent, it is
necessary that the said supplies should be connected with special
circumstances, of time, of persons, or of place, which may combine
to give them such character;
“And whereas, with respect to the vessel called the Alabama, it
clearly results from all the facts relative to the construction of the
ship, at first designated by the number .290,' in the port of Liver-
pool, and its equipment and armament in the vicinity of Terceira,
through the agency of the vessels called the Agrippina and the
Bahama, dispatched from Great Britain to that end, that the British
Government failed to use due diligence in the performance of its
neutral obligations, and especially that it omitted, notwithstanding
the warnings and official representations made by the diplomatic
agents of the United States during the construction of the said
number (290,' to take in due time any effective measures of preven-
tion, and that those orders which it did give at last, for the deten-
tion of the vessel, were issued so late that their execution was not
practicable;
". And whereas, after the escape of that vessel, the measures
taken for its pursuit and arrest were so imperfect as to lead to no re-
sult, and therefore cannot be considered sufficient to release Great
Britain from the responsibility already incurred;
“ And whereas, in despite of the violations of the neutrality of
CHAP. III.]
717
THE
66
CLAIMS AND AWARD.
ALABAMA
1
Great Britain, committed by the "290,' this same vessel, later
known as the Confederate cruiser Alabama, was on several occa-
sions freely admitted into the ports of the colonies of Great Britain,
instead of being proceeded against as it ought to have been in any
and every port within British jurisdiction in which it might have
been found;
“And whereas the Government of Her Britannic Majesty cannot
justify itself for a failure in due diligence on the plea of insufi-
ciency of the legal means of action which it possessed :
“ Four of the arbitrators for the reasons above assigned, and the
fifth, for reasons separately assigned by him, are of opinion that
Great Britain lias in this case failed, by omission, to fulfill the duties
prescribed in the first and the third of the rules, established by the
sixth article of the treaty of Washington.
“And whereas, with respect to the vessel called the Florida, it
results from all the facts relative to the construction of the Oreto in
the port of Liverpool, and to its issue therefrom, which facts failed
to induce the authorities in Great Britain to resort to measures ade-
quate to prevent the violation of the neutrality of that nation, not-
withstanding the warnings and repeated representations of the
agents of the United States; that Her Majesty's government has
failed to use due diligence to fulfill the duties of neutrality;
" And whereas it likewise results from all the facts relative to the
stay of the Oreto at Nassau, to her issue from that port, to her en-
listment of men, to her supplies, and to her armament, with the co-
operation of the British vessel Prince Alfred, at Green Cay, that
there was negligence on the part of the British colonial autho-
rities;
“ And whereas, notwithstanding the violation of the neutrality of
Great Britain, committed by the Oreto, this same vessel, later
known as the Confederate cruiser Florida, was, nevertheless, on
several occasions freely admitted into the ports of British colonies ;
“And whereas the judicial acquittal of the Oreto at Nassau can-
not relieve Great Britain from the responsibility incurred by her
under the principles of international law; nor can the fact of the
entry of the Florida into the Confederate port of Mobile, and of its
stay there during four months, extinguish the responsibility pre-
viously to that time incurred by Great Britain;
* For these reasons the tribunal, by a majority of four voices to
one, is of opinion, that Great Britain has in this case failed, by
omission, to fulfill the duties prescribed in the first, in the second,
and in the third, of the rules established by Article VI., of the
Treaty of Washington.
718
[PART II.
BELLIGERENTS AND NEUTRALS.
“And whereas, with respect to the vessel called the Shenandoah,
it results from all the facts relative to the departure from London
of the merchant vessel, the Sea King, and to the transformation of
that ship into a Confederate cruiser under the name of the Shenan-
doah, near the island of Madeira, that the Government of Her Bri-
tannic Majesty is not chargeable with any failure, down to that date,
in the use of due diligence to fulfill the duties of neutrality;
• But whereas it results from all the facts connected with the
stay of the Shenandoah at Melbourne, and especially with the
augmentation which the British Government itself admits to have
been clandestinely effected of her force, by the enlistment of men
within that port, that there was negligence on the part of the
authorities at that place;
“For these reasons the tribunal is unanimously of opinion, that
Great Britain has not failed, by any act or omission, to fulfill any
of the duties prescribed by the three rules of Article VI, in the
Treaty of Washington, or by the principles of international law not
inconsistent therewith,' in respect to the vessel called the Shenan-
doah, during the period of time anterior to her entry into the port
of Melbourne;
“ And, by a majority of three to two voices, the tribunal decides
that Great Britain has failed, by omission, to fulfill the duties pre-
scribed by the second and third of the rules aforesaid, in the case of
this same vessel, from and after ber entry into Hobson's Bay, and
is, therefore, responsible for all acts committed by that vessel after
her departure from Melbourne, on the 18th day of February, 1865.
“ And so far as relates to the vessels called the Tuscaloosa (ten-
der to the Alabama), the Clarence, the Tacony, and the Archer, (ten-
ders to the Florida), the tribunal is unanimously of opinion, that
such tenders or auxiliary vessels, being properly regarded as acces-
sories, must necessarily follow the lot of their principals, and be sub-
mitted to the same decision which applies to them respectively.
:“And so far as relates to the vessel called Retribution, the tri-
bunal, by a majority of three to two voices, is of opinion, that Great
Britain has not failed, by any act or omission, to fulfill any of the
duties prescribed by the three rules of Article VI., in the Treaty of
Washington, or by the principles of international law not incon.
sistent therewith.
“And so far as relates to the vessels called the Georgin, the
Sumpter, the Nashville, the Tallahassee, and the Chickamauga, re-
spectively, the tribunal is unanimously of opinion, that Great Brit-
ain has not failed, by any act or omission, to fulfill any of the
duties prescribed by the three rules of Article VI., in the Treaty of
CHAP. III.] THE “ALABAMA CLAIMS AND AWARD.
719
Washington, or by the principles of international law not inconsist-
ent therewith.
“ And so far as relates to the vessels called the Sallie, the Jeffer-
son Davis, the Music, the Boston, and the V. H. Joy respectively,
the tribunal is unanimously of opinion that they ought to be ex-
cluded from consideration for want of evidence.
“And whereas, so far as relates to the particulars of the indemnity
claimed by the United States, the costs of pursuit of the Confederate
cruisers are not, in the judgment of the tribunal, properly dis-
tinguishable from the general expenses of the war carried on by the
United States :
"The tribunal is, therefore, of opinion, by a majority of three to
two voices, that there is no ground for awarding to the United States
any sum by way of indemnity under this head.
“ And, whereas, prospective earnings cannot properly be made the
subject of compensation, inasmuch as they depend in their nature
upon future and uncertain contingencies :
“ The tribunal is unanimously of opinion that there is no
ground for awarding to the United States any sum by way of in-
demnity under this head.
“ And, whereas, in order to arrive at an equitable compensation for
the damages which have been sustained, it is necessary to set aside
all double claims for the same losses, and all claims for 'gross
freights,' so far as they exceed “net freights”;
And, whereas, it is just and reasonable to allow interest at a
reasonable rate;
And, whereas, in accordance with the spirit and letter of the
Treaty of Washington, it is preferable to adopt the form of adjudi-
cation of a sum in gross, rather than to refer the subject of compen-
sation for further discussion and deliberation to a board of assessors,
as provided by Article X., of the said treaty:
“The tribunal, making use of the authority conferred upon it by
Article VII., of the said treaty, by a majority of four voices to one,
awards to the United States a sum of $15,500,000 in gold, as the in-
demnity to be paid by Great Britain to the United States, for the
satisfaction of all the claims referred to the consideration of the
tribunal, conformably to the provisions contained in Article VII., of
the aforesaid treaty.
“And, in accordance with the terms of Article XI. of the said
treaty, the tribunal declares that all the claims referred to in the
treaty as submitted to the tribunal are hereby fully, perfectly, and
finally settled.
Furthermore, it declares that each and every one of the said
66
720
BELLIGERENTS AND NEUTRALS.
[PART II.
claims, whether the same may or inay not have been presented to the
notice of, or made, preferred, or laid before the tribunal, shall henceforth
be considered and treated as finally settled, barred, and inadmissible."
In testimony whereof this present decision and award has been made
in duplicate, and signed by the arbitrators who have given their assent
thereto, the whole being in exact conformity with the provisions of
Article VII., of the said Treaty of Washington.
Made and concluded at the Hotel de Ville of Geneva, in Switzerland,
the 14th day of the month of September, in the year of our Lord one
thousand eight hundred and seventy-two.1
CHARLES FRANCIS ADAMS,
STAMPFLI,
FREDERICK SCLOPIS,
VICOMTE D'ITAJUBA.
1 The Three Rules of the Treaty of Washington have been the subject of widespread
interest and discussion. The question was immediately raised, whether they formed,
at the time of the American civil war, or indeed since that time, a true expression of
the accepted principles of International Law. The English Government, at the time
of the arbitration, announced that it did not accept them “as a statement of prin-
ciples of International Law which were in force at tlie time when the claims arose;
and the view generally held in England was that they were ex post facto rules.
On the other hand, continental jurists are inclined to regard these rules as a fair
statement of modern International Law upon the subject to which they apply. See
an article by Calvo in the Revue de Droit International, Vol. VI pp. 453-532.
See a careful study by C. F. Adams, The Treaty of Washington (Lee at Appomat-
tox, 1902, pp. 31-255); Foster, Am. Dip. 357-400, 423-428; Taylor, Int. Law, $$ 614-
616; 1 Moore, Int. Arb. 495-682, 4 id. 4057–4178. The literature on the subject is care-
fully and elaborately considered in Moore's masterly account. See also the elaborate
monographs by Montague Bernard, Historical Account of the Neutrality of Great
Britain during the American Civil War (1870); Caleb Cushing, The Treaty of Wash-
ington (1873). For the “ Alabama" Claims Courts, see 5 Moore, Int. Arb. 4639-4685.
In considering this question, it should be remembered that, by the introduction of
steam as the motive power of ships, and of iron and steel as the material of their con-
struction, the conditions of maritime warfare have been very radically changed. What
miglit have been a reasonable rule as applied in the time of sailing ships might now, in
the age of swift ironclads, be intolerably oppressive. In the cases of the Santissima
Trinidad, U. S. v. Quincy, and the Meteor, the courts were dealing with small sajl-
ing vessels, which had been converted into privateers, the possession of which by one
or the other belligerent made very little difference in the general result of the struggle;
whereas, the possession of an ironclad ship might very well turn the scale one way or
the other, as indeed it did in the war between Chile and Peru, in 1880-1881. This
great power of inflicting injury upon one of the belligerents, it is fair to say, ought
not to be permitted to neutral citizens; and the neutral nation is alone in a position to
restrain them.
In view of these facts it is believed that the doctrine set up by the United States
Neutrality Act and by the Federal Courts, that the “intent" of the owner or ship-
builder is the criterion by which his guilt or innocence is to be judged, is wholly inad-
equate; it would not for a moment stand the test of the rule of “due diligence," as
applied by the Geneva tribunal.
The English Foreign Enlistment Act of 1870 is perhaps the best and fairest expres-
sion of the modern rule anywhere to be found in public laws. - ED.
CHAP. III.]
721
DE WUTZ U. HENDRICKS.
SECTION 41.- AID TO INSURGENTS.
(a) Loan of Money.
DE WUTZ v. HENDRICKS.
COMMON PLEAS, 1824.
(9 Moore, 586.)
This was an action of trover for certain papers, and which were
described in the declaration to be a power of attorney, and sundry
engravings..
At the trial, before Lord Chief Justice Best, at Guildhall, at the
Sittings after the last Term, it appeared that the plaintiff had pro-
posed to raise money by way of loan, to espouse the cause of the
Greeks against the government of the Porte. That he stated pub-
licly that he was authorized to do so, and, in consequence, applied
to the defendant, a stockbroker, to negotiate the loan, who required
certain securities to be left with him for that purpose; that the
plaintiff accordingly lodged with him a power of attorney, which, he
stated, was signed and executed abroad by the Exarch of Ravenna,
authorizing him, the plaintiff, to raise money for the Greek cause;
he also requested the defendant to procure certain scrip receipts to
be engraved; which he accordingly did, and which were afterwards
stamped at the stamp office, as such receipts. The defendant suspect-
ing accuracy of the plaintiff's statement or authority, the intended
loan failed, and no money was raised by him. The plaintiff then
claimed the power of attorney and engraved scrip receipts from the
defendant, which he refused to deliver up, until the engraver's bill
and other expenses had been paid. On their amount being tendered,
the defendant claimed a commission for scrip on part of the loan,
which the plaintiff also offered to pay, provided the defendant would
transfer the scrip to him, on which he claimed such commission;
but none was in fact ever raised, as the projected loan fell to the
ground in the first instance. The plaintiff having again formally
demanded the above documents from the defendant, who refused to
deliver them up, he commenced the present action.
For the defendant, it was submitted, that the whole of the trans-
action was a fraud on the part of the plaintiff, as he had no authority
to negotiate the loan in question. And his Lordship being of opinion,
.
46
722
[PART IT.
BELLIGERENTS AND NEUTRALS.
that a resident in this country could not enter into an engagement
to raise money by way of loan, to assist subjects of a foreign state,
so as to enable them to prosecute a war against a government in
alliance with our own, without the license of the Crown; the Jury
accordingly found a verdict for the defendant.
Lord Chief Justice BEST.-“I am of opinion, that the whole of the
transaction on which the plaintiff rested his claim to recover the
articles in question from the defendant, was bottomed in fraud; the
Jury so found at the trial; and I am perfectly satisfied with their
verdict.
"I then thought that it was contrary to the law of nations, for
persons residing in this country, to enter into engagements to raise
money, by way of loan, for the purpose of supporting subjects of a
foreign state in arms against a government in alliance with our
own; and that no right of action could arise out of such a transac-
tion; and I consequently suggested a nonsuit; but as it was not
insisted on by the defendants' counsel, I allowed the cause to pro-
ceed. A case in circumstances precisely similar to the present,
except that a different loan was proposed to be raised, was lately
decided in the Court of Chancery in which the Lord Chancellor enter-
tained the same opinion as myself, and in which he is stated to have
said, that English Courts of Justice will not take notice of, or afford
any assistance to persons who set about raising loans for subjects of
the King of Spain, to enable them to prosecute a war against that
sovereign; or, at all events that such loans could not be raised
without the license of the Crown. I left the question to the Jury on
the merits, and they found that the power of attorney was an abro-
gated fabrication. It appeared on the face of it to have been executed
in Greece, it was drawn up in the modern Greek language, and was
pretended to have been sent from that country. The plaintiff, how.
eyer, adduced no evidence to show that it was a genuine instrument;
but, on the contrary, it was proved to have been executed in London,
but by whom did not appear. The other articles sought to be re-
covered, and described in the declaration as engravings, were scrip
receipts, which could be of no value, as the whole of the transaction
to which they were intended to be applied fell to the ground, as it
was founded and bottomed in fraud. It was proved for the defend-
ant, that he was employed by the plaintiff to negotiate the loan in
question; that many articles had been written on the subject, and
that placards had been stuck up in the city, stating, that the plaintiff
was not authorized by the Greek government to raise any money,
and that it was altogether a fraud.
“I told the Jury, that, with respect to the power of attorney, the
t
CHAP. III.]
723
KENNETT V. CHAMBERS.
plaintiff could not be entitled to recover, unless he shewed that it
was a genuine instrument, as it was so described in the declaration;
and that to render it valid, he should have proved that it was ex-
ecuted in Greece; but there was no evidence whatever to shew that
fact;-on the contrary, it was proved to have been concocted and
executed in Mincing Lane. I also told the Jury, that if the plaintiff
was attempting a fraud on the public by raising money under a false
pretence, and that he caused the papers in question to be delivered
to the defendant in furtherance of such attempt, he could not be
entitled to recover them back in this action. The Jury, under these
circumstances, were fully warranted in considering the transaction
as fraudulent; and I am not only satisfied with their verdict, but ,
am decidedly of opinion that there is no ground whatever to dis-
turb it.
“ The rest of the Court concurring, Rule refused.” 1
- 66
KENNETT V. CHAMBERS.
SUPREME COURT OF THE UNITED STATES, 1852.
(14 Howard, 38.)
Mr. Chief Justice TANEY delivered the opinion of the court: 2
This is an appeal from the decree of the District Court of the United
States for the District of Texas.
The appellants filed a bill in that court against the appellee, to
obtain the specific execution of an agreement which is set out in full
in the bill; and which they allege was executed at the city of Cincin-
nati, in the State of Ohio, on or about the 16th of September, 1836.
Some of the complainants claim as original parties to the contract,
and the others as assignees of original parties, who have sold and
assigned to them their interest.
The contract, after stating that it was entered into on the day and
year above mentioned, between General T. Jefferson Chambers, of the.
Texan army, of the first part, and Morgan Neville and six others,
who are named in the agreement, of the city of Cincinnati, of the
second part, proceeds to recite the motives and inducements of the
parties in the following words:-
i For the case of Thompson v. Powles, 1828, 2 Sim. 194, ante, 37. - ED.
2 The statement of the case is omitted, - ED.
724
[PART II.
BELLIGERENTS AND NEUTRALS.
:)
"That the said party of the second part, being desirous of assisting
the said General T. Jefferson Chambers, who is now engaged in rais-
ing, arming, and equipping volunteers for Texas, and who is in want
of means therefor; and, being extremely desirous to advance the
cause of freedom and the independence of Texas, have agreed to
purchase of the said T. Jefferson Chambers, of his private estate,
the lands hereinafter described."
And after this recital follows the agreement of Chambers, to sell
and convey to them the land described in the agreement, situated in
Texas, for the sum of twelve thousand five hundred dollars, which
he acknowledged that he had received in their notes, payable in
equal instalments of four, six, and twelve months, and he covenanted
that he had a good title to this land, and would convey it with
general warranty. There are other stipulations, on the part of
Chambers, to secure the title to the parties, which it is unneces-
sary to state, as they are not material to the questions before the
court.
After setting out the contract at large, the bill avers, that the notes
given, as aforesaid, were all paid; and sets forth the manner in which
the complainants, who were not parties to the original contract, had
acquired their interest as assignees; and charges that, notwithstand-
ing the full payment of the money, Chambers, under different pre-
i texts, refuses to convey the land, according to the terms of his
agreement.
It further states, that they are informed and believe that he re-
ceived full compensation, in money, scrip, land, or other valuable
property, for the supplies furnished by him, and in arming and
equipping the Texan army referred to in the said contract, and which
it was in part the object of the said parties of the second part to
assist him to do, by the said advances made by them, as before
stated, and which said advances did enable the said Chambers so:
to do.
To this bill the respondent (Chambers) demurred, and the principal
question which arises on the deinurrer is, whether the contract was a
legal and valid one, and such as can be enforced by either party in a
court of the United States. It appears on the face of it, and by the
averments of the appellants in their bill, that it was made in Cincin-
nati, with a general in the Texan army, who was then engaged in
raising, arming, and equipping volunteers for Texas, to carry on bos-
tilities with Mexico; and that one of the inducements of the appel-
lants, in entering into this contract and advancing the money, was to
assist him in accomplishing these objects,
The District Court decided that the contract was illegal and void,
CHAP. III.
725
KENNETT V. CHAMBERS.
and sustained the demurrer and dismissed the bill; and we think that
the decision was right.
The validity of this contract depends upon the relation in which
this country then stood to Mexico and Texas; and the duties which
these relations imposed upon the government and citizens of the
United States.
Texas had declared itself independent a few months previous to :
this agreement. But it had not been acknowledged by the United
States; and the constituted authorities charged with our foreign re-
lations regarded the treaties we had made with Mexico as still in
full force, and obligatory upon both nations. By the treaty of limits,
Texas had been admitted by our government to be a part of the Mexi-
can territory; and by the first article of the treaty of amity, com-
merce, and navigation, it was declared, "that there should be a firm,
inviolable, and universal peace, and a true and sincere friendship be-
tween the United States of America and the United Mexican States,
in all the extent of their possessions and territories, and between
their people and citizens respectively, without distinction of persons
or place." These treaties, while they remained in force, were, by
the Constitution of the United States, the supreme law, and binding
not only upon the government, but upon every citizen. No contract
could lawfully be made in violation of their provisions.
Undoubtedly, when Texas had achieved her independence, no pre-
vious treaty could bind this country to regard it as a part of the
Mexican territory. But it belonged to the government, and not to
individual citizens, to decide when that event had taken place. And
that decision, according to the laws of nations, depended upon the
question whether she had or had not a civil government in successful
operation, capable of performing the duties and fulfilling the obliga-
tions of an independent power. It depended upon the state of the
fact, and not upon the right which was in contest between the par-
ties. And the President, in his message to the Senate of Dec. 22,
1836, in relation to the conflict between Mexico and Texas, which was
still pending, says: "All questions relative to the government of for-
eign nations, whether of the old or the new world, have been treated
by the United States as questions of fact only, and our predecessors
have cautiously abstained from deciding upon them until the clearest
evidence was in their possession, to enable them not only to decide
correctly, but to shield their decision from every unworthy imputa-
Senate Journal of 1836, 37, p. 54.
Acting upon these principles, the independence of Texas was not
acknowledged by the government of the United States until the be-
ginning of March, 1837. Up to that time, it was regarded as a part .
tion."
726
[PART II.
BELLIGERENTS AND NEUTRALS.
of the territory of Mexico. The treaty which admitted it to be so,
was held to be still in force and binding on both parties, and every
effort made by the government to fulfil its neutral obligations, and
prevent our citizens from taking part in the conflict. This is evi-
dent, from an official communication from the President to the Gov-
ernor of Tennessee, in reply to an inquiry in relation to a requisition
for militia, made by General Gaines. The despatch is dated in
August, 1836; and the President uses the following language: "The
obligations of our treaty with Mexico, as well as the general prin-
ciples which govern our intercourse with foreign powers, require us
to maintain a strict neutrality in the contest which now agitates a
part of that republic. So long as Mexico fulfils her duties to us, as
they are defined by the treaty, and violates none of the rights which
are secured by it to our citizens, any act on the part of the govern-
ment of the United States, which would tend to foster a spirit of
resistance to her government and laws, whatever may be their char-
acter or form, when administered within her own limits and jurisdic-
tion, would be unauthorized and highly improper. Ex. Doc. 1836,
1837, Vol. 1, Doc. 2, p. 58.
And on the very day on which the agreement of which we are
speaking was made (Sept. 16, 1836), Mr. Forsyth, the Secretary of
State, in a note to the Mexican minister, assured him that the gov-
ernment haul taken measures to secure the execution of the laws for
v preserving the neutrality of the United States, and that the public
officers were vigilant in the discharge of that duty. Ex. Doc. Vol. 1,
Doc. 2, pp. 63–64.
And still later, the President, in his message to the Senate of Dec.
22, 1836, before referred to, says: "The acknowledgment of a new
State as independent, and entitled to a place in the family of nations,
is at all times an act of great delicacy and responsibility; but more
especially so when such a State has forcibly separated itself from
another, of which it formed an integral part, and which still claims
dominion over it.” And, after speaking of the policy which our gov-
ernment had always adopted on such occasions, and the duty of main-
taining the established character of the United States for fair and
impartial dealing, he proceeds to express his opinion against the
acknowledgment of the independence of Texas, at that time, in the
following words:
“It is true, with regard to Texas, the civil authority of Mexico
has been expelled, its invading army defeated, the chief of the re-
public himself captured, and all present power to control the newly
organized government of Texas annihilated within its confines. But,
on the other hand, there is, in appearance at least, an immense dis-
CHAP. III.]
727
KENNETT V. CHAMBERS.
parity of physical force on the side of Mexico. The Mexican repub-
lic, under another executive, is rallying its forces under a new leader,
and menacing a fresh invasion to recover its lost dominion. Upon
the issue of this threatened invasion, the independence of Texas may
be considered as suspended; and, were there nothing peculiar in the
relative situation of the United States and Texas, our acknowledg-
ment of its independence at such a crisis would scarcely be regarded
as consistent with that prudent reserve with which we have hereto-
fore held ourselves bound to treat all similar questions.
The whole object of this message appears to have been to impress
upon Congress the impropriety of acknowledging the independence
of Texas at that time; and the more especially as the American char-
acter of her population, and her known desire to become a State of
this Union, might, if prematurely acknowledged, bring suspicion upon
the motives by which we were governed.
We have given these extracts from the public documents not only
to show that, in the judginent of our government, Texas had not
established its independence when this contract was made, but to
show also how anxiously the constituted authorities were endeavor-
ing to maintain untarnished the honor of the country, and to place it
above the suspicion of taking any part in the conflict.
This being the attitude in which the government stood, and this its
open and avowed policy, upon what grounds can the parties to such
a contract as this, come into a court of justice of the United States
and ask for its specific execution? It was made in direct opposition
to the policy of the government, to which it was the duty of every
citizen to conform. And, while they saw it exerting all its power to
fulfil in good faith its neutral obligations, they made themselves par-
ties to the war, by furnishing means to a general of the Texan army,
for the avowed purpose of aiding and assisting him in his military
operations.
It might indeed fairly be inferred, from the language of the con-
tract and the statements in the appellants' bill, that the volunteers
were to be raised, armed, and equipped within the limits of the
United States. The language of the contract is: “That the said
party of the second part (that is the complainants), being desirous of
assisting the said General T. Jefferson Chambers, who is now engaged
in raising, arming, and equipping volunteers for Texas, and is in
want of means therefor.” And as General Chambers was then in the
United States, and was, as the contract states, actually engaged at
that time in raising, arming, and equipping volunteers, and was in
want of means to accomplish his object, the inference would seem to
be almost irresistible that these preparations were making at or near
728
[PART II.
BELLIGERENTS AND NEUTRALS.
the place where the agreement was made, and that the money was
advanced to enable him to raise and equip a military force in the
United States. And this inference is the stronger, because no place
is inentioned where these preparations are to be made, and the agree-
ment contains no engagement on his part, or proviso on theirs, which
prohibited him from using these means and making these military
preparations within the limits of the United States.
If this be the correct interpretation of the agreement, the contract
is not only void, but the parties who advanced the money were liable
to be punished in a criminal prosecution, for a violation of the neu-
trality laws of the United States. And certainly, with such strong
indications of a criminal intent, and without any averment in the bill
from which their innocence can be inferred, a court of chancery would
never lend its aid to carry the agreement into specific execution, but
would leave the parties to seek their remedy at law. And this
ground would of itself be sufficient to justify the decree of the
District Court dismissing the bill.
But the decision stands on broader and .firmer ground, and this
agreement cannot be sustained either at law or in equity. The ques-
tion is not whether the parties to this contract violated the neutrality
laws of the United States or subjected themselves. to a criminal prose-
cution; but whether such a contract, made at that time, within the
United States, for the purposes stated in the contract and the bill of
complaint, was a legal and valid contract, and such as to entitle
either party to the aid of the courts of justice of the United States to
enforce its execution.
The intercourse of this country with foreign nations, and its policy
in regard to them, are placed by the Constitution of the United States
in the hands of the government, and its decisions upon these subjects
are obligatory upon every citizen of the Union. He is bound to be at
war with the nation against which the war-making power has declared
war, and equally bound to commit no act of hostility against a nation
with which the government is in amity and friendship. This prin-
ciple is universally acknowledged by the laws of nations. It lies at
the foundation of all government, as there could be no social order or
peaceful relations between the citizens of different countries without
it. It is, however, more emphatically true in relation to citizens of
the United States. For as the sovereignty resides in the people,
every citizen is a portion of it, and is himself personally bound by
the laws which the representatives of the sovereignty may pass, or
the treaties into which they may enter, within the scope of their dele-
gated authority. And when that authority has plighted its faith to
another nation that there shall be peace and friendship between the
CHAP. III.]
1
KENNETT V. CHAMBERS.
729
1
citizens of the two countries, every citizen of the United States is
equally and personally pledged. The compact is made by the depart-
ment of the government upon which he himself has agreed to confer
the power. It is his own personal compact as a portion of the sover-
eignty in whose behalf it is made. And he can do no act, nor enter
into any agreement to promote or encourage revolt or hostilities
against the territories of a country with which our government is
pledged by treaty to be at peace, without a breach of his duty as a
citizen, and the breach of the faith pledged to the foreign nation.
And if he does so he cannot claim the aid of a court of justice to
enforce it. The appellants say, in their contract, that they were in-
duced to advance the money by the desire to promote the cause of
freedom. But our own freedom cannot be preserved without obedi-
ence to our own laws, nor social order preserved if the judicial branch
of the government countenanced and sustained contracts inade in vio-
lation of the duties which the law imposes, or in contravention of
the known and established policy of the political department, acting
within the limits of its constitutional power.
But it has been urged in the argument that Texas was in fact inde-
pendent, and a sovereign state at the time of this agreement; and
that the citizen of a neutral nation inay lawfully lend money to one
that is engaged in war, to enable it to carry on hostilities against its
enemy.
It is not necessary, in the case before us, to decide how far the
judicial tribunals of the United States would enforce a contract like
this, when two states, acknowledged to be independent, were at war,
and this country neutral. It is a sufficient answer to the argument
to say that the question whether Texas had or had not at that time
become an independent state, was a question for that department of
our government exclusively which is charged with our foreign rela-
tions. And until the period when that department recognized it as
an independent state, the judicial tribunals of the country were bound
to consider the old order of things as having continued, and to regard
Texas as a part of the Mexcian territory. And if we undertook to
inquire whether she had not in fact become an independent sovereign
state before she was recognized as such by the treaty-making power,
we should take upon ourselves the exercise of political authority, for
which a judicial tribunal is wholly unfit, and which the Constitution
has conferred exclusively upon another department.
This is not a new question. It came before the court in the case
of Rose v. Himely, 4 Cr. 272, and again in Hoyt v. Gelston, 3 Wheat.
.
324.
And in both of these cases the court said, that it belongs ex-
clusively to governments to recognize new states in the revolutions
1
730
[PART II.
BELLIGERENTS AND NEUTRALS.
t
which may occur in the world; and until such recognition, either by
our own government or the government to which the new state be-
longed, courts of justice are bound to consider the ancient state of
things as remaining unaltered.
It was upon this ground that the Court of Common Pleas in Eng-
land, in the case of De Wutz v. Hendricks, 9 Moore's C. B. Reports,
586, decided that it was contrary to the law of nations for persons
residing in England to enter into engagements to raise money by way
of loan for the purpose of supporting subjects of a foreign state in
arms against a government in friendship with England, and that no
right of action attached upon any such contract. And this decision
is quoted with approbation by Chancellor Kent, in 1 Kent's Com.
116.
Nor can the subsequent acknowledgment of the independence of
Texas, and her admission into the Union as a sovereign State, affect
the question. The agreement being illegal and absolutely void at the
time it was made, it can derive no force or validity from events which
afterwards happened.
But it is insisted, on the part of the appellants, that this contract
was to be executed in Texas, and was valid by the laws of Texas, and
that the District Court for that State, in a controversy between indi-
viduals, was bound to administer the laws of the State, and ought
therefore to have enforced this agreement.
This argument is founded in part on a mistake of the fact. The
contract was not only made in Cincinnati, but all the stipulations on
the part of the appellants were to be performed there and not in
Texas. And the advance of inoney which they agreed to make for
inilitary purposes was in fact made and intended to be made in Cin-
cinnati, by the delivery of their promissory notes, which were ac-
cepted by the appellee as payment of the money. This appears on
the face of the contract. And it is this advance of money for the
purposes mentioned in the agreement, in contravention of the neutral
obligations and policy of the United States, that avoids the contract.
The mere agreement to accept a conveyance of land lying in Texas,
for a valuable consideration paid by them, would have been free from
objection.
But had the fact been otherwise, certainly no law of Texas then or
now in force could absolve a citizen of the United States, while he
continued such, from his duty to this government, nor compel a court
of the United States to support a contract, no matter where nade or
where to be executed, if that contract was in violation of their laws.
or contravened the public policy of the government, or was in conflict
with subsisting treaties with a foreign nation.
t
CHAP. III.]
731
UNITED STATES V. TRUMBULL.
We therefore hold this contract to be illegal and void, and affirm
the decree of the District Court.
Mr. Justice DANIEL and Mr. Justice GRIER dissented.2
(6) Ships, Munitions, and other Supplies.
UNITED STATES V. TRUMBULL.
U. S. DIstrIiT COURT FOR CALIFORNIA, 1891.
(48 Federal Reporter, 99.)
Indictment of Trumbull and Burt for violation of neutrality laws.
Ross, J.:
“ The indictment in this case contains 11 counts, the first 4 of
which, in effect, charge that on the 9th day of May, 1891, at a certain
designated place in this judicial district, near the island of San
Clemente, the defendants unlawfully attempted to fit out and arm,
fitted out and armed, procured to be fitted out and armed, and were
knowingly concerned in furnishing, fitting out, and arming, a certain
steamship called the Itata, which was then and there in the posses-
sion and under the control of certain citizens of the republic of Chile,
known as the Congressional Party,' and who were then and there,
in said republic, organized and banded together in great numbers in
armed rebellion and attempted revolution, and carrying on war
against the republic of Chile, and the government thereof, with which
the United States, then and at the time of the finding of the indict-
ment were at peace, with intent that said ship should be employed
in the service of the aforesaid Congressional Party, to cruise or com-
mit hostilities against the then established and recognized govern-
ment of Chile, with which this government then was at peace, con-
trary to the provisions of section 5283 of the Revised Statutes of the
United States, which section is as follows:-
‘Every person who, within the limits of the United States, fits out and arms,
or attempts to fit out and arm, or procures to be fitted out and armed, or know-
ingly is concerned in the furnishing, fitting out, or arming of, any vessel, with
intent that such vessel shall be employed in the service of any foreign prince or
state, or of any colony, district or people, to cruise or commit hostilities against
the subjects, citizens, or property of any foreign prince or state, or of any col-
ony, district, or people, with whom the United States are at peace, or who issues
and delivers a commission within the territory or jurisdiction of the United
States, for any vessel, to the intent that she shall be so einployed, shall be
1 On the saloject of airl to insurgents, see 1 Halleck, 81, note 2. – E1).
732
[PART 11.
BELLIGERENTS AND NEUTRALS.
deemed guilty of a high misdemeanor, and shall be fined not more than ten
thousand dollars, and imprisoned not more than three years. And every such
vessel, her tackle, apparel, and furniture, together with all materials, arms,
ammunition, and stores, which may have been procured for the building or
equipment thereof, shall be forfeited, one-half to the use of the informer, and
the other half to the use of the United States.'
“The next three counts of the indictment, in effect, charge that
the defendants, at the same time and place, increased, unlawfully
procured to be increased, and were knowingly concerned in increas-
ing, the force of a certain ship of war and armed steamship called
Itata, which arrived at the port of San Diego in this judicial dis-
trict on the 2d day of May, 1891, and was at the time of her said ar-
rival, and to and including the 9th day of May, 1891 (during which
time she remained within the jurisdiction of the United States, and
of this court), a ship of war in the service of a certain foreign people
called the Congressional Party,' then citizens of and residing in the
republic of Chile, and who were then and there banded together in
large numbers, in open-armed rebellion, and attempted forcible revo-
lution, and making war against, and being at war with a certain
foreign state, namely, the republic of Chile, and the lawful govern-
ment thereof, with which the United States then, and at the finding
of the indictment, were at peace, by adding to the force of said armed
vessel an equipment solely applicable to war, viz., by adding to her
equipment 10,000 rifles, 10,000 bayonets, and 500,000 cartridges there-
for, contrary to the provisions of Section 5285 of the Revised Stat-
utes of the United States, which is as follows :-
“'Every person who, within the territory or jurisdiction of the United States,
increases or augments, or procures to be increased or augmented, or knowingly is
concerned in increasing or augmenting, the force of any ship of war, cruiser, or
other armed vessel, which, at the time of her arrival within the United States,
was a ship of war, or cruiser, or armed vessel, in the service of any foreign
prince or state, or of any colony, district, or people, or belonging to the subjects
or citizens of any such prince or state, colony, district or people, the same being
at war with any foreign prince or state, or of any colony, district, or people,
with whom the United States are at peace, by adding to the number of the guns
of such vessel, or by changing those on board of her for guns of a larger caliber,
or by adding thereto any equipment solely applicable to war, shall be deemed
guilty of a high misdemeanor, and shall be fined not more than one thousand
dollars, and imprisoned not more than one year.'
“The last four counts of the indictment, in effect, charge that the
defendants, at the same time and place, began, set on foot, provided
the means for, and prepared the means for, a certain military expe-
dition to be carried on from thence against the territory and domin-
CHAP. III.]
733
UNITED STATES V. TRUMBULL.
ions of a foreign state, namely, the republic of Chile, the United
States, then and there, and at the time of the finding of the indict-
ment, being at peace with said republic,—contrary to the provisions
of section 5286 of the Revised Statutes of the United States, which
is as follows:
‘Every person who, within the territory of the United States, begins or sets
on foot, or provides or prepares the means for, any military expedition or enter-
prise, to be carried on from thence against the territory or dominions of any
foreign prince or state, or of any colony, district, or people, with whom the
United States are at peace, shall be deemed guilty of a high misdemeanor, and
shall be fined not exceeding three thousand dollars, and imprisoned not more
than three years.'
2
“ The evidence introduced by the United States in support of the
indictment being concluded, the court is asked by the defendants to
direct the jury to return a verdict of not guilty, on the ground that
the evidence introduced on the part of the prosecution is insufficient
to sustain any count of the indictment. For the purposes of the
motion, every fact that the evidence tends to establish must, of
course, be considered as proven.
“ Briefly stated, these facts are as follows: In January of this year
the steamship Itata was an ordinary merchant vessel. Early in that
month she was captured in the harbor of Valparaiso, Chile, by the
people designated in this indictment as the Congressional Party,
and who were then engaged in an effort to overthrow the then estab-
lished and recognized government of Chile, of wbich Balmaceda was
the head. The Itata was by the Congressional Party put in com-
mand of one of its officers, and was used in their undertaking as a
transport to convey troops, provisions, and munitions of war, and
also as an hospital ship, and one in which to confine prisoners.
Four small cannon were also put upon her decks and she carried a
jack and pennant. Some time prior to the following April the de-
fendant Trumbull came to the United States as an agent of the Con-
gressional Party, and about the month of April went to the city of
New York, and there bought from one of the large mercantile firms
of that city, dealing in such matters, 5,000 rifles and 2,000,000 car-
tridges therefor, with the intention and for the purpose of sending
them to the Congressional Party in Chile for use in their efforts to
overthrow the Balmacedan government. The sale and purchase of
the arms and ammunition were made in the usual course of trade.
Trumbull caused them to be shipped by rail to San Francisco, and
engaged the defendant Burt to accompany them, which he did. Ar-
rangements had been made by Trumbull with his principals in Chile,
734
(PART II.
BELLIGERENTS AND NEUTRALS.
by which they were to send a vessel to the United States to get the
arms and ammunition, and convey them to Chile for the use of the
Congressional Party there. The Itata was dispatched by that party
for that purpose, and was accompanied as far as Cape San Lucas by
the Esmeralda, a war ship then in the service of the Congressional
Party. At one of the Chilean ports the Itata took on board some
soldiers, with their arms, by one witness stated to be about 150, and
by another to be about 12, in number.
“At San Lucas the captain of the Esmeralda took command of the
Itata, and the captain of the latter was left there in command of the
Esmeralda. The Itata then proceeded to San Diego, really in com-
mand of the Esmeralda's captain, but ostensibly in command of an-
other, who represented to the customs officers at that port that she
was an ordinary merchantman, and was bound to some port on the
northern coast. Before coming into the port of San Diego, or into
the waters of the United States, the Itata hauled down her jack and
pennant, the cannon theretofore carried on her decks were removed
and stowed in her hold, as were also the arms of the soldiers she
carried; and their uniforms, as well as those of the officers, were
removed, and all appeared in civilian's dress. At that port she laid
in stores of coal and provisions, all of which were bought in the
open market, and some of which were marked · Esmeralda.'
“ Meanwhile Trumbull had chartered a schooner, called the Robert
and Minnie, in San Francisco to take the arms and ammunition from
there to a point in this judicial district, then expected to be near the
island of Catalina, where she could meet the Itata, and deliver them
on board of her to be conveyed to Chile for the purposes already
stated. The schooner Robert and Minnie accordingly took on board
the arms and ammunition at the port of San Francisco, and, in charge
of the defendant Burt, proceeded to the neighborhood of Catalina
Island, where she expected to meet the Itata. In the meantime the
suspicion of some of the officers of the United States that the neu-
trality laws were being violated was aroused, and the marshal of
this district was directed by the attorney-general to detain the Itata,
if such was found to be the case; and, acting upon those and certain
instructions from the district attorney of the judicial district, he
went on board the ship at San Diego, and put a keeper in charge of
her, and then went in search of the Robert and Minnie, which he did
not find in the waters of the United States. Communication was, '
however, had between the Itata and the schooner and a point near
San Clemente Island was fixed upon as the place of meeting for the
purpose of transferring the arms and ammunition from the schooner
to the ship. Accordingly, the Itatu, on the 6th of May, 1891, with-
1
t
CHAP. III.]
735
UNITED STATES V. TRUMBULL.
out obtaining clearance papers, and against the protest of the person
left on board and in charge of her by the marshal, weighed anchor,
and steamed out of the harbor of San Diego, with him on board, to
meet the Robert and Minnie, and receive the arms and ammunition.
The marshal's keeper was, however, put ashore at Point Ballast,
before leaving the harbor. While steaming out of it, one or more of
the Itata's cannon were brought on deck, and some of the soldiers
on board of her appeared in uniform. On the 9th of May, the Itata
and Robert and Minnie came together about a mile and a half south-
erly of San Clemente Island, and there the arms and ammunition in
question were taken from the schooner, and put on board the ship
in original packages, and the latter at once left with them for Chile.
“No evidence was introduced tending to show that the Congres-
sional Party ever received any recognition of any character from the
government of the United States until September 4th, when it was
recognized as the established and only government of Chile.
“But since the argument and subinission of the motion, the counsel
for the United States have called the attention of the court to the
following facts furnished by the respective departments, to-wit: On
March 4th, the secretary of the navy cabled Admiral McCann 'to
proceed to Valparaiso, and observe strict neutrality, and take no
part in troubles between parties further than to protect American
interests.' On March 26th, the secretary of the navy cabled Admiral
Brown, who had superseded Admiral McCann, 'to abstain from pro-
ceedings in nature of assistance to either, that is, the Balmaceda or
Congressional Party; that the ships of the latter were not to be
treated as piratical, so long as they waged war only against the Bal-
maceda government.' On April 25th, Secretary of State Blaine
cabled the American minister, “You can act as mediator with Bra-
zilian minister and French chargé d'affaires.'. On May 5th, Minister
Eagan cabled this government, Government of Chile and revolu-
tionists have accepted mediation of the United States, Brazil, and
France most cordially; those of England and Germany declined.'
On May 7th, Acting Secretary of State Wharton acknowledged the
dispatch of Minister Eagan, and expressed hope that through com-
bined efforts of the governments in question, the strife which has
been going on in Chile may be speedily and happily terminated. On
May 14th Acting Secretary of State Wharton cabled Minister Eagan
that French minister reports threats to shoot the insurgent envoys
by Balmaceda,' and directed that they should have ordinary treat-
ment under flag of truce.
“ The foregoing are the facts of the case as now presented, and the
question the court is called upon to decide is whether they are suffi-
736
(PART II.
BELLIGERENTS AND NEUTRALS.
cient to justify a verdict against the defendants upon any count of
the indictment. The counsel for the United States concede that they
are insufficient to justify a verdict against the defendants under
either of the counts that are based on section 5285 of the Revised
Statutes. It seems to me the same thing is equally true in respect
to those counts that are based on section 5286. The very terms of
that statute imply that the military expeditions or enterprises there-
by prohibited are such as originate within the limits of the United
States, and are to be carried on from this country. Every person
who, within the limits or jurisdiction of the United States, begins or
sets on foot, or provides or prepares the means for, any military ex-
pedition or enterprises, to be carried on from thence, that is to say,
from the United States,---is the language of the statut
- If the evidence shows that in this case there ever was any mili-
tary expedition begun or set on foot, or provided or prepared for,
within the sense of this statute, it was begun, set on foot, provided
and prepared for in Chile, and was to be carried on from Chile, and
not from the United States. But I think it perfectly clear that the
sending of a ship from Chile to the United States, to take on board
arms and ammunition purchased in this country, and carry them
back to Chile, is not the beginning, setting on foot, providing or pre-
paring the means for any military expedition or enterprise, within
the meaning of section 5286 of the Revised Statutes.
“ The cases of The Mary A. Hogan, 18 Fed. Rep., 529; U. S. v.
Two Hundred and Fourteen Boxes of Arms, etc., 20 Fed. Rep., 50;
and U. 8. v. Rand, 17 Fed. Rep., 142, cited by counsel for the United
States in support of their position in respect to this point, do not at
all support it. In each of those cases there was a military expedi-
tion, and it was organized within, started from, and was to be car-
ried on from the United States. The facts of those cases are wholly
different from the facts of the present case.
“ There remains for consideration the four counts of the indict-
ment that are based on section 5283 of the Revised Statutes. The
first of these, as has been seen, charges that the defendants, on the
9th of May last, at a certain designated place within this judicial
district, unlawfully fitted out and armed a certain steamship called
the Itata, which was then and there in the possession and under the
control of certain citizens of the republic of Chile, known as the
Congressional Party,' and who were then and there, in said repub-
lic, organized and banded together in great numbers in armed rebel-
lion and attempted revolution, and carrying on war against the
republic of Chile and the government thereof, with which the United
States then, and at the time of the finding of the indictment, were at
1
t
CHAP. III.] UNITED STATES V. TRUMBULL.
737
6
un-
peace, with intent that said ship should be employed in the service
of the aforesaid Congressional Party, to cruise or commit hostilities
against the then established and recognized government of Chile,
with which this government then was at peace. The second count
charges that the defendants, at the same time and place, attempted
to do the same thing; the third count charges that, at the same time
and place, they unlawfully procured the same thing to be done; and
the fourth, that, at the same time and place, defendants were
lawfully and knowingly concerned in the furnishing, fitting out,
and arming of the Itata, with intent, etc.
" It is contended on behalf of the defendants that section 5283 bas
no application to this case, for the reason that the people designated
in the indictment as the Congressional Party' do not constitute a
people, within the meaning of that section. It is beyond question
that the status of the people composing the Congressional Party at
the time of the commission of the alleged offense, is to be regarded
by the court as it was then regarded by the political or executive
department of the United States. This doctrine is firmly estab-
lished. Gelston v. Hoyt, 3 Wheat., 246, 324; U. S. v. Palmer, Id.,
610, 635; Kennett v. Chambers, 14 How., 38; Whart. Int. Law Dig.,
pp. 551, 552, and cases there cited.
“ If the dispatches from the secretary of the navy, the secretary of
state, and acting secretary of state, already referred to, are to be
considered as indicating the light in which the people composing the
Congressional Party of Chile were regarded by the executive depart-
ment of this government prior to their recognition, on the 4th of
September, the position of the United States towards them seems to
have been similar to that taken by the United States towards the
insurgents against Hayti in 1869. That position was thus stated by
Mr. Fish, then secretary of state, in a letter dated September 14,
1869:-
"(1) That we do not dispute the right of the government of
Hayti to treat the officers and crew of the Quaker City and Florida
(vessels in the service of the insurgents against Hayti) as pirates
for all intents and purposes. How they are to be regarded by their
own legitimate government is a question of municipal law, into
which we have no occasion, if we had the right, to enter.
' (2) That this government is not aware of any reason which
would require or justify it in looking upon the vessel named in a
different light from any other vessel employed in the service of the
insurgents.
«« (3) That, regarding thein simply as armed cruisers of the in-
surgents, not yet acknowledged by this government to have obtained
6CC
47
738
BELLIGERENTS AND NEUTRALS. (PART II.
belligerent rights, it is competent to the United States to deny and
resist the exercises by those vessels, or any other agents of the
rebellion, of the privileges which attend maritime war, in respect to
our citizens or their property entitled to their protection. We may
or may not, at option, as justice or policy may require, treat them as
pirates in the absolute and unqualified sense, or we may, as the cir-
cumstances of any actual case shall suggest, waive the extreme
right, and recognize, where facts warrant it, an actual intent, on the
part of the individual offenders, not to depredate in a criminal sense
and for private gain, but to capture and destroy jure belli. It is
sufficient for the present purpose, that the United States will not
admit any commission or authority proceeding from rebels as a jus-
tification or excuse for injury to persons or property entitled to the
protection of this government. They will not tolerate the search or
stopping, by cruisers in the rebel service, of vessels of the United
States, nor any other act which is only privileged by recognized bel-
ligerency.
“(4) While asserting the right to capture and destroy the ves-
sels in question, and others of similar character, if any aggression
upon persons or property entitled to the protection of this govern-
ment shall recommend such action, we cannot admit the existence
of any obligation to do so in the interest of Hayti or of the general
security of commerce. 3 Whart. Int. Law Dig., pp. 465, 466.
“Does section 5283 of the Revised Statutes apply to any people
whom it is optional with the United States to treat as pirates ? That
section is found in the chapter headed Neutrality,' and it was car-
ried into the Revised Statutes, and was originally enacted in fur-
therance of the obligations of the nation as a neutral. The very
idea of neutrality imports that the neutral will treat each contend-
ing party alike; that it will accord no right or privilege to one that
it withholds from the other, and will withhold none from one that it
accords to the other. In the case of U. 8. v. Quincy, 6 Pet., 445, the
Supreme Court of the United States said that the word “people' in
the 3d section of the act of April 20, 1818 (and from that carried
into the Revised Statutes as section 5283), “is one of the denomina-
tions applied by the act of Congress to a foreign power. This can
hardly mean an association of people in no way recognized by the
United States, or by the government against which they are rebel-
ling, whose rebellion has not attained the dignity of war, and who
may, at the option of the United States, be treated by them as
pirates. Prior to the passage of the act of April 20, 1818, the
Supreme Court of the United States, in the case of Gelston v. Hoyt,
3 Wheat., 246, speaking through Mr. Justice STORY, held that sec-
CHAP. III.] UNITED STATES U. TRUMBULL,
739
tion 3 of the act of 1794, prohibiting the fitting out any ship, etc.,
for the service of any foreign prince or state, to cruise against the
subjects, etc., of any foreign prince or state, with which the United
States were at peace, did not apply to any new government, unless
it had been recognized by the United States or by the government
of the country to which such new country belonged; and that a plea
which set up a forfeiture under that act, in fitting out a ship to
cruise against such new state, must aver such recognition, or it
is bad.
“ Congress, in passing the subsequent act of April 20, 1818, by
which the provision referred to of the act of 1794 was, in substance, re-
enacted, must be presumed to have known the construction that bad
been theretofore put by the Supreme Court upon the words 'prince or
state' in the act of 1794, and with that knowledge, in passing the
act of 1818, inserted in the same clause the words colony, district,
or people.'
“ This was done, according to Dana's Wheat. Int. Law, $ 439, note
215, and Wharton's Int. Law Dig., p. 561, upon the suggestion of the
Spanish minister that the South American provinces, then in revolt,
and not recognized as independent, might not be included in the
word "state. But in every one of those instances the United States
had acknowledged the existence of a state of war, and, as a conse-
quence, the belligerent rights of the provinces. The Ambrose Light,
25 Fed. Rep., 414, and references there made.
“ It will be observed that the Supreme Court, in the case of Gels-
ton y. Hoyt did not say that the independence of the new govern-
ment must have been recognized by the United States to make the
statute of which it was speaking applicable. There are different
kinds or degrees of recognition, but can it be properly said that, in
passing an act in furtherance of the obligations of the nation as a
neutral, Congress was legislating with reference to a people not in
any way recognized by the government of the United States, and
whom it might, at its option, treat as pirates ? To fall within the
statute,' said Judge Brown, in the case of The Carondelet, 37 Fed.
Rep., 800, 'the vessel must be intended to be employed in the service
of one foreign prince, state, colony, district, or people, to cruise or
commit hostilities against the subjects, citizens, or property of an-
other, with whom the United States are at peace. The United States
can hardly be said to be at peace, in the sense of the statute, with a
faction which they are unwilling to recognize as a government; nor
could the cruising or committing of hostilities against such a mere
faction well be said to be committing hostilities against the 'sub-
jects, citizens, or property of a district or people, within the meaning
OF
[PART II.
BELLIGERENTS AND NEUTRALS.
of the statute. So on the other hand, a vessel, in entering the serv-
ice of the opposite faction of Hippolyte, could hardly be said to
enter the service of a foreign prince or state, or of a colony, district
or people, unless our government had recognized Hippolyte's faction
as at least constituting a belligerent, which it does not appear to
have done. Attorney-General Hoar, however, in a letter to Mr.
Fish, secretary of state, of date December 16, 1869 (13 Op. Atty.
Gen. U. S., 177), said :-
Undoubtedly the ordinary application of the statute (in ques-
tion] is to cases where the United States intends to maintain its
neutrality in wars between two other nations, or where both parties
to a contest have been recognized as belligerents; that is, as having
a sufficiently organized political existence to enable them to carry on
war. But the statute is not confined in its terms, nor, as it seems to
me, in its scope and proper effect, to such cases. Under it, any per-
sons who are insurgents, or engaged in what would be regarded
under our law as levying war against the sovereign power of the
nation, though few in number and occupying however small a
territory, might procure the fitting out and arming of vessels with
intent to commit hostilities against a nation with which we were at
peace, and with intent that they should be employed in the service
of a colony, district, or people, not waging a recognized war.
“ The attention of Attorney-General Hoar does not appear to have
been attracted to the decisions of the Supreme Court and other cases.
above cited, nor are any authorities cited in support of the views
expressed by him. In my opinion, it is, to say the least, extremely
doubtful whether section 5283 of the Revised Statutes applies to the
present case. But, assuming that it does, the evidence does not sus-
tain the charges based upon it. It does not show, or tend to show,
that the defendants, or either of them, attempted to do, or procured
to be done, or were concerned in doing, anything that they did not
in fact do.
" What the evidence shows that they did do has already been
stated. If none of those acts constituted the arming, fitting out, or
furnishing the Itata with the intent that she should be employed to
cruise or commit hostilities against the then established government
of Chile, it necessarily follows that the prosecution has failed to
prove the case alleged against the defendants, and the motion made
on their behalf should be granted. One of the counsel for the United
States conceded, on the argument, that the evidence is insufficient to
show that the defendants fitted out and armed the Itata, but he con-
tended strenuously that it is sufficient to show that they were know-
ingly concerned in ‘furnishing’ her. Of course, if he is right in the
CHAP. III.)
, 741
UNITED STATES V. TRUMBULL.
concession, it results that the first count is not established by proof;
and, since the evidence does not tend to show that the defendants,
or either of them, attempted to do, or procured to be done, anything
they did not in fact do, the second and third counts would also fall.
If, as is thus conceded, and as seems to me to be clear, the putting
on board the Itata of the arms and ammunition, under the circum-
stances and for the purposes stated, did not constitute the fitting out
and arming of that vessel, it is difficult to understand how the same
acts, committed under the same circumstances and for the same pur-
poses, constituted the furnishing' of her. There is nothing in the
evidence tending to show that any of the arms or ammunition were
intended for use by the Itata. On the contrary, the whole case
shows that the defendants caused them to be put on board of her
with the intention that she should transport them to Chile, for the
use of the insurrecting party there.
“ This does not constitute the fitting out, arming, or furnishing of
the Itata, with intent that she should be employed to cruise or com-
init hostilities in the service of the insurrectionary party against the
then government of Chile. In principle, the case is, I think, much
like that of The Florida, decided by Judge Blatchford in 1871, and
reported in 4 Ben., 452. This was a suit against the Florida for an
alleged forfeiture incurred under the third section of the act of April
20, 1818, now, in substance, section 5283 of the Revised Statutes.
- The court said :-
"Admitting that persons acting as agents of the insurrectionary
party in Cuba were the real owners of the vessel and her cargo of
arms and munitions of war, and that the transaction of the borrow-
ing, by Darr from Castillo, of the money wherewith the vessel and
her cargo were purchased, was a sham, and that the vessel was to
proceed with her cargo to Vera Cruz, and there vessel and cargo
were to be transferred by Darr, their nominal owner, to persons act-
ing for the insurrectionary party in Cuba, and that thence the vessel
was to take the cargo to some point off the coast of Cuba, and land
it on the shore by the use of rafts made out of the lumber on board,
towed by the steam-launch on board, through shallow water, to the
shore, and that Darr and such real owners of the vessel and cargo
had an intent to do all this in fitting out the vessel, and putting her
cargo on board, still a violation of the third section of the act 1818
is not thereby made out. A vessel fitted out with intent to
do this, is not fitted out with intent to cruise or commit hos-
tilities, within the sense of that section. If so, then every vessel
fitted out to run a blockade, with a cargo of munitions of war,
is necessarily fitted out, within the sense of that section, to commit
742
BELLIGERENTS AND NEUTRALS. (PART II.
*
hostilities against the country whose forces have instituted the
blockade. * There is no satisfactory evidence that the vessel
was furnished or fitted out or armed, or attempted to be furnished
or fitted out or armed, with intent that she should be employed
to cruise or commit hostilities, in the sense of the third section
of the act, in the service of the insurrectionary party in Cuba,
against the government of Spain. There is no evidence that she was
intended to do anything more than transport her cargo to the coast
of Cuba, and cause it to be landed there on rafts, by the aid of the
launch on board. To do this was no violation of the third section of
the act, which is the one on which the libel is founded.'
“In a letter from Attorney-General Speed to Mr. Seward, then
secretary of state, he said :-
66. I know of no law or regulation which forbids any person or
government, whether the political designation be real or assumed,
from purchasing arms from the citizens of the United States, and
shipping them at the risk of the purchaser.' 11 Op. Atty.-Gen.
· U. S., 452.
“ The fact that secrecy and deception were resorted to in the pres-
ent case, as was also done in the case of the Florida, cannot bring it
within the purview of the statute, if not otherwise within it; nor
can the circumstance that the Itata, in leaving the port of San Diego
in the manner disclosed by the evidence, violated other provisions of
law. The case alleged must, of course, be proved; otherwise the
defendants are entitled to a verdict of not guilty.
“Entertaining the views above expressed, it becomes unnecessary
to decide what effect, if any, should otherwise be given in this case
to the recognition by the United States, on the 4th of September, of
the government established by the Congressional Party, or to deter-
mine other questions raised, all of which have been elaborately and
very ably argued by counsel.
" The evidence introduced on behalf of the prosecution being, in
my opinion, insufficient to warrant a conviction under either count
of the indictments, the motion made on behalf of the defendants is
granted, and the jury are instructed to find a verdict of not guilty.”
27
1
1 Affirmed by the Circuit Court of Appeals, May 8, 1893,.56 Fed. 505. - ED.
CHAP. III.]
743
THE “SALVADOR."
THE “SALVADOR."
PRIVY COUNCIL, 1870.
(3 Privy Council Rep. 218.)
The Proclamation of the 24th of March, 1869, stated that an in-
surrection against the Government of Spain was reported to have
taken place, and to be then existing in the Island of Cuba, and upon
the fact of that report being well-founded, and a state of insurrec-
tion actually existing in Cuba, the Proclamation against Her Maj-
esty's subjects in the Bahamas enlisting or engaging in a Foreign
service in aid of such insurrection was legally and properly issued.
All the witnesses show, and the learned Judge of the Vice-Ad-
miralty Court below himself admits, that there was a very serious
insurrection or revolt in the Island of Cuba against the Spanish
Government. But the learned Judge, though apparently satisfied
that there was a state of insurrection in Cuba, hesitates to apply
the penal section of the “ Foreign Enlistment Act, because he cannot,
find that such insurrection is in favor of any persons assuming the
powers of Government, or pretended Government, in the Island of
Cuba ; though the nature and object of the expedition for which the
Salvador was equipped and fitted-out is from the evidence proved
to have been in aid of this insurrection, and she, being a British
vessel, was engaged in and for a military expedition, for the purpose
of attacking the dominions of a friendly Power, yet the Judge of the
Vice-Admiralty Court refused to declare the vessel liable to fer-
feiture within the meaning of the 7th section of the Act.
Their Lordships' judgment was delivered by Lord CAIRNS:-
“ This is an appeal from the decision of the Vice-Admiralty Court
of the Bahamas, upon an information filed on behalf of the Crown
before that Court under the Foreign Enlistment Act, with regard
to the ship Salvador, and seeking her confiscation.
“The section in the Foreign Enlistment Act which has to be
considered is the seventh. It has frequently been remarked, that
the interpretation of that section is attended with some difficulty,
mainly owing to the great quantity of words which are used in the
clause; hut endeavoring for the moment to set aside the verbiage of
the section, it is obvious that, in order to constitute an offence under
it, five propositions must be established. In the first place, the ship,
which in other respects is found to be acting within the ineaning of
744
(PART IT.
BELLIGERENTS AND NEUTRALS.
the section, must be acting without the leave and license of the
Sovereign of this country. That is the first element of the charge
under the section. The second is this, the ship must be equipped,
furnished, fitted-out or armed, or there must be a procuring, or an
attempt or endeavor to equip, furnish, fit-out, or arm the ship. The
third is, that the equipping, furnishing, fitting-out, or arming of the
ship must be done with the intent or in order that the ship or vessel
shall be employed in the service of some “foreign Prince, State, or
Potentate, or some foreign colony, province, or part of any province
or people, or of any person or persons exercising, or assuming to ex-
ercise, any powers of government in or over any foreign State, colony,
province, or part of any province or people.'
“ Then the fourth element in the section is this, there must be an
intent to employ the ship in one of two capacities either as a trans-
port or storeship, against any Prince, State, or Potentate, or with
intent to cruise or commit hostilities against any Prince, State, or
Potentate. I pause for the purpose of observing that the words are
not very happily chosen which represent her as being employed as
a transport or storeship against any Prince, State, or Potentate;' but
it is clear, open as the words may be to criticism, that the intent is,
that the ship should be employed in one of the two capacities I have
mentioned, and not only so, but employed against, that is in the
way of aggression against, some foreign Prince, Potentate, or State.
This should be done, as I have already said, against some Prince,
State, or Potentate, or against the subjects or citizens of any Prince,
State, or Potentate, or against the persons exercising or assuming to
exercise the powers of government in any colony, province, or part
of any province or country, or against the inhabitants of any foreign
colony, province, or part of any province or country. And the fifth
element is, that this foreign State or Potentate, and so on, should be
one with whom the Sovereign of this country should not then be
at war.
« Those are the five elements which go to make up the whole
charge under the 7th section.
“Now, with regard to the first which I have mentioned, the ab-
sence of leave and licence on the part of Her Majesty, no question
arises.
“With regard to the second, namely, that there must be an equip-
ping, furnishing, fitting-up, or arming, or a procuring, or an attempt
to do so, no question can arise in this case when we read the evidence
of Mr. Dumaresg, the Receiver-General and Treasurer of the Island,
wlio states the condition in which he found the ship, and the prep-
arations made on board of her, which seem to their Lordships to
CHAP, III.]
745
THE “SALVADOR."
amount to a fitting-out or arming, or an attempt to do so, within the
meaning of this section. The learned Judge of the Vice-Admiralty
Court seems to have entertained no doubt himself upon this part of
the case.
“I pass over the third element which I mentioned, for the moment,
in order to say that upon the fourth and fifth heads to which I have
referred there can also be no doubt entertained, as it seems to their
Lordships; and here, again, no doubt was entertained by the learned
Judge of the Court below. It is quite clear, that the ship was in-
tended to be used as a transport or storeship against a Prince, State,
or Potentate with whom Her Majesty was not at war. She was to
be used obviously as a transport or storeship for the purpose of con-
veying to Cuba men and materials; and in that way to do the duty
of a transport ship, and so to inflict injury upon the Spanish govern-
ment, who, at that time were, and are now, the lawful authority
having the dominion over Cuba. Here, again, no doubt was enter-
tained by the learned Judge in the Court below, and no doubt could
be entertained by any one who looks at the evidence of Mr. Duma-
l'esą, to whom I have already adverted, and also the evidence of Mr.
Butler, the collector of revenue, both of whom state what the report
was which was made to themselves by Carlin, the master of this
vessel, as to her conduct when she went to the coast of Cuba-how
she landed all the men she had on board, plainly for the purpose of
taking part in the insurrection which was going on in Cuba—how
they abandoned the ship when they saw a Spanish ship of war in
sight-how they were prepared to set fire to their ship if the Spanish
ship approached them—and how afterwards, when they found that
they were unnoticed, they took possession of the Salvador again, and
brought her back to Nassau.
“That leaves uncovered only the third element of charge in this
section, and it is upon that alone that the learned Judge of the Vice-
Admiralty Court entertained any doubt.
“ The third element is, that the ship must be employed in this
way in the service of some 'foreign Prince, State, or Potentate, or of
any foreign colony, province, or part of any province or people, or of
any person or persons exercising or assuming to exercise any powers
of Government in or over any foreign State, colony, province, or part
of any province or people. It is to be observed that this part of the
section is in the alternative. The ship may be employed in the
service of a foreign Prince, State, or Potentate, or foreign State,
colony, province, or part of any province or people; that is to say, if
you find any consolidated body in the foreign State, whether it be
the Potentate, who has the absolute dominion, or the Government,
+0
[PART 1.
BELLIGERENTS AND NEUTRALS.
.
or a part of the province or of the people, or the whole of the prov-
ince or the people acting for themselves, that is sufficient.
“But by way of alternative, it is suggested that there may be a
case where, although you cannot say that the province, or the people,
or a part of the province or people are employing the ship, there yet
may be some person or persons who may be exercising, or assuming
to exercise, powers of Government in the foreign colony or State,
drawing the whole of the material for the hostile proceedings from
abroad; and, therefore, by way of alternative, it is stated to be suffi-
cient, if you find the ship prepared or acting in the service of any
person or persons exercising, or assuming to exercise, any powers of
Government in or over any foreign State, colony, province, or part of
any province or people;' but that alternative need not be resorted
to, if you find the ship is fitted-out and armed for the purpose of
being employed in the service of any foreign State or people, or part
of any province or people.'
"Upon that the observation of the learned Judge was this :
-We
have no evidence of the object of the insurrection, who are the leaders,
what portion of Cuba they have possession of, in what manner this
insurrection is controlled or supported, or in what manner they
govern themselves. How, therefore, can I say that they are assum-
ing the powers of Government in or over any part of the Island of
Cuba ??
“Now, it appears to their Lordships, that the error into which the
learned Judge below fell, was in confining his attention to what I
have termed the second alternative of this part of the section, and
in disregarding the first part of the alternative. It may be it is not
necessary to decide whether it is so or not) that you could not state
who were the person or persons, or that there were any person or
persons exercising, or assuming to exercise, powers of Government
in Cuba, in opposition to the Spanish authorities.
“ That may be so: their Lordships express no opinion upon that
subject, but they will assume that there might be a difficulty in
bringing the case within that second alternative of the section ; but
their Lordships are clearly of opinion, that there is no difficulty in
bringing the case under the first alternative of the section, because
their Lordships find these propositions established beyond all doubt,
there was an insurrection in the Island of Cuba; there were in-
surgents who had formed themselves into a body of people acting
together, undertaking and conducting hostilities; these insurgents,
beyond all doubt, formed part of the province or people of Cuba;
and beyond all doubt the ship in question was to be employed, and
was employed, in connection with and in the service of this body of
insurgents.
CHAP. III.]
747
THE
SALVADOR."
“Those propositions being established, as their Lordships think
they clearly are established, both by the evidence of Dumaresq and
Butler, to which I have already referred, and further, by the evidence
of the three witnesses, Loinaz, Wells, and Mama, their Lordships
think that the requisitions of the seventh section in this respect are
entirely fulfilled, and that the case is made out under this head, as
it is upon all other heads of the section.
" Their Lordships, therefore, will humbly recommend to Her
Majesty that the decision of the Vice-Admiralty Court should be
reversed, and that judgment should be pronounced for the Crown,
according to the prayer of the information.
“It has been intimated to their Lordships, that on the 7th of
February last, there was a decree by their Lordships for the appraise-
ment and sale of the vessel. She has been sold, and the net pro-
ceeds, £163, 4s. 8d., paid into Her Majesty's Commissariat Chest in
the Bahamas. The Colonial Government, it appears, have incurred
expenses to the amount of £145, 5s. 10d. in keeping the vessel while
she was under arrest, and they claim to be reimbursed those expenses
out of the proceeds of the sale. That, of course, will be proper, and
if it is necessary to make that part of this Order, it will be done."
1 During the Franco-Prussian war, the government of the United States proceeded
to sell a quantity of arms and munitions which it had accumulated during the civil
war, but with no intention that these articles should go into the hands of either bel-
ligerent. The committee reported that the sale was lawful and proper, and would
have been so, if the sale had been made directly to one of the belligerents. See the
Senate Report, 42d Cong., 2d sess., Rep. 183. And see House Report, 46, 42d Cong.,
2d sess.
Perels, Int. Seerecht, 251, says that the Government of the United States sold in
October, 1870, at public auction, 500,000 muskets, 163 carbines, 35,000 revolvers,
40,000 sabres, 20,000 horse-trappings, and 50 batteries with ammunition; and that the
export from New York to France from September to the middle of December of that
year included 378,000 muskets, 45,000,000 patronen, 55 cannon, and 2,000 pistols.
3 Wharton's Digest, p. 513.
It is to be hoped that the report of the Senate committee does not express the
settled law of the United States upon this subject. It confounds the rights and duties
of a neutral state with those of the private citizens of a neutral state, which is a very
different matter. Such a transaction, however innocent the intention, can hardly fail
to raise the suspicion of bad faith on the part of neutral government. For it is un-
doubtedly true that a war between foreign states provides just the opportunity for
the sale of such articles to the best advantage. -- ED.
7.1
748
[PART II.
BELLIGERENTS AND NEUTRALS.
THE “THREE FRIENDS."
SUPREME COURT OF THE UNITED STATES, 1896.
(166 United States, 1.)
The steamer Three Friends was seized November 7, 1896, by the
collector of customs for the district of St. John's, Florida, as forfeited
to the United States under section 5283 of the Revised Statutes, and
thereupon, November 12, was libelled on behalf of the United States
in the District Court for the Southern District of Florida.
Mr. Chief Justice FULLER delivered the opinion of the court.
We agree with the district judge that the contention that forfeiture
under section 5283 depends upon the conviction of a person or persons
for doing the acts denounced is untenable. The suit is a civil suit in
rem for the condemnation of the vessel only, and is not a criminal
prosecution. The two proceedings are wholly independent and pur-
sued in different courts, and the result in each might be different.
Indeed, forfeiture might be decreed if the proof showed the prohibited
acts were committed though lacking as to the identity of the particular
person by whom they were committed. The Palmyra, 12 Wheat. 1,
14; The Ambrose Light, 25 Fed. Rep. 408; The Meteor, 17 Fed. Cas.
178.
The Palmyra was a case of a libel of information against the vessel
to forfeit her for a piratical aggression, under certain acts of Congress
which made no provision for the personal punishment of the offenders,
but it was held that, even if such provision had been made, conviction
would not have been necessary to the enforcement of forfeiture. And
Mr. Justice Story, delivering the opinion, said: "It is well known,
that at the common law, in many cases of felonies, the party forfeited
his goods and chattels to the Crown. The forfeiture did not, strictly
speaking, attach in rem ; but it was a part, or at least a consequence,
of the judgment of conviction. It is plain from this statement, that
no right to the goods and chattels of the felon could be acquired by the
Crown by the mere commission of the offence; but the right attached
only by the conviction of the offender. The necessary result was, that
in every case where the Crown sought to recover such goods and chat-
tels, it was indispensable to establish its right by producing the record
of the judgment of conviction. In the contemplation of the common
law, the offender's right was not divested until the conviction. But
i Part of the opinion dealing with questions of procedure has been omitted. — Ed.
CHAP. III.]
749
THE
THREE FRIENDS."
this doctrine never was applied to seizures and forfeitures, created by
statute, in rem, cognizable on the revenue side of the Exchequer.
The thing is here primarily considered as the offender, or rather the
offence is attached primarily to the thing; and this whether the offence
be malum prohibitum or malum in se. The same principle applies to
proceedings in rem, on seizures in the Admiralty. Many cases exist,
where the forfeiture for acts done attaches solely in rem, and there is
no accompanying penalty in personam. Many cases exist where there
is both a forfeiture in rem and a personal penalty. But in neither
class of cases has it ever been decided that the prosecutions were
dependent upon each other. But the practice has been and so this
court understands the law to be, that the proceeding in rem stands
independent of, and wholly unaffected by, any criminal proceeding in
personam." And see The Malek Adhel, 2 How. 210; United States v.
The Little Charles, 1 Brock. 347.
The libel alleged that the vessel was “furnished, fitted out, and
armed, with intent that she should be employed in the service of a
certain people, to wit, certain people then engaged in armed resistance
to the government of the King of Spain, in the island of Cuba, to cruise
and commit hostilities against the subjects, citizens, and property of
the King of Spain, in the island of Cuba, with whom the United States
are and were at that date at peace.”
The learned district judge held that this was insufficient under sec-
tion 5283, because it was not alleged "that said vessel had been fitted
out with intent that she be employed in the service of a foreign prince
or state, or of any colony, district, or people recognized as such by the
political power of the United States."
In Wiborg v. United States, 163 U. S. 632, which was an indictment
under section 5286, we referred to the eleven sections from 5281 to
5291, inclusive, which constitute Title LXVII. of the Revised Statutes,
and said : “ The statute was undoubtedly designed in general to secure
neutrality in wars between two other nations, or between contending
parties recognized as belligerents, but its operation is not necessarily
dependent on the existence of such state of belligerency,” and the con-
sideration of the present case arising under section 5283 confirms us in
the view thus expressed.
It is true that in giving a résumé of the sections, we referred to sec-
tion 5283 as dealing “with fitting out and arming vessels in this
country in favor of one foreign power as against another foreign power
with which we are at peace," but that was matter of general descrip-
tion, and the entire scope of the section was not required to be
indicated.
The title is headed “Neutrality," and usually called, by way of con-
750
[PART II.
BELLIGERENTS AND NEUTRALS.
venience, the “Neutrality Act," as the term “Foreign Enlistment Act "
is applied to the analogous British statute, but this does not operate
as a restriction.
Neutrality, strictly speaking, consists in abstinence from any partic-
ipation in a public, private or civil war, and in impartiality of conduct
toward both parties, but the maintenance unbroken of peaceful relations
between two powers, when the domestic peace of one of them is dis-
turbed, is not neutrality in the sense in which the word is used when
the disturbance has acquired such head as to have demanded the
recognition of belligerency. And, as mere matter of municipal ad-
ministration, no nation can permit unauthorized acts of war within its
territory in infraction of its sovereignty, while good faith towards
friendly nations requires their prevention.
Hence, as Mr. Attorney-General Hoar pointed out, 13 Opinions, 177,
178, though the principal object of the act was " to secure the perform-
ance of the duty of the United States, under the law of nations, as a
neutral nation in respect of foreign powers," the act is nevertheless an
act "to punish certain offences against the United States by fines,
imprisonment, and forfeitures, and the act itself defines the precise
nature of those offences."
These sections were brought forward from the act of April 20, 1818,
3 Stat. 447, c. 88, entitled, “ An act in addition to the Act for the
punishment of certain crimes against the United States,' and to repeal
the acts therein mentioned," which was derived from the act of June
5, 1794, 1 Stat. 381, c. 50, entitled, “ An act in addition to the 'Act for
the punishment of certain crimes against the United States,'” and the
act of March 3, 1817, 3 Stat. 370, c. 58, entitled, "An act more effectu-
ally to preserve the neutral relations of the United States."
The piracy act of March 3, 1819, 3 Stat. 510, c. 77, Rev. Stat.
$$ 4293, 4294, 4295, 4296,5368, supplemented the acts of 1817 and 1818.
The act of 1794, which has been generally recognized as the first
instance of municipal legislation in support of the obligations of neu-
trality, and a remarkable advance in the development of international
law, was recommended to Congress by President Washington in his
annual address on December 3, 1793; was drawn by Hamilton, and
passed the Senate by the casting vote of Vice-President Adams. Ann.
3d Cong. 11, 67. Its enactment grew out of the proceedings of the
then French ininister, which called forth President Washington's proc-
lanation of reutrality in the spring of 1793. And though the law of
nations had been declared by Chief Justice Jay, in his charge to the
grand jury at Richmond, May 22, 1793 (Wharton's State Trials, 49,
56), and by Mr. Justice Wilson, Mr. Justice Iredell and Judge Peters,
on the trial of Henfield in July of that year (Id. 66, 84), to be capable
>
CHAP. III.]
751
40
TAE
THREE FRIENDS."
1
of being enforced in the courts of the United States criminally, as well
as civilly, without further legislation, yet it was deemed advisable to
pass the act.in view of controversy over that position, and, moreover,
in order to provide a comprehensive code in prevention of acts by indi-
viduals within our jurisdiction inconsistent with our own authority, as
well as hostile to friendly powers.
Section 5283 of the Revised Statutes is as follows:
By referring to section three of the act of June 5, 1794, section one
of the act of 1817, and section three of the act of 1818, it will be seen
that the words or of any colony, district, or people” were inserted in
the original law by the act of 1817, carried forward by the act of 1818,
and so into section 5283.
The immediate occasion of the passage of the act of March 3, 1817,
appears to have been a communication, linder date of December 20,
1816, from the Portuguese minister to Mr. Monroe, then Secretary of
State, informing him of the fitting out of privateers at Baltimore to
act against Portugal, in case it should turn out that that government
was at war with the “self-styled government of Buenos Ayres,” and
soliciting “the proposition to Congress of such provisions of law as
will prevent such attempts for the future." On December 26, 1816,
President Madison sent a special message to Congress, in which he
referred to the inefficacy of existing laws “ to prevent violations of the
obligations of the United States as a nation at peace towards bellig-
erent parties and other unlawful acts on the high seas by armed
vessels equipped within the waters of the United States," and, “ with
a view to maintain more effectually the respect due to the laws, to the
character, and to the neutral and pacific relations of the United States,"
recommended further legislative provisions. This message was trans-
mitted to the minister December 27, and he was promptly officially
informed of the passage of the act in the succeeding month of March.
Geneva Arbitration, Case of the United States, 138. In Mr. Dana's
elaborate note to 8 439 of his edition of Wheaton, it is said that the
words "colony, district, or people” were inserted on the suggestion of
the Spanish minister that the South American provinces in revolt and
not recognized as independent might not be included in the worl
“state." Under the circumstances this act was entitled as “to pre-
serve the neutral relations of the United States," while the title of the
act of 1794 described it as “in addition” to the Crimes Act of April
30, 1790, 1 Stat. 112, c. 9, and the act of 1818 was entitled in the same
way. But there is nothing in all this to indicate that the words
"colony, district, or people" had reference solely to communities whose
belligerency had been recognized, and the history of the times, an
1 U. S. v. Trumbull, ante, p. 731. - ED.
.
752.
BELLIGERENTS AND NEUTRALS. [PART II.
interesting review of which has been furnished us by the industry of
counsel, does not sustain the view that insurgent districts or bodies,
unrecognized as belligerents, were not intended to be embraced. On
the contrary, the reasonable conclusion is that the insertion of the
words “district or people" should be attributed to the intention to
include such bodies, as, for instance, the so-called Oriental Republic of
Artigas, and the governments of Pétion and Christophe, whose atti-
tude had been passed on by the courts of New York more than a year
before in Gelston v. Hoyt, 13 Johns. 141, 561, which was then peuding
in this court on writ of error. There was no reason why they should
not have been included, and it is to the extended enuineration as cover-
ing revolutionary bodies laying claim to rights of sovereignty, whether
recognized or unrecognized, that Chief Justice Marshall manifestly
referred in saying, in The Gran Pard, 7 Wheat. 471, 489, that the act
of 1817 "adapts the previous laws to the actual situation of the world.”
At all events, Congress imposed no limitation on the words “colony,
district, or people," by requiring political recognition.
Of course a political community whose independence has been recog-
nized is a state" under the act; and, if a body embarked in a revolu-
tionary political movement, whose independence has not been, but
whose belligerency has been, recognized, is also embraced by that term,
then the words " colony, district, or people," instead of being limited
to a political community which has been recognized as a belligerent,
must necessarily be held applicable to a body of insurgents associated
together in a common political enterprise and carrying on hostilities
against the parent country, in the effort to achieve independence,
although recognition of belligerency has not been accorded.
And as agreeably to the principles of international law and the
reason of the thing, the recognition of belligerency, while not confer-
ring all the rights of an independent state, concedes to the government
recognized tbe rights, and imposes upon it the obligations, of an inde-
pendent state in matters relating to the war being waged, no adequate
ground is perceived for holding that acts in aid of such a government
are not in aid of a state in the sense of the statute.
Contemporaneous decisions are not to the contrary, though they
throw no special light upon the precise question.
Gelston v. Hoyt, 3 Wheat. 246, decided at February term, 1818 (and
below January and February, 1816), was an action of trespass against
the collector and surveyor of the port of New York for seizing the ship
American Eagle, her tackle, apparel, etc. The seizure was made July
10, 1810, by order of President Madison under section three of the act
of 1794, corresponding to section 5283. The ship was intended for the
service of Pétion against Christophe, who had divided the island of
1
CHAP. III.
THE
753
THREE FRIENDS."
66
Hayti between them and were engaged in a bloody contest, but whose
belligerency had not been recognized. It was held that the service of
any foreign prince or state” imported a prince or state which had
been recognized by the government, and as there was no recognition
in any manner, the question whether the recognition of the belligerency
of a de facto sovereignty would bring it within those words, did not
arise.
The case of The Estrella, 4 Wheat. 298, involved the capture of a
Venezuelan privateer on April 24, 1817. There was a recapture by an
American vessel, and the prize thus came before the court at New
Orleans for adjudication. The privateer was found to have a regular
commission from Bolivar, issued as early as 1816, but it had violated
section two of the act of 1794, which is the same as section two of the
act of 1818, omitting the words “colony, district, or people" (and is
now section 5282 of the Revised Statutes), by enlisting men at New
Orleans, provided Venezuela was a state within the meaning of that
act. The decision proceeded on the ground that Venezuela was to be
so regarded on the theory that recognition of belligerency made the
belligerent to that intent a state.
In The Nueva Anna and Liebre, 6 Wheat. 193, the record of a prize
court at “Galveztown," constituted under the authority of the
"Mexican Republic," was offered in proof, and this court refused to
recognize the belligerent right claimed, because our government had
not acknowledged “the existence of any Mexican republic or state at
war with Spain ;” and in The Gran Para, 7 Wheat. 471, Chief Justice
Marshall referred to Buenos Ayres as a state within the meaning of
the act of 1794.
Even if the word “state” as previously employed admitted of a less
liberal signification, why should the meaning of the words “
colony,
district, or people" be confined only to parties recognized as belligerent?
Neither of these words is used as equivalent to the word "state," for
they were added to enlarge the scope of a statute which already con-
tained that word. The statute does not say foreign colony, district, or
people, nor was it necessary, for the reference is to that which is part
of the dominion of a foreign prince or state, though acting in hostility
to such prince or state. Nor are the words apt if confined to a bellig-
erent. As argued by counsel for the government, an insurgent colony
under the act is the same before as after the recognition of belligerency,
as shown by the instance of the colonies of Buenos Ayres and Para-
guay, the belligerency of one having been recognized but not of the
other, while the statute was plainly applicable to both. Nor is district
an appropriate designation of a recognized power de facto, since such a
power would represent not the territory actually held but the territory
48
754
[PART II.
BELLIGERENTS AND NEUTRALS.
covered by the claim of sovereignty. And the word “people," when
not used as the equivalent of state or nation, must apply to a body of
persons less than a state or nation, and this meaning would be satisfied
by considering it as applicable to any consolidated political body.
In United States v. Quincy, 6 Pet. 445, 467, an indictment under the
third section of the act of 1818, the court disposed of the following,
among other points, thus: “The last instruction or opinion asked on
the part of the defendant was: That according to the evidence in the
cause, the United Provinces of Rio de la Plata is, and was at the time
of the offence alleged in the indictment, a government acknowledged
by the United States, and thus was a 'state' and not a ' people' within
the meaning of the act of Congress under which the defendant is in-
dicted; the word 'people' in that act being intended to describe com-
munities under an existing government not recognized by the United
States; and that the indictment therefore cannot be supported on this
evidence.
si The indictment charges that the defendant was concerned in fitting
out the Bolivar with intent that she should be employed in the service
of a foreign people;' that is to say, in the service of the United Pro-
vinces of Rio de la Plata. It was in evidence, that the United
Provinces of Rio de la Plata had been regularly acknowledged as an
independent nation by the executive department of the government
of the United States, before the year 1827. And therefore it is argued
that the word 'people' is not properly applicable to that nation or
power.
“ The objection is one purely technical, and we think not well
founded. The word 'people,' as here used, is merely descriptive of
the power in whose service the vessel was intended to be employed;
and it is one of the denominations applied by the act of Congress to a
foreign power. The words are, 'in the service of any foreign prince
or state, or of any colony, district, or people. The application of the
word 'people’ is rendered sufficiently certain by what follows under
the videlicet, 'that is to say, the United Provinces of Rio de la Plata.'
This particularizes that which by the word “people’ is left too general.
The descriptions are no way repugnant or inconsistent with each other,
and may well stand together. That which comes under the videlicet,
only serves to explain what is doubtful and obscure in the word
' people."
All that was decided was that any obscurity in the word “people”
as applied to a recognized government was cured by the videlicet.
Nesbitt v. Lushington, 4 T. R. 783, was an action on a policy of in-
surance in the usual form, and among the perils insured against were
“pirates, rovers, thieves," and “arrests, restraints, and detainments of
CHAP. III.]
755
THE
THREE FRIENDS."
>
6
all kings, princes, and people, of what nation, condition, or quality
soever.” The vessel with a cargo of corn was driven into a port and
was seized by a mob who assumed the government of her and forced
the captain to sell the corn at a low price. It was ruled that this was
a loss by pirates, and the maxim noscitur a sociis was applied by Lord
Kenyon and Mr. Justice Buller. Mr. Justice Buller said : “ People'
means 'the supreme power; the power of the country,' whatever it
may be. This appears clear from another part of the policy; for
where the underwriters insure against the wrongful acts of individuals,
they describe them by the names of pirates, rogues, thieves;' then
having stated all the individual persons, against whose acts they engage,
they mention other risks, those occasioned by the acts of 'kings,
princes, and people of what nation, condition, or quality soever.' Those
words therefore must apply to 'nations' in their collective capacity.”
As remarked in the brief of Messrs. Richard H. Dana, Jr., and
Horace Gray, Jr., filed by Mr. Cushing in Mauran v. Insurance Co.,
6 Wall. 1, the words were “doubtless originally inserted with the view
of enumerating all possible forms of government, monarchical, aristo-
cratical, and democratic.”
The British Foreign Enlistment Act, 59 Geo. III. c. 69, was bottomed
on the act of 1818, and the seventh section, the opening portion of
which corresponded to the third section of that act.
Its terms were,
however, considerably broader and left less to construction. But we
think the words "colony, district, or people" must be treated as equally
.comprehensive in their bearing here.
In the case of The Salvador, L. R. 3 P. C. 218, the Salvador had
been seized under warrant of the governor of the Bahama Islands and
proceeded against in the Vice-Admiralty Court there for breach of that
section, and was, upon the hearing of the cause, ordered to be restored,
the court not being satisfied that the vessel was engaged, within the
meaning of the section, in aiding parties in insurrection against a
foreign government, as such parties did not assume to exercise the
powers of government over any portion of the territory of such govern-
ment. This decision was overruled on appeal by the Judicial Com-
mittee of the Privy Council, and Lord Cairns, delivering the opinion,
said: “It is to be observed that this part of the section is in the alter-
native. The ship may be employed in the service of a foreign prince,
state, or potentate, or foreign state, colony, province, or part of any
province or people; that is to say, if you find any consolidated body
in the foreign state, whether it be the potentate, who has the absolute
dominion, or the government, or a part of the province, or of the peo-
ple, or the whole of the province or the people acting for themselves,
that is sufficient. But by way of alternative it is suggested that there
756
[PART II.
BELLIGERENTS AND NEUTRALS.
6
may be a case where, although you cannot say that the province, or
the people, or a part of the province or people are employing the ship,
there yet may be some person or persons who may be exercising, or
assuming to exercise, powers of government in the foreign colony or
state, drawing the whole of the material aid for the hostile proceed-
ings from abroad; and, therefore, by way of alternative, it is stated to
be sufficient, if you find the ship prepared or acting in the service of
any person or persons exercising, or assuming to exercise, any powers
of government in or over any foreign state, colony, province, or part of
any province or people;' but that alternative need not be resorted to,
if you find the ship is fitted out and armed for the purpose of being
'employed in the service of any foreign state or people, or part of any
province or people.' *
It
may be (it is not necessary to decide whether it is or not) that
you could not state who were the person or persons, or that there were
any person or persous exercising, or assuming to exercise, powers of
government in Cuba, in opposition to the Spanish authorities. That
may be so; their lordships express no opinion upon that subject, but
they will assume that there might be a difficulty in bringing the case
within that second alternative of the section, but their lordships are
clearly of opinion that there is no difficulty in bringing the case under
the first alternative of the section, because their lordships find these
propositions established beyond all doubt, — there was an insurrection
in the island of Cuba; there were insurgents who had formed them-
selves into a body of people acting together, undertaking and conduct-
ing hostilities; these insurgents, beyond all doubt, formed part of the
province or people of Cuba; and beyond all doubt the ship in question
was to be employed, and was employed, in connection with and in the
service of this body of insurgents."
We regard these observations as entirely apposite, and while the
word “people" may mean the entire body of the inhabitants of a state;
or the state or nation collectively in its political capacity; or the
ruling power of the country; its meaning in this branch of the section,
taken in connection with the words “colony” and “district,” covers
in our judgment any insurgent or insurrectionary - body of people act-
ing together, undertaking and conducting hostilities," although its
belligerency has not been recognized. Nor is this view otherwise than
confirmed by the use made of the same worris in the succeeding part of
the sentence, for they are there employed in another connection, that
is, in relation to the cruising, or the commission of hostilities, "against
the subjects, citizens, or property of any foreign prince or state, or of
any colony, district, or people, with whom the United States are at
peace;" and, as thus used, are affected by obviously different considera-
$
CHAP! III.]
757
THE
THREE FRIENDS."
tions. If the necessity of recognition in respect of the objects of hos-
tilities, by sea or land, were conceded, that would not involve the
concession of such necessity in respect of those for whose service the
vessel is fitted out.
Any other conclusion rests on the unreasonable assumption that the
act is to remain ineffectual unless the government incurs the restraints
and liabilities incident to an acknowledgment of belligerency. On
the one hand, pecuniary demands, reprisals, or even war, inay be the
consequence of failure in the performance of obligations towards a
friendly power, while on the other, the recognition of belligerency
involves the rights of blockade, visitation, search, and seizure of con-
traband articles on the high seas, and abandonment of claims for repa-
ration on account of damages suffered by our citizens from the
prevalence of warfare.
No intention to circumscribe the means of avoiding the one by im-
posing as a condition the acceptance of the contingencies of the other
can be imputed.
Belligerency, is recognized when a political struggle has attained a
certain magnitude and affects the interests of the recognizing power;
and in the instance of maritimne operations, recognition may be com-
pelled, or the vessels of the insurgents, if molesting third parties, may
be pursued as pirates. The Ambrose Light, 25 Fed. Rep.408; 3 Whart.
Dig. Int. Law, $ 381; and authorities cited.1
i Treat, J. (in U. S. v. One Hundred Barrels, 1862, 27 Fed. Cas. 292, 297), said in
speaking of results flowing from recognition of belligerency of Southern States: “ The
position of foreign nations with respect to this insurrection * * * does not determine
its status in American courts. The latter follow exclusively the decision of the
political department of the United States Government on that question. Even if other
nations had recognized the so-called Confederate Government as an independent
power, their recognition would bind themselves and their subjects alone — not the
United States. Those foreign nations which have recognized a state of belligerency,
and assumed the position of neutrals, estop their subjects from disputing the lawful-
ness of captures on the high seas according to the laws of maritime warfare. The
ships and cargoes of their subjects are to be judged accordingly. But rebel property
thus captured is amenable to municipal authority. *** In the adjudication of all
such questions arising here, the United States statutes would furnish the rules of
decision. In other words, as to all foreign nations, the United States Government is
absolutely sovereign within its own territorial limits, and over its own subjects. Its
internal constitution is a subject with which foreign powers have no right to inter-
meddle. The equality and independence of nations could not otherwise exist. How-
ever much the great powers of Europe have, in time past, violated that rule, they have
so far recognized its rightfulness, as to offer always in excuse for their violations of it,
some real or supposed emergency, which they claimed worked a legitimate exception
to its otherwise universal application - thus doing homage to the principle even when
practically assailing it."
Belligerency is a fact; when this fact exists, it not only may but should be
758
[PART II.
BELLIGERENTS AND NEUTRALS.
But it belongs to the political department to determine when bellig-
erency shall be recognized, and its action must be accepted according
to the terms and intention expressed.
The distinction between recognition of belligerency and recognition
of a condition of political revolt, between recognition of the existence
of war in a material sense and of war in a legal sense, is sharply illus-
trated by the case before us. For here the political department has
not recognized the existence of a de facto belligerent power engaged in
hostility with Spain, but has recognized the existence of insurrectionary
warfare prevailing before, at the time and since this forfeiture is
alleged to have been incurred.
On June 12, 1895, a formal proclamation was issued by the Presi-
dent and countersigned by the Secretary of State, informing the
people of the United States that the island of Cuba was “the seat of
serious civil disturbances accompanied by armed resistance to the
authority of the established government of Spain, a power with which
recognized. TO “recognize” that which does not exist, is practically speaking to
help to create it, and bring it into existence. Such action would be, to put it mildly,
the manifestation of an unfriendly feeling which amounts to little less than intervention.
As to the exact period when recognition of belligerency is permissible, see Presi-
dent Grant's Seventh Annual Message of Dec. 7, 1875 (7 Richardson's Messages &
Papers, 336–340), refusing to recognize the "existence of war » in Cuba. “ Unless
justified by necessity,” he says, “it is always, and justly, regarded as an unfriendly
act and a gratuitous demonstration of moral support to the rebellion. It is necessary,
and it is required, when the interests and rights of another government or of its people
are so far affected by a pending civil conflict as to require a definition of its relations
to the parties thereto. But this conflict must be one which will be recognized in the
sense of international law as war. Belligerence, too, is a fact, the mere existence of
contending armed bodies and their occasional conflicts do not constitute war in the sense
referred to. *** Such recognition entails upon the country according the rights
which flow from it difficult and complicated duties, and requires the exaction from the
contending parties of the strict observance of their rights and obligations. It confers
the right of search upon the high seas by vessels of both parties; it would subject the
carrying of arms and munitions of war, which now may be freely transported, freely
and without interruption, in the vessels of the United States to detention and possible
seizure; it would give rise to countless vexatious questions, would release the parent
government from responsibility for acts done by the insurgents, and would invest
Spain with the right to exercise the supervision recognized by our treaty of 1795 over
our commerce on the high seas, a very large part of which, in its traffic between the
Atlantic and the Gulf States and between all of them and the States on the Pacific,
passes through the waters which wash the shores of Cuba."
It will not be questioned that General Grant knew. what war really was;
his
statement of the rights flowing from it is equally clear, concise, and correct. It will
be remembered that the late President McKinley quoted this passage at length in
his first Annual Message, December 6, 1897(10 Richardson, id. 132-133). Reference
should be made to Dana's note 15 to p. 34 of his edition of Wheaton. It is not too
much to say that this foot-note states the doctrine of international law on this vexel
subject in a way which bids fair to render it a classic. — Ed.
5
CHAP. III.]
759
THE
THREE FRIENDS."
the United States are and desire to remain on terms of peace and
amity ;" declaring that the laws of the United States prohibit their
citizens, as well as all others being within and subject to their juris-
diction, from taking part in such disturbances adversely to such estab-
lished government, by accepting or exercising commissions for
war-like service against it, by enlistment or procuring others to enlist
for such service, by fitting out, or arming, or procuring to be fitted out
and armed ships of war for such service, by augmenting the force of
any ship of war engaged in such service and arriving in a port of
the United States, and by setting on foot or providing or preparing
the means for military enterprises to be carried on from the United
States against the territory of such government;” and admonishing all
such citizens and other persons to abstain from any violation of these
laws.
In his annual message of December 2, 1895, the President said:
“ Cuba is again gravely disturbed. An insurrection, in some respects
more active than the last preceding revolt, which continued from 1868
to 1878, now exists in a large part of the eastern interior of the island,
menacing even some populations of the coast. Besides deranging
of the commercial exchanges of the island, of which our country takes
the predominant share, this flagrant condition of hostilities, by arous-
ing sentimental sympathy and inciting adventurous support among
our people, has entailed earnest effort on the part of this governinent
to enforce obedience to our neutrality laws, and to prevent the terri-
tory of the United States from being abused as a vantage ground from
which to aid those in arms against Spanish sovereignty.
“Whatever may be the traditional sympathy of our countrymen as
individuals with a people who seem to be struggling for larger auton-
omy and greater freedom, deepened as such sympathy naturally must
be in behalf of our neighbors, yet the plain duty of their government
is to observe in good faith the recognized obligations of international
relationship. The performance of this duty should not be made more
difficult by a disregard on the part of our citizens of the obligations
growing out of their allegiance to their country, which should restrain
them from violating as individuals the neutrality which the nation of .
which they are members is bound to observe in its relations to friendly
sovereign states. Though neither the warmth of our people's sym-
pathy with the Cuban insurgents, nor our loss and material damage
consequent upon the futile endeavors thus far inade to restore peace
and order, nor any shock our humane sensibilities may have received
from the cruelties which appear to especially characterize this sangui-
nary and fiercely conducted war, have in the least shaken the determi-
nation of the government to honestly fulfil every international obligation,
760
[PART II.
BELLIGERENTS AND NEUTRALS.
yet it is to be earnestly hoped, on every ground, that the devasta-
tion of armed conflict may speedily be stayed, and order and quiet re-
stored to the distracted island, bringing in their train the activity and
thrift of peaceful pursuits."
July 27, 1896, a further proclamation was promulgated, and in the
annual message of December 7, 1896, the President called attention to
the fact that “the insurrection in Cuba still continues with all its per-
plexities," and gave an extended review of the situation.
We are thus judicially informed of the existence of an actual con-
flict of arms in resistance of the authority of a government with which
the United States are on terius of peace and anity, although acknowl-
edgment of the insurgents as belligerents by the political depart-
ment has not taken place; and it cannot be doubted that, this being so,
the act in question is applicable.
We see no justification for importing into section 5283 words which
it does not contain and which would make its operation depend upon
the recognition of belligerency; and while the libel might have been
drawn with somewhat greater precision, we are of opinion that it
should not have been dismissed.
Decree reversed.
1
SECTION 42.- CONTRABAND OF WAR.
2
THE "PETERHOFF."
SUPREME COURT OF THE UNITED STATES, 1866.
(5 Wallace, 28, 58.)
1
-
Mr. Chief Justice CHASE :
“ The classification of goods as contraband or not contraband has
much perplexed text-writers and jurists. A strictly accurate and
satisfactory classification is perhaps impracticable; but that which
is best supported by American and English decisions may be said to
divide all merchandise into three classes. Of these classes, the first
consists of articles manufactured and primarily and ordinarily used
for military purposes in time of war; the second, of articles which
may be and are used for purposes of war or peace, according to cir-
cumstances; and the third, of articles exclusively used for peaceful
purposes.
“ Merchandise of the first class, destined to a belligerent country
i Facts omitted and only that part of the opinion is given relating to contraband
and its classification. - ED.
CHAP. III.]
761
72
THE " PETERHOFF. "
or places occupied by the army or navy of a belligerent, is always
contraband; merchandise of the second class is contraband only
when actually destined to the military or naval use of a belligerent;
while merchandise of the third class is not contraband at all, though
liable to seizure and condemnation for violation of blockade or
siege.
" A considerable portion of the cargo of the Peterhoff was of the
third class, and need not be further referred to.
“A large portion, perhaps, was of the second class, but is not
proved, as we think, to have been actually destined to belligerent
use, and cannot therefore be treated as contraband. Another por-
tion was, in our judgment, of the first class, or, if of the second,
destined directly to the rebel military service. This portion of the
cargo consisted of the cases of artillery harness, and of articles de-
scribed in the invoices as men's army bluchers,' artillery boots,
and government regulation gray blankets.' These goods come
fairly under the description of goods primarily and ordinarily used
for military purposes in time of war. They make part of the neces-
sary equipment of an army.
“It is true that even these goods, if really intended for sale in the
market of Matamoras, would be free of liability; for contraband
may be transported by neutrals to a neutral port, if intended to
make part of its general stock in trade. But there is nothing in the
case which tends to convince us that such was their real destina-
tion, while all the circumstances indicate that these articles, at
least, were destined for the use of the rebel forces then occupying
Brownsville, and other places in the vicinity.
“And contraband merchandise is subject to a different rule in re-
spect to ulterior destination than that which applies to merchandise
not contraband. The latter is liable to capture only when a viola-
tion of blockade is intended; the former when destined to the hostile
country, or to the actual military or naval use of the enemy, whether
blockaded or not.
“ The trade of neutrals with belligerents in articles not contra-
band is absolutely free, unless interrupted by blockade; the convey-
ance by neutrals to belligerents of contraband and articles is always
unlawful, and such articles may always be seized during transit by
sea. Hence, while articles, not contraband, might be sent to Mata-
moras and beyond to the rebel region, where the communications
were not interrupted by blockade, articles of a contraband char.
acter, destined in fact to a state in rebellion, or for the use of the
rebel military forces, were liable to capture, though primarily des-
tined to Matamoras.
762
[PART II.
BELLIGERENTS AND NEUTRALS.
“We are obliged to conclude that the portion of the cargo which we
have characterized as contraband must be condemned.
“ And it is an established rule that the part of the cargo belonging to
the same owner as the contraband portion must share its fate. This
rule is well stated by Chancellor Kent, thus : Contraband articles are
infectious, as it is called, and contaminate the whole cargo belonging
to the same owners, and the invoice of any particular article is not
usually admitted, to exempt it from general confiscation.'
“So much of the cargo of the Peterhoff, therefore, as actually be-
longed to the owner of the artillery harness, and the other contraband
goods, must be also condemned.” 1
THE "JONGE MARGARETHA."
HIGH COURT OF ADMIRALTY, 1799.
(1 C. Robinson, 189.)
This was a case of a Papenberg ship, taken on a voyage from
Amsterdam to Brest with a cargo of cheese, April, 1797.
Judgment,--Sir W. SCOTT:-
“There is little reason to doubt the property in this case, and
therefore passing over the observations which have been made on
that part of the subject, I shall confine myself to the single ques-
tion: Is this a legal transaction in a neutral, being the transaction
of a Papenberg ship carrying Dutch cheese from Amsterdam to
Brest, or Morlaix (it is said), but certainly to Brest; or, as it may
be otherwise described, the transaction of a neutral carrying a cargo
of provisions, not the product and manufacture of his own country,
but of the enemy's ally in the war-of provisions which are a capi-
tal ship's store—and to the great port of naval equipment of the
enemy.
“If I adverted to the state of Brest at this time, it might be no
unfair addition to the terms of the description, if I noticed, what
was notorious to all Europe at this time, that there was in that port
1 For the Proclamation of Charles I., 1625, on contraband and the various articles
enumerated and designated as such, see Robinson's Collectanea Maritima, 54.
In the civil war coin and bullion, etc., were considered contraband. U. S. v. Diekel-
man, 1875, 92 U. S. 520; likewise cotton. Mrs. Alexander's Cotton, 1864, 2 Wall. 404.
That a submarine cable and vessel employed in laying it may, for a belligerent
under certain circumstances, partake of the nature of contraband, see The International,
1871, L. R., 3 Adn. & Ecc. 321 at 336; Goffin, Submarine Cables in Time of War, 15
Law Quarterly Rev., 145–154; Liszt, 327 ; 25 Journal de Droit Int. Privé, 648-652,
699-701. - ED.
$
CHAP. III.]
763
THE "JONGE MARGARETHA."
a considerable French fleet in a state of preparation for sallying
forth on a hostile expedition; its motions at that time were watched
with great anxiety by a British fleet which lay off the harbor for
the purpose of defeating its designs. Is the carriage of such a sup-
ply to such a place, and on such an occasion, a traffic so purely
neutral as to subject the neutral trader to no inconvenience ?
“If it could be laid down as a general position, in the manner in
which it has been argued, that cheese being a provision is uni-
versally contraband, the question would be readily answered: but
the court lays down no such position. The catalogue of contraband
has varied very much, and sometimes in such a manner as to make
it very difficult to assign the reason of the variations; owing to par.
ticular circumstances, the history of which has not accompanied the
history of the decisions. In 1673, when many unwarrantable rules
were laid down by public authority respecting contraband, it was
expressly asserted by Sir R. Wiseman, the King's advocate, upon a
formal reference made to him, that by the practice of the English
Admiralty, corn, wine, and oil were liable to be deemed contraband.
"I do agree,' says he, reprobating the regulations that had been pub-
lished, and observing that rules are not to be so hardly laid down as
to press upon neutrals, 'that corn, wine, and oil will be deemed con-
traband.
“ These articles of provisions then were at that time confiscable,
according to the judgment of a person of great knowledge and expe-
rience in the practice of this court. In much later times many other
sorts of provisions have been condemned as contraband. In 1747, in
the Jonge Andreas, butter, going to Rochelle, was condemned. How
it happened that cheese at the same time was more favourably con-
sidered, according to the case cited by Dr. Swabey, I don't exactly
know. The distinction appears nice. In all probability the cheeses
were not of the species which is intended for ship's use. Salted cod
and salmon were condemned in the Jonge Frederick, going to
Rochelle, in the same year. In 1748, in the Joannes, rice and salted
herrings were condemned as contraband. These instances show
that articles of human food have been so considered, at least where
it was probable that they were intended for naval or military use.
“I am aware of the favourable positions laid down upon this mat-
ter by Wolfius and Vattel, and other writers of the continent,
although Vattel expressly admits that provisions may, under certain
circumstances, be treated as contraband. And I take the modern
established rule to be this, that generally they are not contraband,
but may become so under circumstances arising out of the particu-
lar situation of the war, or the condition of the parties engaged in
}
764
(PART II.
BELLIGERENTS AND NEUTRALS.
it. The court must therefore look to the circumstances under
which this supply was sent.
“ Among the circumstances which tend to preserve provisions
from being liable to be treated as contraband, one is, that they are
of the growth of the country which exports them. In the present
case they are the product of another country, and that a hostile
country; and the claimant has not only gone out of his way for the
supply of the enemy, but he has assisted the enemy's ally in the war
by taking off his surplus commodities.
" Another circumstance to which some indulgence, by the practice
of nations, is shown, is, when the articles are in their native and un-
manufactured state. Thus, iron is treated with indulgence, though
anchors and other instruments fabricated out of it are directly con-
traband. Hemp is more favourably considered than cordage, and
wheat is not considered as so noxious a commodity as any of the
final preparations of it for human use. In the present case, the arti-
cle falls under this unfavourable consideration, being a manufacture
prepared for immediate use.
“But the most important distinction is, whether the articles were
intended for the ordinary use of life, or even for mercantile ship's
use; or whether they were going with a highly probable destination
to military use? Of the matter of fact on which the distinction is
to be applied, the nature and quality of the port to which the arti-
cles were going is not an irrational test; if the port is a general
commercial port it shall be understood that the articles were going
for civil use, although occasionally a frigate or other ships of war
may be constructed in that port. Contra, if the great predominant
character of a port be that of a port of naval military equipment, it
shall be intended that the articles were going for military use,
although merchant ships resort to the same place, and although it is
possible that the articles might have been applied to civil consump-
tion ; for it being impossible to ascertain the final use of an article
ancipitis usus, it is not an injurious rule which deduces both ways
the final use from the immediate destination; and the presumption
of a hostile use, founded on its destination to a military port, is very
much inflamed if at the time when the articles were going, a consid-
erable armament was notoriously preparing, to which a supply of
those articles would be eminently useful.
“In the case of the Eendraght, cited for the claimant, the destina-
tion was to Bourdeaux; and though smaller vessels of war may be
occasionally built and fitted out there, it is by no means a port of
naval military equipment in its principal occupation, in the same
manner as Brest is universally known to be.
t
CHAP. III.]
765
THE
COMMERCEN.”
“The court, however, was unwilling in the present case to con-
clude the claimant on the one point of destination, it being alleged
that the cheeses were not fit for naval use, but were merely luxuries
for the use of domestic tables. It therefore permitted both parties
to exhibit affidavits as to their nature and quality. The claimant
has exhibited none; but here are authentic certificates from persons
of integrity and knowledge that they are exactly such cheeses as
are used in British ships when foreign cheeses are used at all, and
that they are exclusively used in French ships of war.
“Attending to all these circumstances, I think myself warranted
to pronounce these cheeses to be contraband, and condemn them as
As such, however, the party has acted without dissimulation in
the case, and may have been misled by an inattention to circum-
stances, to which in strictness he ought to have adverted, as well as
by something like an irregular indulgence on which he has relied ; I
shall content myself with pronouncing the cargo to be contraband
without enforcing the usual penalty of the confiscation of the ship
belonging to the same proprietor.” 1
THE “ COMMERCEN."
SUPREME COURT OF THE UNITED STATES, 1816.
(1 Wheaton, 382.)
This was the case of a Swedish vessel captured on the 16th of April,
1814, by the private armed schooner Lawrence, on a voyage from
Limerick, in Ireland, to Bilboa, in Spain. The cargo consisted of
barley and oats, the property of British subjects, the exportation of
which is generally prohibited by the British Government; and, as well
by the official papers of the custom-house as by the private letters of
the shippers, it appears to have been shipped under the special per-
mission of the government for the sole use of his Britannic Majesty's
forces then in Spain.
STORY, J.: - The single point now in controversy in this cause is,
whether the ship is entitled to the freight for the voyage. The general
rule that the neutral carrier of enemy's property is entitled to his
1 See to the same effect : The Frau Margaretha, 1805, 6 C. Rob. 92; The Zelden
Rust, 1805, 6 C. Rob. 93; The Ranger, 1805, 6 C. Rob. 125 (slrip's biscuit condemned);
The Edward, 1801, 4 C. Rob. 68.
"To escape from the contagion of contraband, the innocent articles must be the
property of a different owner,” per Sir Wm. Scott, in The Staut Embden, 1798,
1 C. Rob. 31. -- ED.
766
[PART II.
BELLIGERENTS AND NEUTRALS.
freight, is now too firmly established to admit of discussion.' But to
this rule there are many exceptions. If the neutral be guilty of
fraudulent or unneutral conduct, or has interposed himself to assist
the enemy in carrying on the war, he is justly deemed to have for-
feited his title to freight. Hence, the carrying of contraband goods
to the enemy; the engaging in the coasting or colonial trade of the
enemy; the spoliation of papers, and the fraudulent suppression of
enemy interests have been held to affect the neutral with the for-
feiture of freight, and in cases of a more flagrant character, such as
carrying despatches or hostile military passengers, an engagement in
the transport service of the enemy, and a breach of blockade, the
penalty of confiscation of the vessel has also been inflicted. By the
modern law of nations, provisions are not, in general, deemed contra-
band, but they may become so, although the property of a neutral, on
account of the particular situation of the war, or on account of their
destination. If destined for the ordinary use of life in the enemy's
country they are not, in general contraband; but it is otherwise if
destined for military use. Hence, if destined for the army or navy
of the enemy, or for his ports of naval or military equipment, they
are deemed contraband.1
1 Provisions. -- In the case of Maissonnaire v. Keating, 1815, 2 Gallison, the
question was as to the validity of a Russian document, in which the legality of the
capture had to be passed upon. It was the case of a cargo of provisions; and the court
held that provisions going to a port of naval equipment of the enemy, and a fortiori, iť
destined for the supply of his army, became contraband, and subjected the vessel
(probably belonging to owner of cargo) and cargo to confiscation by the other
belligerent.
Res ancipitis usus. - As to the question : what articles shall be regarded as contra-
band of war? there has been, and still is, a wide difference of opinion. The English
prize courts, as shown by the cases given, have treated provisions as contraband
in certain circumstances; and the American courts followed this practice. The
French decrees and decisions, on the other hand, have taken the opposite view, that
provisions are in no case to be treated as contraband. And yet, in 1885, the French
Government announced that it proposed to treat rice bound for open Chinese ports as
contraband of war.
As to other articles ancipitis usus, those most in controversy have been naval stores,
including in that term everything used in the construction of ships of war. The cases
in which these articles have been confiscated by the English prize courts are very
A few of the leading cases are as follows:
The Staat Embden, 1798,'1 C. Rob. 26 (masts); The Endraught, 1798, 1 C. Rob. 22
(timber); The Jonge Tobius, 1799, 1 C. Rob. 329 (tar); The Sarah Christina, 1799,
1 C. Rob. 237, 241 (tar and pitch); The Ringende Jacob, 1798, 1 C. Rob. 89 (hemp, iron
bars); The Neptunus, 1800, 3 C. Rob. 108 (sail-cloth).
The greater number of tliese articles were treated by Sir William Scott as goods
absolutely contraband, if going to an enemy's port, without considering the nature of
the port. The government of the United States, in 1797, held the same view: “Ship
timber and naval stores,” said the Secretary of State,“ are by the law of nations con-
numerous.
CHAP. III.]
767
THE
NEUTRALITET."
THE "NEUTRALITET."
High COURT OF ADMIRALTY, 1801.
(3 C. Robinson, 295.)
This was a case of a Danish ship taken with a cargo on a voyage
from Archangel to Dordrecht. The ship had been a Dutch vessel,
and was asserted to have been purchased by Mr. Schultz, of Altona.
She then went from Holland to Altona, and was from thence sent on
to Archangel, to carry a cargo to Dordrecht, under a charter party
made by the asserted owner.
Judgment --Sir W. SCOTT:-
“ The modern rule of the law of nations is, certainly, that the ship
shall not be subject to condemnation for carrying contraband
articles.
“ The ancient practice was otherwise, and it cannot be denied,
that it was perfectly defensible on every principle of justice. If to
traband of war.” It will be seen by the French cases la Minerve and others, that the
French practice is the reverse of that of England and the United States.
The recent changes in naval warfare, brought about by the introduction of steam,
power and steel ships, have introduced a large number of new articles into the list of
contraband or "occasional contraband” goods. This may be seen in Mr. G. Lushing-
ton's " Manual of Naval Prize Law” (edition of 1866), in which goods absolutely con-
traband are enumerated as follows:-
"Arms of all kinds and machinery for manufacturing arms. Ammunition and
materials for ammunition, including lead, sulphate of potaslı, muriate of potash,
chlorate of potash, and nitrate of soda. Gunpowder and its materials, saltpetre and
brimstone; also gun-cotton.
“ Military equipments and clothing. · Military stores.
“Naval stores, such as masts, spars, rudders, and ship timber, hemp and cordage,
sail-cloth, pitch, and tar; copper fit for sheathing vessels ; marine engines, and the
component parts thereof, including screw-propellers, paddle-wheels, cylinders, cranks,
sliafts, boilers, tubes for boilers, boiler-plates, fire-bars ; marine cement and the
materials in the manufacture thereof, as blue-lias and Portland cement.
of the following forms: Anchors, rivet-iron, angle-iron, round bars from ito á of an
inch diameter, rivets, strips of iron, shieet plate-iron exceeding of an inch, and
low-moor and bowling plates.”
Goods conditionally contraband comprise :
Provisions and liquors fit for the consumption of army or navy; money; tele-
graph materials, such as wire, porous cups, platina, sulphuric acid, and zinc.
Materials for the construction of a railway, as iron bars, sleepers, etc.
“Coals, hay, horses, rosin, tallow, timber."
France does not regard timber for the construction of ships as contraband of war.
I Volante, 1807, Le Conseil des Prises (1 Pistoye et Duverdy, 409); (La Minerve, id.
410.) For a recent discussion and the views of publicists of different nationalities, see
25 Journal de Droit Int. Privé, 285,441, 467, 493,515, 535, 624,652, 828, 1006, 1018. – ED.
Iron in any
768
[PART 11.
BELLIGERENTS AND NEUTRALS.
x
supply the enemy with such articles is a noxious act with respect to
the owner of the cargo, the vehicle which is instrumental in effect-
ing that illegal purpose cannot be innocent. The policy of modern
times has however introduced a relaxation on this point; and tlie
general rule now is, that the vessel does not become confiscable for
that act. But this rule is liable to exceptions: Where a ship be-
longs to the owner of the cargo, or where the ship is going on such
service, under a false destination or false papers; these circum-
stances of aggravation have been held to constitute excepted cases
out of the modern rule, and to continue them under the ancient one.
The circumstances of the present case compose a case of exception
also; for it is a case of singular misconduct on the part of the asserted
ship owners. They are subjects of Denmark, and as such are under
the peculiar obligations of a treaty not to carry goods of this nature
for the use of the enemies of Great Britain.
A reference has been made to ancient cases of Dantzick ships,
which were restored, though taken carrying masts to Cadiz. The
particulars of those cases are not very exactly stated; but they were
clearly the cases of proprietors exporting the produce of their own
territory, or of neighboring ports, without the breach of any obliga-
tion but such as the general law of nations imposed.
5. In this instance the ship was freighted at Altona, to go to Archi-
angel, for the purpose of carrying a cargo of tar to Holland, whiclı
is a commerce expressly prohibited by the Danish treaty. Tar is an
article which a Danish ship cannot lawfully carry to an enemy's
port, even when it is the produce and manufacture of Denmark.
This ship goes to a foreign port, to effect that which she is pro-
hibited from doing, even for the produce of her own country; in
this respect, throwing off the character of a Danish ship by rio-
lating the treaties of her country; and all this is done with the full
privity of the asserted owner, who is the person entering into the
charter party. In such a case as the present, the known ground on
which the relaxation was introduced, the supposition that freights
of noxious or doubtful articles might be taken, without the personal
knowledge of the owner, entirely fails; and the active guilt of the
parties is aggravated by the circumstances, of its being a criminal
traffic in foreign commodities, and in breach of explicit and special
obligations. The confiscation of a ship so engaged will leave the
general rule still untouched, that the carriage of contraband works
a forfeiture of freight and expenses, but not of the ship.
“Ship condemned."
CHAP. III.] CARRINGTON V. THE MERCHANTS' INS. CO.
769
UR-
CARRINGTON AND OTHERS V. THE MERCHANTS IN
ANCE COMPANY.
SUPREME COURT OF THE UNITED STATES, 1834.
(8 Peters, 495.)
In 1824 a policy of insurance for $10,000 was effected on the cargo
of the General Carrington. At the commencement of the voyage, and
until the final loss of the ship, open hostilities existed between Spain
and the new governments or states of Chili and Peru. From the
orders it was apparent that the object of the voyage was to sell the
cargo in Chili and Peru. The ship was to proceed direct for Valpa-
raiso, and was to enter that port under the plea of a want of water.
Some portion of the cargo was expected to be sold at that port; thence
the ship was to proceed along the coast of Chili and Peru for the
purpose of trade. There was no allegation that the underwriters were
not well acquainted with the nature and objects of the voyage. While
lying at anchor in Quilca, Peru, the vessel was seized by Spanish
authorities.
The policy was against the usual perils, and contained the following
clause: "It is also agreed that the insurers shall not be answerable for
any charge, damage, or loss which may arise in consequence of seizure
or detention for or on account of illicit or prohibited trade, or trade in
articles contraband of war."
Mr. Justice STORY delivered the opinion of the court: 2
This cause comes before the court upon a certificate of a division of
opinion of the judges of the Circuit Court for the district of Massa-
chusetts.
Upon the trial of the cause upon the evidence, the parties pro-
pounded certain questions, upon which the Circuit Court (with the
assent of the parties), certified a division of opinion, for the purpose
of obtaining the final decision of this court in regard to them.
The first is, whether a seizure and detention, to come within the
exception of the policy relating to contraband and illicit trade, must
be for a legal and justifiable cause. The question here propounder
is not whether there must be a legal or justifiable cause for condemna-
tion; but simply, whether there must not be such cause for the seizure
and detention. And we are of opinion that the question ought to be
1 The statement of the case is abbreviated, - ED.
2 That part of the opinion dealing with “the fourth and fifth questions is
omitted. – ED.
1
49
770
[PART II.
BELLIGERENTS AND NEUTRALS.
answered in the affirmative. The language of the exception, when
properly construed, leads to this conclusion; and it is confirmed by
authorities standing upon analogous clauses. The language is, “the
assurers shall not be liable for any charge, damage, or loss which may
arise in consequence of seizure or detention for or on account of illicit
trade, or trade in articles contraband of war.' It is not, then, every
seizure or detention which is excepted; but such only as is made for,
and on account, of a particular trade. A seizure or detention, which
is a inere act of lawless violence, wholly unconnected with any supposed
illicit or contraband trade, is not within the terms or spirit of the
exception. And as little is a seizure or detention not bona fide inade
upon a just suspicion of illicit or contraband trade, but the latter used
as a mere pretext or color for an act of lawless violence; for under
such circumstances it can in no just sense be said to be made for or on
account of such trade. It is a mere fraud to cover a wanton trespass;
a pretence and not a cause for the tort. To bring a case, then, within
the exception, the seizure or detention must be bona fide, and upon a
reasonable ground. If there has not been an actual illicit or contra-
band trade, there must at least be a well-founded suspicion of it, a
probable cause to impute guilt, and justify further proceedings and
inquiries; and this is what the law deens a legal and justifiable cause
for the seizure or detention. The general words of the policy cover
the risks of restraints and detainments of all kings, princes, and
people. The exception withdraws from it such as are bona fide made
for, and on account of illicit or contraband trade. So that, upon the
mere terms of the exception there would not seem any real ground for
doubt. But if there were, the next succeeding clause associated with
it demonstrates that such must have been the understanding of the
parties. It is there said that the judgment of a foreign consular or
colonial court shall not be conclusive upon the parties as to the fact of
there having been articles contraband of war on board, or as to the
fact of an attempt to trade in violation of the laws of nations. Now,
if a mere lawless seizure or detention, under the pretext of illicit and
contraband trade, were within the exception, the inquiry, whether
there had been contraband articles on board, or an attempt of illicit
trade, would be in most, if not in all cases, wholly unimportant and
nugatory to the assured, for whose benefit the clause is introduced ;
since the sentence would always establish a pretence for the seizure
and detention, although not a justifiable cause for it. The reasonable
interpretation of the clause must be that it was introduced to enable
the assured to disprove the existence of justifiable cause for the seizure
or detention, by showing that the facts did not warrant it.
We think that the authorities cited at the bar lead to the same
CHAP. III.)
771
CARRINGTON V. THE MERCHANTS' INS. CO.
conclusion. In Church v. Hubbard, 2 Cranch, 187, 2 Cond. Rep. 385;
where the exception was,
" that the insurers do not take the risk of
illicit trade with the Portuguese, and the insurers are not liable for
seizure by the Portuguese for illicit trade;" the main question was,
whether an attempt to trade, not consummated by actual trading, was
within the exception. The court held that it was. On that occasion
the chief justice said, “no seizure, not justifiable under the laws and
regulations established by the Crown of Portugal for the restriction of
foreign commerce with its dependencies, can come within this part of
this contract; and every seizure which is justifiable by those laws and
regulations must be deemed within it.” And applying this language
to the circumstances of the present case, we may add, that no seizure
or detention not justifiable by the law of nations can come within the
present exception, and every seizure which is justifiable by the law of
nations must be deemed within it. The cases of Smith v. The Delaware
Insurance Company, 3 Serg. and Rawle, 74; and Faudel v. The Phønix
Insurance Company, 4 Serg. and Rawle, 29; Johnston and Weir v.
Ludlow, 1 Caines's Cas. in Error, 29; s. c. 2 Johns. Cas. 481. See
also Laing v. United Insurance Company, 2 Johns. Cas. 174; s. c. 2
Johns. Cas. 487; Tucker v. Juhel, 1 Johns. R. 20, adopt a similar
doctrine, if they do not proceed beyond it. The case of Higginson v.
Pomroy, 11 Mass. R. 104, contained an exception of “illicit trade with
the Spaniards ;” and the court held that the exception extended to
every seizure and detention suggested by the prohibitions of trade and
intercourse, as the means of enforcing them; and whether of prevention
or of punishment for infraction; and that, therefore, it extended to
cases where the charge of illicit trade with the Spaniards might be
ultimately repelled; and where the property seized might be in
consequence acquitted under the circumstances of the particular case.
But this supposes that there was probable or justifiable cause for the
seizure, bona fide existing; and the court explicitly assented to the
general doctrine in Church v. Hubbard. It is true that the learned
chief justice, in delivering the opinion of the court, added, that
"perhaps (we may add), although not necessary to the present decision,
even arbitrary acts of the Spanish colonial governments, if assumed
to be justified on their parts by the prohibitions of trade and inter-
course, are, we think, within the exception of seizure for illicit trade.”
This is professedly a mere dictum of the court; and giving it every
reasonable force as authority, it proceeds on the supposition that such
arbitrary acts are bona fide done, and are not mere pretexts to cover
an illegal seizure.
The second question is, whether, assuming the other facts to be as
stated and alleged above, and taking the authority of the seizing
772
BELLIGERENTS AND NEUTRALS.
[PART II.
vessel to be such as the plaintiffs allege (that is to say, of an armed
vessel fitted out and commissioned at Callao by Rodil), there was a
legal and justifiable cause for the seizure of the General Carrington
and her cargo. The third is precisely the same in terms, except taking
the authority of the armed vessel to be such as the defendants allege
(that is to say, to be an armed vessel sailing under the royal Spanish.
flag, and acting by the royal authority of Spain).
Both these questions present the same general point, whether there
was, under the circumstances of the case, a legal and justifiable cause
for the seizure and detention of the ship and her cargo. The facts
material to be taken into consideration in ascertaining this point are,
that the ship, when seized, had not landed all her outward cargo, but
was still in the progress of the outward voyage originally designated
by the owners; that she sailed on that voyage from Providence with
contraband articles on board, belonging, with the other parts of the
cargo, to the owners of the ship; with a false destination and false
papers, which. yet accompanied the vessel ; that the contraband articles
had been landed before the policy, which is a policy on time, designat-
ing no particular voyage, had attached; that the underwriters, though
taking no risks within the exception, were not ignorant of the nature,
and objects of the voyage ; and that the alleged cause of the seizure
and detention was the trade in articles contraband of war by the
landing of the powder and muskets already mentioned.
If by the principles of the law of nations there existed under these
circumstances a right to seize and detain the ship and her remaining
cargo, and to subject them to adjudication for a supposed forfeiture,
notwithstanding the prior deposit of the contraband goods; then the
questions must be answered in the affirmative, that there was a legal
and justifiable cause.
According to the modern law of nations, for there has been some
relaxation in practice from the strictness of the ancient rules, the
carriage of contraband goods to the enemy subjects them, if captured,
in delicto, to the penalty of confiscation; but the vessel and the
remaining cargo, if they do not belong to the owner of the contraband
goods, are not subject to the same penalty. The penalty is applied to
the latter only when there has been some actual co-operation on their
part in a meditated fraud upon the belligerents; by covering up the
voyage under false papers and with a false destination. This is
the general doctrine when the capture is made in transitu, while the
contraband goods are yet on board. But when the contraband goods
have been deposited at the port of destination, and the subsequent.
voyage has thus been disconnected with the noxious articles, it has
not been usual to apply the penalty to the ship or cargo upon the
CHAP. III.] CARRINGTON V. THE MERCHANTS' INS. CO.
773
return voyage, although the latter may be the proceeds of the contra-
band. And the same rule would seem by analogy to apply to cases
where the contraband articles have been deposited at an intermediate
port on the outward voyage, and before it had terminated ; although
there is not any authority directly in point. But in the highest prize
courts of England, while the distinction between the outward and
homeward voyage is admitted to govern, yet it is established that it
exists only in favor of neutrals who conduct themselves with fairness
and good faith in the arrangements of the voyage. If, with a view to
practice à fraud upon the belligerent, and to escape froin his acknow-
ledged right of captiire and detention, the voyage is disguised, and the
vessel sails under false papers, and with a false destination, the mere
deposit of the contraband in the course of the voyage is not allowed
to purge away the guilt of the fraudulent conduct of the neutral.
In the case of The Franklin, in 1801, 3 Rob. 217, Lord Stowell said,
"I have deliberated upon this case and desire it to be considered as
the settled rule of law received by this court, that the carriage of
contraband with a false destination will make à condemnation of the
ship, as well as the cargo." Shortly afterwards, in the case of The
Neutralitet, 1801, 3 Rob. R. 295, he added, " The modern rule of
the law of nations is; certainly, that the ship shall not be subject to
condemnation for carrying contraband goods. The ancient practice
was otherwise, and it cannot be denied that it was perfectly justifiable
in principle. If to supply the enemy with such articles is a noxious
act with respect to the owner of the cargo, the vehicle which is
instrumental in affecting that illegal purpose cannot be innocent.
The policy of modern times has, however, introduced a relaxation on
this point; and the general rule now is, that the vessel does not
become confiscated for that act. But this rule is liable to exceptions.
Where a ship belongs to the owner of the cargo, or where the ship is
going on such service under a false destinationi or false papers ; these
circumstances of aggravation have been held to constitute excepted
cases out of the modern rule, and to continue them under the ancient
rule.” The cases in which this language was used were cases of
capture upon the outward voyage. See also The Edward, 4 Rob. R.
68. The same doctrine was afterwards held by the same learned judge
to apply to cases where the vessel had sailed with false papers, and a
false destination upon the outward voyage, and was captured on the
return voyage. See The Nancy, 3 Rob. 122; The Christianberg, 6 Rob.
376. And finally in the cases of The Rosalie and The Elizabeth, in
1802; 4 Rob. R., note to table of cases, the lords of appeal in prize
cases held that the carriage of contraband outward with false papers
will affect the return cargo with condemnation. These cases are not
774
BELLIGERENTS AND NEUTRALS.
[PART II.
reported at large. But in the case of The Baltic, 1 Acton's R. 25,
and that of The Margaret, 1 Acton's R. 333, the lords of appeal
deliberately reaffirmed the same doctrine. In the latter case Sir
William Grant, in pronouncing the judgment of the courts said, “The
principle upon which this and other prize courts have generally
proceeded to adjudication in cases of this nature (that is, where there
are false papers), appears simply to be this : that if a vessel carried
contraband on the outward voyage she is liable to condemnation on
the homeward voyage. It is by no means necessary that the cargo
should have been purchased by the proceeds of this contraband.
Hence we must pronounce against this appeal; the sentence of
condemnation of the court below being perfectly valid and consistent
with the acknowledged principles of general law."
We cannot but consider these decisions as very high evidence of the
law of nations, as actually administered; and in their actual application
to the circunstances of the present case, they are not, in our judg-
ment, controlled by any opposing authority. Upon principle, too, we
trust, that there is great soundness in the doctrine, as a reasonable
interpretation of the law of nations. The belligerent has a right to
require a frank and bona fide conduct on the part of neutrals in the
course of their commerce in times of war; and if the latter.. will
make use of fraud, and false papers, to elude the just rights of the
belligerents, and to cloak their own illegal purposes, there is no
injustice in applying to them the penalty of confiscation. The taint
of the fraud. travels with the party and his offending instrument
during the whole course of the voyage, and until the enterprise has,
in the understanding of the party himself, completely terminated.
There are many analogous cases in the prize law where fraud is
followed by similar penalties. Thus, if--a neutral will cover up
eneiny's property under false papers, which also cover his own
property, prize courts will not disentangle the one from the other,
but condemn the whole as good prize. That doctrine was solemộly
affirmed in this court in the case of The St. Nicholas, 1 Wheaton, 417, 3
Cond. Rep. 614.
Upon the whole, our opinion is, that the general question involved
in the second and third questions, whether there was a legal and
justifiable cause of capture under the circumstances of the present
case, ought to be answered in the affirmative. The question as to the
authority of the cruiser to seize, so far as it depends upon her com-
mission, can only be answered in a general way. If she had a
commission under the royal authority of Spain, she was beyond
question entitled to make the seizure. If Rodil had due authority to
grant the commission the same result would arise. If he had no such
CHAP. III.]
775
CARRINGTON V. THE MERCHANTS' INS. CO.
authority, then she must be treated as a non-commissioned cruiser,
entitled to seize for the benefit of the Crown; whose acts, if adopted
and acknowledged by the Crown or its competent authorities, become
equally binding. Nothing is better settled both in England and
America than the doctrine that a non-commissioned cruiser may
seize for the benefit of the government; and if his acts are adopteil
by the government, the property, when condemned, becomes a droit of
the government. The Amiable Isabella, 6 Wheat. Rep. 1, 5 Cond.
Rep. 1; The Dos Hermanos, 10 Wheat. Rep. 306, 6 Cond. Rep. 109;
The Melomane, 5 Rob. 41; The Elsebe, 5 Rob. 174; The Maria
Françoise, 6 Rob. 282.
The sixth and last question is whether, supposing the ship to have
traded in articles contraband of war in the ports of Chili, and to have
been seized afterwards in a port of Peru, then under the royal authority,
before she had discharged her outward cargo for and on account of
such contraband trade, the underwriters be not discharged, whether the
subsequent proceedings for her adjudication were regular or irregular.
This question is understood to raise the point whether, if the seizure
and detention be bona fide for and on account of illicit or contraband
trade, a sentence of condemnation or acquittal, or other regular
proceedings to adjudication, are necessary to discharge the under-
writers. We are of opinion that they are not. If the seizure or
detention be lawfully made for or on account of illicit or contraband
trade, all charges, damages, and losses consequent thereon, are within
the scope of the exception. They are properly attributable to such
seizure and detention as the primary cause, and relate back thereto.
If the underwriters be discharged from the primary hostile act, they
are discharged from the consequences of it. The whole reasoning in
Church v. Hubbard, 2 Cranch, 187, presupposes that if the underwriters
be exempted from the risk of a justifiable seizure for illicit trade, they
are not accountable for losses consequent thereon, whether arising
from a sentence of condemnation or otherwise.?
1 This consequence does not attach unless false papers have been used.
doctrine of these cases is not approved of by Wheaton or by foreign jurists; and,
while undoubtedly severe, it does not appear to be a necessary deduction from the
general principles governing the forfeiture of contraband cargoes.” Hall, Int. Law,
p. 696. But see 1 Duer, Marine Ins., 627, note c.
In The Sarah Christiana, 1799, 1 C. Rob. 238, 241, Sir Wm. Scott said: “In the
practice of this court there is a relaxation of these articles (pitch and tar), being the
produce of the claimant's country; and it lias been deemed a harsh exercise of a belliger-
ent right to prohibit the carriage of these articles, which constitute so considerable a
part of its native produce and ordinary commerce. But in the same practice this re-
laxation is understood with a condition, that it may be brought in, not for confiscation,
but for pre-emption; no unfair compromise, as it should seem, between the belligerent's
rights, founded on the necessities of self-defence, and the claims of the neutral to
« The
776
(PART II.
BELLIGERENTS AND NEUTRALS.
THE “IMINA."
HIGH COURT OF ADMIRALTY, 1800.
(3 C. Robinson, 138.)
This was a case of a cargo of ship timber which had sailed July,
1798, from Dantzick, originally for Amsterdam, but, was going at the
time of capture to Embden, in consequence of information of the
blockade of Amsterdam.
Judgment. — Sir W. Scott: - This is a claim for a ship taken, as it
is adinitted, at the time of capture sailing for Embden, a neutral port;
a destination on which, if it is considered as the real destination, no
question of contraband could arise; inasmuch as goods going to a
neutral port cannot come under the description of contraband, all
goods going there being equally lawful. It is contended, however,
that they are of such a nature as to become contraband if taken on a
destination to a hostile port. On this point, some difference of opin-
ion seems to have been entertained; and the papers which are brought
in may be said to leave this important fact in some doubt. Taking it,
export his native commodities though immediately subservient to the purposes of
hostility. To entitle the party to the benefit of this rule a perfect bona fides on his part
is required."
On The Haabet, 1800, 2 C. Rob. 175 at p. 182, the same eminent judge said: “It is a
mitigated exercise of war on which any purchase is made, and no rule has established,
that such a purchase shall be regulated exactly upon the same terms of profit which
would have followed the adventure, if no such exercise of war hiad intervened ; it is a
reasonable indemnification and a fair profit on the commodity that is due, reference
being lad to the original price actually paid by the exporter, and the expenses which
he has incurred: * * * But certainly the capturing nation does not always take these
cargoes on the same terms.on which an enemny would be content to purchase them;
much less are cases of this kind to be considered as cases of costs and damages, in
which all loss of possible profit is to be laid upon unjust captors, for these are unjust
captures, but authorized exercises of the right of war.” See further, The Staat
Embden, 1798, 1 C. Rob. 27; The Ringende Jacob, 1798, 1 C. Rob. 89; The Muria, 1709,
1 C. Rob. 340; The Apollo, 1802, 4 C. Rob. 159; The Christina Maria, 1802, 4 C. Rob.
166 ; The Twee Juffrowen, 1802, 4 C. Rob. 242; The Evert, 1803, 4 C. Rob. 354.
In strictness," says Hall (Int. Law, 690-691), "every article which is either
necessarily contraband, or which has become so from the special circumstances of the
war, is liable to confiscation ; but it is usual for those nations who vary their list of
contraband to subject the latter class to pre-emption only, which by the English
practice means purchase of the merchandise at its mercantile value, together with a
reasonable profit, usually calculated at ten per cent on the amount. This mitigation of
extreme belligerent privilege is also introduced in the case of products native to the
exporting country, even when they are affected by an inseparable taint of contraband.”
-Ed.
t
CHAP. III.]
777
66
THE
IMINA."
however, that they are of such a nature as to be liable to be considered
as contraband on a hostile distination, I cannot fix that character on
them in the present voyage. The rule respecting contraband, as I
have always understood it, is that the articles must be taken in delicto,
in the actual prosecution of the voyage to an enemy's port. Under
the present understanding of the law of nations, you cannot generally
take the proceeds in the return voyage. From the moment of quitting
port on a hostile destination, indeed, the offence is complete, and it is
not necessary to wait till the goods are actually endeavoring to enter
the enemy's port; but beyond that, if the goods are not taken in
clelicto, and in the actual prosecution of such a voyage, the penalty is
not now generally held to attach.
Some argument has been drawn in this case from the conduct of
the owners. It is said, “That they did not consider these articles
as contraband; they were sent openly and without suppression or
disguise ; ” perhaps that alone would not avail them. It appears,
however, that Amsterdam was declared by this country to be in a
state of blockade, a circumstance that would make it peculiarly crim-
inal to attempt to carry a cargo of this nature to that port. The
inaster receives information of this fact at Elsineur, and on consulta-
tion with the consul of the nation to which the cargo belonged,
changed his purpose, and actually shaped his course for Embden, to
which place he was sailing at the time of capture. I must ask then,
was this property taken under such circumstances as make it subject
to the penalty of contraband ? Was it taken in delicto, in the pros-
ecution of an intention of landing it at a hostile part ? Clearly not.
But it is said, that in the understanding and intention of the owner it
was going to a hostile port; and that the intention on his part was
complete, from the moment when the ship sailed on that destination;
had it been taken at any period previous to the actual variation, there
could be no question but that this intention would have been sufficient
to subject the property to confiscation; but when the variation had ac-
tually taken place, however arising, the fact no longer existed. There
is no corpus delicti existing at the time of capture. In this point of
view I think the case is very distinguishable from some other cases in
which, on the subject of deviation by the master into a blockaded port,
the court did not hold the cargo to be necessarily involved in the con-
sequences of that act. It is argued that as the criminal deviation of
the master did not there immediately implicate the cargo; so here
the favorable alteration cannot protect it, and that the offence must
in both instances be judged by the act and designs of the owner But
in those cases there was the guilty act, really existing at the time of
capture; both the ship and cargo were taken in delicto ; and the only
778
(PART H.
BELLIGERENTS AND NEUTRALS.
question was to whom the delictum was to be imputed; if it was
merely the offence of the master, it might bind the owner of the ship,
whose agent he was; but the court held that it would be hard to bind
the owners of the cargo by acts of the master, who is not de jure their
agent, unless so specially constituted by them. In the present in-
stance, there is no existing delictum. In those cases the criminal
appearance, which did exist, was purged away by considering the
owners of the cargo not to be necessarily responsible for the act of
the master; but here there is nothing requiring any explanation: The
cargo is taken on a voyage to a neutral port. To say that it is never-
theless exposed to condeinnation on account of the original destina-
tion, as it stood in the mind of the owners, would be carrying the
penalty of contraband further than it has been ever carried by this or
the Superior Court. If the capture had been made a day before, that
is, before the alteration of the course, it might have been different; but
however the variation has happened, I am disposed to hold that the
parties are entitled to the benefit of it; and that under that variation
the question of contraband does not at all arise. I shall decree resti-
tution; but as it was absolutely incumbent on the captors to bring the
cause to adjudication from the circumstance of the apparent original
destination, I think they are fairly entitled to their expenses.
Restitution. Captor's expenses decreed.
i
SETON V. LOW.
SUPREME COURT OF NEW YORK, 1799.
(1 Johnson's Cases, 1.)
This was an action on a policy of insurance, which included “all
kinds of lawful goods and merchandises” on board the Hannah, &c.
The ship having been captured and a part of the goods condemned as
contraband, the defendants refused to pay the insurance, on the ground
that the plaintiffs had not informed them of the nature of the cargo.”
KENT, J.: - “Two question were raised on the argument in this case.
“1. Whether the contraband goods were lawful, within the meaning
of the policy.
"2. If lawful, whether the assured were bound to disclose to ne
defendant the fact, that part of the cargo was contraband of war.
1 See The Trende Sostre, 1800, cited in The Lisette, 6 C. Rob. 390 n., in which the
same principle is held applicable to contraband. ED.
2 Short statement substituted for that of the reporter and only a brief extract from
the opinion is given. – ED.
CHAP. III.)
779
SETON V. Low.
“On the first point, I am of opinion, that the contraband goods
were lawful goods, and that whatever is not prohibited to be ex-
ported, by the positive law of the country, is lawful. It may be
said, that the law of nations is part of the municipal law of the land,
and that by that law (and which, so far as it concerns the present
question, is expressly incorporated into our treaty of commerce with
Great Britain) contraband trade is prohibited to neutrals, and, con-
sequently, unlawful. This reasoning is not destitute of force, but the
fact is, that the law of nations does not declare the trade to be unlawful.
It only authorizes the seizure of the contraband articles by the bel-
ligerent powers; and this it does from necessity. A neutral nation
has nothing to do with the war, and is under no moral obligation to
abandon or abridge its trade; and yet, at the same time, from the
Jaw of necessity, as Vattel observes, the powers at war have a right
to seize and confiscate the contraband goods, and this they may do
from the principle of self-defence. The right of the hostile power
to seize, this same very moral and correct writer continues to ob-
serve, does not destroy the right of the neutral to transport. They
are rights which may, at times, reciprocally clash and injure each
other. But this collision is the effect of inevitable necessity, and
the neutral has no just cause to complain. A trade by a neutral in
articles contraband of war is, therefore, a lawful trade, though a
trade, from necessity, subject to inconvenience and loss.” 1
1 In Ex parte Chavasse, in Re Grazebrook, 1865, 34, L. J. N. S., Bankruptcy, 17,
Chavasse and Grazebrook went into partnership in the furnishing of contraband arti-
cles to the Confederacy. Both parties becante bankrupt, and the assignees of Chavasse
presented a petition to have the proceeds of these transactions apportioned, Chavasse
never having received anything from them. This petition was dismissed with costs
on the ground of the illegality of the contract. An appeal was allowed, Lord Chan-
cellor Westbury considering that there was a valid partnership. He cites the Suntis-
sima Trinidud, 7 Wheat. 340, ante, and quotes the following passage as a very correct
representation of the present state of the law of England: “There is nothing in our
laws, or in the law of nations, that forbids our citizens from sending armeil vessels
as well as munitions of war to foreign ports for sale. It is a commercial adventure
which no nation is bound to prohibit, and which only exposes the persons engaged in
it to the penalty of confiscation."
He further said: “But this commerce, which was perfectly lawful for the neutral
witſi either belligerent country before the war, is not made by the war unlawful or
capable of being prohibited by both or either of the belligerents; and all that inter-
national law does is to subject the neutral merchant who transports the contrabanı
of war to the risk of having his ship and cargo captured and condemned by the bellig-
erent power for whose enemy the contraband is destined.”
See also The Helen, 1855, L. R., 1 Adm. & Ecc. 1, infra, 821.
“ The carrier of contraband may violate the proclamation of the neutral state of
which he is a member and deprive himself of the right to protection from her, but the
punishment of his offence is, by the general law of nations, left to the belligerent who
780
[PART II.
BELLIGERENTS AND NEUTRALS.
A
SECTION 43. — DESPATCHES AND PERSONS AS CONTRABAND.
THE “ATALANTA."
HIGH COURT OF ADMIRALTY, 1808.
(6 C. Robinson, 440.)
This was a case of a Bremen ship and cargo, captured on a
voyage from Batavia to Bremen, on the 14th of July, 1797, having
come last from the Isle of France; where a packet containing dis-
patches from the Government of the Isle of France to the Minister
of Marine, at Paris, was taken on board by the master and one of
the supercargoes, and was afterwards found concealed in the pos-
session of the second supercargo, under circumstances detailed in the
judgment.
Extract from judgment,--Sir W. SCOTT:--
“ The question then is, what are the legal consequences attaching
on such a criminal act?--for that it is criminal and most noxious is
scarcely denied. What might be the consequences of a simple trans-
mission of dispatches, I am not called upon by the necessities of the
present case to decide, because I have already pronounced this to be
a fraudulent case. That the simple carrying of dispatches, between
the colonies and the mother country of the enemy, is a service
highly injurious to the other Belligerent, is most obvious. In the
present state of the world, in the hostilities of European powers, it
is an object of great importance to preserve the connection between
the mother country, and her colonies; and to interrupt that connec-
tion, on the part of the other Belligerent, is one of the most ener-
getic operations of war. The importance of keeping up that connec-
tion, for the concentration of troops, and for various military pur-
poses, is manifest; and I may add, for the supply of civil assistance,
also, and support, because the infliction of civil distress, for the pur-
pose of compelling a surrender, forms no inconsiderable part of the
operations of war. It is not to be argued, therefore, that the im-
has the right to capture. The offence is not cognizable by the municipal law of this
country.” Sir Robt. Phillimore in The International, 1871, 3 Adm. & Ecc. 321, 336.
The only penalty by the modern law of nations for carrying contraband is the loss
of freight and expenses. The Ringende Jacob, 1798, 1 C. Rob., 89; The Sarah Christina,
1.799, Id. 242, and others. See also 11 Op. Atty.-Gen. 408, 410; Id. 451.
On the subject of contraband generally, see the excellent and elaborate digest-note
10 The Jonge Margaretha in Tudor's Mercantile Cases, 3d ed., 986-1010. – Ed.
$
CHAP. III.)
781
THE
ATALANTA.'
1
portance of these dispatches might relate only to the civil wants of
the colony, and that it is necessary to shew a military tendency;
because the object of compelling a surrender being a measure of
war, whatever is conducive to that event must also be considered in
the contemplation of ļaw, as an object of hostility, although not pro-
duced by operations strictly military. How is this intercourse with
the mother country kept up, in time of peace? by ships of war or
by packets in the service of the state. If a war intervenes and the
other Belligerent prevails to interrupt that cominunication, any per-
son stepping in to lend himself to effect the same purpose, under the
privilege of an ostensible neutral character, does, in fact, place him-
self in the service of the enemy-state, and is justly to be considered
in that character. Nor let it be supposed, that it is an act of light
and casual importance. The consequence of such a service is indefi-
nite, infinitely beyond the effect of any contraband that can be con-
veyed. The carrying of two or three cargoes of stores is necessarily
an assistance of a limited nature; but in the transmission of dis-
patches may be conveyed the entire plan of a campaign, that may de-
feat all the projects of the other Belligerent in that quarter of the
world. It is true, as it has been said, that one ball might take off a
Charles the XIIth, and might produce the most disastrous effects in
a campaign; but that is a consequence so remote and accidental,
that in the contemplation of human events it is a sort of evanescent
quantity of which no account is taken; and the practice has been
accordingly, that it is in considerable quantities only that the offence
of contraband is contemplated. The case of dispatches is very dif-
ferent; it is impossible to limit a letter to so small a size, as not to
be capable of producing the most important consequences in the
operations of the enemy. It is a service, therefore, which, in what-
ever degree it exists, can only be considered in one character, as an
act of the most noxious and hostile nature.
“ This country, which--however much its practice may be misrep-
resented by foreign writers, and sometimes by our own, has always
administered the law of nations with lenity, adopts a more indulgent
rule, inflicting on the ship only a forfeiture of freight in ordinary
cases of contraband. But the offence of carrying dispatches is, it
has been observed, greater. To talk of the confiscation of the nox-
ious article, the dispatches, which constitutes the penalty in contra-
band, would be ridiculous. There would be no freight dependent on
it, and therefore the same precise penalty cannot, in the nature of
things, be applied. It becomes absolutely necessary, as well as just,
to resort to some other measure of confiscation, which can be po
other than that of the vehicle.
782
(PART II.
BELLIGERENTS AND NEUTRALS.
“ Theu comes the other question, whether the penalty is not also
to be extended further, to the cargo, being the property of the same
proprietors—not merely ob continentiam delicti, but likewise be-
cause the representatives of the owners of the cargo, are directly in-
volved in the knowledge and conduct of this guilty transaction ?
On the circumstances of the present case I have to observe, that the
offence is as much the act of those who are the constituted agents
of the cargo, as of the master, who is the agent of the ship. The
general rule of law is, that, where a party has been guilty of an in-
terposition in the war, and is taken in delicto, he is not entitled to
the aid of the court, to obtain the restitution of any part of his.
property involved in the same transaction. It is said, that the term,
interposition in the war' is a very general term and not to be
loosely applied. I am of opinion, that this is an aggravated case of
active interposition in the service of the enemy, concerted and con.
tinued in fraud, and marked with every species of malignant con.
duct. In such a case I feel myself bound, not only by the general
rule, ob continentiam delicti, but by the direct participation of guilt
in the agents of the cargo. Their own immediate conduct not only
excludes all favourable distinction, but makes them pre-eminently the
object of just punishment. The conclusion therefore is, that I must,
pronounce the ship and cargo subject to condemnation.
“The court observed afterwards :-I will mention, though it is a cir-
cumstance of no great consequence, that I have seen the dispatches
in this case, and that they are of a noxious nature, stating the
strength of the different regiments, &c., and other particulars en-
tirely military."
THE "RAPID."
HIGH COURT OF ADMIRALTY, 1810.
,
(Edwards, 228.)
This was the case of an American ship which was captured on her
voyage from New York to Tonningen, on suspicion of an intention
to push into the Texel. But the question of destination being
abandoned by the captors, they now contended that the case came
within the principle laid down by the court in the case of the Ata-
lanta, as it had been discovered, that among the papers given up by
the master at the time of capture, there was a dispatch addressed to
the Dutch colonial minister at the Hague, under cover to a commer-
cial house at Tonningen.
t
CHAP. NII.]
783
THE “RAPID."
Judgment,—Sir WILLIAM SCOTT:
“The question of destination being disposed of, I have now only
to consider what will be the legal effect of carrying these dis-
patches; and as it appears that the practice of conveying papers of
this description, for the enemy, prevails to a considerable extent, I
must take occasion to remind the proprietors of neutral vessels, that
wherever it is indulged without sufficient caution, they will inevi.
tably subject themselves to very grievous inconveniences. I should
certainly be extremely unwilling to incur the imputation of im-
posing any restrictions upon the correspondence which neutral na-
tions are entitled to maintain with the enemy, or, as it was sug-
gested in argument, to lay down a rule which would in effect deter
masters of vessels from receiving on board any private letters, as
they cannot know what they may contain. But it must be under-
stood, that where a party, from want of proper caution, suffers dis-
patches to be conveyed on board his vessel, the plea of ignorance
will not avail him. His caution must be proportioned to the cir-
cumstances under which such papers are received. If he is taking
his departure from a hostile port in a hostile country, and still more,
if the letters which are brought to him are addressed to persons
resident in an hostile country, he is called upon to exercise the ut-
most jealousy with regard to what papers he takes on board. On
the other hand, it is to be observed, that where the commencement
of the voyage is in a neutral country, and it is to terminate at a
neutral port, or, as in this instance, at a port to which, though not
neutral, an open trade is allowed, in such a case there is less to ex-
cite his vigilance, and, therefore, it may be proper to make some al-
lowance for any imposition which may be practiced upon him. But
when a neutral master receives papers on board in a hostile port, he
receives them at his own hazard and cannot be heard to aver his
ignorance of a fact which, by due enquiry, he might have made him-
self acquainted with. The party in the present case has the benefit
of the favourable distinction : these papers, with some others, were
put on board in an envelope, addressed to a person at Tonningen,
who was instructed to forward them to Holland, but of this the
master swears he knew nothing. They turn out to be of a public
nature, conveying intelligence of importance to the government
of the enemy at the Hague, and they begin, I observe, with an as-
sertion which I hope is not true. The writer says: The letter and
accompanying inclosures which I this day dispatch to His Excel.
lency, the minister of the colonies, via Tonningen, will, I expect, be
communicated to you. I trust my conduct will be approved of by
His Excellency, and that he will please explain himself, both with
784
[PART II.
BELLIGERENTS AND NEUTRALS.
regard thereto, as also respecting the contents of my letter to the
Marshal Daandels. The surest mode of correspondence, is by way
of England or Paris, through the channel of the Dutch minister, as
the American minister will not refuse to inclose for him a letter to me
in his dispatches. This, I hope, is rashly and injuriously said ; the
court cannot bring itself to believe, that the accredited minister of a
country in amity with this would so far lend himself to the pur-
poses of the enemy as to be the private instrument of conveying the
dispatches of the enemy's government to their agent. The papers
in question come from a person who seems to be invested with
something of a public character, though of a peculiar kind, and they
are upon public business, but I do not know whether they come
strictly within the definition of dispatches. The writer of them had
been sent to America from Batavia by the governor, to beat up for
volunteers among the American merchants, in the hope of inducing
them to embark themselves in the trade of that settlement. How
far he had been acknowledged by the American government does
not appear; from the contents of the papers themselves he seems to
have been stationed in America, not by the government of Holland,
but by the Dutch governor of Batavia, rather as a commercial agent
to drive a bargain with individuals, and to induce them to join in
these speculations for the relief of the Batavian trade, than for any
purposes of a more diplomatic nature. His commission was such
that it might exist without his being acknowledged as a public ac-
credited minister by the American government, and therefore the
claimant is, perhaps, entitled to the benefit of the distinction which
has been taken, that these papers, though mischievous in their own
nature, proceed from a person who is not clothed with any public
official character. They came to the hands of this American master
among a variety of other letters from private persons; they were
concealed in an envelope, addressed to a private person, and were
taken on board in a neutral country; these are circumstances which
would rather induce the court to consider this case as excepted from
the general rule which does not permit a neutral master, carrying
dispatches for the enemy, to shelter himself under the plea of ig-
norance. In the present instance the American master denies all
knowledge of the contents of these papers, and the benefit of that
denial will extend to the cargo; it is not, therefore, a case in which
the property is to be confiscated, although in this, as in every other
instance in which the enemy's dispatches are found on board a ves-
sel, he has justly subjected himself to all the inconveniences of
seizure and detention and to all the expenses of those judicial in-
quiries which they have occasioned.”
t
CHAP. III.]
785
THE “QROZEMBO."
THE “MADISON.”
HIGH COURT OF ADMIRALTY, 1810.
(Edwards, 224.)
Judgment. Sir WM. SCOTT:
“Now I am of opinion, that a communication from the Danish
Government to its own consul in America, does not necessarily im-
ply anything that is of a nature hostile or injurious to the interests
of this country. It is not to be so presumed; such communica-
tions must be supposed to have reference to the business of the con-
sul-general's office, which is to maintain the commercial relations of
Denmark with America. If such communications were interdicted
the functions of the official persons would ceaşe altogether. ***
A Danish consul-general in America is not stationed there
merely for the purpose of Danish trade, þụt of Danish-American
trade; his functions relate to the joint commerce in which the two
countries are engaged, and the case, therefore, falls within the prin-
ciple which has been laid down in the case of the Caroline in regard
to despatches from the enemy to his ambassador resident in a neu-
tral country."
ri
THE "OROZEMBO."
High COURT OF ADMIRALTY, 1907.
(6 C. Robinson, 430.)
This was a case of an American vessel that had been ostensibly
chartered by a merchant at Lisbon “to proceed in balļast to Macao,
and there to take a cargo to America," but which had been after-
wards, by his directions, fitted up for the reception of three inilitary
officers of distinction and two persons in civil departments in the
government of Batavia, who had come from Holland to take their
passage to Batavią, under the appointment of the Government of
Holland.
There were also on board a lady, and some persons in the capacity
of servants, making in the whole seventeen passengers.
Judgment, Sir W. SCOTT:-
“This is the case of an admitted American vessel; but the title to
1 Facts omitted and only extracts from the opinion are given. - ED.
50
*786
[PART 11.
BELLIGERENTS AND NEUTRALS.
restitution is impugned, on the ground of its having been employed,
at the time of the capture, in the service of the enemy, in transport-
ing military persons first to Macao and ultimately to Batavia. That
a vessel hired by the enemy for the conveyance of military persons
is to be considered as a transport subject to condemnation, has been
in a recent case held by this court, and on other occasions.
“What is the number of military persons that shall constitute
such a case, it may be difficult to define. In the former case there
were many, in the present there are much fewer in number; but I
accede to what has been observed in argument, that number alone is
an insignificant circumstance in the considerations, on which the
principle of law on this subject is built, since fewer persons of high
quality and character may be of more importance, than a much
greater number of persons of lower condition. To send out one vet-
eran general of France to take the command of the forces at Batavia,
might be a much more noxious act than the conveyance of a whole
regiment. The consequences of such assistance are greater; and
therefore it is what the belligerent has a stronger right to prevent
and punish. In this instance the military persons are three, and
there are, besides, two other persons, who were going to be employed
in civil capacities in the government of Batavia. Whether the prin-
ciple would apply to them alone, I do not feel it necessary to deter-
mine. I am not aware of any case in which that question has been
agitated; but it appears to me, on principle, to be but reasonable
that, whenever it is of sufficient importance to the enemy that such
persons should be sent out on the public service, at the public ex-
pence, it should afford equal ground of forfeiture against the vessel
that may be let out for a purpose so intimately connected with the
hostile operations.
“It has been argued, that the master was ignorant of the charac-
ter of the service on which he was engaged, and that, in order to
support the penalty, it would be necessary that there should be some
proof of delinquency in him, or his owner. But, I conceive, that is
not necessary; it will be sufficient if there is an injury arising to the
belligerent from the employment in which the vessel is found. In
the case of the Swedish vessel there was no mens rea in the owner,
or in any other person acting under his authority. The master was
an involuntary agent, acting under compulsion, put upon him by the
officers of the French government, and, so far as intention alone is
considered, perfectly innocent. In the same manner, in cases of bona
fide ignorance, there may be no actual delinquency, but if the service
is injurious, that will be sufficient to give the belligerent a right to
prevent the thing from being done, or at least repeated, by enforcing
$
CHAP. III.]
787
THE
OROZEMBO."
the penalty of confiscation. If imposition has been practiced, it
operates as force; and if redress in the way of indemnification is to
be sought against any person, it must be against those, who have, by
means either of compulsion or deceit, exposed the property to dan-
ger. If, therefore, it was the most innocent case on the part of the
master, if there was nothing whatever to affect him with privity, the
whole amount of this argument would be, that he must seek his re-
dress against the freighter; otherwise such opportunities of convey-
ance would be constantly used, and it would be almost impossible, in
the greater number of cases, to prove the knowledge, and privity of
the immediate offender.
“ It has been argued throughout, as if the ignorance of the master
alone would be sufficient to exempt the property of the owner from
confiscation. But may there not be other persons, besides the mas-
ter, whose knowledge and privity would carry with it the same
consequences ?
“Suppose the owner himself had knowledge of the engagement,
would not that produce the mens red, if such a thing is necessary?
or if those who had been employed to act for the owner, had thought
fit to engage the ship in a service of this nature, keeping the master
in profound ignorance, would it not be just as effectual, if the mens
rea is necessary, that it should reside in those persons, as in the
owner ?
" The observations which I shall have occasion to make on the re-
maining parts of this case will, perhaps, appear to justify such a
supposition, either that the owner himself, or those who acted for
him in Lisbon or in Holland, were connusant of the nature of the
whole transaction. But I will first state distinctly, that the prin-
ciple on which I determine this case is, that the carrying military
persons to the colony of an enemy, who are there to take on them
the exercise of their military functions, will lead to condemnation,
and that the court is not to scan with minute arithmetic the number
of persons that are so carried. If it has appeared to be of sufficient
importance to the government of the enemy to send them, it must
be enough to put the adverse government on the exercise of their
right of prevention; and the ignorance of the master can afford no
ground of exculpation in favour of the owner, who must seek his
remedy in cases of deception, as well as of force, against those who
have imposed upon him.” 1
1 See the cases of The Friendship, 1807, 6 C. Rob. 420; and The Caroline, 1802, 4 C.
Rob. 256.
In all these cases the offence is rather the engagement of the vessel as an enemy
transport than the mere carrying of hostile persons as passengers.
1
788
(PART II.
BELLIGERENTS AND NEUTRALS.
" THE PANAMA."
&
SUPREME COURT OF THE UNITED STATES, 1899.
(176 United States, 535.)
At the time of the breaking out of the recent war with Spain, a
Spanish mail steamship was on a voyage from New York to Havana,
carrying a general cargo, passengers, and mails, and having inounted
on board two breech-loading Hontoria guns of nine centimetre bore,
and one Maxim rapid-firing gun, and having also on board twenty
Remington rifles and ten Mauser rifles, with ammunition for all the
guns and rifles, and thirty or forty cutlasses. Her armament had
been put on board more than a year before, for her own defence, as.
required by her owner's mail contract with the Spanish Government,
which also provided that, in case of war, that government might take
* * *
In a note to the case of The Friendship, Dr. Robinson says: "The act of carrying
the soldiers of the enemy has been in former wars assimilated to contraband, by
public proclamation and instructiops, and has been declared to render the ship liable
to condemnation. The declaration of war, 25th March, 1744, concludes with the
following clause:
66! And we do hereby command our own subjects, and advertise all other persons.
of whatever nation soever, not to transport or carry any soldiers, arms, powder, am-
munition, or other contraland goods, to any of their territories, lands, plantations, or
countries of the said French King, declaring, that whatsoever ship or yessel shall be
met withal transporting or carrying any soldiers, arms, powder, ammunition, or other
contraband goods, etc.
the same being taken, shall be condemned as good
and lawful prize.
". The same declaration is also inserted in the second article of the instruction to
cruisers, of the same date; also in the second article of the instructions in the war
with Spain, 20th Dec., 1768.
' In the celebrated Trent case, occurring in 1862, Messrs. Mason and Slidell were
removed from a British priváte vessel by Commodore Wilkes of the San Jacinto, a
public vessel of the United States. Great Britain insisted that the rights of a neutral
vessel not only had been violated, for which she demanded apology, but she insisteil
that those persons should be replaced and returned on board a British ship. This was
done, and they were actually placed on board a British vessel in or near the harbor of
Boston. They were not British subjects, and their return could only have been de-
manded for the reason that they had been torn from British soil, and the sanctity of
British soil, as represented by a British ship, had been violated. Citizenship or resi-
cence had no influence upon the question.” Per Mr. Justice Hunt in Crapo v. Kelley,.'
1872, 16 Wall. 610, 631.
It may be said that Mr. Seward, at that time Secretary of State, admitted that
thiese persons could not lawfully be taken from the Trent at sea, but contended that it
night have been brought in as prize. See Lawrence's Wheaton, 939; Dana's Wheaton,
644; 3 Wharton's Digest, $$ 325, 328, 329, 374; Bernard, Neutrality of Great Britain...
187-225. For a conservative British view, see Hall, Int. Law, 705-708. — ED.
1
CHAP. III.]
789
TËE 6 PANAMA."
possession of the vessel with her equipment, increase her armament,
and use her as a war vessel, and, in these and other provisions, con-
templated her úsë for hostile purposes iñ tiine of war. From the
decree of the District Court for the Southerii District of Florida,
condemning the steamship, an appeal was taken to the Supreme
Court of the United States. 1
Mr. Justice Gray delivered the opinion of the court.2
The recent war with Spain, as declared by the act of Congress of
April 25, 1898, C: 189, and recognized in the President's proclaination
of April 26, 1898, existed on and after April 21, 1898. 30 Stat. 364,
1770. This proclainatioii declared, among the rules on which the
war would be conducted, the following:
“4. Spanish merchant vessels, in any ports or places within the United States;
shall be allowed till May 21, 1898; inclusive, for loading their cargoes and departing
from such ports or places; and such Spanish merchant vessels, if met at sea by any
United States slip, shall be permitted to continue their voyage if, on examination of
their papers, it shall appear that their cargoes were taken on board before the expira-
tion of the above térm: Provided, that nothing herein contained shall apply to Span-
ish vessels having on board any officer in the military or nával service of the enemy;
or any coal (except such as may be necessary for their voyage), or any other article
proliibited or contraband of war, or any despatch of or to the Spanish Government."
“6. The right of search is to be exercised with strict regard for the rights of neu-
trals, and the voyages of mail steainers are not to be interfered with except on tlie
clearest grounds of suspicion of a violation of law in respect of contraband or
blockade.”
It has been decided by this court, in the recent case of The Buena
Venturä, 175 U. S. 384, that a Spanish merchant vessel, which had
sailed before April 21, 1898, from a port of the United States on a
voyage to a foreign port, not having on board any officer in the mili-
tary or naval service of Spain, nor any article contraband of war, nor
any despatch of or to the Spanish Government, was protected by the
fourth clause of the President's proclamation of April 26, 1898, from
condemnation while on that voyage ; but that her capture, before
that proclamation was issued, was with probable cause; and that she
should therefore be ordered to bë restored to her owner, but without
damagés or costs.
That case would be decisive of this one, but for the mails and the
arins carried by the Pänaña, and the contract with the Spanish
Governinent under which the arms were put on board.
It was argued in behalf of the claimant that, independently of her
being a merchant vëssel, she was exempt from capture by reason of
1 The head-note of the official reporter so admirably states the case that it is substi-
tuted for the statement of the court. – ED.
2 Part of the opinion is omitted. – Ed.
790
[PART II.
BELLIGERENTS AND NEUTRALS.
her being a mail steamship and actually carrying mail of the United
States.
There are instances in modern times, in which two nations, by con-
vention between themselves, have made special agrcements concerning
the mail ships. But international agreements for the immunity of
the mail ships of the contracting parties in case of war between them
have never, we believe, gone farther than to provide, as in the postal
convention between the United States and Great Britaiu in 1848, in
that between Great Britain and France in 1833, and in other similar
conventions, that the mail packets of the two nations shall continue
their navigation, without impediment or molestation, until a notifica-
tion from one of the governments to the other that the service is to
be discontinued; in which case they shall be perunitted to return
freely, and under special protection, to their respective ports. And
the writers on international law concur in affirming that no provi-
sion for the immunity of mail ships from capture has as yet been
adopted by such a general consent of civilized nations as to constitute
a rule of international-law. 9 Stát. 969; Wheaton (8th ed.), pp. 659–
661, Dana's note; Calvo (5th ed.), $$ 2378, 2809; De Boeck, SS 207,
208. De Boeck, in § 208, after observing that, in the case of mail
packets between belligerent countries, it seems difficult to go farther
than in the convention of 1833, above mentioned, proceeds to discuss
the case of mail packets between a belligerent and a neutral country,
as follows: “It goes without saying that each belligerent may stop)
the departure of its own mail packets. But can either intercept
enemy mail packets? There can be no question of intercepting neu-
tral packets, because communications between neutrals and belliger-
ents are lawful, in principle, saving the restrictions relating to block-
ade, to contraband of war, and the like; the right of search furnishes
belligerents with a sufficient means of control. But there is no doubt
that it is possible, according to existing practice, to intercept and
seize the enemy's mail packets.
The provision of the sixth clause of the President's proclamation of
April 26, 1898, relating to interference with the voyages of mail
steamships, appears by the context to apply to neutral vessels only,
and not to restrict in any degree the authority of the United States,
or of their naval officers, to search and seize vessels carrying the
mails between the United States and the enemy's country. Nor can
the authority to do so, in time of war, be affected by the facts that
before the war a collector of customs had granted a clearance, and a
postmaster had put mails on board, for a port which was not then, but
has since become, enemy's country. Moreover, at the time of the
capture of the Panama, this proclamation had not been issued.
$
CHAP. III.]
791
THE 66 PANAMA."
!
out an express order of the government, a merchant vessel is not
privileged from search or seizure by the fact that it has a govern-
ment mail on board. The Peterhoff, 5 Wall. 28, 61.
The mere fact, therefore, that the Panama was a mail steamship, or .
that she carried mail of the United States on this voyage, does not
afford any ground for exempting her from capture.
The remaining question in the case is whether the Panama came
within the class of vessels described in the fourth clause of the Presi-
dent's proclamation of April 26, 1898, as "Spanish merchant vessels,"
and as not.“ Spanish vessels having on board any officer in the mili-
tary or naval service of the enemy, or any coal (except such as may
be necessary for their voyage) or any other article prohibited or con-
traband of war, or any despatch of or to the Spanish Governinent.”'
On the part of the claimant, it was argued that the arms which the
Panama carried, under the requirements of her mail contract and for
the protection of the mails, are not to be regarded as contraband or
munitions of war, within the sense of this clause; that “contraband,”
as therein referred to, means contraband cargo, not contraband por-
tion of the ship's permanent equipment, and that, if the furnishings
of a ship could be regarded as contraband, every ship would have
contraband on board.
On the other hand, it was contended, in support of the condemna-
tion, that the arms which the Panama carried, belonging to her owner,
were contraband of war, and rendered her liable to capture; and that
by reason of her being so armed, and of the provisions of her mail
contract with the Spanish Government, requiring her armament, and
recognizing the right of that government, in case of a suspension of
the mail service by war, to take possession of her for warlike pur-
poses, she cannot be considered as a merchant vessel, within the mean-
ing of the proclamation, but must be treated like any regular vessel
of the Spanish navy under similar circuinstances.
The claimant much relied on a case decided in 1800 by the French
Council of Prizes, in accordance with the opinion and report of Por-
talis, himself a high authority. Wheaton (8th ed.), p. 460; De Boeck,
In the case referred to, an American vessel, carrying ten can-
non of various sizes, together with muskets and munitions of war, had
been captured by French frigates; and had been condemned by two
inferior French tribunals, upon the ground that she was armed for
war, and had no commission or authority from her own government.
The claimants contended that their ship, being bound for India, was
armed for her own defence, and that the inunitions of war, the mus-
kets and the cannon that composed her armament did not exceed
what was usual in like cases for long voyages. Upon this point Por-
$ 81.
792
BELLIGERENTS AND NEUTRALS. [PART II.
war.
talis, acting as commissioner of the French Government, reported his
conclusion on the question of armament as follows: "For iny part, I
do not think it is eitough to have dr to carry arms, to incur the
reproach of being armed for war. Arinament for war is of a purely
offensive nature. It is established when there is no other object in
the armament than that of attack, or, at least, when everything shows
that such is the principal object of the enterprise ; then à vessel is
deemed enemy or pirate, if she has no comuiission or papers sufficient
to remove all suspicion. But defence is a natural right, and means
of defence are lawfül. in voyages at sea, as in all other dangerous
Occupations of life.. A ship which had but a small crew, and a con-
siderable cargo, was evidently intended for coiömerce, and not for
The armis found on this ship were evidently intended, not for
committing acts of rapine or hostility, but for preventing them; not
for attack, but for self-deferice. The pretext of being arnied for war
therefore appears to ine to be unfounded.” The Council of Prizes,
upon consideration of the report of Portalis, adjudged that the cap-
ture of the vessel and her cargo was null and void, and ordered them
to be restored, with damages. The Pégou, or Pigou, 2 Pistoye, et
Duverdy, Prises Maritiines, 51; s. c. 2 Cranch, 96-98, and note.
But in that case the only question at issue was whether a neutral
merchant vessel, carrying arms solely for her own defence, was liable to
capture for want of a commission as a vessel of war or privateer. That
the capture took place while there was no state of war between France
and the United States is shown by her being treated, throughout the
case, as a neutral vessel ; if she had been enemy's property, she
would have been lawful prize, even if she had a commission, or if
she were unaimed. She was not enemy's property, nor in the
enemy's possessioni, nct bound to a port of thë enemy; nor had her
owner made any contract with the enemy by wbicli the enemy was, or
would be, under any circumstances, entitled to take and use her, either
for war, or for any other purpose.
Generally speaking, arins and ammunition are contraband of war.
In The Peterhoff, 5 Wall. 28, Chief Justice Chase, delivering the judg-
ment of this court, said: “The classification of goods as contraband
or not contraband has much perplexed text-writers and jurists. A
strictly accurate and satisfactory classification is perhaps impractica-
ble; but that which is best supported by American and English deci-
sions may be said to divide all merchandise into three classes. Of
these classes, the first consists of aiticles manufactured, and prima-
rily and ordinarily used, for military purposes in time of war; the
the second, of articles which may be and are used for purposes of war
or peace, according to circumstances; and the third, of articles
CHAP. III.]
793
THỂ • PANAMA.”
exclusively used for peaceful purposes. Merchandise of the first.
class, destined to a belligerent country or places occupied by the
army or navy of a belligerent, is always contraband ; merchandise of
the second class is contraband only when actually destined to the
inilitary or naval use of a belligerent; while merchandise of the third
class is not contraband at all, though liable to seizure and condemna-
tiori for violation of blockade or siege." And it was adjudged that so
much of the cårgo of the Peterhoff, as consisted of artillery harness,
artillery boots, and army shoes and blankets; came fairly under the
description of goods primarily and ordinarily used for military pur-
pošes in time of war; and; being destined directly for the use of the
rebel military service, came within the second, if not withiii the first
class of goods contraband of war. 5 Wall. 58.
Yet it list be admitted that arms and ainmünition are not contra-
band of war, when täken änd kept on board a merchant vessel as part.
of her equipment, and solely for her defence against“enemies, pirates,
and assailing thieves,” according to the ancient phrase still retained
in policies of marine insuränce: Pratt, in his essay on the Law of
Contraband of War, speaking of the class of “ articles which are of
direct uise in war," says: “With respect to thëse no questions can
arise. On proof of the tise of the article being solely or particularly
applicable to liostile purposes, the conveyance of it to the enemy
would amount to such a direct interposition in the war as necessarily
to entail the confiscation of the property.” But he afterwards adds
this qualification: “But even in the casë of articles of direct use in
war, an exception is always made in favor of such a quantity of them
as may be supposed to be necessary for the use or defence of the
ship." And again, speaking of “warlike stores," he says: “These
are, from their very nature, evidently contraband; but every vessel is,
of course, allowed to carry such a quantity as may be necessary for
purposes of defence; this provision is expressly introduced in many
treaties.” Pratt, Contraband of War; xxii, xúv, xl. And at pages
239, 244, 245 of his appendix le quotes express provisions to that
effect in the treaties between Great Britain and Russia in 1766, 1797,
and 1801. See also cases of Dritch and Spanish Ships, 6 C. Rob.
48; The Happy Couple, Stewart Admi: (Nova Scotia), 65, 69; Mad-
ison, quoted in 3 Whart. Int. Law Dig. § 368, p. 313.
But the fact that arms carried by a merchant vessel were originally
taken on board for her own defence is not cônclusive as to her charac-
ter. This is clearly shown by the case of The Anielia (1801), reported
by the name of Talbot v. Seernan, 1 Crañch, 1. In that case, during
the naval warfare between the United States and France near the end
of the last century, a neutral merchant vessel, häving eight iron can-
794
[PART 11.
BELLIGERENTS AND NEUTRALS.
non and eight wooden guns mounted on board, and a cargo of mer-
chandise, sailed from Calcutta for Hamburg, both being neutral ports;
and before reaching her destination was captured by a French cruiser,
and put by her captors, with the cannon still on board, in charge of a
French prize crew, with directions to take her into a French port
for adjudication as prize; and on her way thither was recaptured
by a United States ship of war. The recapture was held to be lawful,
and to entitle the recaptors to salvage before restoring the vessel to
her neutral owner, because, as Chief Justice Marshall said, “The
Amelia was an armed vessel commanded and manned by Frenchmen,
« she was an armed vessel under French authority, and in a condi-
tion to annoy the American commerce." 1 Cranch, 32. And in The
Charming Betsy, 1804, 2 Cranch, 64, that case was expressly
approved, as a precedent to be followed under similar circumstances;
but was held to be inapplicable where the arms on board at the time
of the recapture were but a single musket and a small amount of
powder and ball. 2 Cranch, 121. Notwithstanding that the Ameliu.
was a neutral vessel, with an armament originally taken on board for
defence only, and therefore, while in the possession of her neutral
owner, would not (according to the French case above cited) have
been liable to capture as an armed vessel, yet, after she had been
taken possession of by the enemy, with the same armament still on
board, and thus was in a condition to be used by the enemy for hostile
purposes, the fact that the original purpose of the armament was
purely defensive did not prevent her from being considered as an
armed vessel of the enemy.
While the authorities above referred to present principles and
analogies worthy of consideration in the case at bar, they furnish no
co lusive rule to govern its determination. The decision of this case
must depend upon its own facts, and upon the true construction of the
President's proclamation.
As to the facts, there is no serious dispute. The matters stated in
the test affidavits upon which the motion for further proof was based,
add nothing of importance to the facts disclosed by the testimony
in ว preparatorio, and by the mail contract between her owner and the
Spanish Government, which forms part of the ship's papers.
That contract contains many provisions looking to the use of the
company's steamships by the Spanish Government as vessels of war.
Among other things, it requires that each vessel shall have the capac-
ity to carry 500 enlisted men ; that that government, upon inspection
of her plans as prepared for commercial and postal purposes, may
order her deck and sides to be strengthened so as to support additional
artillery; and that, in case of the suspension of the mail service by a
CHAP. III.]
795
THE “ PANAMA."
naval war, or by hostilities in any of the seas or ports visited by the
company's vessels, the government may take possession of them with
their equipment and supplies, at a valuation to be made by a cominis-
sion; and shall, at the termination of the war, return them to the
company, paying five per cent on the valuation while it has them in
its service, as well as an indemnity for any diminution in their value.
The Panama was not a neutral vessel; but she was eneiny property,
and as such, even if she carried no arnis (either as part of her equip-
ment, or as cargo), would be liable to capture, unless protected by
the President's proclamation.
It may be assumed that a primary object of her armament, and, in
time of peace, its only object, was for purposes of defence. But that
armament was not of itself inconsiderable, as appears, not only from
the undisputed facts of the case, but from the action of the District
Court, upon the application of the cominodore commanding at the
port where the court was held, and on the recommendation of the
prize commissioners, directing her arms and ammunition to be deliv-
ered to the commodore for the use of the Navy Department. And
the contract of her owner with the Spanish Government, pursuant to
which the armament had been put on board, expressly provided that,
in case of war, that government might take possession of the vessel
with her equipment, increase her arınament, and use her as a war
vessel; and, in these and other provisions, evidently contemplated her
use for hostile purposes in time of war.
She was, then, enemy property, bound for an enemy port, carrying
an armament susceptible of use for hostile purposes, and herself liable,
upon arrival in that port, to be appropriated by the enemy to such
purposes.
The intent of the fourth clause of the President's proclamation was
to exempt for a time from capture peaceful commercial vessels; not
to assist the enemy in obtaining weapons of war.
This clause exempts
"Spanish merchant vessels" only; and expressly declares that it shall
not apply to “Spanish vessels having on board any officer in the mili-
tary or naval service of the enemy, or any coal (except such as inay
be necessary for their voyage) or any other article prohibited or contra-
band of war, or any despatch of or to the Spanish Government."
Upon full consideration of this case, this court is of opinion that
the proclamation, expressly declaring that the exemption shall not
apply to any Spanish vessel having on board any article prohibited or
contraband of war, or a single military or naval officer, or even a
despatch, of the enemy, cannot reasonably be construed as including,
in the description of “Spanish merchant vessel,” which are to be ten-
porarily exempt from capture, a Spanish vessel owned by a subject of
796
BELLIGERENTS AND NEUTRALS. (PART 11.
the enemy; having an armament fit for hostile use; intended, in the
event of war, to be used as a war vessel; destined to a port of the
enemy; and liable, on arriving there, to be taken possession of by
the enemy, and employed as an auxiliary cruiser of the enemy's
navy, in the war with this country.
The result is, that the Panamá was lawfully captured and con-
demned, and that the decree of the District Court must be
Affirined.
Mr. Justice PECKHAM, dissented.
.
SECTION 44. — BLOCKADE.
THE - NEPTUNUS.";
HIGH COURT OF ADMIRALTY, 1799.
(2 C. Robinson, 110.)
This was a case of a vessel sailing on a voyage from Dantzic to
Havre, 26th October, 1798, and taken in attempting to enter that
port on 26th November.
Judgment, Sir Wm. SCOTT:-
“This is a case of a ship and cargo seized in the act of entering
the port of Havre in pursuance of the original intention under which
the voyage began. The notification of the blockade of that port
was made on the 230 January, 1798, and this transaction happened
in November in that year; the effect of a notification to any foreign
government would clearly be to include all the individuals of that
nation; it would be the most nugatory thing in the world, if indi-
viduals were allowed to plead their ignorance of it; it is the duty of
foreign governments to communicate the information to their sub-
jects, whose interests they are bound to protect. I shall hold there-
fore that a neutral master can never be heard to aver against a
notification of blockade, that he is ignorant of it. If he is really
ignorant of it, it may be a subject of representation to his own gov-
ernment, and may raise a claim of compensation from them, but it
can be no plea in the court of a belligerent. In the case of a block-
ade de facto only, it may be otherwise, but this is the case of a
blockade by notification; another distinction between a notified
blockade and a blockade existing de facto only, is that in the former,
CHAP. III.]
797
THE “NEPTUNUS."
the act of sailing to a.blockaded place is sufficient to constitute the
offence. It is to be presumed that the notification will be formally
revoked, and that due notice will be given of it; tilļ that is done,
the port is to be considered as closed up, and from the moment of
quitting port to sail on such a destination, the offence of violating
the blockade is complete, and the property engaged in it subject to
confiscation: it may be different in a blockade existing de facto
only; there no presumption arises as to the continuance, and the
ignorance of the party may be admitted as an excuse, for sailing on
a doubtful and provisional destination. But this is a case of a ves-
sel from Dantzick after the notification, and the master cannot be
heard to aver his ignorance of it. He sails :—till the moment of
meeting Admiral Duncan's fleet, I should have no hesitation in say-
ing, that, if he had been taken, he would have been taken in delicto,
and have subjected his vessel to confiscation; but he meets Admiral
Duncan's fleet, and is examined, and liberated by the captain of an
English frigate belonging to that fleet, who told him that he might
proceed on his destination, and who, on being asked, Whether
Havre was under a blockade? said, it was not blockaded,' and
wished him a good voyage. The question is, In what light he is to
be considered after receiving this information? That it was bona
fide given cannot be doubted, as they would otherwise have seized
the vessel ; the fleet must have been ignorant of the fact; and I
have to lament that they were so: When a blockade is laid on, it
ought by some kind of communication to be made known not only
to foreign governments, but to the King's subjects, and particularly
to the King's cruisers; not only to those stationed at the blockaded
ports, but to others, and especially considerable fleets, that are sta-
tioned in itinere, to such a port from the different trading coun-
tries that may be supposed to have an intercourse with it.
* Perhaps it would have been safer in the English captain to have
answered, that he could not say anything of the situation at Havre;
but the fact is (and it has not been contradicted), that the British
officer told the master that Havre was not blockaded.' Under
these circumstances, I think that after this information he is not
taken in delicto. I do not mean to say that the fleet could give the
man any authority to go to a blockaded port; it is not set up as an
authority, but as intelligence affording a reasonable ground of be-
lief; as it could not be supposed, that such a fleet as that was, would
be ignorant of the fact.
“ From that time I consider that a state of innocence commences;
the man was not only in ignorance, but had received positive infor-
mation that Havre was not blockaded. Under these circumstances,
798
(PART II.
BELLIGERENTS AND NEUTRALS.
I think it would be a little too hard to press the former offence
against him; it would be to press a pretty strong principle rather
too strongly; I think I cannot look retrospectively to the state in
which he stood before the meeting with the British fleet, and there.
fore I shall direct this vessel and cargo to be restored."
THE « BETSEY."
HIGH COURT OF ADMIRALTY, 1798.
(1 C. Robinson, 92 a.)
Judgment. -Sir W. Scott:1
“On the question of blockade three things must be proved : 1st,
the existence of an actual blockade; 2dly, the knowledge of the
party; and, 3dly, some act of violation, either by going in, or by
coming out with a cargo laden after the commencement of blockade.
The time of shipment would on this last point be very material, for
although it might be hard to refuse a neutral liberty to retire with
a cargo already laden, and by that act already become neutral prop-
erty; yet, after the commencement of a blockade, a neutral cannot,
I conceive, be allowed to interpose in any way to assist the exporta-
tion of the property of the enemy. After the commencement of the
blockade, a neutral is no longer at liberty to make any purchase in
that port.
“It is necessary, however, that the evidence of a blockade should
be clear and decisive: but in this case there is only an affidavit of
one of the captors, and the account which is there given is, 'that on
the arrival of the British forces in the West Indies, a proclamation,
inviting the inhabitants of Martinique, St. Lucie, and Guadaloupe
to put themselves under the protection of the English; that on a re-
fusal, hostile operations were commenced against them all;' but it
cannot be meant that they began immediately against all at once;
for it is notorious that they were directed against them separately
and in succession. It is further stated, “that in January, 1794 (but
without any more precise date), Guadaloupe was summoned, and
was then put into a state of complete investment and blockade.'
“The word complete is a word of great energy; and we might ex-
pect from it to find, that a number of vessels were stationed round
1 Facts omitted, and only part of the judgment is given. -- ED.
t
CHAP. III.]
799
THE
BETSEY."
the entrance of the port to cut off all communication: but, from the
protest, I perceive that the captors entertained but a very loose no-
tion of the true nature of a blockade ; for it is there stated, “that on
the 1st of January, after a general proclamation to the French
islands, they were put into a state of complete blockade.
It is a
term, therefore, which was applied to all those islands at the same
time, under the first proclamation.
“ The Lords of Appeal have determined that such a proclamation
was not in itself sufficient to constitute a legal blockade: it is clear,
indeed, that it could not in reason be sufficient to produce the effect,
which the captors erroneously ascribed to it: but from the misap-
plication of these phrases in one instance, I learn, that we must not
give too much weight to the use of them on this occasion; and, from
the generality of these expressions, I think, we must. infer, that
there was not that actual blockade which the law is now distinctly
understood to require.
“But it is attempted to raise other inferences on this point, from
the manner in which the master speaks of the difficulty and danger
of entering; and from the declaration of the municipality of Guada-
loupe, which states “the island to have been in a state of siege.' It
is evident the American master speaks only of the difficulty of avoid-
ing the English cruisers generally in those seas; and as to the other
phrase, it is a term of the new jargon of France, which is sometimes
applied to domestic disturbances; and certainly is not so intelligible
as to justify me in concluding, that the island was in a state of in-
vestment, from a foreign enemy, which we require to constitute
blockade: I cannot, therefore, lay it down, that a blockade did exist,
till the operations of the forces were actually directed against Gua-
daloupe in April.
"It would be necessary for me, however, to go much farther, and
to say that I am satisfied also that the parties had knowledge of it:
but this is expressly denied by the master. He went in without ob-
struction. Mr. Incledon's statement of his belief of the notoriety of
the blockade is not such evidence as will alone be sufficient to con-
vince me of it. With respect to the shipment of the cargo, it does
not appear exactly under what circumstances or what time it was
taken in: I shall therefore dismiss this part of the case.
*
800
[PART II.
BELLIGERENTS AND NEUTRALS.
THE “PANAGHIA RHOMBA.??
PRIVY COUNCIL, 1858.
(12 Moore's Privy Council, 168.)
1
The Right Hon. T. PEMBERTON LEIGH :
This case involves a general principle of so much importance that
their lordships thought it desirable to take time for its consideration,
although they had a strong impression at the hearing as to the decision
at which they must arrive.
The Panaghia Rhomba took in a cargo of wheat at Galatz, in the
month of September, 1855, to be conveyed to the Piraeus or Syra, on
the joint account of Signor Cuppa, an Ionian merchant, resident in
Constantinople, and of Messrs. Baltazzi, British merchants, resident
in London.
In the month of November following, the vessel was captured by
her Majesty's ship Dauntless, for an attempt to violate the blockade of
the port of Odessa, which had subsisted from the month of February,
1855, and was then continuing.
The ship has been condemned by the court below upon evidence
which quite satisfies their lordships of the propriety.of the sentence;
and the question now raised is, whether it is competent to the claim-
ants of the cargo to protect their property from condemnation by
showing their innocence in the transaction; or whether, under the
circunstances of this case, the owners of the cargo are .concluded by
the illegal act of the inaster, though it inay have been done without
their privity, and even contrary to their wishes.
It has been held by the court below, that the owners are so .con-
cluded, and that the rule upon the subject is established by authority
not now to be questioned.
The first case to which we have been referred is the Mercurius (1
Rob. 80), which came before Lord Stowell in 1798. There a cargo had
been put on board the Mercurius in America, at a time when it coull
not have been known in that country that a blockade of the Texel liad
been established. The master, after warning, attempted to enter the
Texel, and the ship was condemned, because the owner was bound by
the act of the master; but the cargo was restored, because, as Lord
Stowell observes, the shippers at the time of shipment could not have
kuown of the blockade, and the master, though he was the agent of
1 Facts omitted as the judgment sufficiently states the case.
- ED.
E
CHAP. III.]
801
THE “PANAGHIA RHOMBA."
owner of the vessel, and could bind him by his contract or his miscon-
duct, was not the agent of the owners of the cargo, unless expressly so
constituted by them. Lord Stowell, in that case, addressed himself to
the argument of the captors, that to exempt the cargo from condem-
nation would open a door to fraud, if neutrals were allowed to trade
with blockaded ports with immunity, by throwing the blame upon the
carrier-master; and, in answer to that objection, he observed, that "if
such an artifice could be proved, it would establish that mens rea in the
neutral merchant which would expose his property to confiscation, and
it would be at the same time sufficient to cause the master to be
considered in the character of agent, as well for the cargo as for
the ship.”
In that case Lord Stowell seems to have thought that the owners
of the cargo were not bound by the act of the master without their
authority, and the judgment seems rather to warrant the marginal
note which the very learned reporter has stated as the effect of it,
namely, “ Violation of blockade by the master affects the ship, but
not the cargo, unless the property of the same owner, or unless the
owner is cognizant of the intended violation."
Now, in the present case, Dr. Lushington has stated his conviction
that the owners of the cargo were innocent of all knowledge of the
intended violation; and if, therefore, the law remained as it is to be
collected from the case of the Mercurius, their lordships would have
great difficulty in assenting to the decision now under review.
But subsequent cases seem to have carried the rule much further,
and to have established that when the blockade was known, or might
have been known, to the owners of the cargo at the time when the
shipment was made, and they might, therefore, by possibility be privy
to an intention of violating the blockade, such privity shall be assumed
as an irresistible inference of law, and it shall not be competent to
them to rebut it by evidence; that in cases of blockade, for the purpose
of affecting the cargo with the rights of the belligerent, the master
shall be treated as the agent for the cargo as well as for the ship.
This is the result of the cases cited by Dr: Lushington in his judg-
ment, and the additional authorities mentioned at the bar.
In the case of the Alexander (4 Rob. 94), which occurred in 1801,
Lord Stowell held that, in cases of breach of blockade, the court must
infer “that a ship going in fraudulently, is going in the service of the
cargo, with the knowledge and by the direction of the owner."
In the case of the Adonis (5 Rob. 259), which occurred in 1804, he
went a step further, and held not only that such inference inust be
made, but that (with the exception to which we have already referred)
the owners could be not let in to prove a contrary intention. This case
51
802
(PART II.
BELLIGERENTS AND NEUTRALS.
1
was affirmed upon appeal, and it possesses, therefore, all the authority
which the decisions of the tribunal of a single country can give in a
law in which all civilized countries are concerned.
The saine doctrine is laid down by the same great judge in the case
of the Exchange (1 Edward's Rep. 42), in 1808, and in the James Cook
(1 Edwards, 261) in 1810.
We find, therefore, a series of authorities establishing a general rule,
which, like all general rules, may in its application to particular cases
be occasionally attended with hardship, but which, nevertheless, may
be necessary to prevent fraud, and may, on the whole, promote the
purposes of justice. It is a rule not applicable exclusively to nen-
trals, but applies with equal force to all persons attempting to vio-
late a blockade, though they may be the subjects or the allies of the
country which has established it. In the present case, indeed, Messrs.
Baltazzi, the claimants, are British subjects.
The propriety, or rather the necessity, of acting upon these rules, is
rested by Lord Stowell on the notoriety of the fact that in almost all
cases of breach of blockade, the attempt is made for the benefit and
with the privity of the owners of the cargo; that if they were at
liberty to allege their innocence of the act of the master, it would
always be easy to manufacture evidence for the purpose, which the
captors would have no means of disproving; and that, in order to
make a blockade effectual, it is essential to hold the cargo responsible
to the blockading power for the act of the master, to whom the control
over it has been entrusted, leaving the owners to seek their remedy
against the master or the owners of the ship, if, in reality, the penalty
was incurred without any privity on their part.
It is impossible not to feel the force of this reasoning ; it rests on
the same grounds with another rule of the Prize Courts, which treats
as invalid the sale of a ship in transitu, a point upon which we have
had very recently to examine the law.1
Against a rule, acted upon and promulgated to the world for so many
years, the counsel for the appellants, though challenged to do so by
the respondents, have not produced a single decision or dictum by any
one judge or jurist in any part of the world. Under these circum-
stances, their lordships must consider it as a settled principle of prize
law by which they are bound.
Holding themselves to be precluded by the rule of law from looking
into the evidence in the case in order to judge of the guilt or inno-
cence of the claimants, they can express no opinion upon this subject.
But they think that, as the learned judge in the court below has de-
.clared his conviction of their entire innocence, and his reluctance to
1 In The Baltica, 11 Moore's P. C. Cases, 141.
CHAP. III.]
THE
803
JOHANNA MARIA."
pronounce the sentence complained of, the claimants may fairly be
considered to have been invited to bring this appeal, and that in
affirming the sentence, her Majesty should be advised to make the
order without awarding costs against the appellants.?
THE "JOHANNA MARIA."
PRIVY COUNCIL, 1855.
(10 Moore's Privy Council, 70.)
2
The Right Hon. T. PEMBERTON LEIGH:
This vessel entered Riga on the 20th of May, after all difficulty
arising from the Order in Council of the 15th of April had been re-
moved. She came out again on the 24th of May, having taken on
board a cargo, with a full knowledge of the existence of the blockade
at the time of loading, and in the expectation, as it is said, that the
worst that could happen would be that she would be sent back by the
British ships forming the blockade, to unload her cargo.
The only ground upon which she could ask to be relieved from con-
demnation would be, that the letter of Sir Charles Napier, of the 27th
of May, 1854, and the subsequent announcement by the British Gov-
ernment in the London Gazette, of the 14th of August, would be
sufficient to annul all that has previously taken place, and, on the
1 The gist of blockade is to prevent trade with the enemy: where this feature is
wanting, courts are not over stringent in applying the strict rule of condemnation.
Thus, in U.S. v. Guillem, 1850, 11 How. 47, a Frenchman was permitted to leave Vera
Cruz, a blockaded port, on board a French vessel, for France. Mr. Chief Justice
Taney, in a brief and careful opinion, made the following points : 1. That a neutral
leaving a belligerent country, in which he was domiciled at the beginning of the war,
is entitled to the rights of a neutral in his person and property, as soon as he sails from
the hostile port; 2. The property he takes with him is not liable to condemnation for a
breach of blockade by the vessel in which he embarks, when entering or departing
from the port, unless he knew of the intention of the vessel to break it in going out.
Neutral vessels, lying in the enemy harbor at the outbreak of war, are legally and
innocently there. They are, therefore, permitted to depart in peace before applying
the blockade. “ The period,” says Mr. Hall (Int. Law, 733), “which is allowed for the
exit of ships is usually fixed at fifteen days, and during this time vessels may issue
freely in ballast or with a cargo bona fide bought and shipped before the commence-
ment of the blockade. This time was given in 1948 and 1864 by Denmark; by Eng-
land and France during the Crimean war; by the United States during the civil war,
and by France in the war of 1870.” By proclamation of April 22, 1898, the late Presi-
dent McKinley generously doubled this period. 19 Richardson's Messages and Papers,
202. -Ed.
: Statement of the case omitted. -- ED.
}
804
[PART II.
BELLIGERENTS AND NEUTRALS.
principles laid down by Lord Stowell, in The Rolla (6 Rob. 368), to
postpone all penalties for breach of blockade till after the 28th of
May
Their lordships, however, are of opinion that such a judgment.
would carry the doctrine referred to further than either the decision
itself or sound principle would warrant. In that case, Lord Stowell
observed that the blockade had been very l'ax; that several vessels
had been permitted by the blockading squadron to enter, and the
observations relied on must be understood with regard to the circum-
stances out of which they arose. In this case, from the 5th of May,
there had been an uninterrupted blockade; no single instance has
been produced in which any vessel had been permitted by any of the
blockading ships to enter the port; nor had any been permitted to
come out after the 15th of May, with cargoes subsequently loaded.
There is clear proof of a de facto blockade; full knowledge of it by
the master, and nothing which could mislead him as to its extent or
effect. The usual consequences must, therefore, follow, and the sen-
tence below be affirmed, but without costs of the appeal.
By respective Orders in Council the sentences in these cases, as well
as the sentences relating to the condemnation of their cargoes, were.
reversed, and simple restitution decreed.
1
i
1
THE “FRANCISKA."
PRIVY COUNCIL, 1855.
(10 Moore's Privy Council, 37.)
On the 5th of April, 1854, the conımander of the Baltic fleet block-
aded, de facto, the coast of Courland, but his notice to the British
Ministers, including the British Minister at Copenhagen, was of that
character that the impression was that all the Russian ports in the
Baltic were blockaded. The British Government also on that date
issued an Order in Council, giving permission up to the 15th of May,
for Russian vessels to discharge their cargoes from Russian ports in
the Baltic and White Sea to their port of destination, even though
those ports were in a state of blockade. A similiar permission was
granted by the French Government. And the Russian Government by
a Ukase allowed the same indulgence to English and French ships.
1 In addition to The Rolla, 1807, 6 C. Rob. 364, the following cases were referred
to in the argument: The Neptunus, 1799, 2 C. Rob. 110, ante; The Juffrow Maria
Schroeder, 1800, 3 C. Rob. 147. — Ed.
CHAP. III.)
805
THE “FRANCISKA."
ship of
On the 14th of May, 1854, a neutral vessel, under Danish colors, sailed
from Copenhagen for Riga, and was captured off Riga by an English
ar on the 22d of that month, for a breach of the blockade of
that port. From Dr. Lushington's decree of condemnation an appeal
was taken to the Privy Council.1
The Right Hon. T. PEMBERTON LEIGH: 2
As regards export, therefore, from the Baltic ports, by the effect of
these several ordinances all restriction up to the 15th of May, on the
conveyance of.cargoes in Russian vessels to British and French ports,
was removed; and though British and French vessels would, by the
general law of nations, be liable to confiscation for breach of blockade,
by sailing from blockaded ports with cargoes taken on board after
notice of the blockade, and the perinission to export is, by the orders,
in terms, confined to Russian vessels, it seems improbable that the
Allied Powers could intend to deprive their subjects of the indulgence
granted to them by the Russian Government, or to subject their prop-
erty to confiscation for doing what the enemy was permitted to do
with impunity.
In effect, therefore, neutrals only would be excluded from that com-
merce which belligerents might safely carry on; and the question is,
whether by the law of nations such exclusion be justifiable; and, if
not, in what manner and to what extent neutral powers are entitled
to avail themselves of the objection.
That such exclusion is not justifiable is laid down in the clearest
and most forcible language in the following passage of the judgment
now under review: “The argument stands thus : by the law of
nations a belligerent shall not concede to another belligerent, or take
for himself, the right of carrying on commercial intercourse pro-
hibited to neutral nations; and, therefore, no blockade can be legiti-
mate that admits to either belligerent a freedom of commerce denied
to the subjects of states not engaged iu the war. The foundation of
the principle is clear, and rooted in justice; for interference with
neutral con merce at all is only justified by the right which war con-
fers of molesting the enemy, all relations of trade being by war itself
suspended. To this principle I entirely concede; and I should regret
to think if any authority could be cited from the decisions of any
British court administering the law of nations, which could be with
truth asserted to maintain a contrary doctrine."
The learned judge, after discussing the question how far licenses
to enter blockaded ports would invalidate a blockade, and pointing out
the important distinctions between blockades according to the ordinary
1 This statement is taken from the head-note of the case. - ED.
2 Only a part of the elaborate opinion of this very learned judge is given. - ED.
806
[PART II.
BELLIGERENTS AND NEUTRALS.
law of nations, and the blockades introduced during the last war by
the Berlin and Milan decrees on the one hand, and the British Orders
in Council on the other, and between special licenses granted for a
particular occasion and licenses granted indiscriminately, proceeds, "I
think that if the relaxation of a blockade be, as to belligerents, entire,
the blockade cannot lawfully subsist; if it be partial and such as to
exceed special occasion, that, to the extent of such partial relaxation,
neutrals are entitled to a similar benefit.” And he concludes his able
discussion of this part of the case, in these words: “With respect to
the present question I, therefore, have come to the conclusion, that as
Russian vessels might have left the ports of Courland up to the 15th
of May, the subjects of neutral states ought to be entitled to the same
advantages, and if there be any vessel so circumstanced I should hold
her entitled to restitution. I think the remedy should be commen-
surate with the grievance." The learned judge holds that such re-
laxation does not affect the general validity of the blockade.
In order to judge how far this conclusion can be maintained, it is
necessary to consider upon what principles the right of a belligerent
to exclude neutrals from a blockaded port rests. That right is founded,
not on any general unlimited right to cripple the enemy's commerce
with neutrals by all means effectual for that purpose, for it is ad-
mitted on all hands that a neutral has a right to carry on with each
of two belligerents during war all the trade that was open to him in
times of peace, subject to the exceptions of trade in contraband goods
and trade with blockaded ports. Both these exceptions seem founded
on the same reason, namely, that a neutral has no right to interfere
with the military operations of a belligerent, either by supplying his
enemy with materials of war, or by holding intercourse with a place
which he has besieged or blockaded.
Grotius expresses himself upon the subject in these terms:
juris mei executionem rerum subvectio impedierit, idque scire potuerit,
qui advexit, ut si oppidum obsessum tenebam, si portus clausos, et
jam deditio aut pax expectabatur, tenebitur ille mihi de damno culpâ
dato." De Jure Belli ac Pacis, lib. III. c. I. s. V.
Bynkershoek's commentary on this passage is to the effect that it
is unlawful to carry anything, whether contraband or not, to a place
thus circumstanced, since those who are within may be compelled to
surrender, not merely by the direct application of force, but also by
the want of provisions and other necessaries. “Sola obsidio in causâ
est, cur nihil obsessis subvehere liceat, sive contrabandum sit, sive non
sit, nam obsessi non tantum vi coguntur ad deditionem, sed et fame,
et alia aliarum rerum penuria." Quae. Jur. Pub. lib. I. c. II.
Wheaton in his Elements of International Law, Vol. II. pp. 228-230,
5 Si
CHAP. III.]
807
THE 66 FRANCISKA."
he says:
justly observes that this passage in Bynkershoek goes too far, and
that a blockade is not confined to the case where there is a siege or
blockade with a view to the capture of a place or the expectation of .
peace. But these passages seem to point to the reason on which this
interference with the ordinary rights of neutrals was originally
justified.
Vattel lays down the same doctrine :-“Quand je tiens une place
assiégée, ou seulement bloquée, je suis en droit d'empecher que per-
sonne n'y entre, et de traiter en ennemi quiconque entreprend d'y
entrer, sans ma permission, ou d'y porter quoi que ce soit: car il
s'oppose à mon entreprise, il peut contribuer à la faire échouer, et par
la me faire tomber dans tous les maux d'une guerre malheureuse."
B. III. c. VII. s. 1, 17.
.
These passages refer only to ingress and the importation of goods,
but it is clear that the operations of the siege or blockade may be
interrupted by any communication of the blockaded or besieged place
with foreigners; and Lord Stowell, when he defines a blockade, always
speaks of it as the exclusion of the blockaded place from all commerce,
whether by egress or ingress. In The Frederick Molke, 1 Rob. 87,
“What is the object of a blockade ? not merely to prevent
an importation of supplies; but to prevent export as well as import;
and to cut off all communication of commerce with the blockaded
place. In The Betsey, 1 Rob. 93, “ After the commencement of a block-
ade a neutral cannot, I conceive, be allowed to interpose in any way
to assist the exportation of the property of the enemy." In the Vrouw
Judith, 1 Rob. 151, “ A blockade is a sort of circumvallation round
a place by which all foreign connection and correspondence is, as far
as human force can effect it, to be entirely cut off. It is intended to
suspend the entire commerce of that place; and a neutral is no more
at liberty to assist the traffic of exportation than of importation.” In
The Rolla, 6 Rob. 372, “ Whiat is a blockade but a uniform universal
exclusion of all vessels not privileged by law ?" In The Success,
1 Dods. 134, “ The measure which has been resorted to, being in the
nature of a blockade, must operate to the entire exclusion of British
as well as neutral ships; for it would be a gross violation of neutral
rights, to prohibit their trade, and to permit the subjects of this
country to carry on an unrestricted commerce at the very same ports
from which neutrals are excluded."
It is contended that the objection of a neutral to the validity of a
blockade, on the ground of its relaxation by a belligerent in his own
favor, is removed if a Court of Admiralty allows to the neutral the
same indulgence which the belligerent has reserved to himself or
granted to his enemy. But their lordships have great difficulty in
808
[PART II.
BELLIGERENTS AND NEUTRALS.
assenting to this proposition. In the first place, the particular relaxa-
tion, which may be of the greatest value to the belligerents, may be of
little or no value to the neutral. In the instance now before the court
it may have been of the utmost importance to Great Britain that there
should be brought into her ports cargoes which, at the institution of
the blockade, were in Riga; and it may have been for her advantage,
with that view, to relax the blockade. But a relaxation of the block-
ade to that extent, and a permission to neutrals to bring such cargoes
to British ports may have been of little or no value to neutrals.
The counsel on both sides at their lordships? bar understood that
the learned judge in this case intended thus to limit the rights of
neutrals, and to place neutral vessels only in the same situation as
Russians, under the Order in Council. Their lordships would be
inclined to give a more liberal interpretation to the language of the
judgment; yet if this be done, the allowance of a general freedom of
coinmerce, by way of export, to all vessels and to all places from a
blockaded port, seems hardly consistent with the existence of any
blockade at all.
Again it is not easy to answer the objections a neutral might make,
that the condition of things which alone authorizes any interference
with his commerce does not exist, namely, the necessity of interdict-
ing all communication by way of commerce with the place in ques-
tion; that a belligerent, if he inflicts upon neutrals the inconvenience
of exclusion from commerce with such place, must submit to the same
inconvenience himself; and that if he is at liberty to select particular
points in which it suits his purpose that the blockade should be
violated with immunity, each neutral, in order to be placed on equal
terms with the belligerent, should be at liberty to make such selection
for himself.
But the ambiguity in which all these questions are left by the Order
in Council of the 15th of April; the doubt whether the liberty ac-
corded to enemies' vessels extends to neutrals, and, if so, whether such
liberty is subject to the same restrictions, or to any other and what
restrictions, affords, in the opinion of their lordships, another strong
argument against the legality of the blockade in this case.
partial, modified blockade is to be enforced against neutrals, justice
seems to require that the modifications intended to be introduced
should be notified to neutral states, and that they should be fully
apprized what acts their subjects may or may not do. They cannot
reasonably be exposed to the hardship of either abstaining from all
commerce with a place in such a state of uncertain blockade, or of
having their ships seized and sent to the country of the belligerent,
in order to learn there, froin the decision of its Court of Admiralty,
If a
1
CHAJ. 111.]
809
THE
FRANCISKA.'
)
whether the conduct they have pursued is, or is not, protected by an
equitable interpretation of an instrument in which they are not
expressly included.
If these views of the law be correct, this ship cannot be considered
to have had notice of any blockade of Riga at the time when she
sailed for that port; for, in truth, no legal blockade was then in exis-
tence, and it would be hard to require a neutral to speculate on the
probability, however great, of a legal blockade de facto being established
at a future time, when he is not perunitted to speculate on the chance
of its discontinuance after he has once had notice of its existence.
Supposing, however, the blockade in this case to be open to no
objections in point of law during the interval between the 15th of
April and the 15th of May, it remains to be inquired whether the
notice which this ship received of its existence was of such a character
as to subject her to the penalty of confiscation for disregarding it.
Notice has been imputed to the claimant in the court below from the
alleged notoriety of the blockade on the 14th of May, at Elismore,
where the ship touched, and at Copenhagen, where the owner resided.
It is contended by the appellant that in a case of ingress of a port
subject to a blockade only de facto of which there has not been any
official notification, guilty knowledge cannot be inferred in an individ-
ual from general notoriety, and that a ship is always entitled under
such circumstances to warning from the blockading squadron before
she is exposed to seizure.
To this proposition their lordships are unable to accede.
blockade de facto be good in law without notification, and a wilful
violation of a known legal blockade be punishable with confiscation
propositions which are free from doubt, — the mode in which the
knowledge has beeu acquired by the offender, if it be clearly proved to
exist, cannot be of importance. Nor does there seem for this purpose
to be much difference between ingress, in which a warning is said to
be indispensable, and egress, in which it is admitted to be unnecessary.
The fact of knowledge is capable of much easier proof in the one
case than in the other; but when once the fact is clearly proved, the
consequences must be the same. The reasoning of the learned judge
of the court below in this case, and the language of Lord Stowell in
The Adelaide reported in the note to The Neptunus, 2 Rob. 111,
and The Hurtig Hane, 3 Rob. 324, are conclusive upon this point.
But while their lordships are quite prepared to hold that the exis-
tence and extent of a blockade may be so well and so generally known
that knowledge of it in an individual may be presumed without distinct
proof of personal knowledge, and that knowledge so acquired may sup-
ply the place of a direct communication from the blockading squadron,
If a
810
[PART II.
BELLIGERENTS AND NEUTRALS.
t
yet the fact, with notice of which the individual is so to be fixed, must
be one which admits of no reasonable doubt. 'Any communication
which brings it to the knowledge of the party,” to use the language of
Lord Stowell in The Rolla, 6 Rob. 367, “in a way which could
leave no doubt in his mind as to the authenticity of the information."
Again, the notice to be inferred from general notoriety, must be of
such a character that if conveyed by a distinct intimation from a com-
petent authority it would have been binding. The notice cannot be
more effectual because its existence is presumed, than it would be if it
were directly established in evidence. The notice to be inferred froin
the acts of a belligerent, which is to supply the place of a public noti-
fication, or of a particular warning, must be such as, if given in the
form of a public notification, or of a particular warning, would have
been legal and effectual.
For this purpose the notice of the blockade must not be more exten-
sive than the blockade itself. A belligerent cannot be allowed to pro-
claim that he has instituted a blockade of several ports of the enemy,
when in truth he has only blockaded one; such a course would intro-
duce all the evils of what is termed a paper blockade, and would be
attended with the grossest injustice to the commerce of neutrals. AC-
cordingly, a neutral is at liberty to disregard such a notice, and is not
liable to the penalties attending a breach of blockade, for, afterwards
attempting to enter tbe port which really is blockaded.
This was distinctly laid down by Lord Stowell in the case of The
Henrick and Maria, 1 Rob. 148, where an officer of the blockading
squadron had informed a neutral that all the Dutch ports were in a
state of blockade, whereas the blockade was confined to Amsterdain.
The ship was afterwards captured for an alleged attempt to enter
Amsterdam, and Lord Stowell, in decreeing restitution, observed : “The
notice is, I think, in point of authority, illegal; at the time when it
was given there was no blockade which extended to all the Dutch ports.
A declaration of blockade is a high act of sovereignty ; and a com-
mander of a King's ship is not to extend it. The notice is, also, I
think, as illegal in effect as in authority: it cannot be said that such a
notice, though bad for other ports, is good for Amsterdam. It takes
from the neutral all power of election as to what other port of Holland
he should go, when he found the port of his destination under block-
ade. A commander of a ship must not reduce a neutral to this kind
of distress; and I am of opinion, that if the neutral had contravened
the notice, he would not have been subject to condemnation."
The authority of this case is fully recognized by Dr. Lushington in
the present case, who observes that such an administration of law in
protecting the party misled, was most just.
$
CHAP. III.]
THE
66
811
GERASIMO."
Applying these principles to the evidence before them, their lord-
ships can have no doubt that the master and owner in this case are to
be fixed with notice of all that was publicly known at Copenhagen on
the 14th of May, on the subject of the blockade; that it was known
there that merchant vessels had been turned back from ports on
the coast of Courland, and that a general impression prevailed that
vessels seeking to enter Russian ports ran great risk of seizure; and
that the owner in this case shared that impression, and that to this
cause are to be attributed the want of proper ships' papers, which has
been already alluded to, and the absence, on the further proof, of any
affidavit on the part of the owner denying knowledge of the blockade.
But it is contended by the appellant that the impression which thus
prevailed at Copenhagen (if, in fact, there existed any general impres-
sion), on the 14th of May was, and of necessity from the acts of the
belligerent powers must have been, not that the ports of Libau,
Windau, and the gulf of Rigawere blockaded (wliich they really were),
but that all the Russian ports in the Baltic were blockaded, which they
certainly were not; and that a notice to be gathered froin such errone-
ous impressions, was, on the principles already referred to, of no effect.
It is clear, therefore, that the real state of the blockade could not
have been known at Copenhagen on the 14th May, and that the only
notice which the master could receive at that port, at that time, would
be, that he must not sail for any of the Russian ports; a notice which,
if he had received it from a British officer, he could not, on the princi-
ples already stated, be punished for disregarding.
The view which their lordships have taken of this part of the case
makes it unnecessary for them to advert to the many other important
points which were argued at their bar. They must advise a restitution
of the ship (or rather the proceeds, for it appears to haye been sold)
and of the freight, but certainly without any costs or damages to the
claimant. There will be simple restitution, without costs or expenses
to either party.
1
THE "GERASIMO."
Privy COUNCIL, 1857.
(11 Moore's Privy Council, 88.)
A ship under Wallachian colors, with a cargo of corn belonging to
the owners residing at Galatz in Moldavia, was seized for breach of
1 The learned judge's examination of the evidence of knowledge in Coplienhagen
of the blockade in question is omitted. — Ev.
812
[PART II.
BELLIGERENTS AND NEUTRALS.
2
the Black Sea blockade, when coming out of the Sulina mouth of the
Danube then in a state of blockade. At the time of the shipment of
the cargo the Russians held possession of Moldavia and Wallachia, but
such holding was with the express intention of not changing the
national character, or incorporating that country with Russia. From
the decree of condemnation in the High Court of Admiralty an appeal
was taken to the Privy Council.1
The Right Hon. T. PEMBERTON LEIGH:
Upon the present appeal the first question is, whether the owners of
the cargo, in regard to this claim, are to be considered as alien enemies;
and for this purpose it will be necessary to exainine carefully both the
principles of law which are to govern the case, and the nature of the
possession which the Russians held of Moldavia at the time of this
shipinent.
Upon the general principles of law applicable to this subject there
can be no dispute. The national character of a trader is to be decided
for the purposes of the trade, by the national character of the place in
which it is carried on. If a war breaks out, a foreign merchant carry-
ing on trade in a belligerent country has a reasonable time allowed him
for transferring himself and his property to another country. If
he does not avail himself of the opportunity, he is to be treated, for
the purposes of the trade, as a subject of the power under whose
dominion he carries it on, and, of course, as an enemny of those with
whom that power is at war. Nothing can be more just than this prin-
ciple; but the whole foundation of it is, that the country in which the
merchant trades is enemy's country.
Now the question is, what are the circumstances necessary to con-
vert friendly or neutral territory into enemy's territory ? For this
purpose, it is sufficient that the territory in question should be occupied
by a hostile force, and subject, during its occupation, to the control of
the hostile power, so far as such power may think fit to exercise con-
trol; or is it necessary that, either by cession or conquest, or some
other means, it should, either permanently or temporarily, be incorpo-
rated with, and form part of, the dominions of the invader at the time
when the question of national character arises ?
It appears to their lordships that the first opposition cannot be
maintained. It is impossible for any judge, however able and learned,
to have always present to his mind all the nice distinctions by which
general rules are restricted; and their lordships are inclined to think
that if the authorities which were cited and so ably commented upon
at this bar had been laid before the judge of the court below, he would,
1 Short statement substituted for that of the report. -ED.
2 Only part of the opinion of the learned judge is given. – ED.
$
CHAP. III.]
813
THE "
GERASIMO.”
perhaps, have qualified in some degree the doctrine attributed to him
in the judgment to which we have referred.
With respect to the meaning of the term “dominion of the enemy,"
and what is necessary to constitute doininion, Lord Stowell has in
several cases expressed his opinion. In the case of The Fama, 5 Rob.
115, he lays it down that in order to complete the right of property,
there must be both right to the thing and possession of it; both jus ad
rem and jus in re. “This," he observes, " is the general law of prop-
erty, and applies, I conceive, no less to the right of territory than to
other rights. Even in newly discovered countries, when a title is
meant to be established for the first time, some act of possession is
usually done and proclaimed as a notification of the fact. In transfer,
surely, when the former rights of others are to be superseded and ex-
tinguished, it cannot be less necessary that such a change should be
indicated by some public acts, that all who are deeply interested in the
event, as the inhabitants of such settlements, may be informed under
whose dominion and under what laws they are to live."
The importance of this doctrine will appear when the facts with re-
spect to the occupation of the principalities come to be examined.
That the national character of a place is not changed by the mere
circumstance that it is in possession and under the control of a hostile
force, is a principle held to be of such importance that it was acted
upon by the lords of appeal in 1808, in the St. Domingo cases of the
Dart and Happy Couple, when the rule operated with extreme hard-
ship.
In the case of The Manilla, 1 Edw. 3, Lord Stowell gives the fol-
lowing account of those decisions : "Several parts of it (the island of
St. Domingo) had been in the actual possession of insurgent negroes,
who had detached them, as far as actual occupancy could do,. from the
mother country of France and its authority, and maintained, within
those parts, at least, an independent government of their own. And
although this new power had not been directly and formally recognized
by an express treaty, the British Government had shown a favorable
disposition towards it on the ground of its common opposition to
France, and seemed to tolerate an intercourse that carried with it a
pacific and even friendly complexion. It was contended, therefore,
that St. Domingo could not be considered as a colony of the enemy.
The Court of Appeal, however, decided, though after long deliberation,
and with much expressed reluctance, that nothing had been done or
declared by the British Government that could authorize a British tri-
bunal to consider this island generally, or parts of it (notwithstanding
a power hostile to France had established itself within it, to that
degree of force, and with that kind of allowance from some other
814
[PART II.
BELLIGERENTS AND NEUTRALS.
states), as being other than still a colony of the enemy. There can be
110 doubt that the strict principle of the decision was correct.”
On the other hand, when places in a friendly country have been
seized by, and are in the possession of the enemy, the same doctrine
has been held.
While Spain was in the occupation of France, and at war with Great
Britain, the Spanish insurrection broke out, and the British Govern-
ment issued a proclamation that all hostilities against Spain should
immediately cease. Great part of Spain, however, was still occupied
by French troops, and amongst others, the port of St. Andero. A ship
called the Santa Anna was captured on a voyage, as it was alleged, to
St. Andero, and Lord Stowell (1 Edw. 182) observed : “Under these
public declarations of the state, establishing this general peace and
amity, I do not know that it would be in the power of the court to
condemn Spanish property, though belonging to persons resident in
those parts of Spain which are at the present moment under French
control, except under such circumstances as would justify the confisca-
tion of neutral property."
The same principle has been acted upon in the courts of common
law.
In the case of Donaldson v. Thompson, 1 Campb. 429, the Russian
troops were in possession of Corfu and the other Ionian Islands,
though the form of a republic was preserved, and it was contended
that the islands must be considered as substantially part of the terri-
tory of the Russian Empire, if the Russian power was there dominant,
and the supreine authority was in the Russian commander; or, if not,
that the republic must be considered as a co-belligerent with Russia
against the Porte, since the Emperor of Russia derived the same
advantages, in a military point of view, from this occupation of the
islands as if he had seized it hostilely, or the Ionian republic had been
his ally in the war he was carrying on. Both these propositions, how-
ever, were repudiated by Lord Ellenborough; and afterwards, ou a
motion to set aside the verdict by the court of King's Bench, Lord
Ellenborough observed: “Will any one contend that a government
which is obliged to yield in any quarter to a superior force becomes a
co-belligerent with the power to which it yields ? It may as well be
contended that neutral and belligerent mean the same thing." The
same doctrine was afterwards laid down by the Court of King's Bench,
in Hagedorn v. Bell, 1 Mau. and Sel. 450, in the case of a trade carried
on with Hamburg, which had been for several years, and at the time
was in the military occupation of the French.
The distinction between hostile occupation and possession clothed
with a legal right by cession or conquest, or confirmed by length of
t
CHAP. III.]
:
1
THE
29
815
GERASIMO."
time, is recognized by Lord Stowell in the case of The Bolletta, 1 Edw.
171. A question there arose whether certain property belonging to
merchants at Zante, which had been captured by a British privateer,
was to be considered as French or as Russian property, that question
depending upon the national character of Zante at the time of the cap-
ture. Lord Stowell observes, p. 173: “On the part of the Crown it
has been contended that the possession taken by the French was of a
forcible and temporary nature, and that such possession does not
change the national character of the country until it is confirmed by a
formal cession, or by long lapse of time. That may be true, when pos-
session has been taken by force of arms and by violence; but this is
not an occupation of that nature. France and Russia had settled
their differences by the treaty of Tilsit, and the two countries being
at peace with each other, it must be understood to have been a voluntary
surrender of the territory on the part of Russia." On this ground he
held the territory to have become French territory, remarking in a
subsequent passage of his judgment that this was a cession by treaty,
and not a hostile occupation by force of arms, liable to be lost again
the next day.
These authorities, with the other cases cited at the bar, seem to
establish the proposition, that the mere possession of a territory
by an enemy's force does not of itself necessarily convert the territory
so occupied into hostile territory, or its inhabitants into enemies.
The ground now suggested is, that The Gerasimo was guilty of a
break of blockade in coming out of the Danube when the mouths
of that river were in a state of notified blockade. It is singular that
if this were the ground of capture, no notice whatever of
the blockade should have been continued in the affidavit origi-
nally prepared for Captain Powell to. swear when the seizure
was made, and - the facts recent; that notice of it should be
introduced for the first time in the affidavit made by him on the 30th
of August, 1855; and that even in that late affidavit it is not stated
that breach of blockade was the cause of the seizure.
There is no doubt, however, that breach of blockade, whether it
was the cause of seizure or not, may be used as ground of con-
demnation, if the circumstances of the case bring it within the law.
What, then, were the circumstances ? In the summer of 1854, the
Russian forces in the Turkish territories were straitened for pro-
visions. The allied fleets desired to prevent the importation of
provisions up the Danube, and with that view the two admirals in
command of the English and French fleets issued a proclamation,
dated the 2d of June, 1854, in which they declared, to all whom it
might concern, that they had established an effective blockade of the
816
BELLIGERENTS AND NEUTRALS.
[PART II.
Danube, in order to stop all transport of provisions to the Russian
armies; they declared that this blockade included all those mouths of
the Danube which communicate with the Black Sea, and they apprized
all vessels of every nation that they will not be able to enter the
river till further orders (qu'ils ne pourront entrer dans ce fleuve
jusqu'a nouvel ordre).
On the 26th of June, the Russians forbade all export of cereals
after the 2d of July. Any exportation of cereals, therefore, was in
furtherance of the objects of the allies, and to the prejudice of the
Russians. Could a Moldavian' merchant imagine, if he had heard of
this blockade, that he was to be liable to capture by the allies for
exporting provsions, when the whole purpose of the blockade iras de-
clared to be to prevent their import ?
But, by the rules of law, when a ship has entered a blockaded port
before the blockade, she is entitled to come out again; and if she has a
cargo taken on board before notice of the blockade, she is entitled to
bring it out. The blockade of a port is prima facie evidence of the
existence of the blockade to all who are within it, because the
inhabitants who see the blockading ships off their coast cannot be well
ignorant of the blockade. But this was no blockade of the port of
Galatz, but a blockade of the mouths of the Danube, Galatz lying on
its banks up the river, at a distance of 150 miles from its mouth.
In this case the ship had entered the river before the blockade; the
cargo was taken on board on the 30th of June; and the ship must
have sailed on or before the 2d of July; otherwise she would have
been detained by the Russians. If she had no notice of the blockade,
she was, on that general ground, entitled to bring out her cargo; if she
had notice, she never could suppose that, according to the notification,
she could be liable to capture; but if the case had been open to any
suspicion, when the claimant has been deprived, by the wrongful act of
the captors, of the opportunity of affording the explanations which the
rules of law were intended to secure him.
Of the law applicable to the case, as it appears to their lordships,
they cannot express their opinion better than in the language used by
the learned judge of the court below, in the beginning of his
judgment on the hearing before him. He says: “On the part of
the claimants, a very long argument was addressed to the court,
impugning the conduct of the captors, and charging them with having
improperly brought the vessel to Constantinople. It has been further
stated that there being no means of examining witnesses at Con-
stantinople, great unnecessary delay had occurred, and that the
captors were responsible for such delay and all the consequences.
"The court is not disposed to deny the truth and justice of the
(
CHAP. II.]
817
THE
6.6
NANCY."
1
.)
principle contended for; on the contrary, I am clearly of the opinion,
that if a delay in bringing to adjudication, and the non-examination
of witnesses, arise, though it may be almost impossible for the
government of the belligerent nation to prevent such occurrence, still
that neutrals ought to be indemnified if injustice has been done them.
The captors in the first instance, though they may be perfectly blame-
less, are responsible to the neutrals, and they must look to their own
government for redress, if they have been compelled to make good any
injury sustained by neutrals, in consequence of their fulfilling the
commands which they dare not disobey. In many cases the captains
of some of her Majesty's cruisers may have a discretion to release at
once, but this may not be so in case of a blockade, when special
orders may have been given to capture and detain."
In this statement of the principles of law, their lordships cordially
concur. What claim the captor, Captain Powell, may have upon her
Majesty's Government, it is not their duty to judge, nor have they any
means of forming an opinion. But as regards the claimants, his
conduct appears to be without any excuse, and their lordships have no
hesitation in advising restitution of the cargo, with cost and damages
against the captors.
THE “NANCY."
PRIVY COUNCIL, 1809.
(1 Acton, 57.)
This was a case of several appeals from Vice-Admiralty Courts in
America and the West Indies, condemning the ships and cargoes for
a breach of the blockade of the island of Martinique, in the year
1804.
A ship, belonging to American citizens, sailed from New York for
St. Pierre, in Martinique, unless the same should be blockaded. If
the island should be blockaded, the master was to go to St. Thomas,
whence he was to return to New York with a cargo purchased with
the proceeds of the outward cargo.
1 A commander of a ship of war of the United States, in obeying his instructions
from the President of the United States, acts at his peril. If these instructions are
not strictly warranted by law, he is answerable in damages to any persons injured hy
their execution. Little et al. y. Burreme et al., 1804, 2 Cr. 170, per Marshall, C. J.
This case is distinguished in Garland v. Daris, 4 How. 131, 149, where it is held that
public agents are not liable on contracts made for principals where no misfeasance is
shown. – ED.
ر
2
818
[PART II.
BELLIGERENTS AND NEUTRALS.
Arriving off Martinique the 29th of March, and finding no ship
there, and not being given to understand that there existed any
blockade at that time, he, in consequence of the vessel's having
sprung a leak, repaired to the port of Trinity, in that island, to refit;
from whence he sailed to St. Pierrı, arriving the 3d of April.
While in the island he heard of no blockade, and no vessel of war
had appeared off the island during his stay.
Having completed his cargo on the 15th, he sailed for New York,
and was captured and carried into Halifax, in Nova Scotia, where
the vessel and cargo were condemned as prize.
This statement was supported by the evidence of a passenger on
board the vessel, by some of the crew, and by the tenor of a cor-
respondence between persons in France, New York, and Martinique;
which proved that the blockade was at that time removed, or left so
far relaxed that no armed vessels had been seen off these ports dur-
ing the period the vessel remained in the island.
For the captors it was contended that, although the blockading
fleet had been dispatched to Surinam, a force had been left off the
island to continue the blockade and apprise vessels of its existence.
This appeared, even by the correspondence exhibited by the claim.
ants, one of the letters admitting that a British fifty-gun ship con.
tinued off the island, and was now and then seen by the inhabitants.
Judgment. — Sir WILLIAM GRANT:
The court held that, to constitute a blockade, the intention to shut
up the port should not only be generally made known to the vessels
navigating the seas in the vicinity, but that it was the duty of the
blockaders to maintain such a force as would be of itself sufficient
to enforce the blockade. This could only be effected by keeping a
number of vessels on the different stations, so communicating with
each other as to be able to intercept all vessels attempting to enter
the ports of the island. In the present instance no such measures
had been resorted to, and this neglect necessarily led neutral vessels
to believe these ports might be entered without any risk. The peri-
odical appearance of a vessel of war in the offing could not be sup-
posed a continuation of a blockade, which the correspondence men-
tioned had described to have been previously maintained by a
number of vessels; and with such unparalleled rigor, that no vessel
whatever had been able to enter the island during its continuance.
Their Lordships were therefore pleased to order that the ship should
be restored, the proof of property being sufficient, but directed fur-
ther proof as to the cargo claimed for the American citizens
mentioned.
CHAP. III.]
819
66
THE
OCEAN."
THE "OCEAN."
HIGH COURT OF ADMIRALTY, 1801.
(3 C. Robinson, 297.)
This was a question arising on the blockade of Amsterdam, re-
specting a cargo shipped for America at Rotterdam. It appeared
that the persons ordering the shipment had ordered it of their
agents at Amsterdam, as a shipment to be made there, subsequent
to the date of the blockade of that place, but previous to the block-
ade of the ports of Holland. It was argued that in the intention of
the claimants it was to be an exportation actually from Amsterdam,
and that in effect the trade was the same, as the goods were ordered
and purchased at Amsterdam, and were to be considered as part of
the commerce of that place.
Judgment, -Sir W. SCOTT:-
“I am inclined to consider this matter favourably, as an exporta-
tion from Rotterdam only, the place in which the cargo becomes
first connected with the ship. In what course it had travelled
before that time, whether from Amsterdam at all, and if from Am-
sterdam, whether by land carriage or by one of their inland naviga-
tions, Rotterdam being the port of actual shipment, I do not think it
material to inquire. On this view of the case it would be a little too
rigorous to say, that an order for a shipment to be made at Amster-
dam should be construed to attach on the owner, although not car-
ried into effect. It has been said from the letter of the correspond-
ent at Amsterdam, that the agents there had informed their
correspondents in America that the blockade was not intended to
prevent exportation: The representation of the enemy shipper
could not have availed to exonerate the neutral merchants, if other-
wise liable. Were this to be allowed, it would be in the power of
the enemy to put an end to the blockade as soon as he pleased. If
the general law is, that egress as well as ingress is prohibited by
blockade, the neutral merchant is bound to know it; and if he en-
tertains any doubt, he must satisfy himself by applying to the coun-
try imposing the blockade, and not to the party who has an interest
in breaking it.
“It happens in this case, that the intended exportation did not
take place. The only criminal act, if any, must have been the con-
veyance from Amsterdam to Rotterdam. It would be a little too
much to say, that by that previous act the goods shipped at Rotter-
820
[PART 11.
BELLIGERENTS AND NEUTRALS.
1
dam are affected. The legal consequences of a blockade must de-
pend on the means of blockade; and on the actual or possible appli-
cation of the blockading force. On the land side Amsterdam neither
was nor could be affected by a blockading naval force. It could be
applied only externally. The internal communications of the coun-
try were out of its reach, and in no way subject to its operation. If
the exportation of goods from Rotterdam was at this time permitted,
it could in no degree be vitiated by a previous inland transmission
of them from the city of Amsterdam. Restored."
1 Blockade. - In the case of The Circassian, 1864, 2 Wall. 135, it was lield that it
blockade may be made effectual by batteries on sliore, as well as by ships afloat, sup-
ported by a naval force sufficient to warn off innocent, and capture offending, vessels
attempting to enter.
That a blockade regularly notified to neutral governments must, in the absence of
clear proof of a discontinuance of it, be presumed to continue until notification is given
by the blockading government of such discontinuance.
That a vessel sailing from a neutral port with intent to violate a blockade is liable
to capture and condemnation as prize from the time of sailing. See also the decision
of Sir William Scott in the case of The Columbia, 1799, 1 C. Rob. 154.
See also other early cases before. Sir Wm. Scott: The Stert, 1801, 4 C. Rob. 65;
The Jonge Pieter, 1801, 4 C. Rob. 79; The Maria, 1805, 6 C. Rob. 201; The Lisette,
1807, 6 C. Rob. 387; The Julia, 1811, 1 Dod. 169, note.
In The Prize Cases, 1862, 2 Black. 635 (supru), it was held, that it is a settled rule that
a vessel in a blockąded port is presumed to have notice of a blockade as soon as it
See also The Vrouw Judith, 1799, 1 C. Rob. 150. In this case a de facto
blockade may be broken without notice, by egress. But persons entering a place
under de facto blockade are entitled to warning.
The French rule in respect of a violation of blockade differs essentially from that
of the United States and England. Notwithstanding that a blockade has been publicly
proclaimed, a ship sailing for a blockaded port is entitled to a warning, entered upon
her papers, and is only liable to seizure and condemnation when she subsequently
attempts to enter or leave a blockaded port. See the cases of La Louisa, 1 Pistoye et
Duverdy, 382; and The Eliza Cornish, id. 387.
As to the blockades established by the “orders in council," during the wars with
Napoleon I., see Edwards' Admiralty Reports, 381–416, and the appendix to that
volume. See also in the same volume, pp. 249-251, and 311-326.
For other cases on the subject of blockade, see The Baiyorry, 1864, 2 Wall. 474 ;
The Cheshire, 1865, 3 Wall. 231, 235; The Admiral, 1865, 3 Wall. 604; The Peterhoff,
1866, 5 Wall. 28; The Dashing Wave, 1866, 5 Wall. 170; The Teresita, 1866, 5 Wall.
180; The Pearl, 1866, 5 Wall. 574; The Franciska, Spinks, ill, and 10 Moore, 1855,
P. C. 37; The Henrick and Maria, 1799, 1 C. Rob. 146. See the careful digest-note in.
Tudor, Mercantile Cases, 3d ed., 1019-1010. -- ED.
commences.
CHAP. III.]
821
THE
HELEN."
THE "HELEN.”
HIGH COURT OF ADMIRALTY, 1865.
(L. R. 1 Ad. and Ecc. 1.)
In this case, the master sued for wages upon an agreement entered
into between himself and the defendants, the owners of the Ilelen.
The defendants, in the fourth article of their answer, alleged that
“the agreement was made and entered into for the purpose of run-
ning the blockade of the Southern ports of the United States of
America, or one of them, and was and is contrary to law, and cannot
be recognized or enforced by this Honourable Court.”
Judgment, by Dr. LUSHINGTON :-
“This is a motion by the plaintiff to reject the fourth article of
the defendant's answer. The parties in this cause are John Andrews
Wardell, formerly the master of the Helen, plaintiff, and the Albion
Trading Company, the owners of the ship, defendants. The master
sues for wages (with certain premiums added), alleged to have been
earned between July, 1864, and March, 1865. The answer states
that according to the agreement as set forth by the defendants, the
plaintiff has been paid all that was due to him. This part of the
answer is not objected to. The fourth and last article is the one
objected to. It alleges that the agreement was entered into for the
purpose of breaking the blockade of the Southern States of America;
that such an agreement is contrary to law, and cannot be enforced
by this Court. In the course of the argument, the judgment in Ex
parte Chavasse re Grazebrook, 34 L. J. (Bkr.), 17, was cited as gov-
erning the case; a judgment recently delivered by Lord Westbury
whilst he was Lord Chancellor. The law there laid down is briefly
stated, that a contract of partnership in blockade-running is not
contrary to the municipal law of this country; and by the decree
the partnership was declared valid, and the accounts ordered ac-
cordingly. It was admitted that this decision is directly applicable
to the present case, a suit to recover wages according to a contract
with respect to an intended adventure to break the blockade.
“That a decision of the Lord Chancellor is to be treated by this
court with the greatest respect there can be no doubt, but is it ab-
solutely binding?
“There are three tribunals whose decisions are absolutely binding
upon the Court of Admiralty: 1. The House of Lords. 2. The Privy
Council. 3. The Courts of Common Law when deciding upon the
822
BELLIGERENTS AND NEUTRALS. (PART II.
construction of a statute. If a decision of any of these tribunals is
cited, all that the Court of Admiralty can do is to inquire if the de-
cision is applicable to the case. If so, then it is the duty of the
Court to obey, whatever may be its own judgment.
“No other decisions are, I believe, absolutely binding on the Court.
On the present occasion, no decision has been cited from the House
of Lords or Privy Council. Whatever, therefore, may be the effect
of the decisions of other tribunals, I am not relieved from the duty
of reconsidering the whole question.
“An intimation has been given that this case will be carried to
the Judicial Committee; if so, I apprehend that tribunal might be
inclined to consider me remiss in my duty if I had omitted to form
an independent judgment on the case, and to state it with my rea-
sons. It is, I conceive, admitted on all hands, that the Court must
enforce the agreement with the master, unless it is satisfied that such
agreement is illegal by the municipal law of Great Britain. In order
to prove this proposition, the defendants say that the agreement to
break the blockade by a neutral ship is, on the part of all persons
concerned, illegal according to the law of nations, and that the law
of nations is a part of the municipal law of the land-ergo, this con-
tract was illegal by municipal law.
“Now a good deal may depend on the sense in which the word
illegal' is used. I am strongly inclined to think that the defend-
ants attach to it a more extensive meaning than it can properly bear,
or was intended to bear by those who used it. The true meaning, I
think, is that all such contracts are illegal so far, that if carried out,
they would lead to acts which sight, under certain circumstances,
expose the partic: concerneil to such penal consequences as are
sanctioned by international law, for breach of blockade, or for the
carrying of contraband. If so, the illegality is one of a limited char-
acter. For instance supposc a vessel after breaking the blockade
completes her voyage home, and is afterwards seized on another
voyage, the original taint of illegality-whatever it may have been-
is purged, and the ship cannot be condemned ; yet if the voyage
was, ab initio, wholly and absolutely illegal, both by the law of
nations and the municipal law, why should its successful termina-
tion purge the offence ? Let me consider the relative situation of
the parties. A neutral country has a right to trade with all other
countries in time of peace. One of these countries becomes a bellig.
erent, and is blockaded. Why should the right of the neutral be
affected by the acts of the other belligerent? The answer of the
blockading power is : Mine is a just and necessary war,' a matter
which, in ordinary cases, the neutral cannot question, 'I must seize
contraband, I must enforce blockade, to carry on the war.' In this
1
CHAP. III.]
823
THE
HELEN.'
state of things there has been a long and admitted usage on the part
of all civilized states—a concession by both parties, the belligerent
and the neutral—a universal usage which constitutes the law of
nations. It is only with reference to this usage that the belligerent
can interfere with the neutral. Suppose no question of blockade or
contraband, no belligerent could claim a right of seizure on the high
seas of a neutral vessel going to the port of another belligerent,
however essential to his interest it might be so to do.
“What is the usage as to blockade? There are several conditious
to be observed in order to justify the seizure of a ship fur breach of
blockade. The blockade must be effectual and (save accidental in-
terruption by weather) constantly enforced. The neutral vessel
must be taken in delicto. The blockade must be enforced against
all nations alike, including the belligerent one. When all the neces-
sary conditions are satisfied, then, by the usage of nations, the bel-
ligerent is allowed to capture and condemn neutral vessels without
remonstrance from the neutral state. It never has been a part of
admitted common usage that such voyages should be deemed illegal
by the neutral state, still less that the neutral state should be bound
to prevent them; the belligerent has not a shadow of right to require .
more than universal usage has given him, and has no pretence to
say to the neutral : You shall help me to enforce my belligerent
right by curtailing your own freedom of commerce, and inaking that
illegal by your own law which was not so before. This doctrine is
not inconsistent with the maxim that the law of nations is part of
the law of the land. The fact is, the law of nations has never
declared that a neutral state is bound to impede or diminish its own
trade by municipal restriction. Our own Foreign Enlistment Act is
itself a proof that to constitute transactions between British subjects,
when neutral and belligerents, a municipal offence by the law of
Great Britain, a statute was necessary. If the acts mentioned in
that statute were in themselves a violation of municipal law, why
any statute at all? I am now speaking of fitting out ships of war,
not of levying soldiers, which is altogether a different matter. Then
how stands the case upon authority? I may here say, that in prin-
ciple, there is no essential difference whether the question of breach
of municipal law is raised with regard to contraband or breach of
blockade.
“Mr. Duer, Marine Insurance,' vol. I., lect. VII., is the only text-
writer who maintains an opinion contrary to what I have stated to
be the law. He maintains it with much ability and acuteness, but he
stands alone. He himself admits that an insurance of a contraband
821
[PART 1
BELLIGERENTS AND NEUTRALS.
*
voyage is no offence against municipal law of a neutral country, accord-
ing to the practice of all the principal states of continental Eu-
rope. In the American courts the question has been more than once
agitated, but with the same résult. In the case of The Santissima
Trinidad, 7 Wheat., 340, Mr. Justice STORY says : It is apparent
that, though equipped as a vessel of war, she (The Independencia) was
sent to Buenos Ayres on a commercial adventure, contraband, indeed,
but in no shape violating our laws or our national neutrality. If
captured by a Spanish ship of war during the voyage, she would
have been justly condemned as good prize, and for being er gageo, l'
a traffic prohibited byl the law of nations. But there is nothing in
our law or in the law of nations that forbids our citizens fron send-
ing armed vessels as well as munitions of war to foreign ports for
sale. It is a commercial adventure which no nation is bound to pro-
hibit, and which only exposes the persons engaged in it to the penalty
of confiscation.'
“There is no pretence for saying that the original outfit on the
voyage was illegal.' Again, in Richardson y. The Marine Insurance
Company, 6 Mass., 112, PARSONS, C. J., observes :
-The last class we
shall mention is the transportation by a neutral of goods contraband
of war to the country of either of the belligerent powers. And here,
it is said, that these voyages are prohibited by the law of nations,
which forms a part of the municipal law of every state, and, conse-
quently, that an insurance on such voyages made in a neutral state is
prohibited by the laws of that state, and therefore, as in the case of
an insurance on interdicted commerce, is void. That there are cer-
tain laws which form a part of the municipal laws of all civilized
states, regulating their mutual intercourse and duties, and thence
called the law of nations, must be admitted : as, for instance, the la v
of nations affecting the rights and the security of ambassadors. But
we do not consider the law of nations, ascertaining what voyages or
merchandise are contraband of war, as having the same extent and
effect. It is agreed by every civilized state that, if the subject of a
neutral power shall attempt to furnish either of the belligerent
sovereigns with goods contraband of war, the other may rightfully
seize and condemn them as prize. But we do not know of any rule
established by the law of nations that the neutral shipper of goods
contraband of war, is an offender against his own sovereign, and
liable to be punished by the municipal laws of his own country.
When à neutral sovereign is notified of a declaration of war, he may,
and usually does, notify his subjects of it, with orders to decline all
contraband trade with the nations at war, declaring that, if they are
taken in it, he cannot protect them, but not announcing the trade as
CHAP. III.]
825
THE
66 HELEN."
a violation of his own laws. Should their sovereign offer to protect
them, his conduct would be incompatible with his neutrality. And
as, on the one hand, he cannot complain of the confiscation of his
subjects' goods, so, on the other, the power at war does not impute
to him these practices of his subjects. A neutral merchant is not
obliged to regard the state of war between other nations, but if he
ships goods prohibited jure belli, they may be rightfully seized and
condemned. It is one of the cases where two conflicting rights exist,
which either party may exercise without charging the other with
doing wrong. As the transportation is not prohibited by the laws
of the neutral sovereign, his subjects may lawfully be concerned in
it; and, as the right of war lawfully authorizes a belligerent power
to seize and condemn the goods, he may lawfully do it.' Lastly, in
Seton, Maitland & Co. v. Low, 1 Johnson, 5, Mr. Justice KENT says:
- I am of opinion that the contraband goods were lawful goods,
and that whatever is not prohibited to be exported by the positive
law of the country is lawful. It may be said that the law of nations
is part of the municipal law of the land, and that by that law con-
traband trade is prohibited to neutrals, and, consequently, unlaw-
ful. · This reasoning is not destitute of force; but the fact is that
the law of nations does not declare the trade to be unlawful. It
only authorizes the seizure of the contraband articles by the bel-
ligerent powers.'
“In the English Courts the only case in which the point has been
actually decided is the recent case before the Lord Chancellor, which
I have already adverted to. With regard to the cases in Mr. Duer's
book, Naylor v. Taylor, Medeiross v. Hill, it is enough to say that, in
the view which the court eventually took of the facts, the question
of law did not arise. It is in these twº cases impossible to say with
certainty what was the opinion of the judges at nisi prius.
“I cannot entertain any doubt as to the judgment I ought to pro-
nounce in this case. It appears that principle, authority, and usage
unite in calling on me to reject the new doctrine that, to carry on
trade with a blockaded port, is or ought to be a municipal offence
by the law of nations. I must direct the 4th article of the answer
to be struck out. I cannot pass by the fact that the attempt to intro-
duce this novel doctrine comes from an avowed particeps criminis,
who seeks to benefit himself by it. As he has failed on every
ground, he must pay the cost of his experiment.”
826
[PART II.
BELLIGERENTS AND NEUTRALS.
THE “ ADULA.'
SUPREME COURT OF THE UNITED STATES, 1899.
(176 United States, 361.)
Mr. Justice Brown, after stating the case, delivered the opinion
of the court.
The rectitude of the decree of the District Court condemning the
Adula as prize of war depends upon the existence of a lawful and
effective blockade at Guantanamo, the knowledge of such blockade by
those in charge of the vessel, and their intent in making the voyage
from Kingston.
1. No blockade of Guantanamo was ever proclaimed by the Presi-
dent. A proclamation had been issued June 27, establishing a block-
ade of all ports on the southern coast of Cuba between Cape Frances
on the west and Cape Cruz on the east, but as both Santiago and
Guantanamo are to the eastward of Cape Cruz, they were not in-
cluded. It appears, however, that blockades of Santiago and Guan-
tanamo were established in the early part of June by order of Admiral
Sampson, commander of the naval forces. then investing the ports on
the southern coast of Cuba, and were maintained as actual and effec-
tive blockades until after the capture of the Adula.
The legality of a simple or actual blockade as distinguished from a
public or presidential blockade is noticed by writers upon interna-
tional law, and is said by Halleck to be "constituted merely by the
fact of an investment, and without any necessity of a public notifica-
tion. As it arises solely from facts it ceases when they terminate;
its existence must, therefore, in all cases, be established by clear and
decisive evidence.” Halleck, Int. L. ch. 23, sec. 10. A de facto
blockade was also recognized as legal by this court in the case of The
Circassian, 2 Wall. 135, 150, in which the question arose as to the
blockade of New Orleans during the civil war. In delivering the
opinion of the court, the chief justice observed: “There is a dis-
tinction between simple and public blockades which supports this
conclusion. A simple blockade may be established by a naval officer,
acting upon his own discretion or under direction of superiors, with-
out governmental notification; while a public blockade is not only
established in fact, but is notified, by the government directing it, to
other governments. In the case of a simple blockade, the captors are
bound to prove its existence at the time of capture; while in the case
1 Statement of case omitted, likewise part of the opinion. - Ed.
CHAP. III.]
827
THE
ADULA."
of a public blockade, the claimants are held to proof of discontinuance
in order to protect themselves from the penalties of attempted viola-
tion.” A like ruling was made by Sir William Scott in the case of
The Rolla, 6 C. Rob. 364, which was the case of an American ship
and cargo, proceeded against for the breach of a blockade at Monte-
video, imposed by the British commander. It was argued, apparently
upon the authority of The Henrick and Maria, 1 C. Rob. 123, that
the power of imposing a blockade is altogether an act of sovereignty
which cannot be assumed or exercised by a commander without
special authority. But says the learned judge: “The court then
expressed its opinion that this was a position not maintainable to
that extent; because a coinmander going out to a distant station may
reasonably be supposed to carry with him such a portion of sovereign
authority, delegated to him, as may be necessary to provide for the
exigencies of the service upon which he is employed. On stations
in Europe, where government is almost at hand to superintend and
direct the course of operations, under which it may be expedient that
particular hostilities should be carried on, it may be different. But
in distant ports of the world it cannot be disputed, I conceive, that
a commander must be held to carry with him sufficient authority to
act, as well against the commerce of the enemy, as against the enemy
himself, for the immediate purpose of reduction.” See also. The
Johanna Maria, Deane on Blockades, 86.
In view of the operations then being carried on for the purpose of
destroying or capturing the Spanish fleet and reducing Santiago, we
think it was competent for Admiral Sampson to establish a blockade
there and at Guantanamo as an adjunct to such operations. Indeed,
it would seem to have been a necessity that restrictions should be
placed upon the power of neutrals to carry supplies and intelligence
to the enemy as they would be quite sure to do if their ships were
given free ingress and egress from these harbors. While there could
be no objections to vessels carrying provisions to the starving insur-
gents, if their destination could be made certain, the probabilities
were that such provisions carried to a beleaguered port, would be
immediately seized by the enemy and used for the sustenance of its
soldiers. The exigency was one which rendered it entirely prudent
for the commander of the fleet to act, without awaiting instructions
from Washington.
But it is contended that at the time of the capture, the port of
Guantanamo was completely in the possession and control of the
United States, and therefore that the blockade had been terminated.
It appears, however, that Guantanamo is eighteen miles from the
mouth of Guantanamo Bay. Access to it is obtained either by a
828
[PART II.
BELLIGERENTS AND NEUTRALS.
small river emptying into the upper hay, or by rail from Caimanera,
a town on the west side of the upper bay. It seems that the Marble-
head and the Yankee were sent to Guantanamo on June 7; entered
the harbor and took possession of the lower bay for the use of Amer-
ican vessels; that the Panther and Yosemite were sent there on the
10th, and on the 12th the torpedo boat Porter arrived from Guanta-
namo with news of a land battle, and from that time the harbor.was
occupied by naval vessels, and by a party of marines who held the
crest of a hill on the west side of the harbor near its entrance, and
the side of the hill facing the harbor. But the town of Guantanamo,
near the head of the bay, was still held by the Spanish forces, as
were several other positions in the neighborhood. The campaign in
the vicinity was in active progress, and encounters between the
United States and Spanish troops were of frequent occurrence.
In view of these facts we are of opinion that, as the city of Guan-
tanamo was still held by the Spaniards, and as our troops occupied
only the mouth of the bay, the blockade was still operative as against
vessels bound for the city of Guantanamo. Here again the case of
The Circassian, 2 Wall. 135, is decisive. The Circassian was cap-
tured May 4, 1862, for an attempted violation of the blockade of New
Orleans. The city, including the ports below it on the Mississippi,
was captured during the last days of April, and military possession
of the city taken on May first. It was held that neither the capture
of the forts nor the military occupation of the city terminated the
blockade, upon the ground that it applied, not to the city alone, but
controlled the port, which included the whole parish of New Orleans,
and lay on both sides of the Mississippi, and all the ports on that
river and on the lakes east of the city. The following language of
the chief justice is equally pertinent to this case: "Now, it may be
well enough conceded that a continuous and complete possession of
1 While it is true that the case of the Circassian, supra, “is decisive,' it is sub-
mitted that the authority of that case has been badly shaken, if not wholly destroyed.
Such intense dissatisfaction was created by the judgment of the Supreme Court that
this matter was submitted to the American and British Claims Commission appointed
by the Treaty of May 8, 1871, between the United States and Great Britain (Art.
XII.). The commission made awards in favor of all the claimants. 4 Moore, İnt.
Arb. 3911-3923.
It may not be out of place to quote the following passage referring to the judgment
in the Circassian: “The truth is that the feeling of the country was deep and strong
against England, and the judges, as individual citizens, were no exception to that
feeling. Besides, the court was not then familiar with the law of blockade” (Letter of
Mr. Justice Nelson, dated Aug. 4, 1873, to Wm. B. Lawrence and printed in Law
Magazine and Review, Fourth series, Vol. III. 31). It should be said, however, that
such criticism does not apply to Mr. Justice Nelson, as his dissenting opinions suffi-
ciently show. See also Hall's Int. Law, 694, note 3. ED.
$
CHAP. III.]
829
THE 66 ADULA."
war.
the city and the port, and of the approaches from the Gulf, would
make a blockade unnecessary, and would supersede it. But, at the
time of the capture of the Circassian, there had been no such pos-
session. Only the city was occupied, not the port, much less the
district of country commercially dependent upon it, and blockaded
by its blockade. Even the city had been occupied only three days.
It was yet hostile; the rebel army was in the neighborhood; the
occupation, limited and recent, was subject to all the vicissitudes of
Such an occupation could not at once, of itself, supersede or
suspend the blockade. It might ripen into a possession which would
have that effect, and it did; but at the time of the capture it operated
only in aid and completion of the naval investment." The occupa-
tion of the city terminates a blockade because, and only because, it
supersedes it, and if a vessel be bound to a port or place beyond,
which is still occupied by the enemy, the occupation of the mouth
of the harbor does not necessarily terminate the blockade as to such
places.
Granting the existence of a lawfal and sufficient blockade at Guan-
tanamo, its legal effect was a closing of the port, and an interdiction
of the entrance of all vessels of whatever nationality or business. It
is well described by Sir William Scott in The Vrouw Judith, 1 C.
Rob. 126, 128, "as a sort of circumvallation round a place, by which
all foreign connection and correspondence is, as far as human force
can effect it, to be entirely cut off. It is intended to suspend the
entire commerce of that place, and a neutral is no more at liberty to
assist the traffic of exportation than of importation. The utmost that
can be allowed to a neutral vessel is, that having already taken on
board a cargo before the blockade begins, she may be at liberty to
retire with it. But it must be considered as a rule which this court
means to apply, that a neutral ship departing can only take away a
cargo bonâ fide purchased and delivered, before the commencement
of the blockade. If she afterwards takes on board a cargo it is a
fraudulent act and a violation of the blockade." It is also said by
Phillimore, 3 Int. Law, 383, that “the object of a blockade is to pre-
vent exports as well as imports, and to cut off all communication of
commerce with the blockaded place,” The sailing of a vessel with a
premeditated intent to violate a blockade is ipso facto a violation of
the blockade, and renders the vessel subject to capture from the
moment she leaves the port of departure. · Yeaton y. Fry, 5 Cranch,
335; The Circassian, 2 Wall. 135; The Frederick Molke, 1 C. Rob.
72; The Columbia, 1 C. Rob. 130; The Neptunus, 2 C. Rob. 110;
Wheaton on Captures, 196. If a master have actual notice of a
blockade, he is not at liberty even to approach the blockaded port for
830
[PART II.
BELLIGERENTS AND NEUTRALS.
the purpose of making inquiries of the blockading vessels, since such
liberty could not fail to lead to attempts to violate the blockade under
pretext of approaching the port for the purpose of making such in-
quiries. The Admiral, 3 Wall. 603; The Prize Cases, 2 Black, 635,
677; Duer on Ins. 661; The Cheshire, 3 Wall. 231; The James Cook,
Edwards, 261; The Josephine, 3 Wall. 83; The Spes, 5 C. Rob. 76;
The Betsey, 1 C. Rob. 332; The Neptunus, 2 C. Rob. 110; The Little
William, 1 Acton, 141, 161; Sperry v. Delaware Ins. Co., 2 Wash.
C. C. 243. If there be any distinction in this particular between a
proclaimed blockade and an actual blockade by a naval commander,
it does not aid the Adula in view of the admitted fact that she was
informed by the Vixen that the port was under the control of the
United States military forces, and that the war ships were visible
before she entered the bay.
In this connection we are cited by counsel for the Adula to a
change in the law said to have been effected by the adhesion of this
government, at the beginning of the war, to the declaration of Paris
abolishing privateering. This supposed change apparently rests upon
an extract from a French treatise upon international law by Pistoye
and Duverdy, Vol. I. p. 375, in which it is said that by the modern
law, in consequence of the declaration of Paris, a vessel must be
notified to depart from the blockaded port before she can be captured,
and that the contrary rule was the result of the doctrine of the
British Orders in Council during the Napoleonic wars, which is now
given up by that country. It is also said that "the old rule was that
it was a breach of blockade to enter upon a voyage to the blockaded
port. This rule is now changed, because neutrals are obliged only to
respect effective blockades. It may well be that a blockade of which
official notice has been given is not an effective blockade, or it may
be that a blockade which has been established by a sufficient force
may have ceased to exist. Neutrals then have the right to begin a
voyage to a blockaded port in order to see if the blockade still con-
tinues. They are only guilty when, while the blockade continues,
they actually endeavor to break it."
We cannot, however, accept this opinion as overruling in any
particular the prior decisions of this court in the cases above cited,
to the effect that a departure for a blockaded port with intent to vio-
late the blockade renders the vessel liable to seizure. When Congress
has spoken upon this subject it will be time enough for this court to
act. We cannot change our rulings to conform to the opinions of
foreign writers as to what they suppose to be the existing law upon
the subject.
We have not overlooked in this connection the provision contained
6
CHAP. III.]
831
66
THE
ADULA."
in Art. 18 of Jay's treaty of 1794; to the effect that “whereas, it
frequently happens that vessels sail for a port or place belonging to
an eneiny, without knowing that the same is either besieged, block-
aded, or invested, it is agreed, that every vessel so circumstanced,
may be turned away from such port or place, but she shall not be
detained nor her cargo, if not contraband, confiscated, unless after
notice she shall again attempt to enter.” Fitzsimmons v. Newport
Ins. Co., 4 Cranch, 185. Waiving the question whether this clause
of Jay's treaty was abrogated by the war of 1812, and accepting it
as a correct exposition of the law of nations, it applies only to vessels
which have sailed for a hostile port or place without knowing that
the same is either besieged, blockaded, or invested. The whole case
against the Adula depends upon the question whether those in charge
of her knew before she left Kingston that Santiago and Guantanamo
were blockaded. If they did, the treaty does not apply. If they did
not, they are entitled to the benefit of this principle of international
law. In the case of the Maryland Ins. Co. v. Woods, 6 Cranch, 29,
in which it was held that the vessel could not be placed in the situa-
tion of one having notice of the blockade until she was warned off,
the decision was placed upon the express ground that orders had been
given by the British Government, and communicated to our govern-
inent, "not to consider blockades as existing, unless in respect to
particular ports which may be actually invested, and then not to
capture vessels bound to such ports, unless they shall have been pre-
viously warned not to enter them.” This order was treated by the
court as a mitigation of the general rule so far as respected blockades
in the West Indies.
From all the testimony in the case it appears very clear:
[That the Adula belonged to a British corporation, the Atlas
Steamship Company, flew the British flag, and prior to the Spanish-
American war was engaged in general trade between Kingston and
other ports on the coast of Jainaica, in connection with other steamers
of the same line from New York, and from time to time had made
voyages to Cuban ports.]
That Guantanamo was actually and effectively blockaded by orders
of Admiral Sampson from June 7 until after the capture of the
Adula;
That the Adula was chartered to a Spanish subject for a voyage to
Guantanamo, Santiago, or Manzanillo, for the purpose of bringing
away refugees, and that such voyage was primarily, at least, a com-
mercial one for the personal profit of the charterer. During such
charter she was to a certain extent pro hâc vice, a Spanish vessel, and
a notice to Solis of the existence of the blockade was a notice to the
JJZ
[PART II.
BELLIGERENTS AND NEUTRALS.
vessel. The Ranger, 6 C. Rob. 126; The Yonge Emilia, 3 C. Rob.
52; The Napoleon, Blatch. Prize Cases, 296. The fact of her sailing
under a Spanish passport -- in fact, an enemy's license -- is not
devoid of significance. Indeed, we have in several cases regarded
this as sufficient ground for condemnation. The India, 8 Cranch,
181; The Aurora, 8 Cranch, 203; The Hiram, 1 Wheat. 440; The
Ariadne, 2 Wheat. 143. This passport gave the Adula authority to
enter the Cuban ports and take away refugees, and it is a circum-
stance worthy of notice that it could not be found when the vessel
was captured. Solis acknowledged its existence, but made no effort
to account for its loss;
Both Solis himself and the Adula had been previously engaged in
similar enterprises to the coast of Cuba, and were chargeable with
notice, not only of war between the United States and Spain, but
with the fact of military and naval operations upon the southern coast
of Cuba;
The fact of such war, that the object of it was the expulsion of the
Spanish forces from Cuba, and that military and naval operations
were being carried on by us with that object in view, must have been
matters of common knowledge in Kingston, as well as the fact that
the commerce with the southern ports of Cubą was likely to be inter-
rupted, and that all intercourse with such ports would become dan-
gerous in consequence of such war;
While the mission of the Adula was not an unfriendly one to this
government, she was not a cartel ship, privileged from capture as
such, but one employed in a commercial enterprise for the personal
profit of the charterer, and only secondarily, if at all, for the purpose
of humanity. Her enterprise was an unlawful one, in case a blockade
existed, and both Solis and the master of the Adula were cognizant
of this fact. The direction of the commanding officer of the Vixen,
which overhauled the Adula off Guantanamo, to enter the harbor,
cannot be construed as a permission to violate the blockade, as such
permission would not be within the scope of his authority. The
Hope, 1 Dod. 226; The Amado, Newb. 400; The Joseph, 8 Cr. 451;
The Benito Estenger, post 568.
That upon arrival off Santiago the blockading fleet was plainly
visible, and we think there is a preponderance of evidence to the
effect that both Solis and the master of the Adulu knew of the actual
blockade, that it was generally known in Kingston before she sailed,
and that the Adula was chargeable with a breach of it, notwithstand-
ing the letter of instructions from Mr. Forwood to Captain Yeates.
As the blockade had been in existence since June 7, it is scarcely
possible that, in the three weeks that elapsed before the Adula sạiled,
$
CHAP. III.]
833
66
THE
ADULA."
it should not have been known in Kingston, which was only a day's
trip from the southern coast of Cuba, and with which it appears to
have been in frequent communication. This probability is con-
firmed by the direct testimony of the sailor Morris, that it was
matter of common talk in Kingston. The testimony of Solis, that
he did not know "officially
officially” that Guantanamo was blockaded, by
which we are to understand that it had not been officially proclaimed,
is perfectly consistent with a personal knowledge of the actual fact.
His statement seems to be little more than a convenient evasion.
Upon the principle already stated his knowledge was the knowledge
of the ship.
We think the facts herein stated outweigh the general statement
of the officers that they had not heard of the blockade.
3. There was no error in denying the motion of the claimant
to take further proofs. It appears from the opinion of the court
that "the hearing upon the proceedings for condemnation was upon
the evidence afforded by the examination of the captured crew
taken upon standing interrogatories, the ship's papers, and other
evidence of a documentary character found upon the ship by the
captors. This was done in conformity to the established rule in prize
cases."
The motion to take further proof was made upon the affidavit of
Robert Gemmell, the New York agent of the company, the statement
of W. P. Forwood, the Kingston agent, annexed thereto, as well as
his own affidavit and exhibits, and upon the counter testimony of
Anderson, Ellenberg, and Gill taken de bene esse. Upon the hearing
of this motion the court considered the allegations of Forwood,
attached to Gemmell's affidavit, as if Forwood had testified upon
depositions regularly taken, giving due weight to the same in con-
nection with other evidence in the case; and was of opinion that the
evidence as it stood was not susceptible of any satisfactory explana-
tion; and comparing the proof proposed to be brought forward with
that already in the case, came to the conclusion that the legal effect
of the facts before the court could not be varied by the explanation
offered. The motion was denied. In considering this case we have
also given effect to these affidavits, and have come to the conclusion
that, if they are to be taken as true, and the further proofs, if taken,
would support them, they would not change our opinion with respect
to the affirmance of the decree.
If an examination of the ship's papers and of the crew, taken in
preparatorio, upon which the cause is first heard in the District
Court, make a case for condemnation, the order for further proof is,
· as stated in The Gray Jacket, 5 Wall. 342, 368, always made with
J3
834
[PART II.
BELLIGERENTS AND NEUTRALS.
extreme caution, and only where the interests of justice clearly
require it. If the ship's papers and the testimony of the crew do
not justify an acquittal, it is improbable that a defence would be
established by further proof; and as the interest of all parties require
that prize causes be quickly disposed of, it is only where the testi-
inony in preparatorio makes a case of grave doubt, that the court
orders the taking of further proofs. The Pizarro, 2 Wheat. 227;
The Amiable Isabella, 6 Wheat. 1, 77; Benedict's Adm'y, sec. 512 a;
Story on Prize Courts, 17.
It was said by Sir William Scott in The Sarah, 3 C. Rob. 330, that
"it has seldom been done except in cases where there has appeared
something in the original evidence, which lays a suggestion for prose-
cuting the inquiry farther. In such case the court has allowed it;
but when the matter is foreign, and not connected with the original
evidence of the cause, it must be under very peculiar circumstances
indeed that the court will be induced to accede to such an applica-
tion; because, if remote suggestions were allowed, the practice of the
court would be led away from the simplicity of prize proceedings,
and there would be no end to the accumulation of proof that would be
introduced in order to support arbitrary suggestions."
These remarks are especially pertinent to the offer of further proof
that, while Solis owed allegiance to the Queen of Spain, yet, that he
left Cuba soon after the war broke out, took no part in the hostilities,
but on the contrary had done all in his power while he remained in
Cuba to assist citizens of the United States residing there; had sided
with the natives of Cuba, and was desirous that a government should
be established in the island under the auspices of the United States.
As was observed in the very satisfactory opinion of the district judge
in this case, this evidence was altogether irrelevant to the case of the
Adula, and was, to a certain extent, a contradiction of his testimony
before the prize commissioners that lie was a loyal subject of Spain,
bore a Spanish passport, and carried a bill of health viséd by the
Spanish consul at Kingston. It would throw the whole practice in
prize cases into confusion if the testimony, taken in preparatorio,
when the facts are fresh in the minds of the witnesses, were subject
to be contradicted by the same witnesses after its weak points had
been developed. It was said by Mr. Justice Story in The Pizarro, 2
Wheat. 227: “Nor should the captured crew have been permitted to
be re-examined in court. They are bound to declare the whole truth
upon the first examination; and if they fraudulently suppress ang
material facts, they ought not to be indulged with an opportunity to
disclose what they please, or to give color to their former statements
after counsel has been taken, and they know the pressure of the cause.
CHAP. III.]
835
THE
OLINDE RODRIGUES."
l'ublic policy and justice equally point out the necessity of an inflex-
ible adherence to this rule."
Upon the whole, we think the decree of the District Court was
correct, and it is therefore
Affirmed. 1
THE OLINDE RODRIGUES.”
SUPREME COURT OF THE UNITED STATES, 1898.
(174 United States, 510.)
Mr. Chief Justice FULLER delivered the opinion of the court.
We are unable to concur with the learned district judge in the
conclusion that the blockade of the port of San Juan at the time this
steamship was captured was not an effective blockade.
To be binding, the blockade must be known, and the blockading
force must be present; but is there any rule of law determining that
the presence of a particular force is essential in order to render
a blockade effective? We do not think so, but on the contrary, that
the test is whether the blockade is practically effective, and that that
is a question, though a mixed one, more of fact than of law.
The fourth maxim of the Declaration of Paris (April 16, 1856)
was: “ Blockades, in order to be binding, must be effective, that is to
say, maintained by a force sufficient really to prevent access to the
coast of the enemy.” Manifestly this broad definition was not in-
tended to be literally applied. The object was to correct the abuse,
in the early part of the century, of paper blockades, where extensive
coasts were put under blockade by proclamation, without the presence
of any force, or an inadequate force; and the question of what might
be sufficient force was necessarily left to be determined according to
the particular circumstances.
This was put by Lord Russell in his note to Mr. Mason of February
10, 1861, thus: “ The Declaration of Paris was in truth directed
against what were once termed paper blockades ;' that is, blockades
not sustained by any actual force, or sustained by a notoriously in-
adequate naval force, such as an occasional appearance of a man-of-war
in the offing or the like. ** * The interpretation, therefore, placed
by her Majesty's Government on the declaration was, that a blockade,
in order to be respected by neutrals, must be practically effective. * * *
1 Dissenting opinion of SHÍRAS, J., concurred in by GRAY, White, and PECKHAM,
JJ., omitted. See The Newfoundland, 1899, 176 U. S. 97, for case in which intent to
run the blockade of Havana during the same war was held insufficiently proved. ED.
836
[PART II.
BELLIGERENTS AND NEUTRALS.
It is proper to add, that the saine view of the meaning and effect
of the articles of the Declaration of Paris, on the subject of blockades,
which is above explained, was taken by the representative of the
United States at the Court of St. James (Mr. Dallas) during the
communications which passed between the two governments some
years before the present war, with a view to the accession of the
United States to that declaration." Hall's Int. Law, § 260, p. 730,
note.
The quotations from the Parliamentary debates, of May, 1861, given
by Mr. Dana in note 233 to the eighth edition of Wheaton on In-
ternational Law, afford interesting illustrations of what was con-
sidered the measure of effectiveness; and an extract is also there
given from a note of the Department of Foreign Affairs of France of
September, 1861, in which that is defined: “Forces sufficient to
prevent the ports being approached without exposure to a certain
danger."
In The Mercurius, 1 C. Rob. 80, 84, Sir William Scott stated: “It
is said, this passage to the Zuyder Zee was not in a state of blockade;
but the ship was seized immediately on entering it; and I know not
what else is necessary to constitute blockade. The powers who
formed the armed neutrality in the last war, understood blockade in
this sense; and Russia, who was the principal party in that con-
federacy, described a place to be in a state of blockade, when it is
dangerous to attempt to enter into it."
And in The Frederick Molke, 1 C. Rob. 86, the same great jurist
said: “For that a legal blockade did exist, results necessarily from
these facts, as nothing farther is necessary to constitute blockade,
than that there should be a force stationed to prevent communication,
and a due notice, or prohibition given to the party."
Such is the settled doctrine of the English and American courts
and publicists, and it is embodied in the second of the instructions
issued by the Secretary of the Navy, June 20, 1898, General Order
No. 492: “.A blockade to be effective and binding must be maintained
by a force sufficient to render ingress to or egress from the port
dangerous."
Clearly, however, it is not practicable to define what degree of
danger shall constitute a test of the efficiency and validity of a block-
ade. It is enough if the danger is real and appareut.
In The Franciska, 2 Spinks, 128, Dr. Lushington, in passing on the
question whether the blockade imposed on the port of Riga was an
effective blockade, said: "What, then, is an efficient blockade, and
how has it been defined, if, indeed, the term definition' can be
applied to such a subject? The one definition mentioned is, that
t
CHAP. III.]
837
THE
OLINDE RODRIGUES.'
66
egress or entrance shall be attended with evident danger; another,
that. of Chancellor Kent (1 Kent's Com. 146), is, that it shall be
apparently dangerous. All these definitions are and must be, from
the nature of blockades, loose and uncertain; the maintenance of a
blockade must always be a question of degree, -of the degree of
danger attending ships going into or leaving a blockaded port. Noth-
ing is further from my inteution, nor, indeed, more opposed to my
notions of the law of nations, than any relaxation of the rule that a
blockade must be efficiently maintained; but it is perfectly obvious
that no force could bar the entrance to absolute certainty; that
vessels may get in and get out during the night, or fogs, or violent
winds, or occasional absence; that it is most difficult to judge from
numbers alone."
It is impossible," says Mr. Hall ($ 260), “to fix with any accuracy
the amount of danger in entry which is necessary to preserve the
validity of a blockade. It is for the prize courts of the belligerent to
decide whether in a given instance a vessel captured for its breach
had reason to suppose it to be non-existent; or for the neutral gov-
ernment to examine, on the particular facts, whether it is proper to
withhold or to withdraw recognition."
In The Hoffnung, 6 C. Rob. 112, 117, Sir William Scott said:
“When a squadron is driven off by accidents of weather, which must
have entered into the contemplation of the belligerent imposing the
blockade, there is no reason to suppose that such a circumstance
would create a change of system, since it could not be expected that
any blockade would continue many months, without being liable to
such temporary interruptions. But when a squadron is driven off by
a superior force, a new course of events arises, which may tend to a
very different disposition of the blockading force, and which intro-
duces therefore a very different train of presumptions, in favor of the
ordinary freedom of commercial speculations. In such a case the neu-
tral merchant is not bound to foresee or to conjecture that the blockade
will be resumed.” And undoubtedly a blockade may be so inade-
quate, or the negligence of the belligerent in maintaining it may be
of such a character, as to excuse neutral vessels from the penalties
for its violation. Thus in the case of an alleged breach of the
blockade of the island of Martinique, which had been carried on hy
a number of vessels on the different stations, so communicating with
each other as to be able to intercept all vessels attempting to enter
the ports of the island, it was held that their withdrawal was a neglect
which “necessarily led neutral vessels to believe these ports might
be entered without incurring any risk.” The Nancy, 1 Aston, 57, 59.
But it cannot be that a vessel actually captured in attempting to
838
(PART II.
BELLIGERENTS AND NEUTRALS.
enter a blockaded port, after warning entered on her log by a cruiser
off that port only a few days before, could dispute the efficiency of
the force to which she was subjected.
As we hold that an effective blockade is a blockade so effective as
to make it dangerous in fact for vessels to attempt to enter the
blockaded port, it follows that the question of effectiveness is not
controlled by the number of the blockading force. In other words,
the position cannot be maintained that one modern cruiser though
sufficient in fact is not sufficient as matter of law.
Even as long ago as 1809, in The Nancy, 1 Acton, 63, where the
station of the vessel was sometimes off the port of Trinity and, at
others, off another port more than seven miles distant, it was ruled
that: “Urider particular circumstances a single vessel may be ade-
quate to maintain the blockade of one port and co-operate with other
vessels at the same time in the blockade of another neighboring
port;" although there Sir William Grant relied on the opinion of
the commander on that station that the force was completely adequate
to the service required to be perfermed.
The ruling of Dr. Lushington in The Franciska, above cited, was to
that effect, and the text-books refer to other instances.
The learned district judge, in his opinion, refers to the treaty
between France and Denmark of 1742, which provided that the
entrance to a blockaded port should be closed by at least two vessels
or a battery on shore; to the treaty of 1760 between Holland and the
Two Sicilies prescribing that at least six ships of war should be
ranged at a distance slightly greater than gunshot from the entrance;
and to the treaty between Prussia and Denmark of 1818, which stipu-
lated that two vessels should be stationed before every blockaded port;
but we do not think these particular agreements of special importance
here, and, indeed, Ortolan, by whom they are cited, says that such
stipulations cannot create a positive rule in all cases even between
the parties, “since the number of vessels necessary to a complete
investment depends evidently on the nature of the place blockaded.”
2 Ortolan, 4th ed., 330, and note 2.
Nor do we regard Sir William Scott's judgment in The Arthur,
1814, 1 Dodson, 423, 425, as of weight in favor of claimants. In
effect the ruling sustained the validity of the maintenance of blockade
by a single ship, and the case was thus stated: “This is a claim made
by one of his Majesty's ships to share as joint-captor in a prize taken
in the river Ems by another ship belonging to his Majesty, for a
breach of the blockade imposed by the order in council of the 26th of
April, 1809. This order was, among others, issued in the way of
retaliation for the measures which had been previously adopted in
CHAP. III.]
839
THE
OLINDE RODRIGUES.”
the French Government against the commerce of this country. The
blockade imposed by it is applicable to a very great extent of coast,
and was never intended to be maintained according to the usual and
regular mode of enforcing blockades, by stationing a number of ships
and forming as it were an arch of circumvallation around the mouth
of the prohibited port. There, if the arch fails in any one part, the
blockade itself fails altogether; but this species of blockade, which
has arisen out of the violent and unjust conduct of the enemy; was
maintained by a ship stationed anywhere in the neighborhood of the
coast, or, as in this case, in the river itself, observing and preventing
every vessel that might endeavor to effect a passage up or down the
river."
Blockades are maritime blockades, or blockades by sea and land;
and they may be either military or commercial, or may partake of the
nature of both. The question of effectiveness must necessarily de-
pend on the circumstances. We agree that the fact of a single cap-
ture is not decisive of the effectiveness of a blockade, but the case
made on this record does not rest on that ground.
We are of opinion that if a single modern cruiser blockading a port
renders it in fact dangerous for other craft to enter the port, that is
sufficient, since thereby the blockade is made practically effective.
What then were the facts as to the effectiveness of the blockade in
the case before us ?
In the proclamation of June 27, 1898, occurs this paragraph: “The
United States of America has instituted and will maintain an effective
blockade of all the ports on the south coast of Cuba, from Cape
Frances to Cape Cruz, inclusive, and also of the port of San Juan, in
the island of Porto Rico.” Proclamation No. 11, 30 Stat. 34. The
blockade thus announced was not of the coast of Porto Rico, but of
the port of San Juan, a town of less than 25,000 inhabitants, on the
northern coast of Porto Rico, with a single entrance. From June 27
to July 14, 1898, the Yosemite, a merchant ship converted into an
auxiliary cruiser, blockaded the port. Her maximum speed was
fifteen and one-half knots; and her armament ten 5-inch rapid firing
guns, six 6-pounders, two 1-pounders, with greatest range of three and
one-half miles. While the Yosemite was blockading the port she ran
the armed transport Antonio Lopez aground six miles from San Juan;
gave a number of neutral vessels official notice of the blockade
warned off many from the port; and on the 5th of July, 1898, wrote
into the log of the Olinde Rodrigues, off San Juan, the official warn-
iug of the blockade of San Juan. On July 14 and thereafter the port
was blockaded by the armored cruiser New Orleans, whose maximum
speed was twenty-two knots, and her armament six 6-inch breech-
SÃO
[PART II.
BELLIGERENTS AND NEUTRALS.
loading rifles, four 4.7-inch breech-loading rifles, ten 6-pounders, four
1.5-inch guns, corresponding to 3-pounders; four 3-pounders in the
tops ; four 37-millimetre automatic guns, corresponding to 1-pounders.
The range of her guns was five and one-half sea miles or six and a
quarter statute miles. If stationary, she could command a circle of
thirteen miles in diameter; if moving, at maximum speed, she could
cover in five minutes any point on a circle of seventeen iniles diameter;
and in ten minutes any point on a circle of nineteen miles diameter;
her electric search-lights could sweep the sea by night for ten miles
clistance; her motive power made her independent of winds and
currents ; in these respects and in her armament and increased range
of guns she so far surpassed in effectiveness the old-time war ships
that it would be inadınissible to hold that even if a century ago more
than one ship was believed to be required for an effective blockade,
therefore this cruiser was not sufficient to blockade this port.
Assuming that the Olinde Rodrigues attempted to enter San Juan,
July 17, there can be no question that it was dangerous for her to do
so, as the result itself demonstrated. She had had actual warning
twelve days before; no reason existed for the supposition that the
blockade had been pretermitted or relaxed; her commander had no
right to experiment as to the practical effectiveness of the blockade,
and, if he did so, he took the risk ; he was believed to be making the
attempt, and was immediately captured. In these circumstances the
vessel cannot be permitted to plead that the blockade was not legally
effective.
But we are considering the blockade of the port of San Juan and
not of the coast, and while additional vessels to cruise about the
island might be desirable in order that the blockade should be posi-
tively effective, we think it a sufficient compliance with the obliga-
tions of international law if the blockade made egress or ingress
dangerous in fact, and that the suggestions of a zealous American
naval commander, in anticipation of a conflict of armed forces before
San Juan, that the blockade should be brought to the highest efficiency
in a military as well as a commercial aspect, cannot be allowed to
have the effect of showing that the blockade which did exist was, as
to this vessel, ineffective in point of law.
Such being the situation, and the evidence of the ship's officers
being explicit that the vessel was on her way to St. Thomas and had
no intention of running into San Juan, the decree in her favor must
be affirmed on the merits, unless the record elsewhere furnishes
evidence sufficient to overcome the conclusion reasonably deducible
from the facts above stated.
Counsel for the government insist that the intention of the Olinde
CHAP. II.]
811
THE
OLINDE RODRIGUES.'
to run the blockade is necessarily to be inferred from the possession
of these bills of health and their alleged concealment and destruction.
Doubtless the spoliation of papers, and, though to a less degree, their
concealment, is theoretically a serious offence, and authorizes the
presumption of an intention to suppress incriminating evidence, though
this is not an irrebuttable presumption.
In The Pizarro, 2 Wheat. 227, 241, the rule is thus stated by Mr.
Justice Story: “Concealment, or even spoliation of papers is not of
itself a sufficient ground for condemnation in a prize court. It is,
undoubtedly, a very awakening circumstance, calculated to excite the
vigilance, and to justify the suspicions of the court. But it is a
circumstance open to explanation, for it may have arisen from acci-
dent, necessity, or superior force; and if the party in the first instance
fairly and frankly explains it to the satisfaction of the court, it
deprives him of no right to which he is otherwise entitled. If, on the
other hand, the spoliation be unexplained, or the explanation appear
weak and futile; if the cause labor under heavy suspicions, or there
be a vehement presumption of bad faith, or gross prevarication, it is
inade the ground of a denial of farther proof, and condemnation
ensues from defects in the evidence which the party is not permitted
to supply."
The evidence of evil intent must be clear and convincing before a
merchant ship belonging to citizens of a friendly nation will be con-
demned. And on a careful review of the entire evidence, we think
we are not compelled to proceed to that extremity.
But, on the other hand, we are bound to say that, taking all the
cireumstances together and giving due weight to the evidence on
behalf of the captors, probable cause for making the capture undoubt-
edly existed; and the case disclosed does not commend this vessel to
the favorable consideration of the court.
Probable cause exists where there are circumstances sufficient to
Warrant suspicion though it may turn out that the facts are not suffi-
cient to warrant condemnation. And whether they are or pot cannot
be determined unless the customary proceedings of prize are instituted
and enforced. The Adeline, 4 Cranch, 244, 285; The Thompson, 3
Wall. 155. Even if not found sufficient to condemn, restitution will
not necessarily be made absolutely, but may be decreed conditionally
as each case requires, and an order of restitution does not prove
lack of probable cause. The Adeline, supra; Jennings v. Carson, 4
Cranch, 2, 28, 29.
In the statenent of Sir William Scott and Sir John Nicholl, trans-
mitted to Chief Justice Jay, then Minister to England, by Sir
William Scott, Sept. 10, 1794, "The general principles of proceeding
842
[PART ir.
BELLIGERENTS AND NEUTRALS.
tion."
in prize causes, in British Courts of Admiralty, and of the measures
proper to be taken when a ship and cargo are brought in as prize
within their jurisdictions," are set forth as laid down in an extract
from a report made to the King in 1753 “by Sir George Lee, then
judge of the Prerogative Court, Dr. Paul, his Majesty's advocate-
general, Sir Dudley Rider, his Majesty's attorney-general, and
Mr. Murray (afterwards Lord Mansfield), his Majesty's solicitor-
general;” and many instances are given where in the enforcement
of the rules "the law of nations allows, according to the different
degrees of misbehavior, or suspicion, arising from the fault of the
ship taken, and other circumstances of the case, costs to be paid, or
not to be received, by the claimant, in case of acquittal and restitu-
Wheaton on Captures, Appendix, 309, 311, 312; Pratt's
Story's Notes, p. 35.
In The Appollon, 9 Wheat. 362, 372, Mr. Justice Story said: “No
principle is better settled in the law of prize than the rule that prob-
able cause will not merely excuse, but even, in some cases, justify
a capture. If there be probable cause, the captors are entitled, as
of right, to an exemption from damages; and if the case be of
strong and vehement suspicion, or requires further proof to entitle
the claimant to restitution, the law of prize proceeds yet farther,
and gives the captors their costs and expenses in proceeding to
adjudication."
Section 4639 of the Revised Statutes contemplates that, under
circumstances, all costs and expenses shall remain charged on the
captured vessel though she be restored, and this court has repeatedly
held that damages and costs will be denied where there was probable
cause for seizure, and that sometimes costs will be awarded to the
captors. The Venus, 5 Wheat. 127; The Thompson, 3 Wall. 155;
The Springbok, 5 Wall. 1; The Dashing Wave, 5 Wall. 170; The Sir
William Peel, 5 Wall. 517; The Peterhoff, 5 Wall. 28, 61, 62.
In The Dashing Wave, Chief Justice Chase said: “We think it
was the plain duty of a neutral claiming to be engaged in trade with
Matamoras, under circumstances which warranted close observation
by the blockading squadron, to keep his vessel, while discharging or
receiving cargo, so clearly on the neutral side of the boundary line
as to repel, so far as position could repel, all imputation of intent to
break the blockade. He had no right to take, voluntarily, a position
in the immediate presence of the blockading fleet, from which mer-
chandise might be so easily introduced into the blockaded region.
We do not say that neglect of duty, in this respect, on the part of the
brig, especially in the absence of positive evidence that the neglect
was wilful, calls for condemnation; but we cannot doubt that under
f
CHAP. III.]
THE
843
OLINDE RODRIGUES."
the circumstances described, capturing and sending in for adjudica-
tion was fully warranted.”
In The Springbok, the ship was restored but costs and damages
were not allowed because of the misconduct of the master.
In The Peterhoff, payment of costs and expenses by the ship was
decreed as a condition of restitution. The Peterhoff was captured by
the United States vessel of war Vanderbilt on suspicion of intent to
run the blockade and of having contraband on board. Her captain
refused to take his papers to the Vanderbilt, and, in addition, papers
were destroyed and a package was thrown overboard. The Peterhoff
was searched, and it is stated in the opinion: “The search led to the
belief on the part of the officers of the Vanderbilt that there was coni-
traband on board, destined to the enemy. This belief, it is now
apparent, was warranted. It was therefore the duty of the captors
to bring The Peterhoff in for adjudication, and clearly they are not
liable for the costs and expenses of doing so." The court then com-
inented on the destruction of papers, and the throwing overboard of
the package, in regard to which it was unable to credit the represen-
tations of the captain, but in view of the other facts in the case, did
not extend the effect of the captain's conduct and the incriminating
circumstances to condemnation.
The case before us falls plainly within these rulings. This vessel
had gone into San Juan on July 4, although the captain had heard of
the blockade at St. Thomas, but he says he had not been officially
notified of it; he telegraphed to the consul at San Juan to know, and
was answered that they had received no official notice from Washing-
ton that the port was blockaded; he also heard while in San Juan
that "it would be blockaded some future time, but that was not offi-
cially.” The vessel was boarded and warned by the Yosemite on
July 5, and the warning entered on her log. This imposed upon her
the duty to avoid approaching San Juan, on her return, so nearly as
to give just cause of suspicion, yet she so shaped her course as inevi-
tably to invite it.
When the New Orleans succeeded the Yosemite, her commander was
informed of the facts by his predecessor, and knew that whatever the
right of the Olinde Rodriyues to be in those waters, she could not
lawfully place herself so near the interdicted port as to be able to
break the blockade with impunity. But when he sighted her the
ship was on a course to all appearance directly into that port, and
steadily pursuing it. And when he signalled, the Olinde Rodrigues
apparently did not obey, but seemingly persisted on her course, and
that course would in a few moments have placed her within the range
of the guns of 'Morro and of the shore batteries. In fact, when the
844
(PART II.
BELLIGERENTS AND NEUTRALS.
shot was fired she was within the range of the Morro's guns. The
evidence is overwhelming that she did not change her course until
after the shot was fired, even though she may have stopped as soon as
she saw the signal. The turning point into the Culebra or Virgin
Passage was perhaps forty miles to the eastward, and while she could
have passed the port of San Juan on the course she was on, it would
have been within a very short distance. The disregard of her duty
to shun the port and not approach it was so flagrant that the intention
to break the blockade was to be presumed, though we do not hold
that that was a presumption de jure.
The ship's log was not produced until three hours after she was
boarded, and it now appears that the papers furnished the boarding
officer, “said to be all the ship's papers," did not include two Spanish
bills of health in which San Juan was entered as the vessel's destina-
tion. These were destroyed after the ship reached Charleston, and
were, therefore, in the ship's possession when the other papers were
delivered. Had they been shown, as they should have been, can it
he denied that they would have furnished strong corroboration of
criminal intent? Or that their destruction tended to make a case of
"strong and vehement suspicion”?
The entire record considered, we are of opinion that restitution of
the Olinde Rodrigues should be awarded, without damages, and that
payment of the costs and expenses incident to her custody and preser-
vation, and of all costs in the cause except the fees of counsel, should
be imposed upon the ship.
The decree of the District Court will be so modified, and
As modified affirmed.
Mr. Justice MCKENNA dissented on the ground that the evidence
justified condemnation.
1
1 If a ship has contracted guilt by a breach of blockade, the offence is not discharged
until the end of the return voyage. The Wren, 1867, 6 Wall. 582. --- ED.
t
CHAP. III.]
THE
845
IMMANUEL.”
SECTION 45. — RULE OF THE WAR OF 1756.
THE "IMMANUEL."
HIGH COURT OF ADMIRALTY, 1799.
(2 C. Robinson, 186.)
This was the case of an asserted Hamburg ship, taken 14th
August, 1799, on a voyage from Hamburg to St. Domingo, having in
her voyage touched at Bordeaux, where she sold part of the goods
brought from Hamburg, and took a quantity of iron stores and other
articles for St. Domingo. A question was first raised as to the prop-
erty of the ship and cargo; 2dly, supposing it to be neutral prop-
perty, whether a trade from the mother country of France to St.
Domingo, a French Colony, was not an illegal trade, and such as
would render the property of neutrals engaged in it liable to be con-
sidered as the property of enemies, and subject to confiscation ?
Judgment. - Sir WM. SCOTT:-"Upon the breaking out of a war, it
is the right of neutrals to carry on their accustomed trade, with an ex-
ception of the particular cases of a trade to blockaded places, or in
contraband articles in both which cases their property is liable to be
condemned), and of their ships being liable to visitation and search;
in which case however they are entitled to freight and expenses. I do
not mean to say that in the accidents of a war the property of neutrals
may not be variously entangled and endangered; in the nature of
human connections it is hardly possible that inconveniences of this
kind should be altogether avoided. Some neutrals will be unjustly
engaged in covering the goods of the enemy, and others will be un-
justly suspected of doing it; these inconveniences are more than
fully balanced by the enlargement of their commerce; the trade of
the belligerents is usually interrupted in a great degree, and falls in
the same degree into the lap of neutrals. But without reference to
accidents of the one kind or other, the general rule is, that the neutral
has a right to carry on, in time of war, his accustomed trade to the
utmost extent of which that accustomed trade is capable.
" Very different is the case of a trade which the neutral has never
possessed, which he holds by no title of use and habit in times of
peace, and which, in fact, can obtain in war by no other title, than
by the success of the one belligerent against the other, and at the
846
[PART 11.
BELLIGERENTS AND NEUTRALS.
expense of that very belligerent under whose success he sets up
his title; and such I take to be the colonial trade, generally speaking.
“What is the colonial trade generally speaking? It is a trade
generally shut up to the exclusive use of the mother country, to
which the colony belongs, and this to a double use;—that, of sup-
plying a market for the consumption of native commodities, and the
other of furnishing to the mother country the peculiar commodities
of the colonial regions; to these two purposes of the mother coun-
try, the general policy respecting colonies belonging to the states of
Europe, has restricted them. With respect to other countries, gen-
erally speaking, the colony has no existence; it is possible that
indirectly and remotely such colonies may affect the commerce of
other countries. * * *
“Upon the interruption of a war, what are the rights of bellig.
erents and neutrals respectively regarding such places? It is an
indubitable right of the belligerent to possess himself of such places,
as of any other possession of his enemy. This is his common right,
but he has the certain means of carrying such a right into effect, if
he has a decided superiority at sea: Such colonies are dependent for
their existence, as colonies, on foreign supplies; if they cannot be
supplied and defended they must fall to the belligerent of course-
and if the belligerent chooses to appiy his means to such an object,
what right has a third party, perfectly neutral, to step in and prevent
the execution ? No existing interest of his is affected by it; he can
have no right to apply to his own use the beneficial consequences of
the mere act of the belligerent; and say, "True it is, you have, by
force of arms forced such places out of the exclusive pussession of
the enemy, but I will share the benefit of the conquest, and by shar-
ing its benefits prevent its progress. You have in effect, and by
lawful means, turned the enemy out of the possession which he had
exclusively maintained against the whole world, and with whom we
had never presumed to interfere; but we will interpose to prevent
his absolute surrender, by the means of that very opening, which
the prevalence of your arms alone has affected; supplies shall be
sent and their products shall be exported; you have lawfully de-
stroyed his monopoly, but you shall not be permitted to possess it
yourself; we insist to share the fruits of your victories, and your
blood and treasure have been expended, not for your own interest,
but for the common benefit of others.'
“Upon these grounds, it cannot be contended to be a right of neu-
trals, to intrude into a commerce which had been uniformly shut
against them, and which is now forced open merely by the pressure
of war; for when the enemy, under an entire inability to supply his
4
CHAP. III.]
847
THE
EMANUEL
colonies and to export their products, affects to open them to neu-
trals, it is not his will but his necessity that changes his system ; that
change is the direct and unavoidable consequence of the compulsion
of war, it is a measure not of French councils, but of British force.
“Upon these and other grounds, which I shall not at present
enumerate, an instruction issued at an early period for the purpose
of preventing the communication of neutrals with the colonies of the
enemy, intended, I presume, to be carried into effect on the same
footing, on which the prohibition had been legally enforced in the
war of 1756; a period when, Mr. Justice Blackstone observes, the
decisions on the law of nations proceeding from the Court of Appeals,
were known and revered by every state in Europe.
66 Condemned.”
1
THE «EMANUEL."
HIGe COURT OF ADMIRALTY,
1799.
(1 C. Robinson, 296.)
This was a case respecting the allowance of freight and expenses to
a neutral ship, taken carrying on the coasting trade of the enemy.
Judgment by Sir WM. Scott:
“Now the ground upon which it is contended that the freight is
not due to the proprietors of this vessel, is, that she is a Danish ship
employed in the transmission of Spanish goods, from one Spanish
port to another, and so carrying on the coasting-trade of that coun-
try. In our own country it has long been the system, that the
coasting-trade should only be carried on by our own navigation. I
observe, that in all the rage of novel experiment that has dictated
the commercial regulations of France in its new condition, this policy
is held sacred; it stands enacted, by a decree 21st Sept., 1793, that
no goods, the growth or manufacture of France, shall be carried from
one French port to another in foreign ships under pain of confisca
tion.—The same policy has directed the commercial system of other
European countries; in the ordinary state of affairs, no indulgence
is generally permitted to the ships of most other countries to carry
on the coasting trade. I think therefore the onus probandi does at
least lie on that side; and always makes it necessary to be shown
by the claimants, that such a trade was not a mere indulgence, and
a temporary relaxation of the coasting system of the state in ques.
i Compare The Wilhelmina, 1801, 4 C. Rob. append. p. 4, and see digest-note in
Tudor, Mercantile Cases, 3d ed., 972-980. - Ed.
818
[PART 11.
BELLIGERENTS AND NEUTRALS.
tion; but that it was a common and ordinary trade, open to the
ships of any country whatever. * * *
" As to the coasting trade (supposing it to be a trade not usually
opened to foreign vessels), can there be described a more effective
accommodation that can be given to an enemy during a war than to
undertake it for him during his own disability ?”i
SECTION 46.- CONTINUOUS VOYAGES. .
THE "WILLIAM."
LORDS ON APPEAL IN PRIZE CASES, 1806.
(5 C. Robinson, 385.)
This was a question on the continuity of a voyage in the colonial
trade of the enemy, brought by appeal from the Vice-Admiralty
Court at Halifax, where the ship and cargo, taken on a destination
to Bilboa in Spain, and claimed on behalf of Messrs. W. and N.
Hooper of Marblehead in the state of Massachusetts, had been con-
demned 17th July, 1800.
Among the papers was a certificate from the collector of the cus-
toms, “ that this vessel had entered and landed a cargo of cocoa
belonging to Messrs. W. and N. Hooper, and that the duties had
been secured agreeable to law, and that the said cargo had been re-
shipped on board this vessel bound for Bilboa.
Judgment,-Sir WILLIAM GRANT :-
“The question in this case is, whether that part of the cargo which
has been the subject of further proof, and which, it is admitted, was,
at the time of the capture, going to Spain, is to be considered as
coming directly from Laguira within the meaning of his Majesty's
instructions. According to our understanding of the law, it is only
from those instructions that neutrals derive any right of carrying
on with the colonies of our enemies, in time of war, a trade from
which they were excluded in time of peace. The instructions had
not permitted the direct trade between the hostile colony and its
mother country, but had, on the contrary ordered all vessels engaged
in it to be brought in for lawful adjudication; and what the present
claimants accordingly maintain, is not that they could carry the
produce of Laguira directly to Spain; but that they were not so
carrying the cargo in question, inasmuch as the voyage in which it
1 The above is only an extract from the opinion. - Ed.
CHAP. III.]
849
THE
WILLIAM.”
was taken was a voyage from North America, and not directly from
a colony of Spain.
“What then, with. reference to this subject, is to be considered as
a direct voyage from one place to another? Nobody has ever sup-
posed that a mere deviation from the straightest and shortest course,
in which the voyage could be performed, would change its denomi-
nation, and make it cease to be a direct one within the intendment
of the instructions..
“Nothing can depend on the degree or the deviation-whether it
be of more or fewer leagues, whether towards the coast of Africa, or
towards that of America. Neither will it be contended that the
point from which the commencement of a voyage is to be reckoned
changes as often as the ship stops in the course of it; nor will it the
more change, because a party may choose arbitrarily by the ship's
papers, or otherwise, to give the name of a distinct voyage to each
stage of a ship's progress. The act of shifting the cargo from the
ship to the shore, and from the shore back again into the ship, does
not necessarily amount to the termination of one voyage and the
commencement of another. It may be wholly unconnected with any
purpose of importation into the place where it is done : Supposing
the landing to be merely for the purpose of airing or drying the
goods, or of repairing the ship, would any man think of describing
the voyage as beginning at the place where it happened to become
necessary to go through such a process ?
“ Again, let it be supposed that the party has a motive for desiring
to make the voyage appear to begin at some other place than that
of the original lading, and that he therefore lands the cargo purely
and solely for the purpose of enabling himself to affirm, that it was
at such other place that the goods were taken on board, would this
contrivance at all alter the truth of the fact ?.. Would not the real
voyage still be from the place of the original shipment, notwith-
standing the attempt to give it the appearance of having begun from
a different place? The truth may not always be discernible, but
when it is discovered, it is according to the truth and not according
to the fiction, that we are to give to the transaction its character and
denomination. If the voyage from the place of lading be not really
ended, it matters not by what acts the party may have evinced his
desire of making it appear to have been ended. That those acts
have been attended with trouble and expence cannot alter their
quality or their effect. The trouble and expence may weigh as cir-
cumstances of evidence, to shew the purpose for which the acts were
done; but if the evasive purpose be admitted or proved, we can
never be found to accept as a substitute for the observance of the
54
850
BELLIGERENTS AND NEUTRALS.
[PART IT.
law, the means, however operose, which have been employed to cover
a breach of it. Between the actual importation by which a voyage
is really ended, and the colourable importation which is to give it
the appearance of being ended, there must necessarily be a great
resemblance. The acts to be done must be almost entirely the same;
but there is this difference between them.—The landing of the cargo,
the entry at the custom-house, and the payment of such duties as
the law of the place requires, are necessary ingredients in a genuine
importation; the true purpose of the owner cannot be effected with-
out them. But in a fictitious importation they are mere voluntary
ceremonies, which have no natural connection whatever with the
purpose of sending on the cargo to another market, and which, there-
fore, would never be resorted to by a person entertaining that pur.
pose, except with a view of giving to the voyage which he has resolved
to continue, the appearance of being broken by an importation, which
he has resolved not really to make.
“Now, what is the case immediately before us? The cargo in
question was taken on board at Laguira. It was at the time of the
capture proceeding to Spain; but the ship had touched at an Ameri.
can port. The cargo was landed and entered at the custom-house,
and a bond was given for the duties to the amount of 1,239 dollars.
The cargo was re-shipped, and a debenture for 1,211 dollars by way
of drawback was obtained. All this passed in the course of a few
days. The vessel arrived at Marblehead on the 29th of May; on
that day the bond for securing the duties was given. On the 30th
and 31st the goods were landed, weighed, and packed. The permit
to ship them is dated the 1st of June, and on the 3d of June the
vessel is cleared out as laden, and ready to proceed to sea.
We are
frequently obliged to collect the purpose from the circumstances of
the transaction. The landing thus almost instantaneously followed
by the re-shipment, has little appearance of having been made with
a view to actual importation; but it is not upon inference that the
conclusion in this case is left to rest. The claimants, instead of
showing that they really did import their cargo, have, in their at-
testation, stated the reasons which determined them not to import
it. They say, indeed, that when they ordered it to be purchased,
“it was with the single view of bringing it to the United States, and
that they had no intention or expectation of exporting it in the
said schooner to Spain.' Supposing that from this somewhat am-
biguous statement we are to collect that their original intention was
to have imported this cargo into America, with a view only to the
American market, yet their intention had been changed before the
arrival of the vessel. For they state that in the beginning of May
CHAP. III.]
851
THE
WILLIAM."
they had received accounts of the prices of cocoa in Spain, which
satisfied them that it would sell much better there than in America,
and that they had therefore determined to send it to the Spanish
market. Nothing is alleged to have happened between the landing
of the cargo and its re-shipment, that could have the least influence
on their determination. It was not in that short interval that
American prices fell, or that information of the higher prices in
Spain had been received. Knowing beforehand the comparative
state of the two markets, they neither tried nor meant to try that of
America, but proceeded with all possible expedition to go through
the forms which have been before enumerated. If the continuity of
the voyage remains unbroken, it is immaterial whether it be by the
prosecution of an original purpose to continue it, as in the case of
the Essex, or, as in this case, by the relinquishment of- an original
purpose to have brought it to a termination in America. It can
never be contended, that an intention to import once entertained is
equivalent to importation. And it would be a contradiction in terms
to say that by acts done after the original intention has been aban-
doned, such original intention has been carried into execution. Why
should a cargo, which there was to be no attempt to sell in America,
have been entered at an American custom-house, and voluntarily
subjected to the payment of any, even the most trifling duty? Not
because importation was, or in such a case could be intended, but
because it was thought expedient that something should be done,
( which in a British Prize Court might pass for importation. ) Indeed,
the claimants seem to have conceived that the inquiry to be made
liere was, not, whether the importation was real or pretended, but
whether the pretence had assumed a particular form, and was ac-
companied with certain circumstances which by some positive rule
were, in all cases, to stand for importation, or to be conclusive evi-
dence of it.
“But supposing that we had uniformly held that payment of the
import duties furnished conclusive evidence of importation, would
there have been any inconsistency or contradiction in holding that
the mere act of giving a bond for an amount of duties, of which only
a very insignificant part was ever to be paid, could not have the
same effect as the actual payment of such amount? The further
proof in the Essex first brought distinctly before us the real state of
the fact in this particular. It has been already mentioned that we
had called for an account of the drawbacks, if any, that had been re-
ceived. This produced the information that although the duties
secured amounted to 5,278 dollars, yet a debenture was immediately
afterwards given for 20 less than 5,080 dollars; so that on that
852
BELLIGERENTS AND NEUTRALS. [PART II.
!
valuable cargo no more than 198 dollars would be ultimately pay.
able, which sum is said to be more than compensated for the advan-
tage arising from the negotiability of the debenture.' *
“The consequence is, that the voyage was illegal, and that the
sentence of condemnation must be affirmed."
* *
*
THE "STEPHEN HART.”
U. S. DISTRICT COURT of So. New York, 1863.
(Blatchford's Prize Cases, 387.)
The schooner. Stephen Hart was captured, as lawful prize of war
by the United States vessel of war Supply, on the 29th of January,
1862, off the southern coast of Florida, about 25 miles from. Key
West, and about 82 miles from Point de Yeacos, in Cuba, bound os-
tensibly from London to Cardenas, in Cuba, with a cargo of: inuni-
tions of war and army supplies.
BETTS, J.:
"Many of the principle questions involved in the present case, and
in the cases of the Springbok and the Peterhoff, are alike; and, as
the conclusion at which the court has arrived in all of those cases is
to condemn the vessels and their cargoes, I shall announce, in this
case, the leading principles of public law which lead to a condemna-
tion in all the cases.
“On behalf of the libellants, it is urged in this case, 1st. That the
Stephen Hart and her cargo were enemy's property when the voyage
in question was undertaken, and when the capture was made; 2d.
That the schooner was laden with articles contraband of war, des-
tined for the aid and use of the enemy, and on transportation by sea.
to the enemy's country at the time of capture;, 3d. That, with a
full knowledge, on the part of the owner of the vessel and of the
owners of her cargo, that the ports of the enemy were under block.
ade, the vessel and her cargo were despatched from a neutral port,
with an intention, on the part of the owners of each, that in viola-
tion of the blockade, both the vessel and her, cargo should. enter a.
port of the enemy..
“On the part of the claimants, it is maintained, 1st. That the
transportation of all articles, including arms, and munitions of war,
between neutral ports in a neutral vessel, is lawful in time of war;
2d. That if a neutral vessel, with a cargo belonging to neutrals, be
in fact on a voyage from one neutral port to another, she cannot be
CHAP. III.]
853
THE
STEPHEN HART.”
seized and condemned as 'lawful prize, although she be laden with
contraband of war, unless it be determined that she was actually
destined to a port of the enemy upon the voyage on which she was
seized, or unless she is taken in the act of violating a blockade.
“It is insisted, on the part of the claimants, that the Stephen Hart
was, at the time of her capture, a neutral vessel, carrying a neutral
cargo from London to Cardenas--both of them being neutral ports-
in the regular course of trade and commerce. On the other side it
is contended that the cargo was composed exclusively of articles
contraband of war, destined, when they left London, to be delivered
to the enemy, either directly, by being carried into a port of the
enemy in the Stephen Hart or by being trans-shipped at Cardenas
to another vessel; that 'Cardenas was to be used merely as a port of
call for the Stephen Hart, or as a port of trans-shipment for her cargo;
that the vessel and her cargo are equally involved in the forbidden
transaction; and that the papers of the vessel were simulated and
fraudulent in respect to her destination and that of her cargo. A con-
demnation is not asked if the cargo was in fact neutral property, to
be delivered at Cardenas for discharge and general consumption or
sale there, but is only claimed if the cargo was really intended to be
delivered to the enemy at some other place than Cardenas, after
using tbat port as a port of call or of trans-shipment, so as to thus
render the representations contained in the papers of the vessel false
and fraudulent as to the real destination of the vessel and her cargo.
“It would scarcely seem possible that there could be any serious
debate as to the true principles of public law applicable to the solu-
tion of the questions thus presented; and, indeed, the law is so well
settled as to make it only necessary to see whether the facts in this
case bring the vessel and her cargo within the rules which have
been laid down by the most eininent authorities in England and in
this country.
“The principles upon which the government of the United States,
and the public vessels acting under its commission, have proceeded,
during the present war, in arresting vessels and cargoes as lawful
prize upon the high seas, are very succinctly embodied in the in-
structions issued by the Navy Department on the 18th of August,
1862, to the naval coinmanders of the United States, and which in-
structions are thereïn declared to be a recapitulation of those there-
tofore from time to time 'given. The substance of those instruc-
tions, so far so they are applicable to the present case, is, that a
vessel is not to be seized without a search carefully made, so far as
to render it reasonable to believe that she is engaged in carrying
contraband of war for or to the insurgents, and to their ports di-
854
[PART 11.
BELLIGERENTS AND NEUTRALS.
rectly or indirectly by trans-shipment, or otherwise violating the
blockade.'
“ The main feature of these instructions, so far as they bear upon
the questions involved in this case, is but an application of the doc-
trine in regard to captures laid down by the government of the
United States at a very early day. In an ordinance of the Congress
of the Confederation, which went into effect on the 1st of February,
1782, 5 Wheaton, Appendix, p. 120, it was declared to be lawful to
capture and to obtain condemnation of all contraband goods, wares,
and merchandises, to whatever nations belonging, although found
in a neutral bottom, if destined for the use of an enemy.'
“ The soundness of these principles, and the fact that the law of
nations, as applicable to cases of prize, has been observed and applied
by the government of the United States and its courts during
the present war, was fully recognized by Earl Russell, her Britannic
Majesty's principal secretary of state for foreign affairs, in his re-
marks made in the House of Lords on the 18th of May last. Earl
Russell there stated that the judgments of the United States
prize courts, which had been reported to her Majesty's government
during the present war, did not evince any disregard of the estab-
lished principles of international law; that the law officers of the
Crown, after an attentive consideration of the decisions which had
been laid before them, were of opinion that there was no rational
ground of complaint as to the judgments of the American prize
courts; and that the law of nations in regard to the search and seiz-
ure of neutral vessels had been fully and completely acknowledged
by the government of the United States. On the same occasion
Earl Russell remarked: “It has been a most profitable business to
send swift vessels to break or run the blockade of the southern
ports, and carry their cargoes into those ports. There is no munic-
ipal law in this or any country to punish such an act as an offence.
I understand that every cargo which runs the blockade and enters
Charleston is worth a million of dollars, and that the profit on these
transactions is immense. It is well known that the trade has attracted
a great deal of attention in this country from those who have a keen
eye to such gains, and that vessels have been sent to Nassau in
order to break the blockade at Charleston, Wilmington, and other
places, and carry contraband of war into some of the ports of the
Southern States.' He added: “I certainly am not prepared to de-
clare, nor is there any ground for declaring, that the courts of the
United States do not faithfully administer the law; that they will
not allow evidence making against the captors; or that they are
likely to give decisions founded, not upon the law, but upon their
I
CHAP. III.]
855.
THE
STEPHEN HART.”
own passions and national partialities. He also said, that in a case
of simulated destination-that is, a vessel pretending that she is
going to Nassau, when she is in reality bound to a port of the ene-
my—the right of seizure exists.
“ The then solicitor-general of England (Sir Roundell Palmer)
stated, in the House of Commons, on the 29th of June last, referring
to the cases of the Dolphin and the Pearl, decided by the district
court for the southern district of Florida (those vessels having been
captured while ostensibly on voyages from Liverpool to Nassau, and
it having been held by the court that the intention of the owners of
the vessels was that they should only touch at Nassau, and then go
and break the blockade at Charleston), that if the owners imagined
that the mere fact of the vessel touching at Nassau when on such
an expedition exonerated her, they were very much mistaken;' that
the principles of the judgment in the case of the Dolphin 'were to
be found in every volume of Lord Stowell's decisions;' that it was
well known to everybody that there was a large contraband trade
between England and America by way of Nassau ; that it was absurd
to pretend to shut their eyes to it; and that the trade with Nassau
and Matamoras had become what it was in consequence of the war.
“ The Foreign Office of Great Britain, in a letter to the owner of
the Peterhoff, on the 3d of April last, announced as its conclusion,
after having communicated with the law officers of the Crown, that
the government of the United States has no right to seize a British
vessel bona fide bound from a British port to another neutral port,
unless such vessel attempts to touch at, or has an intermediate or
contingent destination to, some blockaded port or place, or is a car-
rier of contraband of war destined for the enemy of the United
States; that her Majesty's government, however, cannot, without
violating the rules of international law, claim for British vessels
navigating between Great Britain and such neutral ports any gen-
eral exemption from the belligerent right of visitation by the cruisers
of the United States, or proceed upon any general assumption that
such vessels may not so act as to render their capture lawful and
justifiable; that nothing is more common than for those who con-
template a breach of blockade or the carriage of contraband, to dis-
guise their purpose by a simulated destination and by deceptive
papers; and that it has already happened, in many cases, that Brit-
ish vessels have been seized while engaged in voyages apparently law-
ful, and have been afterwards proved in the prize courts to have
been really guilty of endeavoring to break the blockade, or of carry-
ing contraband to the enemy of the United States.
“The cases of the Stephen Hart, the Springbok, the Peterhoff, and
8:56
BELLIGBRENTS AND NICUTRALS.
[PART 1.
as it
the Gertrude illustrate a course of trade which has sprung up during
the present war, and of which this court will take judicial cognizance,
appears from its own records and those of other courts of the
United States as well as from public reputation. Those neutral
ports have suddenly been raised from ports of comparatively in-
significant trade to marts of the first magnitude. Nassau and Car-
denas are in the vicinity of the blockaded ports of the enemy, while
Matamoras is in Mexico, upon the right bank of the Rio Grande,
directly opposite the town of Brownsville, in Texas. The course of
trade, in respect to Nassau and Cardenas, has been generally to clear
neutral vessels, almost always under the British flag, from English
ports for those places, and, using them merely as ports either of call
or of trans-shipment, to either resume new voyages from them in the
same vessels, or to trans-ship their cargoes to fleet steamers, with
which to run the blockade, the cargoes being composed, in almost
all cases, more or less, of articles contraband of war. The character
and course of this trade, and its sudden rise, are very properly com-
iented upon in a despatch from the Secretary of State of the United
States to Lord Lyons, of the 12th of May, 1863.
“ The broad issue upon the merits in this case is, whether the ad-
venture of the Stephen Hart was the honest voyage of a neutral
vessel from one neutral port to another neutral, carrying neutral
goods between those two ports only, or was a simulated voyage, the
cargo being contraband of war, and being really destined for the use
of the enemy, and to be introduced into the enemy's country by a
breach of blockade by the Stephen Hart, or by trans-shipment from
her to another vessel at Cardenas. It is conceded in the argument
of the leading counsel for the claimants that if the property was
owned by the enemy, and was fraudulently on its way to the enemy
as neutral property, it was enemy's property, and was liable to
capture, no matter whence it came or whither it was bound; and
that, if the vessel were really intending and endeavoring to run the
blockade, the property was liable to capture, no matter to whom it
belonged or what was its character; but that if it was neutral prop-
erty, in lawful commerce, it was safe from seizure.
“The question whether or not the property laden on board of the
Stephen Hart was being transported in the business of lawful com-
merce, is not to be decided by merely deciding the question as to
whether the vessel was documented for, and sailing upon, a voyage
from London to Cardenas. The commerce is in the destination and
intended use of the property laden on board of the vessel, and not
in the incidental, ancillary, and temporary voyage of the vessel,
which may be but one of many carriers through which the property
1
CHAP. III.]
857
THE 6STEPHEN HART.”
*
is to reach its true and original destination. If this were not the
rule of the prize law, a very wide door would be opened for fraud
and evasion. A cargo of contraband goods, really intended for the
enemy, might be carried to Cardenas in a neutral vessel sailing from
England with papers which, upon their face, import merely a voyage
of the vessel to Cardenas, while in fact, her cargo, when it left Eng-
land, was destined by its owners to be delivered to the enemy by
being trans-shipped at Cardenas into a swifter vessel. And such,
indeed, has been the course of proceeding in many cases during the
present war.
“ The law seeks out the truth, and never, in any of its branches,
tolerates any such fiction as that under which it is sought to
shield the vessel and her cargo in the present case. If the guilty
intention, that the contraband goods should reach a port of the
enemy, existed when such goods left their English port, that guilty
intention cannot be obliterated by the innocent intention of stopping
at a neutral port on the way. If there be, in stopping at such port,
no intention of trans-shipping the cargo, and if it is to proceed to the
enemy's country in the same vessel in which it came from England,
of course there can be no purpose of lawful neutral commerce at the
neutral port by the sale or use of the cargo in the market there; and
the sole purpose of stopping at the neutral port must merely be to
have upon the papers of the vessel an ostensible neutral terminus
for the voyage.
If, on the other hand, the object of stopping at the neutral port
be to trans-ship the cargo to another vessel to be transported to a
port of the enemy, while the vessel in which it was brought from
England does not proceed to the port of the enemy, there is equally
an absence of all lawful neutral commerce at the neutral port; and
the only commerce carried on in the case is that of the transporta-
tion of the contraband cargo from the English port to the port of
the enemy, as was intended when it left the English port. This
court holds that, in all such cases, the transportation or voyage of
the contraband goods is to be considered as a unit, from the port of
lading to the port of delivery in the enemy's country; that if any
part of such voyage or transportation be unlawful, it is unlawful
throughout; and that the vessel and her cargo are subject to capture;
as well before arriving at the first neutral port at which she touches
after her departure from England, as on the voyage or transporta-
tion by sea from such neutral port to the port of the enemy.
“There must, therefore, be a decree condemning both vessel and
cargo.” 1
1 Cases involving the same principles are The Bermuda, 1865, 3 Wall. 514; the
Springbok, 1866, 5 Wall. 1; the Peterhoff, 1866, 5 Wall. 28, and others. The
judgment of Beits, J., in the Stephen flurt was subsequently briefly affirmed by the
858
PART II.
BELLIGERENTS AND NEUTRALS.
SECTION 47.- VISIT AND SEARCH: NEUTRAL PROPERTY ON THE
HIGH SEAS.
THE “MARIA."
HIGH COURT OF ADMIRALTY, 1799.
(1 C. Robinson, 340.)
This was the leading case of a fleet of Swedish merchantmen, car-
rying pitch, tar, hemp, deals, and iron to several ports of France,
Portugal, and the Mediterranean; and taken, January, 1798, sailing
under convoy of a ship of war, and proceeded against for resistance of
visitation and search by British cruisers.
Judgment. — Sir W. SCOTT:1
“ This being the actual state of facts, it is proper for me to examine,
2dly, what is their legal state, or, in other words, to what considera-
tions they are justly subject, according to the law of nations; for
which purpose I state a few principles of that system of law which I
take to be incontrovertible.
“1st, That the right of visiting and searching merchant ships
upon the high seas, whatever be the ships, whatever be the cargoes,
whatever be the destinations, is an incontestible right of the law-
fully commissioned cruisers of a belligerent nation. I say, be the
ships, the cargoes, and the destinations what they may, because, till
they are visited and searched, it does not appear what the ships, or
the cargoes, or the destinations are; and it is for the purpose of
ascertaining these points that the necessity of this right of visitation
and search exists. This right is so clear in principle, that no man
can deny it who admits the legality of maritime capture; because if
you rre not at liberty to ascertain by sufficient inquiry whether
there is property that can legally be captured, it is impossible to
capture. Even those who contend for the inadmissible rule, that
free ships make free goods, must admit the exercise of this right at
least for the purpose of ascertaining whether the ships are free ships
or not. The right is equally clear in practice; for practice is uni-
Supreme Court, 1865, 3 Wall. 559, and it (Betts' judgment) is on the whole the clearest
and most forcible statement of the principles and the circumstances inyolved in these
cases, to be found in the reports. Compare L'Affaire du Doelwijk, 1896, 24 Journal
de Droit Int. Privé, 268–298. The doctrine of continuous voyages is generally con-
demned, 7 Revue de Droit Int. 236-260; 14 id. 328–331 ; Bonfils, Droit des Gens,
SS 1666–1667 (literature in note); Fanchille, Du Blocus Maritime, 1882, pp. 333–346 ;
Sv. Rivier, 432– H.- Ed.
1 Ormly sa
ich of the judgment is given as applies to general principles. — En.
CHAP. III.]
850
THE 6 MARIA.”
66
form and universal upon the subject. The many European treaties
which refer to this right, refer to it as pre-existing, and merely reg-
ulate the exercise of it. All writers upon the law of nations unani-
mously acknowledge it, without the exception even of Hubner himself,
the great champion of neutral privileges. In short, no man in the
least degree conversant in subjects of this kind has ever, that I know
of, breathed a doubt upon it. The right must unquestionably be
exercised with as little of personal harshness and of vexation in the
mode as possible; but soften it as much as you can, it is still a right
of force, though of lawful force--something in the nature of civil
process, where force is employed, but a lawful force, which cannot
lawfully be resisted. For it is a wild conceit that wherever force is
used, it may be forcibly resisted; a lawful force cannot lawfully be
resisted. The only case where it can be so in matters of this nature,
is in the state of war and conflict between two countries, where one
party has a perfect right to attack by force, and the other has an
equally perfect right to repel by force. But in the relative situation
of two countries at peace with each other, no such conflicting rights
can possibly coexist.
2dly, That the authority of the Sovereign of the neutral country
being interposed in any manner of mere force cannot legally vary
the rights of a lawfully-commissioned belligerent cruiser; I say
legally, because what may be given, or be fit to be given, in the ad-
ministration of this species of law, to considerations of comity or of
national policy, are views of the matter which, sitting in this Court,
I have no right to entertain. All that I assert is, that legally it can-
not be maintained, that if a Swedish commissioned cruiser, during
the wars of his own country, has a right by the law of nations to
visit and examine neutral ships, the King of England, being neutral
to Sweden, is authorized by that law to obstruct the exercise of that
right with respect to the merchant-ships of his country. I add this,
that I cannot but think that if he obstructed it by force, it would
very much resemble (with all due reverence be it spoken) an opposi-
tion of illegal violence to legal right. Two sovereigns may unques-
tionably agree, if they think fit, (as in some late instances they have
agreed,) by special covenant, that the presence of one of their armed
ships along with their merchant-ships shall be mutually understood
to imply that nothing is to be found in that convoy of merchant-ships
inconsistent with amity or neutrality; and if they consent to accept
this pledge no third party has a right to quarrel with it any more than
with any other pledge which they may agree mutually to accept.
But surely no sovereign can legally compel the acceptance of such a
security by mere force. The only security known to the law of na-
860
[PART II.
BELLIGERENTS AND NEUTRALS.
.
tions upon this subject, independent of all special covenant, is the
right of personal visitation and search, to be exercised by those who
have the interest in making it. I ain not ignorant, that amongst
the loose doctrines which modern fancy, under the various denomi-
nations of philosophy and philanthropy, and I know not what, have
thrown upon the world, it has been within these few years advanced,
or rather insinuated, that it might possibly be well if such a security
were accepted. Upon such unauthorized speculations it is not nec-
essary for me to descant: the law and practice of nations (I include
particularly the practice of Sweden when it happens to be belligerent)
give them no sort of countenance; and until that law and practice
are new-modelled in such a way as may surrender the known and
ancient rights of some nations to the present convenience of other
nations, (which nations may perhaps REMEMBER to forget them, when
they happen to be themselves belligerent,) no reverence is due to
them; they are the elements of that system which, if it is consistent,
has for its real purpose an entire abolition of capture in war--that
is, in other words, to change the nature of hostility, as it has ever
existed amongst mankind, and to introduce a state of things not yet
seen in the world, that of a military war and a commercial peace.
If it were fit that such a state should be introduced, it is at least
necessary that it should be introduced in an avowed and intelligible
manner, and not in a way which, professing gravely to adhere to
that system which has for centuries prevailed among civilized states,
and urging at the same time a pretension utterly inconsistent with
all its known principles, delivers over the whole matter at once to
eternal controversy and conflict, at the expence of the constant hazard
of the harmony of states, and of the lives and safeties of innocent
individuals.
“3dly, That the penalty for the violent contravention of this right
is the confiscation of the property so withheld from visitation and
search. For the proof of this I need only refer to Vattel, one of the
most correct and certainly not the least indulgent of modern profes-
sors of public law.” See Book III., c. vii., sect. 114.1
1 For decisions on Visit and Search in tinie of peace, see Le Louis, 1817, 2 Dods.
210, ante, 352; R. v. Serva and others, 1845, 1 Den. Cr. Cas. 104, with cases there cited;
The Antelope, 1825, 10 Wheat. 119. See also the note. to The Maria in Tudor, Mer-
cantile Cases, 3d ed., 914-920.-- ED.
1
CHAP. III.]
861
66
THE SCHOONER
NANCY."
THE SCHOONER "NANCY."
UNITED STATES COURT OF CLAIMS, 1892.
(27 Court of Claims, 99.)
DAVIS, J., delivered the opinion of the court:
The Nancy, sailing from Baltimore to Port à Paix in the year 1797,
was in June captured by an English vessel of war, taken into St. Nich-
olas Môle and there detained. She sailed then (under constraint). for
Jéremie, and there took in a cargo of coffee. Thereafter the schooner
left Jéremie, under convoy bound back to St. Nicholas Môle, with in-
tention there to join a convoy for the United States, but before arrival
at the Môle, and while under convoy, she was captured by the French,
August 2d ; in due course she was condemned as prize, and, with her
cargo, was lost to the owners.
The substantial ground for condemnation is found in the fact that
when the Nancy was captured she was actually under convoy. The.
nature or nationality of the convoy is not shown, but the history of the
time forces the presumption that it was an English armed vessel, either
public, or, what is more likely, private. Jéremie was in possession of
the English, so was the Môle. The Nancy was forced to take an
English privateer as convoy from the Môle to Jeremie, and in the
latter port it is more than improbable that she would have found any
armed vessel to escort her back to the Môle which did not fly the
flag of Great Britain. The record being silent upon this point; we are
forced to assume that when captured she was under English protection.
One question of law alone, then, is presented for our decision :
Was the condemnation legal of a neutral vessel laden with neutral
cargo captured when under enemy convoy? There is, so far as we
have been able to discover, no judicial decision in the United States
upon the question presented by this record and which we now must
consider and determine.
A case much cited in discussions of the right of search is the
Nereide, 9. Cranch, 389, but there the court decide only that neutral
property is not tainted when laden upon an armed belligerent; and the
principle governing such a case is thus stated by Chief Justice Marshall
(p. 432).
“The general rule, the incontestable principle, is that a neutral has
a right to employ a belligerent carrier. He exposes himself thereby
to capture and detention, but not to condemnation."
1 The statement of facts is omitted as they sufficiently appear in the judgment. -Ed.
862
(PART II.
BELLIGERENTS AND NEUTRALS.
.
In the later case of The Atalanta, 3 Wheat. p. 409, Mr. Justice
Johnson, speaking of the distinction observed between neutral goods
laden upon belligerent vessels and neutral vessels under convoy, made
the following suggestions :
A convoy is an association for a hostile object. In undertaking
it, a nation spreads over the merchant vessel an immunity from search
which belongs only to a national ship; and by joining a convoy every
individual ship puts off her pacific character and undertakes for the
discharge of duties which belong only to the military marine and adds
to the numerical, if not the real, strength of the convoy. If, then, the
association be voluntary, the neutral, in suffering the fate of the
whole, has only to regret his own folly in wedding his fortune to
theirs; or, if involved in the aggression or the opposition of the con-
voying vessels, he shares the fate which the leader of his own choice
either was or would have been made liable to in case of capture.”
And further (p. 424):
“Resistance, either real or constructive, by a neutral carrier is, with
' a view to the law of nations, unlawful.”
The Atalanta, like the Nereide, was an armed British vessel, carry,
ing neutral cargo. No question as to the effect of belligerent convoy
was involved in either case, and Mr. Justice Johnson's remarks can
only be regarded as illustrative. They, however, gain great force
from the fact that in the case of the Nereide Mr. Justice Story (who
dissented) wrote an opinion upon neutral duties which has always
attracted general attention, and which is to-day found fully cited in
the text-books, both those by our own authors and those written by
citizens or subjects of other nations; in fact, one accepted authority
has fallen into the error of ascribing Mr. Justice Story's views to the
court of which he was a member.
Mr. Justice Story said:
" It has, however, been supposed by the counsel of the claimants
that a distinction exists between taking the protection of a neutral
and of a belligerent convoy that in the former case all armament for
resistance is unlawful, but in the latter case it is not only lawful, but
in the highest degree commendable. That although an unlawful act,
as resistance by a neutral convoy, may justly affect the whole asso-
ciated ships, yet it is otherwise of a lawful act, as resistance of a
belligerent ship; for no forfeiture can reasonably grow out of such an
act, which is strictly justifiable.
“The fallacy of the argument consists in assuming the very ground
in controversy and confounding things in their own nature entirely
distinct. An act perfectly lawful in a belligerent may be flagrantly
wrongful in a neutral. A belligerent may lawfully resist search; a
CHAP. III.]
863
THE SCHOONER
NANCY."
!
neutral is bound to submit to it. A belligerent may carry on his
commerce by force; a neutral cannot. A belligerent may capture the
property of his enemy on the ocean ; a neutral has no authority what-
ever to make captures. The same act, therefore, that with reference
to the acts and duties of the one may be tortious, may, with reference
to the rights and duties of the other, be perfectly justifiable. The act,
then, as to its character, is to be judged not merely by that of the
parties through whose immediate instrumentality it is done, but also
by the character of those who, having co-operated in, assented to, or
sought protection from it, would yet withdraw themselves from the
penalties of the act. It is analogous to the case at common law
where an act; justifiable in one party, does not, from that fact alone,
shelter his coadjutor. They must stand or fall upon their own
merits. It would be strange indeed if, because a belligerent may kill
his enemy, a neutral may aid in the act; or because a belligerent
may resist search, a neutral may co-operate to make it effectual. It is
therefore an assumption utterly inadmissible that a neutral can avail
limself of the lawful act of an enemy to protect himself in an invasion
of a clear belligerent right.
“Aud what reason can there be for the distinction contended for ?
Why is the resistance of the convoy deemed the resistance of the
whole neutral associated ships, let them belong to whom they may ?
It is not that there is a direct and immediate co-operation in the resist-
ance, because the case supposes the contrary. It is not that the
resistance of the convoy of the, sovereign is deemed an act to which
all his own subjects consent, because the ships of foreign subjects
would then be exempted. It is because there is a constructive resist-
ance resulting in law from the common association and voluntary pro-
tection against search made under a full knowledge of the intentions
of the convoy. Then the principle applies as well to a belligerent as
to a neutral convoy; for it is manifest that the belligerent will at all
events resist search ; and it is quite as manifest that the neutral seeks
belligerent protection with an intent to evade it. Is it that an evasion
of search, by the employment, protection, or terror of force, is consis-
tent with neutral duties? Then, a fortiori, the principle applies to a
case of belligerent convoy, for the resistance must be presumed to be
more obstinate and the search more perilous.
“There can be but little doubt that it is upon the latter principle
that the penalty of confiscation is applied to neutrals. The law pro-
ceeds yet further, and deems the sailing under convoy as an act per se
inconsistent with neutrality, as a premeditated attempt to oppose, if
practicable, the right of search, and therefore attributes to such pre-
liminary act the full effect of actual resistance. In this respect it
864
(PART II.
BELLIGERENTS. AND NEUTRALS.
r
applies a rule analogous to that in the case of blockade, where the act
of sailing with an intent. to break a blockade is deemed a sufficient
breach to authorize confiscation. And Sir William Scott manifestly
recognizes the correctness of this doctrine in the Maria, although the
circumstances of that case did not require its rigorous application.
Indeed, in relation to a neutral convoy, the evidence of an intent
to resist, as well as constructive resistance, is far inore equivocal than
in case of a belligerent convoy. In the latter case it is necessarily
known to the convoyed ships that the belligerent is bound to resist
and will resist until overcome by superior force. It is impossible,
therefore, to join such convoy without an intention to receive the
protection of belligerent force in such manner and under such cir-
cumstances as the belligerent may choose to apply it. It is an adop-
tion of his acts and an assistance of his interests during the assumed
voyage. To render the convoy an effectual protection it is necessary
to interchange signals and instructions, to communicate information,
and to watch the approach of every enemy. The neutral solicitously
aids and co-operates in all these important transactions, and thus far
manifestly sides with the belligerent and perforins, as to him, a meri-
torious service, a service as little reconcilable with neutral duties as
the agency of a spy or; the fraud of the bearer of hostile despatches.
In respect to a neutral convoy, the inference of constructive co-operation
and hostility is far less certain and direct. To condemn in such case
is pushing the doctrive to a great extent, since it is acting upon the
presumption, which is not permitted to be contradicted, that all the
convoyed ships. distinctly understood and adopted the objects of
the convoy, and intimately blended their owu interests with hostile
l'esistance.” Story, J., in The Nereide, 9. Cranch, 380.
When Mr. Justice Johnson delivered the later opinion of the court
in the case of the Atalunta, he had undoubtedly in mind the dissenting
opinion delivered three years before by his colleague ; his remarks as to
convoy, therefore, were undoubtedly carefully weighed and considered,
and should be given a force not usually accorded to illustrations or
statements merely argumentative in judicial decision. · We infer that
had the question of the effect upon a neutral of voluntary submission
to a belligerent convoy been before them for adjudication at that time,
the Supreme Court would have followed the reasoning of Mr. Justice
Story
The discussions between the United States and Denmark early in
this century are often alluded to in connection with questions similar
to that presented in the case at bar, but it cannot be effectively cited
as bearing in any important manner upon the single issue now
presented.
!
CHAP. III.]
865
64
THE SCHOONER
NANCY."
The treaty of 1830 with Denmark provided for the payment of the
claims, but it cannot be regarded as a precedent, for it contained a
declaration that the convention, having no other object than to termi-
nate all the claims, “can never hereafter be invoked by one party or
the other as a precedent or rule for the future." Dana's Wheaton,
Part LV. section 537.
Nor was the exact point we are now considering presented in the
Danish case. The question there discussed is thus presented by Mr.
Wheaton, who conducted the negotiations and signed the treaty:
“ The principle laid down in the ordinance as interpreted by the
Danish tribunals was that the fact of having navigated under enemies
convoy is, per se, a justifiable cause, not of capture merely, but of
condemnation, in the courts of the other belligerent; and that, without
inquiring into the proofs of proprietary interest or the circumstances
and motives under which the captured vessel had joined the convoy, or
into the legality of the voyage, or the innocence of her conduct in
other respects.” Dana's Wheaton, Part LV. section 531.
In Denmark the vessels were condemned because at a previous time
they had been under enemy convoy. When seized they were without
convoy, whereas the Nancy was actually under convoy when seized.
If we omit consideration of points presented by a state of real or
quasi armed neutrality, which do not affect our present purpose, we
shall find in the history of the Department of State any other prece-
dent than the Danish case to be invoked in aid of a solution of the
problem now presented to us.
Assuming, therefore, that the Supreme Court has indicated through
two learned justices that in their opinion voluntary submission by the
neutral to the enemy convoy taints the vessel, we turn to the text-
writers.
Mr. Wheaton gives but little aid, as his interesting discussion of the
convoy relates to the Danish negotiations and to the position then
taken by him, not as an unprejudiced text-writer, but as the diplomatic
agent of the government, acting under instructions from his superior
officers. His annotator, Mr. Dana, is, however, most explicit when he
treats of the very question now before us.
Speaking of neutral under belligerent convoy, Mr. Dana says:
“It is not enough for the ostensible neutral to say, or even to prove,
that he is not justly liable to capture, for the law of nations requires
him to afford the belligerent a certain mode of satisfying himself on
that point by visit and search ; and if he refuses, resists, or fraudently
evades the proper search, he is, for that cause, liable to capture. The
only question ever raised has been, whether the act of being found
under belligerent convoy affords a conclusive presumption of an
55
866
[PART II.
BELLIGERENTS AND NEUTRALS.
intent to deprive the other belligerent of the right of search or is
only a fact, laving its weight, but open to explanation." Dana's
Wheaton, Part LV. ch. III. final foot-note.
Chancellor Kent is also direct in his statement :
“The very act of sailing under the protection of a belligerent or
neutral convoy, for the purpose of resisting search, is a violation of
neutrality.” 1 Kent, p. 155.
The principle upon which the Danish case was decided
“Seems (according to Dr. Woolsey) to run between making use of
the enemy's flag and putting one's goods on board an armed enemy's
vessel. The former is done to enjoy certain privileges, offered by a
party of war, which would not otherwise be secured. The latter
may be done without complicity with the intentions or conduct of the
captain of the armed ship, or may be done with the design of having
two strings to one's bow ; of availing one's self of force or not, as cir-
cumstances shall require. Upon the whole, the intention to screen
the vessels behind the enemy's guns is so obvious, that the act must
be pronounced to be a decided departure from the line of neutrality,
and one which may justly entail confiscation on the offending party."
Sec. 193.
Vattel (bk. III. ch. 7, sec. 114), says:
« Aujourd'hui ùn vaisseau neutre, qui refuseroit de souffrir la visite,
se feroit condamner par cela seul, comme étant de bonne prise.".
Valin, commenting upon the French ordinance of 1681, which pro-
vides that every vessel shall be good prize in case of resistance and
coinbat, states that resistance alone without combat justifies conden-
nation. Valin sur l'ordonnance de 1681, sec. 12, page 81.
In the Maria, Sir William Scott said:
“I stand with confidence upon all fair principles of reason upon
the distinct authority of Vattel - upon the institutes of other great
maritime countries, as well as those of our own country — when I
venture to lay it down that, by the law of nations as now understood,
a deliberate and continued resistance to search, on the part of a
neutral vessel to a lawful cruiser, is followed by the legal consequence
of confiscation.” 1 C. Rob. p. 340.
In the case of The Catharina Elizabeth, 5. C. Rob. p. 232, the same
eminent judge held that resistance by an enemy master will not
affect his neutral cargo -- a decision quite in harmony with that of
the Supreme Court in the Nereide — and he observed :
“If a neutral master attempts a rescue, he violates a duty which is
imposed upon him by the laws of nations, to submit to come in for
inquiry as to the property of the ship or cargo; and if he violates that
obligation by a recurrence to force, the consequences will undoubtedly
1
CHAP. III.]
THE SCHOONER NANCY."
867
reach the property of his owner; and it would, I think, extend to the
confiscation of the whole cargo intrusted to his care and thus fraud-
ulently attempted to be withdrawn from the rights of war.
With an
eneiny master the case is very different.” See also The Dispatch,
3 C. Rob. p. 278.
Dr. Phillimore, commenting upon Sir William Scott's opinion in
the Maria, that “it is wild conceit that wherever force is used it may
be lawfully resisted,” concludes thus:
“It is upon these principles that international law universally, by
its accredited voice, inflicts the penalty of confiscation upon the
neutral merchantman or private vessel which resists the belligerent's
right of search.” Vol. III. CCCXXXVI.
Proceeding then to consider the case of a private vessel under convoy,
he uses and apparently adopts the language of Sir William Scott in
what the author describes as "one of his most careful and best
reasoned judgments," that given in the case of the Maria, a vessel
sailing under armed convoy for the purpose of resisting visitation and
search.
In his treatise on international law Mr. Hall, citing Mr. Justice
Story's opinion in the Nereide, concludes that “on this point, as
usually, English and American writers and judges are fully in accord.”
Part IV. ch. X.
p.
679.
Further (p. 275), he holds that, if the belligerent be within his
rights when visiting, “the neutral master is guilty of an unprovoked
aggression in using force to prevent the visit from being accomplished,
and the belligerent may consequently treat him as an enemy and con-
fiscate his ship."
In the unreported case of the Sampson, decided by the lords of
appeal, alluded to in the Maria and the Nereide and cited by Mr. Dana,
it was decided that the bare fact of being found under enemy convoy
afforded a conclusive presumption of intent to deprive the other bel-
ligerent of the right of search.
In Manning's Commentaries on the Law of Nations (p. 369), we
find his view thus stated :
“As a general principle I think that the sailing under the convoy
of a belligerent must be regarded as a withdrawal from the search of
the other belligerent, as a resistance to his rights, and as entailing
confiscation as a consequence of such attempted evasion."
Ortolan, speaking of the Danish case, excuses the acts of the
American ships upon the ground of an innocent ruse, excusable from
the desire they had of escaping from the rigor of the French decrees,
but he says that, apart from the special circumstances of this case
"It cannot be said that the fact of a neutral vessel navigating under
868
[PART II.
BELLIGERENTS AND NEUTRALS.
the convoy of a belligerent is not an irregular and even illegal act.
Such a convoy cannot, at all events, exempt from visit.” Ortolan,
Diplomatie de la Mer, tome II. p. 245.
Hautefeuille takes a different view, viz., that the neutral who places
himself under belligerent convoy does not fail in his duty or violate
his neutral character; he exposes himself to be taken with the bel-
ligerent convoy, but is not subject to confiscation; to go free it should
be sufficient to establish his nationality and the innocence of his trade.
Droits des nations neutres, tome III. pp. 162, 164. This author, how-
ever, treats the subject rather as a philosopher than as a jurist, and
does not assume that the law as stated by him was the law.actually in
existence, but rather that which he thought should exist and be
enforced
The authorities agree that visit and search in time of war are
belligerent rights of self-preservation to which the neutral must sub-
mit; that actual resistance by the neutral to the exercise of this right
authorizes condemnation ; that voluntary submission to belligerent con-
voy is constructive resistance which authorizes seizure. So far the
authorities are united ; but they are not agreed as to the result of this
constructive resistance, whether it raises a conclusive presumption
authorizing confiscation of the neutral or presents only a suspicious
circumstance capable of explanation. The weight of anthority, how-
ever, is adverse to this claimant, and we accordingly hold that, in the
year 1798, a neutral vessel, if captured when actually under the pro-
tection of an enemy's vessel of war, is for that reason alone good prize.
It has been urged that a statute of the United States authorized
resistance by our merchantinen to French visitation and search, to
which there is the simple answer that no single state can change
the law of nations by its municipal regulations.
We do not forget the great dangers incurred by neutrals during the
wars of the last century, arising somewhat from the illegal acts of
belligerent armed public vessels, but especially from privateers, and
the inexcusable course of some of the prize tribunals. We have
already commented upon this condition in former opinions, and we
are agreed that acts of neutral vessels of commerce under the then
existing dangers should be judged with leniency; but we find that
under the law of nations, as declared and observed in 1798, the
United States could not have prosecuted to a successful issue the
case of the Nancy after it had been shown that, when taken, she was
voluntarily under the protection of an English armed vessel.
The case will be reported to Congress with the conclusion of law
that the claimant is not entitled to indemnity.
$
CHAP. IIL]
869
THE BRIG
SEA NYMPH."
66
THE BRIG - SEA NYMPH.''
UNITED STATES COURT OF CLAIMS, 1901.
(36. Court of Claims, 369.)
1
WELDON, J., delivered the opinion of the court:
The facts shows that the brig Sea Nymph, Hastiė, master, sailed on
or about the 17th of April, 1797, from the port of Jéremie, on a com-
mercial voyage, bound for Cape Nicholas. Môle, whence she sailed
May 14, 1797, bound for Philadelphia, laden with a cargo of sugar and
coffee. The Sea Nymph sailed from the Môle under a British ship as
a convoy, and while pursuing her voyage was seized on the high seas
on the next day, May 15, 1797, by the French privateer Le General
Toussaint, and carried into the port of St. Iago de Cuba, and both
vessel and cargo were condemned by the French prize court, sitting at
Cape François.
The grounds of condemnation as set forth in the decree are as
follows:
“Considering the papers above mentioned establish and prove that
the said brig has been captured, loaded with produce taken on board at
Jeremie; considering that Jeremie is one of the ports of the colony in
rebellion against the laws of the Republic, under the protection of the
British Governinent, and declared in a state of permanent siege by the
decree of the commission of the 6th Nivose last."
Upon the foregoing the court decrees the condemnation of the vessel
and cargo as good prize.
It is contended on the part of the defendants that the condemnation
of said vessel by the French court was lawful and proper, notwith-
standing that it is not alleged as a ground in the condemnation that the
ship at the time of seizure was sailing under a belligerent vessel as a
convoy.
It has been repeatedly held by this court that if from the evidence
in the case a sufficient ground of condeinnation appears, the fact that
such ground is not mentioned in the decree of condemnation would not
have prevented France, and will not now prevent the United States,
from insisting that although the decree is deficient in the allegations
of good grounds for condemnation, yet if the evidence shows other
grounds upon which the condemnation might have been made, there
was no liability against France, and hence there can be. none against
the United States.
i Statement of the original report is omitted: - ED.
870
[PART II.
BELLIGERENTS AND NEUTRALS.
22
In the case of the ship Joanna, Boggs, master (24 C. Cis. R. 198),
it is said :
“Before considering this subject we may say that we are of the
opinion that should a good reason for the condemnation of a vessel
appear in the record before the prize court, although that reason may
not have been explicitly and specificially alleged by that tribunal as
the reason for the result reached by them, we shall still uphold the
decision of the tribunal."
In the case of Stewart, administrator (schooner Nancy), against the
United States (27 C. Cls. R. 99), the question of the legal effect of
being under convoy at the time of seizure was considered and decided
by this court. It is said in that case that “the substantial ground of
condemnation is found in the fact that when the Nancy was captured
she was actually under convoy. The nature or the nationality of the
convoy is not shown, but the history of the time forces the presump-
tion that it was an English armed vessel, either public or, what is
more likely, private. Jeremie was in the possession of the English, and
so was the Môle.” It is not shown in this case as to the nationality
or character of the convoy, but judging from the circumstance of the
seizure and the analogy to the facts in the case of the Nancy, the pre-
sumption arises that the convoy was either an English armed vessel or
an English privateer.
It is said in substance in that case that there is no judicial decision
in the United States upon the question presented by the record, and
that this court must now in the first instance, in the history of this
litigation, consider and determine the legal effect of sailing under a
convoy at the time of seizure. In the case of the Nancy, the case of
the Nereide (9 Cranch, 389) is cited, and quotation is made from the
opinion of Chief Justice Marshall, page 432, in which it is said, “The
general rule and incontestable principle is that a neutral has a right to
employ a belligerent carrier, who exposes himself to capture and
detention but not to condemnation."
In the case of the Atalanta (3 Wheaton, p. 409), Mr. Justice John-
son, distinguishing between the case of neutral goods laden upon bel.
ligerent vessels and neutral vessels under convoy, said:
“A convoy is an association for a hostile object. In undertaking it,
a nation spreads over the merchant vessel an immunity from search
which belongs only to a national ship; and by joining a convoy every
individual ship puts off her pacific character and undertakes for the
discharge of duties which belong only to the military and marine and
adds to the numerical if not the real strength of the convoy. If, then,
the association be voluntary, the neutral, in suffering the fate of the
whole, has only to regret his own folly in wedding his fortune to
t
CHAP. III.]
871
THE BRIG
SEA NYMPH."
92
theirs; or, if involved in the aggression or opposition of the convoying
vessel, he shares the fate which the leader of his own choice either was
or would have been made liable to in case of capture."
In the case of the Four Sisters, McLean, master, No. 186, this court
decided, as a conclusion of law, that the seizure and condemnation
was not illegal, and that the owners and insurers had no claim of
indemnity, therefore, on the French Government prior to the ratification
of the convention of the 30th of September, 1800 ; that the said claim
was not relinquished to France by the government of the United
States, and that the claimants are not entitled to recover from the United
States, as the Four Sisters was well armed, and when taken was vigor-
ously resisting search. No opinion was given in that case, but in
the case of the Nancy it is said, in substance, that the authorities agree
that visit and search in time of war are belligerent rights of self-pres-
ervation, to which the neutral must submit; and that actual resistance
to the exercise of such right authorizes condempation; that voluntary
submission to a belligerent convoy is constructive resistance, which
authorizes seizure; that up to that point authorities are united, but
they are not agreed as to the result of constructive resistance
whether it raises the conclusive presumption or presents only sus-
picious circuinstances capable of explanation. It is contended that
circumstances might justify a neutral being in the company of a con-
voy, and, if satisfactory, might excuse such neutral from the conse-
quences of condemnation. In this case there are no explanations or
circumstances which tend in their legal effect to excuse or mitigate
the results growing out of the constructive resistance.
The court held in the case of the Nancy that the weight of authority
was against the claimant, and that if a neutral vessel is captured when
under the protection of an enemy's vessel of war it is for that reason
good and lawful prize.
In the case of the Maria, reported in 1 C. Rob. 340, it was held that
a vessel sailing under convoy of an armed ship for the purpose of
resisting visitation and search was subject to condemnation because of
that fact. It is said in the opinion of the court, by Sir William
Scott:
“How stands it by the general law ? I do not say that cases may
not occur in which a ship may be authorized by the natural rights of
self-preservation to defend itself against extreme violence threatened
by a cruiser grossly abusing his commission, but where the utmost
injury threatened is the being carried in for inquiry into the nearest
port, subject to a full responsibility in costs and damages if this is
done vexatiously and without just cause, a merchant vessel has not a
right to say, for itself and an arined vessel has no right to say for it),
872
BELLIGERENTS AND NEUTRALS.
(PART II.
"I will submit to no such inquiry, but I will take the law into my own
hands by force.' What is to be the issue if each neutral vessel has a
right to judge for itself in the first instance whether it is rightly
detained and to act upon that judgment to the extent of using force ?
Surely nothing but battle and bloodshed, as often as there is anything
like an equality of force or equality of spirit."
It is said by Sir Sherston Baker, in his work on international law,
section 17, page 289, in substance, that the question whether neutral
vessels under enemy's convoy are liable to capture and condemnation
lias been elaborately discussed, and that in the case of the Sampson the
Court of Appeals, in England, decided that sailing under an enemy's
convoy was a conclusive ground of condemnation. In that connection
it is said in substance, by the same distinguished author, that the
exercise of the right of search within its true limits implies the right
of using lawful force if necessary in its execution, the same as in the
execution of a civil process on land. This right on one side iinplies
the corresponding obligation and duty on the other of submission; and
as the belligerent may lawfully apply his force to the neutral property
for the purpose of ascertaining its character and destination, it follows,
as a logical effect and necessity, that the neutral may not lawfully
resist the lawful exercise of the right of search. Sec. 11, p. 296.
It is insisted by counsel for 'the claimant that it is not shown that
at the time of the capture the ship was under convoy. In reply to
that it may be said that it is shown by the decree that on the 14th of
May, 1797, the ship sailed under a British convoy, and that on the
next day she was captured. It is a familiar principle of law that a
condition once established is presumed to continue until it is shown
that a change had taken place; and the burden of proof being on the
claimant to show that a change had taken place at the time of cap-
ture, the presumption prevails with its legal effects against the claim-
ant in the absence of such a showing.
For the reasons above stated the court decides, as a conclusion of
law, that the seizure and condemnation were lawful, and that the
owners and insurers had no valid claim for indemnity therefor upon
the French Government prior to the ratification of the convention
between the United States and the French Republic concluded on
the 30th day of September, 1830, and that the claims were not relin-
quished to France by the government of the United States by said
treaty in part consideration of the relinquishment of certain national
claims of France against the United States, and that the claimants
are not entitled to recover from the United States.
The facts in detail, with a copy of this opinion, will be certified to
Congress in accordance with the statute.
CHAP. III.]
873
THE
MARIANNA FLORA."
THE “MARIANNA FLORA."
22
SUPREME COURT OF THE UNITED STATES, 1826.
(11 Wheaton, 1.)
Mr. Justice Story delivered the opinion of the court.1
In considering the circumstances, the court has no difficulty in decid-
ing that this is not a case of a piratical aggression, in the sense of the
act of Congress. The Portuguese ship, though armed, was so for a
purely defensive mercantile purpose. She was bound homewards with
a valuable cargo on board, and could have no motive to engage
in
any
piratical act or enterprise. It is true, that she made a meditated, and,
in a sense, a hostile attack, upon the Alligator, with the avowed in-
tention of repelling her approach, or of crippling or destroying her.
But, there is no reason to doubt, that this attack was not made with a
piratical or felonious intent, or for the purpose of wanton plunder, or
malicious destruction of property. It was done upon a mistake of the
facts, under the notion of just self-defence, against what the inaster
very imprudently deemed a piratical cruiser. The combat was, there-
fore, a combat on mutual misapprehension; and it ended without any
of those calamitous consequences to life which might have brought
very painful considerations before the court.
It has, indeed, been argued at the bar, that even if this attack had
been a piratical aggression, it would not have justified the capture and
sending in of the ship for adjudication, because foreign ships are not to
be governed by our municipal regulations. But the act of Congress is
decisive on this subject. It not only authorizes a capture, but a con-
demnation in our courts, for such aggressions; and whatever may be
the responsibility incurred by the nation to foreign powers, in execut-
ing such laws, there can be no doubt that courts of justice are bound
to obey and administer them.
The other count, which seeks condemnation on the ground of an
asserted hostile aggression, admits of a similar answer. It proceeds
upon the principle, that, for gross violations of the law of nations on
the high seas, the penalty of confiscation may be properly inflicted
upon the offending property. Supposing the general rule to be so in
ordinary cases of property taken in delicto, it is not, therefore, to be
admitted, that every offence, however small, however done under a
mistake of rights, or for purposes wholly defensive, is to be visited
1 Facts of the case, the question of damages, and part of the opinion are
omitted. -ED.
874
BELLIGERENTS AND NEUTRALS, [PART II.
with such harsh punishments. Whatever may be the case, where a
gross, fraudulent, and unprovoked attack is made by one vessel upon
another upon the sea, which is attended with grievous loss or injury,
such effects are not to be attributed to lighter faults, or common negli-
gence. It may be just, in such cases, to award to the injured party
full compensation for his actual loss and damage; but the infliction of
any forfeiture beyond this does not seem to be pressed by any con-
siderations derived from public law.
Pirates may, without doubt, be lawfully captured on the ocean by
the public or private ships of every nation; for they are, in truth, the
common enemies of all mankind, and, as such, are liable to the extreme
rights of war. And a piratical aggression by an armed vessel sailing
under the regular flag of any nation, may be justly subjected to the
penalty of confiscation for such a gross breach of the law of nations.
But every hostile attack, in a time of peace, is not necessarily pirati-
cal. It may be by mistake, or in necessary self-defence, or to repel a
supposed meditated attack by pirates. It may be justifiable, and then
no blame attaches to the act; or, it may be without just excuse, and
then it carries responsibility in damages. If it proceed farther, if it
be an attack from revenge and malignity, from gross abuse of power,
and a settled purpose of mischief, it then assumes the character of a
private unauthorized war, and may be punished by all the penalties
which the law of nations can properly administer.
These latter ingredients are entirely wanting in the case before us;
and, therefore, if the question of forfeiture were now in judgment, we
should have no doubt, either upon the act of Congress, or the general
law, that it ought not to be enforced.
But, in the present posture of this cause, the libellants are no longer
plaintiffs. The claimants interpose for damages in their turn, and
have assumed the character of actors. They contend that they are
entitled to damages, first, because the conduct of Lieutenant Stockton,
in the approach and seizure of the Marianna Flora, was unjustifiable;
and, secondly, because, at all events, the subsequent sending her in
for adjudication was without any reasonable cause.
In considering these points, it is necessary to ascertain what are the
rights and duties of armed and other ships, navigating the ocean in
time of peace. It is admitted, that the right of visitation and search
does not, under such circumstances, belong to the public ships of any
nation. This right is strictly a belligerent right, allowed by the
general consent of nations in time of war, and limited to those occa-
sions. It is true, that it has been held in the courts of this country,
that American ships, offending against our laws, and foreign ships, in
like manner, offending within our jurisdiction, may, afterwards, be
t
CHAP. III.]
875
66
THE
MARIANNA FLORA."
pursued and seized upon the ocean, and rightfully brought into our
ports for adjudication. This, however, has never been supposed to
draw after it any right of visitation or search. The party, in such
case, seizes at his peril. If he establishes the forfeiture, he is justi-
fied. If he fails, he must make full compensation in damages.
Upon the ocean, then, in time of peace, all possess an entire
equality. It is the common highway of all, appropriated to the use
of all; and no one can vindicate to himself a superior or exclusive
prerogative there. Every ship sails there with the unquestionable
right of pursuing her own lawful business without interruption; but,
whatever may be that business, she is bound to pursue it in such a
manner as not to violate the rights of others. The general maxim in
such cases is, sic utere tuo, ut non alienum lcedas.
It has been argued, that no ship has a right to approach another at
sea; and that every ship has a right to draw round her a line of juris-
diction, within which no other is at liberty to intrude. In short, that
she may appropriate so much of the ocean as she may deem necessary
for her protection, and prevent any nearer approach.
This doctrine appears to us novel, and is not supported by any au-
thority. It goes to establish upon the ocean a territorial jurisdiction,
like that which is claimed by all nations within cannon-shot of their
shores, in virtue of their general sovereignty. But the latter right is
founded upon the principle of sovereign and permanent appropriation,
and has never been successfully asserted beyond it. Every vessel
undoubtedly has a right to the use of so much of the oceau as she
occupies, and as is essential to her own movements. Beyond this,
no exclusive right has ever yet been recognized, and we see no reason
for admitting its existence. Merchant ships are in the constant habit
of approaching each other on the ocean, either to relieve their own
distress, to procure information, or to ascertain the character of .
strangers; and, hitherto, there has never been supposed in such
conduct any breach of the customary observances, or of the strictest
principles of the law of nations. In respect to ships of war sailing, as
in the present case, under the authority of their government, to arrest
pirates, and other public offenders, there is no reason why they may
not approach any vessels descried at sea, for the purpose of ascertain-
ing their real characters. Such a right seems indispensable for the
fair and discreet exercise of their authority; and the use of it cannot
be justly deemed indicative of any design to insult or injure those they
approach, or to impede them in their lawful commerce. On the other
hand, it is as clear, that no ship is, under such circumstances, bound
to lie by, or wait the approach of any other ship. She is at full liberty
to pursue her voyage in her own way, and to use all necessary precau-
876
[PART II.
BELLIGERENTS AND NEUTRALS,
tions to avoid any suspected sinister enterprise or hostile attack. She
has a right to consult her own safety; but, at the same time, she must
take care not to violate the rights of others. She may use any precau-
tions dictated by the prudence or fears of her officers; either as to de-
lay, or the progress or course of her voyage; but she is not at liberty to
inflict injuries upon other innocent parties, simply because of conjectural
dangers. These principles seem to us the natural result of the com-
non duties and rights of nations navigating the ocean in time of peace.
Such a state of things carries with it very different obligations and
responsibilities from those which belong to public war, and is not to
be confounded with it.
The first inquiry, then, is, whether the conduct of Lieutenant Stock-
ton was, under all the circumstances preceding and attending the com-
bat, justifiable. There is no pretence to say that he committed the
first aggression. That, beyond all question, was on the part of the
Marianna Flora ; and her firing was persisted in after the Alligator
had hoisted her national flag, and, of course, held out a signal of her
real pacific character. What, then, is the excuse for this hostile at-
tack? Was it occasioned by any default or misconduct on the part of
the Alligator? It is said, that the Alligator had no right to approach
the Marianna Flora, and that the mere fact of approach authorized the
attack. This is what the court feels itself bound to deny. Lieutenant
Stockton, with a view to the objects of his cruise, had just as unques-
tionable a right to use the ocean, as the Portuguese ship had; and his
right of approach was just as perfect as her right of fight. But, in
point of fact, Lieutenant Stockton's approach was not from mere
motives of public service, but was occasioned by the acts of the Mari-
anna Flora. He was steering on a course which must, in a short time,
have carried him far away from her. She lay to, and showed a signal
ordinarily indicative of distress. It was so understood, and, from
inotives of humanity, the course was changed, in order to afford the
necessary relief. There is not a pretence in the whole evidence, that
the lying to was not voluntary, and was not an invitation of some sort.
The whole reasoning on the part of the claimants is, that it was for
the purpose of meeting a supposed enemy by daylight, and, in this
way, to avoid the difficulties of an engagement in the night. But how
was this to be known on board of the Alligator! How was it to be
known that she was a Portuguese ship, or that she took the Alligator
for a pirate, or that her object in laying to was a defensive operation ?
When the vessels were within reach of each other, the first salutation
from the ship was a shot fired ahead, and, at the same time, no uational
flag appeared at the mast-head. The ship was armed, appeared full of
men, and, from her maneuvres, almost necessarily led to the supposi-
CHAP. III.]
THE
66
877
MARIANNA FLORA.
1
tion, that her previous conduct was a decoy, and that she was either a
piratical vessel, or, at least, in possession of pirates. Under such cir-
cumstances, with hostilities already proclaimed, Lieutenant Stockton
was certainly not bound to retreat; and, upon his advance, other guns,
loaded with shot, were fired, for the express purpose of destruction.
It was, then, a case of open, meditated hostility, and this, too, without
any national flag displayed by the Portuguese ship, which might tend
to correct the error, for she never hoisted her flag until the surrender.
What, then, was Lieutenant Stockton's duty ? In our view it was
plain; it was to oppose force to force, to attack and to subdue the
vessel thus prosecuting unauthorized warfare upon his schooner and
crew. In taking, therefore, the readiest means to accomplish the
object, he acted, in our opinion, with entire legal propriety. He was
not bound to fly, or to wait until he was crippled. His was not a case
of mere remote danger, but of imminent, pressing, and present danger.
He had the flag of his country to maintain, and the rights of his
cruiser to vindicate. To have hesitated in what his duty to his
government called for on such an occasion would have been to betray
(what no honorable officer could be supposed to indulge) an indiffer-
ence to its dignity and sovereignty.
But, it is argued, that Lieutenant Stockton was bound to have
affirmed his national flag by an appropriate gun; that this is a cus-
tomary observance at sea, and is universally understood as indispen-
sable to prevent mistakes and misadventures, and that the omission
was such a default on his part, as places him in delicto as to all the
subsequent transactions. This imputation certainly comes with no
extraordinary grace from the party by whom it is now asserted. If
such an observance be usual and necessary, why was it not complied
with on the part of the Marianna Flora? Her commander asserts,
that by the laws of his own country, as well as those of France and
Spain, this is a known and positive obligation on all armed vessels,
which they are not at liberty to disregard. Upon what ground, then,
can he claim an exemption from performing it? Upon what ground
can he set up as a default in another, that which he has wholly
omitted to do on his own part ? His own duty was clear, and pointed
out; and yet he makes that a matter of complaint against the other
side, which was confessedly a primary default in himself. He not
only did not hoist or affirm his flag in the first instance, but repeatedly
fired at his adversary with hostile intentions, without exhibiting his
own national character at all. He left, therefore, according to his
own view of the law, his own duty unperformed, and fortified, as
against himself, the very inference, 'that his ship might properly be
deemed, under such circumstances, a piratical cruiser.
878
[PART II.
BELLIGERENTS AND NEUTRALS.
But we are not disposed to admit that there exists any such uni-
versal rule or obligation of an affirming gun, as has been suggested at
the bar. It may be the law of the maritime states of the European
continent already alluded to, founded in their own usages or positive
regulations. But, it does not hence follow, that it is binding upon all
other nations. It was admitted, at the argument, that the English
practice is otherwise; and, surely, as a maritime power, England
deserves to be listened to with as much respect, on such a point, as any
other nation. It was justly inferred, that the practice of America is
conformable to that of England; and the absence of any counterproof
on the record, is almost of itself decisive. Such, however, as the prac-
tice is, even among the continental nations of Europe, it is a practice
adopted with reference to a state of war, rather than peace. It may
be a useful precaution to prevent conflicts between neutrals, and allies,
and belligerents, and even between armed ships of the same nation.
But the very necessity of the precaution in time of war arises from
circumstances which do not ordinarily occur in time of general peace.
Assuming, therefore, that the ceremony might be salutary and proper
in periods of war, and suitable to its exigencies, it by no means fol-
lows that it is justly to be insisted on at the peril of costs and
damages in peace. In any view, therefore, we do not think this
omission can avail the claimants.
Again, it is argued, that there is a general obligation upon armed
ships, in exercising the right of visitation and search, to keep at a
distance, out of cannon-shot, and to demean themselves in such a
manner as not to endanger neutrals. And this objection, it is added,
has been specially provided for, and enforced by the stipulations of
many of our own treaties with foreign powers. It might be a decisive
answer to this argument, that, here, no right of visitation and search
was attempted to be exercised. Lieutenant Stockton did not claim to
be a belligerent, entitled to search neutrals on the ocean.
His com-
mission was for other objects. He did not approach or subdue the
Marianna Flora, in order to compel her to submit to his search, but
with other motives. He took possession of her, not because she
resisted the right of search, but because she attacked him in a hostile
manner, without any reasonable cause or provocation.
Doubtless, the obligation of treaties is to be observed with entire
good faith, and scrupulous care. But stipulations in treaties having
sole reference to the exercise of the rights of belligerents in time of
war cannot, upon any reasonable principles of construction, be applied
to govern cases exclusively of another nature, and belonging to a state
of peace. Another consideration, quite sufficient to establish that such
stipulations cannot be applied in aid of the present case, is, that what-
1
CHAP. III.] THE SHIP
879
ROSE" V. THE UNITED STATES.
are
ever may be our duties to other nations, we have no such treaty sub-
sisting with Portugal. It will scarcely be pretended, that we
bound to Portugal by stipulations to which she is no party, and by
which she incurs no correspondent obligation.
THE SHIP "ROSE" V. THE UNITED STATES.
UNITED STATES COURT OF CLAIMS, 1901.
(36 Court of Claims, 291.)
WELDON, J., delivered the opinion of the court: 1
The facts show that the ship Rose, William Chase, master, sailed
on a commercial voyage from Newburyport, Mass., on the 20th of
March, 1799, bound for Surinam, and thence sailed on the 23d of
July, 1799, bound home to Newburyport.
While pursuing the last voyage she was captured on the high seas
on the 31st of July, 1799, by the French cruiser L'Egypt Conquise,
mounting 14 guns and 120 men; after an action of two and one-half
hours, in which the master of the Rose lost 3 men killed and 14
wounded, and the French lost 25 killed and 21 wounded, the Rose was
captured and taken into Guadeloupe, where, on the 6th day of August,
1799, the vessel and cargo were condemned by the tribunal of com-
merce, sitting at Basse Terre, Guadeloupe, under a decree in which
it is alleged that "the captain of said ship was the bearer of a com-
mission from the President of the United States which authorized
him to capture French armed vessels and carry them into any port of
the United States, and that the captain of the vessel resisted until
he was subdued by force of arms. In view of these facts the court
makes reference to articles in justification of said proceedings." The
findings establish the fact that the American ship resisted most vigor-
ously the attempted right of search upon the part of the French ship,
and we are to determine froin that condition as an incident of the
seizure whether such seizure and condemnation were illegal.
The legal effect of resisting search on the part of the American
ship, when it was sought to be exercised on the part of the French
ship, has not been determined by any adjudication of this court in
the various cases tried under the act of Congress, giving this court
jurisdiction to determine the claims of American citizens for alleged
spoliations conimitted by the French prior to the 1st day of July,
1801.
The nearest approach that the court has made to the subject of the
1 The statement of the original report is omitted. -- ED.
880
BELLIGERENTS AND NEUTRALS.
[PART II.
.
right of search is in the case of the Nancy (27 C. Cls. R. p. 99). In
that case the ship sailed from Baltimore in 1797; was captured by an
English ship and sent to St. Nicholas Môle, and there the master was
ordered not to depart without a convoy.
She sailed under the escort
of a privateer for Jeremie and returned to the Môle under escort.
On the return voyage the Nancy was captured by a French privateer.
It is said in that case that“the question whether a neutral vessel laden
with neutral cargo is liable to condemnation if captured under enemy
convoy has never been directly determined; but on a review of the
cases and elementary writers it is now held that if captured when
actually and voluntarily under the protection of an enemy she is
liable.” Sailing under the convoy of an enemy is the exercise of the
same power which is brought into requisition on the part of a neutral
vessel when it resists the right of search by actual force.
If sailing under a convoy of an enemy of the belligerent is a just
ground for seizure and condemnation, it must follow that resisting
the exercise of search, as it was in this case, involves as serious coul-
sequences to the neutral vessel as where the right was denied by the
presence and use of a convoy.
It is not necessary to multiply authorities to establish the right of
search. It is said by Chancellor Kent (1 Kent's Commentaries, p.
155) that "in order to enforce the rights of belligerent nations against
the delinquencies of neutrals, and to ascertain the real as well as the
assumed character of all vessels on the high seas, the law of nations
arms them with the practical power of visitation and search. The
duty of self-preservation gives to belligerent nations this right. It
is founded upon necessity, and is strictly and exclusively a war right,
and does not rightfully exist in time of peace, unless conceded by
treaty. All writers upon the law of nations, and the highest authori-
ties, acknowledge the right in time of war as resting on sound prin-
ciples of public jurisprudence and upon the institutes and practice of
all great maritime powers.” It is said by the same authority, page
154: “The whole doctrine was ably discussed in the English High
Court of Admiralty in the case of the Maria, and it was adjudged that
the right was incontestable, and that a neutral sovereign could not,
by the interposition of force, vary that right."
In that case it is said by Sir William Scott, in stating the prin-
ciples of international law upon the subject of search and of the right
of a belligerent to search neutral vessels engaged in commerce on the
high seas, "that the right of visiting and searching merchant ships
upon the high seas, whatever be the ships, whatever be the cargo,
whatever be the destination, is an incontestable right of lawfully
cominissioned cruisers of a belligerent nation. I say, be the ships,
1
CHAP. III.] THE SHIP "ROSE" V. THE UNITED STATES. 881
the cargoes, and destinations what they may, because till they are
visited and searched it does not appear what the ships, the cargo, or
the destinations are, and it is for the purpose of ascertaining these
points that the necessity of this right of search exists."
Chancellor Kent, page 155, in further elaboration of the doctrine
of the right of search, states the circumstances which might consti-
tute an exception to that general rule, which makes it the duty of the
neutral to subject itself to the jurisdiction of the belligerent in the
exercise of the right of search. He says:
There
may be cases in which the master of a neutral ship may be
authorized by the natural right of self-preservation to defend himself
against extreme violence threatened by a cruiser grossly abusing his
commission; but except in extreme cases a merchant vessel has no
right to say for itself, and an armed vessel has no right to say for it,
that it will not submit to visitation and search or be carried into an
proximate port for judicial inquiry."
The circumstances of this capture do not indicate that the condi-
tion cited by Chancellor Kent (which may be regarded as an excep-
tion to the general rule) existed in this case. While there might
have been in the minds of the crew of the neutral vessel grave appre-
hensions of ultimate condemnation, even with reference to the legiti-
mate defences, that condition of apprehension upon the part of the
resisting neutral did not justify him in denying the right of search
to the belligerent. The circumstances of this case vlisclose a most
vigorous assault and defence, there being twenty-four men killed and
thirty-six wounded during the encounter between the respective ves-
sels. This was actual resistance, and was only overcome by the most
determined effort upon the part of the capturing vessel.
The right of search is so sacred in the view of international law
that it is protected by enforcing the consequences of resistance where
no actual resistance is made. As in the case of a convoy, it has been
held by this court in the case of the Nancy (27 C. Cls. R. 99) that
the presence of a convoy is constructive resistance and a denial
of the right of search, which authorizes seizure and consequent
condemnation.
It is most strenuously and ably argued by counsel that at the date
of capture there was in existence the statute of June 25, 1798, en-
titled “An act to authorize the defence of merchant vessels of the
United States against French depredations” (1 Stat. L. 572), and
that by virtue of the provisions of that act the commander and craw
of a vessel had a right to resist by all means in their power an at-
tempt upon the part of a French commander and crew to search the
American vessel. It is provided in that statute
56
882
BELLIGERENTS AND NEUTRALS. (PART II.
That the commander and crew of any merchant vessel of the
United States, owned wholly by a citizen or citizens thereof, may
oppose and defend against any search, restraint, or seizure which
shall be atteinpted upon such vessel or upon any other vessel owned,
as aforesaid, by the commander or crew of any arıned vessel sailing
under French colors, or acting or pretending to act by or under the
authority of the French Republic; and may repel by force any assault
or hostility which shall be made or comunitted on the part of such
French or pretended French vessel pursuing such attempt, and may
subdue and capture the same, and may also retake any vessel owned
as aforesaid which may have been captured by any vessel sailing
under French colors, or acting or pretending to act by or under au-
thority from the French Republic.”
Whatever may be said as to the condition or status of the legal
rights and obligations of the French and American Governments be-
fore the act July 9, 1798 (1 Stat. L. 578), it must be assumed that
after that period the principles and rules of international law deter-
mined and controlled the parties with reference to their rights on the
high seas.
It is said, in the case of the Nancy (supra), “It has been urged
that the statute of the United States authorizes resistance by our
merchantinen to French visitation and search, to which there is the
simple answer that no single State can change the law of nations by
its municipal regulations."
The contention of claimants' counsel with reference to the rights
guaranteed to American merchantmen under and by virtue of the pro-
visions of the act of 1798 is fully answered by the decision of this
court in the above case. If, therefore, at the time of this seizure.
there was any conflict between the municipal law of the United
States, as exemplified in the statute, and the well-recognized prin-
ciples of international law, the latter must prevail in the determina-
tion of the rights of the parties.
By the provisions of the act giving this court jurisdiction to ascer-
tain the claims of American citizens for spoliations committed by the
French prior to the 31st of July, 1801, it is, in substance, provided
that the validity of said claims shall be determined according to the
rules of law, municipal and international, and the treaties of the
United States applicable to the same. In order to perform the duties
consistent with the requirements of the statute, the court must give
each department of the law full recognition and force when properly
applicable to the facts and circumstances of the controversy involved
in the litigation.
The rights of the claimant are to be measured by the unlawful acts
CHAP. III.]
883
THE SAIP
.
ROSE” V. THE UNITED STATES.
of France, and unless a wrong exists under the rules of international
law, 110 liability can attach to the United States; because, by the
treaty of 1800, it was only the claims growing out of the wrongful act
of France for which the United States had a diplomatic claim and
which were assumed to be paid to the citizen whose individual right
was violated in that wrong.
This court in making the investigation contemplated by the act of
our jurisdiction is sitting in the character of an international tribu-
nal, to determine the diplomatic rights of the United States as they
existed against France prior to the ratification of the treaty of Sep-
tember 30, 1800.
The municipal law in the absence of a treaty must be subordinated
to international law when they come in antagonisin, as that is the
law common to both parties.
Where the question is not exclusively within the domain of inter-
national law then the municipal law may be invoked to determine the
proper solution of the question. The rules of property by which the
citizen owned the subject-matter of the seizure and condemnation may
be properly applied in ascertainment of his rights, and so may many
questions of the law of evidence be decided in accordance with the
municipal law of the party whase, rights have been violated. Con-
gress, in the enactment of the law of our jurisdiction, must be pre-
sumed as having recognized many of the principles of municipal law
incident to our forms of judicial procedure and determination.
It has been argued that the belligerent, in making the attack on the
vessel of the claimant, was not in the exercise of the legal right of
search as incident to him as a belligerent, but that it was an assault,
the object and purpose of which was the seizure and condemnation
without reference to the fact, or condition of being a neutral vessel
of the United States engaged in the peaceful and lawful commerce of
the sea; that the condition existing between the two governments
and peoples was such that all respect of neutral rights had ceased,
and that force, fraud, and violence prevailed, and in that connection
much is said as to the right of self-defence.
The claimants are treading on very dangerous ground when they
urge the higher law of self-preservation. Self-defence is founded on
the theory that it is the only remedy, and that, being the only remedy,
it presupposes the absence of all law protecting the rights of him
who asserts the prerogative of self-defence. If the right of self-
defence prevailed to the extent of repelling force by force, and was
incident to the crew of the ship captured, then all other law was
silent and war prevailed, which condition would be most disastrous
to the case of the claimants.
884
[PART II.
BELLIGERENTS AND NEUTRALS.
As we have quoted in another case, decided at the present term of
court, from the opinion delivered by Sir William Scott in the case of
the Maria, in 1 C. Rob. 340, so we quote upon the subject of the
right of self-defence in this case:
“How stands it by the general law ? I do not say that cases may
not occur in which a ship may be authorized by the natural rights of
self-preservation to defend itself against extreme violence threatened
by a cruiser grossly abusing his commission; but where the utmost
injury threatened is the being carried in for inquiry into the nearest
port, subject to a full responsibility in costs and damages, if this is
done vexatiously and without just cause, a merchant vessel las not a
right to say for itself (and an armed vessel has not a right to say for
it), 'I will submit to no such inquiry, but I will take the law into my
own hands by force.' What is to be the issue, if each neutral vessel
has a right to judge for itself in the first instance whether it is rightly
detained, and to act upon that judgment to the extent of using force ?
Surely nothing but battle and bloodshed, as often as there is anything
like an equality of force or an equality of spirit.”.
For the reasons above stated, the court decides, as a conclusion of
law, that the seizure and condemnation were lawful and that the
owners and insurers had no valid claim of indemnity therefor upon
the French Government prior to the ratification of the convention be-
tween the United States and the French Republic, concluded on the
30th day of September, 1800, and that the claims were not relin-
quished to France by the government of the United States by said
treaty in part consideration of the relinquishment of certain national
claims of France against the United States, and that the claimants
are not entitled to recover from the United States.
The facts in detail, with a copy of this opinion, will be certified to
Congress in accordance with the statute.
1
THE "NEREIDE."
SUPREME COURT OF THE UNITED STATES, 1815.
(9 Cranch, 388.)
2
MARSHALL, C. J., delivered the opinion of the court as follows:
2. Does the treaty between Spain and the United States subject the
goods of either party, being neutral, to condemnation as enemy prop-
1 Accord The Ship Amazon v. U. S., 1901, 36 Ct. Cl. 390.- ED.
2 Statement of facts and discussion of evidence omitted. - ED.
$
CHAP. III.]
885
THE
NEREIDE.”
erty, if found by the other in the vessel of an enemy? That treaty
stipulates that neutral bottoms shall make neutral goods, but contains
no stipulation that enemy bottoins shall communicate the hostile char-
acter to the cargo. It is contended by the captors that the two prin-
ciples are so completely identified that the stipulation of the one
necessarily includes the other.
Let this proposition be examined.
The rule that the goods of an enemy found in the vessel of a friend
are prize of war, and that the goods of a friend found in the vessel
of an enemy are to be restored, is believed to be a part of the origi-
nal law of nations, as generally, perhaps universally, acknowledged.
Certainly it has been fully and unequivocally recognized by the United
States. This rule is founded on the simple and intelligible principle
that war gives a full right to capture the goods of an enemy, but gives
no right to capture the goods of a friend. In the practical applica-
tion of this principle, 'so as to form the rule, the propositions that the
neutral flag constitutes no protection to enemy property, and that the
belligerent flag communicates no hostile character to neutral property,
are necessarily admitted. The character of the property, taken dis-
tinctly and separately from all other considerations, depends in no
degree upon the character of the vehicle in which it is found.
Many nations have believed it to be their interest to vary this
simple and natural principle of public law. They have changed it
by convention between themselves as far as they have believed it to
be for their advantage to change it. But unless there be something
in the nature of the rule which renders its parts unsusceptible of divi-
sion, nations must be capable of dividing it by express compact, and
if they stipulate either that the neutral flag shall cover enemy goods,
or that the enemy flag shall infect friendly goods, there would, in
reason, seem to be no necessity for implying a distinct stipulation
not expressed by the parties. Treaties are formed upon deliberate
reflection. Diplomatic men read the public treaties made by other
nations and cannot be supposed either to omit or insert an article,
common in public treaties, without being aware of the effect of such
omission or insertion. Neither the one nor the other is to be as-
cribed to inattention. And if an omitted article be not necessarily
implied in one which is inserted, the subject to which that article
would apply remains under the ancient rule. That the stipulation
of immunity to enemy goods in the bottoms of one of the parties
being neutral does not imply a surrender of the goods of that party
being neutral, if found in the vessel of an enemy, is the proposition
of the counsel for the claimant, and he powerfully sustains that propo-
sition by arguments arising from the nature of the two stipulations.
886
BELLIGERENTS AND NEUTRALS.
[PART II.
The agreement that neutral bottoms shall make neutral goods is, he
very justly remarks, a concession made by the belligerent to the neu-
tral. It enlarges the sphere of neutral commerce, and gives to the
neutral flag a capacity not given to it by the law of nations.
The stipulation which subjects neutral property, found in the bot-
tom of an enemy, to condeinnation as prize of war, is a concession
made by the neutral to the belligerent. It narrows the sphere of
neutral commerce, and takes from the neutral a privilege he possessed
under the law of nations. The one may be, and often is, exchanged
for the other. But it may be the interest and the will of both parties
to stipulate the one without the other; and if it be their interest, or
their will, what shall prevent its accomplishment? A neutral may
give some other compensation for the privilege of transporting enemy
goods in safety, or both parties may find an interest in stipulating for
this privilege, and neither may be disposed to make to, or require
from, the other the surrender of any right as its consideration. What
shall restrain independent nations from making such a compact? And
how is their intention to be communicated to each other or to the
world so properly as by the compact itself ?
If reason can furnish no evidence of the indissolubility of the two
maxims, the supporters of that proposition will certainly derive no
aid from the history of their progress from the first attempts at their
introduction to the present inoment.
For a considerable length of time they were the companions of each
other — not as one maxim consisting of a single indivisible principle,
but as two stipulations, the one, in the view of the parties, forming a
natural and obvious consideration for the other. The celebrated com-
pact termed the armed neutrality attempted to effect by force a great
revolution in the law of nations. The attempt failed, but it made a
deep and lasting impression on public sentiment. The character of
this effort has been accurately stated by the counsel for the claimants.
Its object was to enlarge, and not in any thing to diminish the rights
of neutrals. The great powers, parties to this agreement, contended
for the principle, that free ships should make free goods; but not for
the converse maxim; so far were they from supposing the one to
follow as a corollary from the other, that the contrary opinion was
openly and distinctly avowed. The King of Prussia declared his ex-
pectation that in future neutral bottoms would protect the goods of
an enemy, and that neutral goods would be safe in an enemy bottom.
There is no reason to believe that this opinion was not common to
those powers who acceded to the principles of the armed neutrality.
From that epoch to the present, in the various treaties which have
been formed, some contain no article on the subject and consequently
CHAP. II.]
887
THE
NEREIDE.”
leave the ancient rule in full force. Some stipulate that the char-
acter of the cargo shall depend upon the flag, some that the neutral
flag shall protect the goods of an enemy, some that the goods of a
neutral in the vessel of a friend shall be prize of war, and some that
the goods of an enemy in a neutral bottom shall be safe, and that
friendly goods in the bottom of an enemy shall also be safe.
This review which was taken with minute accuracy at the bar, cer-
tainly demonstrates that in public opinion no two principles are more
distinct and independent of each other than the two which have been
contended to be inseparable.
Do the United States understand this subject differently from other
nations? It is certainly not from our treaties that this opinion can
be sustained. The United States have in some treaties stipulated for
both principles, in some for one of them only, in some that neutral
bottoms shall make neutral goods and that friendly goods shall be
safe in the bottom of an enemy. It is therefore clearly understood
in the United States, so far as an opinion can be formed on their
treities, that the one principle is totally independent of the other.
They have stipulated expressly for their separation, and they have
sometimes stipulated for the one without the other.
But in a correspondence between the Secretary of State of the
United States and the Minister of the French Republic in 1793,
Prussia is enumerated among those nations with whom the United
States had made a treaty adopting the entire principle that the char-
acter of the cargo should be determined by the character of the flag.
Not being in possession of this correspondence the court is unable
to examine the construction it has received. It has not deferred this
opinion on that account, because the point in controversy at that time
was the obligation imposed on the United States to protect belligerent
property in their vessels, not the liability of their property to capture
if found in the vessel of a belligerent. To this point the whole
attention of the writer was directed, and it is not wonderful that in
mentioning incidentally the treaty with Prussia which contains the
principle that free bottoms make free goods, it should have escaped
his recollection that it did not contain the converse of the maxim.
On the talents and virtues which adorned the cabinet of that day, on
the patient fortitude with which it resisted the intemperate violence
with which it was assailed, on the firmness with which it maintained
those principles which its sense of duty prescribed, on the wisdom of
the rules it adopted, no panegyric has been pronounced at the bar in
which the best judgment of this court does not concur. But this
respectful deference may well comport with the opinion, that an
argument incidentally brought forward by way of illustration, is not
888
[PART II.
BELLIGERENTS AND NEUTRALS.
such full authority as a decision directly on the point might have
been.
3. The third point made by the captors is, that whatever con-
struction might be put on our treaty with Spain, considered as an
independent measure, the ordinances of that government would sub-
ject American property, under similar circumstances, to confiscation,
and therefore the property, claiined by Spanish subjects in this case,
ought to be condemned as prize of war.
The ordinances themselves have not been produced, nor has the
court received such information respecting them as would enable it
to decide certainly either on their permanent existence, or on their
application to the United States. But be this as it may, the court is
decidedly of opinion that reciprocating to the subjects of a nation, or
retaliating on them, its unjust proceedings towards our citizens, is a
political not a legal measure. It is for the consideration of the gov-
ernment not of its courts. The degree and the kind of retaliation
depend entirely on considerations foreign to this tribunal. It may
be the policy of the nation to avenge its wrongs in a manner having
no affinity to the injury sustained, or it may be its policy to recede
froin its full rights and not to avenge them at all. It is not for its
courts to interfere with the proceedings of the nation and to thwart
its views. It is not for us to depart from the beaten track prescribed
for us, and to tread the devious and intricate path of politics. Even
in the case of salvage, a case peculiarly within the discretion of
courts, because no fixed rule is prescribed by the law of nations, Con-
gress has not left it to this department to say whether the rule of
foreign nations shall be applied to them, but has by law applied that
rule. If it be the will of the government to apply to Spain any rule
respecting captures which Spain is supposed to apply to us, the gov-
ernment will manifest that will by passing an act for the purpose.
Till such an act be passed, the court is bound by the law of nations
which is a part of the law of the land.
Thus far the opinion of the court has been formed without much
difficulty. Although the principles, asserted by the counsel, have
been sustained on both sides with great strength of argument, they
have been found on examination to be simple and clear in themselves.
Stripped of the imposing garb in which they have been presented to
the court, they have no intrinsic intricacy which should perplex the
understanding
The remaining point is of a different character. Belligerent rights
and neutral privileges are set in array against each other. Their
respective pretensions, if not actually intermixed, come into close
contact, and the line of partition is not so distinctly marked as to be
CHAP. III.]
THE 66
889
NEREIDE.'
clearly discernible. It is impossible to declare in favor of either,
without hearing, from the other, objections which it is difficult to
answer and arguments which it is not easy to refute. The court has
given to this subject a patient investigation, and has endeavored to
avail itself of all the aid which has been furnished by the bar. The
result, if not completely satisfactory even to ourselves, is one from
which it is believed we should not depart were further time allowed
for deliberation.
1. Has the conduct of Manuel Pinto and of the Nereide been such
as to impress the hostile character on that part of the cargo which
was in fact neutral?
Ia considering this question the court has examined separately the
parts which compose it.
The vessel was armed, was the property of an enemy, and made
resistance. How do these facts affect the claim?
Had the vessel been armed by Pinto, that fact would certainly have
constituted an important feature in the case. But the court can per-
ceive no reason for believing she was armed by him. He chartered,
it is true, the whole vessel, and that he might as rightfully do as
contract for her partially; but there is no reason to believe that he
was instrumental in arming her. The owner stipulates that the
Nereide "well manned, victualled, equipped, provided, and furnished
with all things needful for such a vessel,” shall be ready to take on
board a cargo to be provided for her. The Nereide, then, was to be
put, by the owner, in the condition in which she was to sail. In
equipping her, whether with or without arms, Mr. Pinto was not
concerned. It appears to have been entirely and exclusively the act
of the belligerent owner.
Whether the resistance, which was actually made, is in any degree
imputable to Mr. Pinto, is a question of still more importance.
It has been argued that he had the whole ship, and that, therefore,
the resistance was his resistance.
The whole evidence upon this point is to be found in the charter
party, in the letter of instructions to the master, and in the answer of
Pinto to one of the interrogatories in preparatorio.
The charter party evinces throughout that the ship remained under
the entire direction of the owner, and that Pinto in no degree partici-
pated in the command of her. The owner appoints' the master and
stipulates for every act to be performed by the ship, from the date
of the charter party to the termination of the voyage. In no one
respect, except in lading the vessel, was Pinto to have any direction
of her.
The letter of instructions to the master contains full directions for
890
[PART II.
BELLIGERENTS AND NEUTRALS.
the regulation of his conduct, without any other reference to Mr.
Pinto than has been already stated. That reference shows a positive
limitation of his power by the terms of the charter party. Conse-
quently he had no share in the government of the ship.
But Pinto says in his answer to the Gth interrogatory that "he had
control of the said ship and cargo.'
Nothing can be more obvious than that Pinto could understand
himself as saying no more than that he had the control of the ship
and cargo so far as respected her lading. A part of the cargo did not
belong to him, and was not consigned to him. His control over the
ship began and ended with putting the cargo on board. He does not
appear ever to have exercised any authority in the management of
the ship. So far from exercising any during the battle, he went into
the cabin, where he remained till the conflict was over. It is, then,
most apparent that when Pinto said he had the control of the ship
and cargo, he used those terms in a limited sense. He used them in
reference to the power of lading her, given him by the charter party.
If, in this, the court be correct, this cause is to be governed by the
principles which would apply to it had the Nereide been a general
ship.
The next point to be considered is the right of a neutral to place
his goods on board an armed belligerent merchantinan.
That a neutral may lawfully put his goods on board a belligerent
ship for conveyance on the ocean, is universally recognized as the
lo
original rule of the law of nations. It is, as has already been stated,
founded on the plain and simple principle that the property of a
friend remains his property wherever it may be found. “Since it is
not,” says Vattel, “the place where a thing is which determines the
nature of that thing, but the character of the person to whom it
belongs, things belonging to neutral persons which happen to be in
an enemy's country, or on board an enemy's ships, are to be distin-
guished from those which belong to the enemy."
Bynkershoek lays down the same principles in terms equally
explicit; and in terms entitled to the more consideration, because he
enters into the inquiry whether a knowledge of the hostile character
of the vessel can effect the owner of the goods.
The same principle is laid down by other writers on the same sub-
ject, and is believed to be contradicted by none. It is true there
were some old ordinances of France declaring that a hostile vessel or
cargo should expose both to condemnation. But these ordinances
have never constituted a rule of public law.
It is deemed of much importance that the rule is universally laid
down in terms which comprehend an armed as well as an unarmed
CHAP. III.]
891
THE
NEREIDE.”
vessel; and that armed vessels have never been excepted from it.
Bynkershoek, in discussing a question suggesting an exception, with
his mind directed to hostilities, does not hint that this privilege is
confined to unarmed merchantmen.
In point of fact, it is believed that a belligerent merchant vessel
rarely sails unarmed, so that this exception from the rule would be
greater than the rule itself. At all events, the number of those who
are arined and who sail under convoy, is too great not to have at-
tracted the attention of writers on public law; and this exception to
their broad general rule, if it existed, would certainly be found in
some of their works. It would be strange if a rule laid down, with
a view to war, in such broad terms as to have universal application,
should be so construed as to exclude from its operation almost every
case for which it purports to provide, and yet that not a dictum should
be found in the books pointing to such construction
The antiquity of the rule is certainly not unworthy of considera-
tion. It is to be traced back to the time when almost every mer-
chantman was in a condition for self-defence, and the implements of
war were so light and so cheap that scarcely any would sail without
them.
A belligerent has a perfect right to arm in his own defence; and a
neutral has a perfect right to transport his goods in a belligerent
vessel. These rights do not interfere with each other. The neutral
has no control over the belligerent right to arm - ought he to be
accountable for the exercise of it ?
By placing neutral property in a belligerent ship, that property,
according to the positive rules of law, does not cease to be neutral.
Why should it be changed by the exercise of a belligerent right,
universally acknowledged and in common use when the rule was laid
down, and over which the neutral had no control?
The belligerent answers, that by arming his rights are impaired.
By placing his goods under the guns of an enemy, the neutral has
taken part with the enemy and assumed the hostile character.
Previous to that examination which the court has been able to
make of the reasoning by which this proposition is sustained, one
remark will be made which applies to a great part of it. The argu
ment which, taken in its fair sense, would prove that it is unlawful
to deposit goods for transportation in the vessel of an enemy gen-
erally, however imposing its form, must be unsound, because it is
in contradiction to acknowledged law.
It is said that by depositing goods on board an armed belligerent
the right of search may be impaired, perhaps defeated.
What is this right of search? Is it a substantive and independent
892
[PART II.
BELLIGERENTS AND NEUTRALS.
right wantonly, and in the pride of power, to vex and harass neutral
commerce, because there is a capacity to do so? or to indulge the idle
and mischievous curiosity of looking into neutral trade? or the as-
sumption of a right to control it? If it be such a substantive and
independent right, it would be better that cargoes should be inspected
in port before the sailing of the vessel, or that belligerent licenses
should be procured. But this is not its character.
Belligerents have a full and perfect right to capture enemy goods
and articles going to their enemy which are contraband of war. Το
the exercise of that right the right of search is essential. It is a
mean justified by the end. It has been truly denominated a right
growing out of, and ancillary to the greater right of capture. Where
this greater right may be legally exercised without search, the right
of search can never arise or come into question.
But it is said that the exercise of this right may be prevented by
the inability of the party claiming it to capture the belligerent carrier
of neutral property.
And what injury results from this circumstance? If the property
be neutral, what mischief is done by its escaping a search. In so
doing there is no sin even as against the belligerent, if it can be
leffected by lawful means. The neutral cannot justify the use of
force or fraud, but if by means, lawful in themselves, he can escape
this vexatious procedure, he may certainly employ them.
To the argument that by placing his goods in the vessel of an
armed enemy, he connects himself with that enemy and assumes the
hostile character, it is answered that no such connection exists.
The object of the neutral is the transportation of his goods. His
connection with the vessel which transports them is the same, whether
that vessel be armed or unarmed. The act of arming is not his - it
is the act of a party who has a right so to do. He meddles not with
the armament nor with the war. Whether his goods were on board
or not, the vessel would be armed and would sail. His goods do not
contribute to the armament further than the freight he pays, and
freight he would pay were the vessel unarmed.
It is difficult to perceive in this argument anything which does not
also apply to an unarmed vessel. In both instances it is the right
and the duty of the carrier to avoid capture and to prevent a search.
There is no difference except in the degree of capacity to carry this
duty into effect. The argument would operate against the rule which
permits the neutral merchant to employ a belligerent vessel without
imparting to his goods the belligerent character.
The argument respecting resistance stands on the same ground with
that which respects arming. Both are lawful. Neither of them is
1
?
t
CHAP III.]
893
THE
NEREIDE.
chargeable to the goods or their owner, where he has taken no part
in it. They are incidents to the character of the vessel; and may
always occur where the carrier is belligerent.
It is remarkable that no express authority on either side of this
question can be found in the books. A few scanty materials, made
up of inferences from cases depending on other principles, have been
gleaned from the books and employed by both parties. They are
certainly not decisive for or against either.
The celebrated case of the Swedish convoy has been pressed into
the service. But that case decided no more than this, that a neutral
may arm, but cannot by force resist a search. The reasoning of the
judge on that occasion would seem to indicate that the resistance
condemned the cargo, because it was unlawful. It has been inferred
on the one side that the goods would be infected by the resistance of
the ship, and on the other that a resistance which is lawful, and is
not produced by the goods, will not change their character.
The case of the Catharine Elizabeth approaches more nearly to that
of the Nereide, because in that case as in this there were neutral
goods and a belligerent vessel. It was certainly a case, not of resist-
ance, but of an attempt by a part of the crew to seize the capturing
vessel. Between such an attempt and an attempt to take the same
vessel previous to capture, there does not seem to be a total dissimili-
tude. But it is the reasoning of the judge and not his decision, of
which the claimants would avail themselves. He distinguishes
between the effect which the employment of force by a belligerent
owner or by a neutral owner would have on neutral goods. The first
is lawful, the last unlawful. The belligerent owner violates no duty.
He is held by force and may escape if he can.
From the marginal
note it appears that the reporter understood this case to decide in
principle that resistance by a belligerent vessel would not confiscate
It is only in a case without express authority that such
materials can be relied on.
If the neutral character of the goods is forfeited by the resistance
of the belligerent vessel, why is not the neutral character of the
passengers forfeited by the same cause? The master and crew are
prisoners of war, why are not those passengers who did not engage
in the conflict also prisoners? That they are not would seem to the
court to afford a strong argument in favor of the goods. The law
would operate in the same manner on both.
It cannot escape observation that in argument the neutral freighter
has been continually represented as arming the Nereide and in pelling
her to hostility. He is represented as drawing forth and guiding her
warlike energies. The court does not so understand the case. The
the cargo.
894
[PART II.
BELLIGERENTS AND NEUTRALS.
1
Nereide was armed, governed, and conducted by belligerents. With
her force, or her conduct, the neutral shippers had no concern. They
deposited their goods on board the vessel, and stipulated for their
direct transportation to Buenos Ayres. It is true that on her passage
she had a right to defend herself, did defend herself, and might have
captured an assailing vessel; but to search for the enemy would have
been a violation of the charter party and of her duty.
With a pencil dipped in the most vivid colors, and guided by the
hand of a master, a splendid portrait has been drawn exhibiting this
vessel and her freighter as forming a single figure, composed of the
most discordant materials, of peace and war. So exquisite was the
skill of the artist, so dazzling the garb in which the figure was pre-
sented, that it required the exercise of that cold investigating faculty
which ought always to belong to those who sit on this bench, to dis-
cover its only imperfection; its want of resemblance.
The Nereide has not that centaur-like appearance which has been
ascribed to her. She does not rove over the ocean hurling the
thunders of war while sheltered by the olive branch of peace. She
is pot composed in part of the neutral character of Mr. Pinto, and
in part of the hostile character of her owner. She is an open and
declared belligerent; claiming all the rights, and subject to all the
dangers of the belligerent character. She conveys Deutral property
which does not engage in her warlike equipments, or in any employ-
ment she may make of them; which is put on board solely for the
purpose of transportation, and which encounters the hazard incident
to its situation; the hazard of being taken into port, and obliged to
seek another conveyance should its carrier be captured.
In this it is the opinion of the majority of the court there is noth-
ing unlawful. The characters of the vessel and cargo remain as
distinct in this as in any other case. The sentence, therefore, of the
Circuit Court must be reversed, and the property claimed by Manuel
Pinto for himself and his partners, and for those other Spaniards for
whom he has claimed, be restored, and the libel as to that property,
be dismissed. 1
1 The concurring opinion of JOHNSON, J., and the dissenting opinion of STORY, J.,
omitted. See The Fanny, 1814, 1 Dod. 443, for a contemporaneous decision of an
opposite character, and note Kent's comment on these two cases, ip 1 Com. 132–133.
In the subsequent case of The Atalanta, 1818, 3 Wheat. 409, C. J. Marshall, in
delivering the opinion of the court, said: “On the first question, the case does not
essentially differ from that of the Nereide. It is unnecessary to repeat the reasoning
on which that case was decided. The opinion then given by three judges is retained
by them. The principle of the law of nations, that the goods of a friend are safe in
the bottom of an enemy, may be, and probably will be changed, or so impaired as to
leave no object to which it is applicable; but so long as the principle shall be acknow-
CHAP. III.]
895
THE 66ATLAS.”
.
THE “ATLAS."
HIGH COURT OF ADMIRALTY, 1801.
(3 C. Robinson, 243.)
This was a case of an American ship and cargo of tobacco, claimed
for merchants in America. The cargo had been sent originally from
America to Vigo, or a market, consigned to the master for sale; at
Vigo it was sold to the administration of the revenue of tobacco,
under a contract of the master to deliver it at Seville, at his own risk,
and there to receive payment. The ship was taken in the voyage
from Vigo to Seville.
Court:- I do not see how this case can be distinguished from the
case cited before the lords; I think I am bound to pronounce this
cargo liable to condemnation, on the ground, that it is taken whilst
going to an enemy's port, to be delivered there to an enemy, and to
be paid for by him, having actually become his property, under an
engagement to that effect, entered into by the person who is the
appointed agent for the management of the cargo. It came from
America as American property, but it was sold at Vigo to the Spanish
Government, and went from thence to Seville as Spanish property;
the contract under which it went was absolute and indefeasible: The
goods can be considered in no other light than as the property of an
eneny.
Cargo condemned. Ship restored. Freight refused as on a voy-
age in the coasting trade of the enemy.1
ledged, this court must reject constructions which render it totally inoperative."
p. 415. For the reason of the thing, see the instructive and argumentative concurring
opinion of Mr. Justice JOHNSON, pp. 410-433. — Ed.
1 To the same effect the Sally, 1795, in note to the Atlas, ut sup.
Where enemy's property is fraudulently blended in the same claim with the neutral
property the latter is liable to share the fate of the former. The St. Nicholas, 1816,
1 Wheat. 417.
See also The Eenrom, 1799, 2 C. Rob. 1; The Calypso, 1799, 2 C. Rob. 154; The Susa,
1799, 2 C. Rob. 251; The Graaf Bernstorf, 1800, 3 C. Rob. 109; - The Betsy, 1815, 2
Gall. 377; The Dos Hermanos, 1817, 2 Wheat. 76; The Fortuna, 1818, 3 Wheat.
236. - ED.
3
896
[PART II.
BELLIGERENTS AND NEUTRALS.
DARBY et al. y. THE BRIG “ERSTERN.”
FEDERAL COURT or APPEALS, 1782.
(2 Dallas, 34.)
This was an appeal from the Admiralty of the State of Massachu-
setts Bay, where the brig and her cargo had been acquitted. The
case was argued on the 28th, 29th and 30th of January; and, on the
5th Feb., 1782, the definitive sentence of the court was pronounced
by Paca and Griffin, the presiding commissioners, in the following
terms:
By the Court: ---- Upon the evidence in this case, we are of opinion,
that the brig, at the time of her capture, was the property of imperial
subjects at Ostend, and that the cargo was British property, unpro-
tected by the capitulation of Dominica.
It is objected, “The brig is not prize, because neutral property."
Neutral property cannot be captured: For, while the character of
neutrality is preserved, such property is the property of a friend, on
which the rights of war cannot attach; but the owners of a ship may
violate their neutrality, by taking a decided part with the enemy: In
what light is such a ship then to be considered, and what is to be
done with her? The law of nations says, that a ship under those
circumstances, is in the predicament of enemy's property, and subject
to seizure and confiscation.
But it is said, "the ordinance of Congress ascertains in what cases
the rights of neutrality are forfeited; that the present case is not
comprehended; and therefore, if not protected by the law of natio
yet it is protected by the ordinance of Congress.”
We are of opinion, that Congress did not mean, by their ordinance,
to ascertain in what cases the rights of neutrality should be forfeited,
in exclusion of all other cases; for, the instances not mentioned are
as flagrant as the cases particularized. The ordinance does not
specify the case of a neutral vessel employed in carrying provision
to a place which is besieged, and in want of bread: for, although one
of the articles says, “You shall permit all neutral vessels freely
to navigate on the high seas, or the coasts of America, except such
as are employed in carrying contraband goods, or soldiers, to the
enemy;" yet another article says, that the term contraband shall be
confined to the articles there enumerated, and provision is omitted.
Were Congress asked, whether they meant to protect from capture
CHAP. II.]
897
DARDY V. THE BRIG
ERSTERN.”
a neutral ship loaded with provision, and destined for York and
Gloucester, when besieged by the armies of the United States and
France, no one could possibly doubt what their answer would be.
The plain and obvious construction of the ordinance is, that while
neutral vessels observe the rights of neutrality, they shall not be
interrupted by American captures: Congress meant to pay a regard
to the rights, and not to the violations of neutrality.
But, it is objected, "that in this case, if the brig has violated the
rights of neutrality, it is because she intended a violation of the
capitulation of Dominica; that the capitulation of Dominica can only
be considered as a local law, of which there can be no breach, until
the offending ship comes within the civil jurisdiction of the island;
that the brig was captured before the arrival within the jurisdiction
of Dominica; and that therefore she was captured before there was
any violation of the rights of neutrality.”
If nothing could be objected against the brig, but an intentional
violation of the capitulation, abstractedly from the consequences,
with regard to the war between Great Britain, France, and the
United States, possibly such reasoning might be conclusive: but we
are of opinion, that the brig has done more than a mere intentional
offence, with regard to the capitulation.
The subjects of a neutral nation cannot, consistently with neu-
trality, combine with British subjects to wrest out of the hands of
the United States and of France the advantages they have acquired
over Great Britain by the rights of war; for this would be taking a
decided part with the enemy.
On the conquest of Dominica a capitulation took place, and by that
capitulation, a commercial intercourse between Great Britain and
that island was prohibited: the object was to weaken the power of
Great Britain, by lessening her naval and commercial resources. But
what has been the conduct of the brig and the imperial subjects her
owners? Kender Mason, a British subject, establishes a plan at
Ostend, by which the commerce of Great Britain with Dominica is
to be kept up and preserved, through the intervention of that port.
On this plan Liebert, Beas, Dardine, & Co., imperial subjects, pur-
chase at London the brig Erstern: Kender Mason puts on board a
cargo of British merchandise, the property of British subjects: the
brig clears out from London, ostensibly for Ostend, and there arrives :
Liebert, Beas, Dardine, & Co. supply her with false and colorable
papers, assume upon themselves the ownership of the cargo, and
dress it up in the garb of neutrality, to screen it from detention and
capture: the brig then clears out for Dominica, and sails for that
island with the cargo she took on board at London.
57
898
[PART II.
BELLIGERENTS AND NEUTRALS.
t
Can such conduct consist with neutrality? Can there be a more
flagrant violation of it? Does it not aim to wrest, from France and
the United States, the advantages they acquired by the conquest of,
Dominica: and does it not evince a fraudulent combination with
British subjects, and a palpable partiality?
But, “Why shall the rights of neutrality be broke by works of
supererogation? If the cargo was British property, unprotected by
the capitulation, it was then the property of enemies, and as it did
not consist of contraband articles, it was protected from capture by
the ordinance of Congress: the brig, therefore, needed not to employ
fraud and stratagem to give it the garb of neutrality, in order to
screen it from capture.
If the offence, which the brig has committed, consisted in employ-
ing fraud and stratagem, merely to protect property which belonged
to an enemy, the objection might, in consequence of the ordinance of
Congress, be of some force. But the offence is not of so limited a
nature; it is far more extensive, and comprehends a flagrant violation
of the rights of neutrality: it results from a fraudulent combination
with British subjects, to give weight and energy to the arms of Great
Britain, by the re-establishment of a commerce, and its emoluments,
which she had lost by the conquest of Dominica.
Buit, it is objected, “The cargo is not prize, because it is not con-
traband, and all the other effects and goods, though the property of an
enemy, are exempted from capture by the ordinance of Congress.”
If the Erstern had been employed in a fair commerce, such as was
consistent with the rights of neutrality, her cargo, though the prop-
erty of an enemy, could not be prize; because Congress have said, by
their ordinance, that the rights of neutrality shall extend protection
to such effects and goods of an enemy. But, if the rights of neu-
trality are violated, Congress have not said, that such a violated
neutrality shall give .such protection: nor could they have said so,
without confounding all the distinctions between right and wrong.
Upon the whole, we are of opinion, that the decree below be re-
versed, and that the said brig and cargo be condemned, as prize, for
the use of the captors, without costs.
1 THE DECLARATION OF PARIS, 1856. — Declaration respecting maritime law, signed
by the plenipotentiaries of Great Britain, Austria, France, Prussia, Russia, Sardinia,
and Turkey, assembled in Congress at Paris, April 16, 1856.
The plenipotentiaries wlio signed the Treaty of Paris of the 30th of March, 1856,
assembled in conference, — Considering:
That Maritime Law, in time of war, has long been the subject of deplorable disputes ;
That the uncertainty of the law, and of the duties in such a matter, gives rise to
differences of opinion between neutrals and belligerents which may occasion seriouo
difficulties, and even conflicts ;
1
CHAP. III.]
.899
MILLER V. THE
RESOLUTION” (1).
SECTION 48.
- PRIZE COURTS. 1
MILLER V. THE “ RESOLUTION” (1).
FEDERAL COURT OF APPEALS, 1781.
(2 Dallas, 1.)
These were appeals from the Admiralty Court of Pennsylvania,
where the ship had been acquitted and the cargo condemned.
By the Court [Cyrus GRIFFIN]: 2 – We have considered these
appeals, and are now ready to give our judgment.
That it is consequently advantageous to establish a uniform doctrine on so im-
portant a point;
That the plenipotentiaries assembled in Congress at Paris cannot better respond to
1 “In war the capture of property in the hands of the enemy, used or intended to
be used for hostile purposes, is allowed by all civilized nations, and this whether the
ownership be public or private. The title to movable property in hostile use, captured
on land, passes to the captor as soon as the capture is complete; that is to say, as soon
as the property is reduced to possession. The absolute, title to immovable public
property owned by the enemy does not pass until the war is ended and peace restored.
Then, unless provision is made to the contrary by the treaty of peace or otherwise,
the ownership is changed if the conquest is coniplete.” Kirk v. Lynd, 1882, 106 U. S.
315, 317, per Waite, C. J.
Treating the proceedings in the District Court as in admiralty, they are without
validity. The admiralty jurisdiction of the District Court extends only to seizures on
navigable waters, not to seizures on land. The difference is important, as cases in
admiralty are tried without a jury, whilst in cases at law the parties are entitled to a
jury, unless one is waived. United States v. Betsey, 4 Cranch, 443; The Sarah,
8 Wheat. 391." (. S. v. Winchester, 1878, 99 U. S. 372, 374, per Field, J.
“By the law of nations, as recognized and adninistered in this country, when
movable property in the hands of the enemy, used, or intended to be used, for hostile
purposes, is captured by land forces, the title passes to the captors as soon as they
have reduced the property to firm possession; but when such property is captured by
naval forces, a judicial decree of condemnation is usually necessary to complete the
title of captors. 1 Kent, Com. 102, 110; Halleck's International Law, c. 19, $7; C.
30, $ 4; Kirk v. Lynd, 106 U. S. 315, 317.”. Oukes v. U. S., 1898, 174 U. S. 778, 786,
per Gray, J. See Commodore Stewart's Case, infra.
In the case of The Betsey, 1901, 36 Ct. Cl. 256, a case arising out of the French
Spoliation claims, the Court held, per Nott, C. J., that the prize courts of a belligerent
nation in 1800 were not bound to take notice of a local custom at variance with the
requirements of international law, or to infer, in the absence of an invoice, that the
cargo belonged to the owners of the vessel.
For cases involving the distribution of prize money, see Swan v. U. S., 1884, 19
Ct. Cl. 51 (dealing with Cushing's destruction of The Albemarle, 1864); Dewey v. U. S.,
1899, 178 U. S. 510.- ED.
2 Part of the judgment is omitted. — Ed.
900
[PART II.
BELLIGERENTS AND NEUTRALS.
are not
It has been very truly observed, that this appeal is a case of
importance, not only with regard to the subject in contest, but also
the intentions by which their governments are animated than by seeking to introduce
into international relations fixed principles in this respect:
The above-mentioned plenipotentiaries, being duly authorized, resolved to concert
among themselves as to the means of attaining this object; and, having come to an
agreement, have a lopted the following solemn declaration :
1. Privateering is, and remains, abolished.
2. The neutral flag covers enemy's goods, with the exception of contraband of war.
3. Neutral goods, with the exception of contraband of war, are not liable to capture
under the enemy's flag.
4. Blockades, in order to be binding, must be effective, that is to say, maintained by
a force sufficient really to prevent access to the coast of the enemy.
The governments of the undersigned plenipotentiaries engage to bring the present
Declaration to the knowledge of the states which have not taken part in the Congress.
of Paris, and to invite them to accede to it.
Convinced that the maxims which they now proclaim cannot but be received with:
gratitude by the whole world, the undersigned plenipotentiaries doubt not that the
efforts of their governments to obtain the general adoption thereof will be crowned
with full success. The present declaration shall not be binding, except between those
Powers who have acceded, or shall accede to it. Done at Paris, April 16, 1856.
But the terms of the declaration,” says Mr. Hall, Int. Law, 709–710,
strictly authoritative law, and it is therefore not yet superfluous to sketch, though
more lightly than was formerly necessary, the history and ground of the rival doctrines-
which have been held upon the two subjects. ***
Usually these subjects have been treated together, and the verbal jingle, ‘Free
ships, free goods; enemy ships, enemy goods,' has been thought to express a necessary
correlation, which has been equally supposed to exist between the contrary doctrines.
The Declaration of Paris, in choosing from each system the part most favorable to
neutrals, has at least restored their natural independence, to two essentially distinct
questions of law."
The United States, as is well known, refused to sign the declaration because private
property was not freed from capture at sea, holding that privateers either were or
might be necessary to protect or destroy such commerce in the absence of a power-
ful navy. Mexico, Spain, the United States, and Venezuela, refused to join in the
declaration, but it is likewise common knowledge that Spain and the United States.
adhered to it by express proclamation in their recent war. Mr. Hall is therefore
justified in remarking that although “the freedom of enemy's.goods in neutral vessels.
is not yet secured by a unanimous act, or by a usage which is in strictness binding on
all nations, there is little probability of reversion to the custom which was at one time-
universal, and which till lately enjoyed a superior authority." Int. Law, p. 717.
In his note to the principal case, Mr. Pitt Cobbett says (in his Leading Cases on Inter-
national Law, 24. ed., at p. 299): "This case is cited as illustrating the principle that.
even when, by treaty, the neutral flag covers the goods, yet it must not be made the
medium of an illicit trade. This limitation is equally applicable under the rules now
established by the Declaration of Paris. Although the neutral flag may cover hostile
goods, this will not warrant its being used for the purpose of carrying on illicit traffic."
Since the formal abolishing of privateering, by the Declaration of Paris, supra, the
subject has merely an historical interest. A few notes and references are added. In:
Hooper, Adın'r, v. U. S., 1887, 22 Ct. Cl. 408, 429, the following definition is given :
“A privateer is an armed vessel belonging to one or more private individua's
CHAP. III.]
901
MILLER V. THE
RESOLUTION” (1).
with regard to the great questions of law, which the investigation
and discussion of the merits necessarily introduced; and being before
this court for their determination, the judgment and decree of this
court must be directed by the resolves and ordinances of Congress,
and, where they are silent, by the laws, usage, and practice of
nations.
Upon these grounds, the case has been considered and argued by
the counsel on both sides; and considered so thoroughly and argued
so copiously, fully, and ably, that we have now every possible light of
which the subject admits.
The general question is, “Whether on all the circumstances of
this case, the ship or cargo, or both, or any part of the cargo, be a
prize; and as such ought to be condemned and confiscated?” – the
libellants contend that both ship and cargo are prize — if not the ship,
yet the cargo is prize; if not the whole of the cargo, yet the principal
part of it must be condemned.
Different grounds have been taken to support these several positions
one ground is taken to affect both ship and cargo; other and differ-
ent grounds to affect the cargo; other and different grounds to affect
the principal part of it.
The argument directed against both ship and cargo is this: By the
law of nations, after a capture and occupation for twenty-four hours, the
property captured is transferred to the captors but the ship and cargo
in question were captured and occupied twenty-four hours — therefore
the property was transferred to the captors -- and as the captors were
licensed by government to take prizes from an enemy; its authority in this regari
must depend altogether upon the extent of the commission issued to it, and is qualified
and limited by the laws under which the commission is issued.” The Thomas Gibbons,
& Cranch, 421.
In The Curlew, 1812, Stew. Adm. 312, 326, Dr. Croke said: “By the law of
nations, as well as the municipal law of this country, no private vessel can cruise
against the enemy, but under a lawful commission. The power of granting such com-
mission is the right only of the sovereign, or of those to whom he has deputed it.
The Lord High Admiral, when there is one, and the Lords Commissioners of the
Admiralty, who, when there is no Lord Admiral, is invested with his general rights,
are the only persons to whom it is usual for the King to give authority to grant such
commissions, by themselves or by such persons as they shall appoint. *** By the law
of nations: If any private subjects cruise against the enemy without such commission,
they are lialıle to be treated as pirates.” The American constitutional provision las
been quoted, § 1, ante. Sailing and taking prize without letter of marque vests prize not
in individual captor but in the King as droit of Admiralty, Nichol v. Goodall, 1804, 10
Ves. Jr. 155 (per Lord Eldon); master must be on board when capture made, though
lieutenant's presence was sufficient if captain were dead, The Charlotte, 1804, 5 C. Rob.
280, Commissions must likewise be on board although loss later does not matter;
The Estrella, 1819, 4 Wheat. 304. See generally, Taylor, Int. Law, 440, notes 37, 38,
39. - Ep.
902
[PART II.
BELLIGERENTS AND NEUTRALS.
British subjects, the property was British property, and therefore
legally attacked and captured by the American privateer Ariel.
There is no doubt, but that a capture authorized by the rights of
war transfers the property to the captor; but the question is whether
a capture not authorized by the rights of war can have that legal
operation: for, the claimant says, "that the ship was not originally
British but Dutch and neutral property, and that the cargo also was
not originally British but neutral property, in consequence of articles
of capitulation, stipulated on the conquest of Dominica, by the arms
of his most Christian Majesty."
All the authorities cited on cases of capture authorized by the
rights of war, are where the property captured was the property of
an enemy: not an instance has been produced where a capture, not
authorized by the rights of war, has been held to change the property;
but many authorities have been brought to show, that no change is
effected by such capture. To say that a capture which is out of the
sanction and protection of the rights of war, can nevertheless derive
a validity from the rights of war, is surely a contradiction in terms.
The rights of war can only take place among enemies, and therefore
a capture can give no right, unless the property captured be the
property of an enemy. But it is stated, that both ship and cargo, in
the present case, were originally (that is antecedently to the British
capture) in the predicament of neutral property: no property then
was transferred by the capture, and of consequence the property in
question was not upon the ground it has been considered - British
property. “But, it is said, the fact cannot be ascertained, that the
capture in this case was not authorized by the rights of war · for it
depends upon the will of the sovereign, whether an outrage and
capture, supra altum mare, by his subjects of the property of subjects
of another nation, shall be an illegal and piratical act, or an act of
hostility: that the sovereign is not obliged to promulge his will on
the moment he makes war, and that as the human will has no physi-
cal existence, it cannot be ascertained but by a declaration of it by
the sovereign himself, and therefore non constat, but that the capture
in the present case was authorized by the British Crown, and so a fair
act of hostility, authorized by the rights of war."
This argument is ingenious and plausible, but not solid. As the
state of nature was a state of peace, and not a state of war, the natu-
ral state of nations is a state of peace and society, and hence it is a
maxim of the law of nations, founded on every principle of reason,
justice, and morality, that one nation ought not to do an injury to
another. As the natural state (that of nations) is a state of peace and
benevolence, nations are inorally bound to preserve it. Peace and
$
CHAP. III.]
903
66
MILLER V. THE
.
)RESOLUTION” .
(1)friendship must always be presumed to subsist among nations;
and therefore he who founds a claim upon the rights of war, must
prove that the peace was broken by some national hostility, and war
commenced: but mere conjecture, supposition, and possibility can
render no competent evidence of the fact. But it is said “here was
a national hostility — viz. The capture by the British privateer; and
the act of the subject is the act of the sovereign."
The act of the subject can never be the act of the sovereign; unless
the subject has been commissioned by the sovereign to do it: but, in
this case, there is no evidence that the commission of the British
privateer extended to property, under the circumstances of the prop-
erty captured.
But it is asked “what private or public mischief can be appre-
hended from considering property under the circumstances of this
case as prize: for the wrong was committed by the British privateer,
and therefore the British nation is chargeable with it, and bound to
make compensation.”
We are inclined to think, that were the claimants to apply to the
British Crown for compensation, they would be told " that although
satisfaction were done, yet it would be in proportion only to the
wrong done by the British privateer, which consisted only in the
seizure and detention. But if compensation was expected for ship
and cargo, they must look to that nation for it, whose courts declared
a condemnation, and whose subjects reaped the fruits of it.'
But, it is alleged, that "the late ordinance of Congress is express
and decided, that after a capture and occupation for twenty-four
hours the property captured shall be prize.”
The ordinance of Congress certainly speaks of a legal capture; to
admit a different construction would be a violence both to the terms
and spirit, or intention, of it. Prize is generally used as a technical
term to express a legal capture; and Congress having adopted it in
framing of the ordinance, the general sense or acceptation of it must
determine its import and signification. But suppose the term prize
merely imported a capture, without any reference to its legality, and
that it was the spirit and intention of the ordinance to subject to
prize all captures, both legal and illegal, after twenty-four hours; it
does not follow that it would affect the present case. The municipal
laivs of a country cannot change the law of nations, so as to bind the
subjects of another nation; and by the law of nations a neutral sub-
ject, whose property has been illegally captured, may pursue and
recover that property in whatever country it is found, unless a com-
petent jurisdiction has adjudged it prize. The municipal laws of a
country can only bind its own subjects.
904
[PART II.
BELLIGERENTS AND NEUTRALS.
1
The ordinance of Congress is in truth a new regulation of the jus
post liminii, and limits it to a recapture within twenty-four hours,
and therefore can only relate to the subjects of the United States: it
adopts the ordinance of France, and that ordinance relates only to
the subjects of France. In both cases, with regard to the owner, a
subject, the property captured is not passed away before the expira-
tion of twenty-four hours. But put the case of a capture and the
sale of it before twenty-four hours to a neutral subject; the sale is
certainly good and conclusive upon the owner; for the question must
be decided by the law of nations, and by the law of nations, the
property captured is transferred to the captor as soon as it is taken.
Both the ordinances therefore of Congress and of France, in our
opinion, relate only to property captured from a subject and recap-
tured; and not to property captured from a neutral and recaptured.
It is said, “that arguments drawn from the law of nations with
regard to pirates, do not apply to the present case, because pirates.
have not the rights of war.”
If the principal fact was properly attended to, the present case
could not be questioned. Whence is it that pirates have not the
rights of war? Is it not because they act without authority and com-
mission from their sovereign? And is it not objected and proved,
that the British privateer, with regard to the property captured,
acted without commission and authority from the British Crown? So
far from there being any dissimilarity in the cases, it is in fact the
very case in judgment, considering it on the first ground of argument.
But, it is alleged, “that the capture by the British privateer must
be considered as legal: for, after a capture and occupation for
twenty-four hours, the legality of the capture is not open for ques-
tion and examination."
This doctrine must never be suffered; there is no example or pre-
cedent for it to be found in any of our books; it breaks down and
destroys the distinction between right and wrong; it gives a sanction
to injustice, robbery, and piracy, and it is reprobated by the laws,
usage, and practice of nations. Lord Mansfield, in the case so often
quoted, 2 Burr. 693, says, “The question, whether the property is
transferred by the capture, can only happen between the owner and
vendee, and between the owner and the recaptor.” But the question
could never happen between the owner and the recaptor, if the legality
of the capture was not examinable on every libel for condemnation as
prize. The question is - prize or no prize? That is whether the
capture be legal or not.
The legality of a capture is open for question and examination, till
a competent jurisdiction has decided the question, and a decrce passes
CHAP. III.] MILLER V. THE “RESOLUTION" (1).
905
for condemnation as prize; then, and not before, all further questions
and examinations are precluded; then, all parties, and all foreign
courts, are estopped to say, “the capture is not legal;” and if the
decree be erroneous or iniquitous, the party injured must apply for
redress to that nation whose courts have committed the error or
iniquity.
"Great difficulties, it is said, will arise, if capture and occupation
for twenty-four hours should not be considered as conclusive evidence
of property in the captor, and that the capture was legal.” And it is
asked must a regular title be deduced from the first proprietor to the
captor, as in case of an ejectment at the common law?" And “must
common law strictness, in making out titles, be adopted in Admiralty
Courts?”
Every libel states a title to the thing captured; the title must not
only be stated, but it must also be proved. It is stated in the libel
in this case, that the property captured was British property, and the
evidence to prove it is, “possession and occupation of it by the British
privateer.
A title thus traced is a good one, in a court of common law, except
in a single case: it is a good title against all the world except the
right owner. This exception is founded on every principle of reason
and justice; it ought not only to be adopted in courts of common law,
but in every court, where the distinction between right and wrong is
preserved, and justice regarded. Possession and occupation ought,
upon a question of property, to have the same influence in courts of
adiniralty, as in courts of common law: it ought to be considered as
a good title, and conclusive upon all mankind except the right owner.
Such a title is clear of all difficulties in the proof of it; it excludes
che necessity of a regular deduction of title from the first proprietor
down to the captor; it is disengaged from those entanglements, which
result from a variety of possible changes and mutations of the prop-
erty; and it cannot be shook, but when every honest man will say it
ought to be shook, — when the right owner appears and proves his
property. We have now done with the observations and reasoning,
that relate to the first ground of argument: and are of opinion, that
if the ship and cargo were originally neutral property, the capture
and occupation for twenty-four hours did not change it into British
property and make it prize.1
1 Twenty-four hours' quiet possession by the enemy was test of capture by Act of
Congress, March 27, 1781. Journals of Confederation Congress, VII. 59.
It was held, pp. 15 to 18, and for this purpose the case is cited by Kent, 1 Com.
104, that compacts with common enemy bind allies. - ED.
906
[PART II.
BELLIGERENTS AND NEUTRALS.
A
MILLER V. THE “RESOLUTION” (2).
FEDERAL COURT OF APPEALS, 1781.
(2 Dallas, 19.)
By the Court: - As the original decree has not been carried into
execution, we think it proper, under the peculiar circumstances of the
present case, to allow a rehearing. But this is not to be drawn into
precedent; nor is any point previously determined, to be brought
again into litigation, unless the state of the facts respecting it shall
be altered by the new evidence.
The causes were, accordingly, argued for several successive days;
and on the 24th of Jan., 1782, the following revisionary decree
(altering the suspended decree only as to a part of the cargo) was
delivered by WILLIAM PACA and CYRUS GRIFFIN, the presiding com-
missioners.
By the Court:— We have considered the new evidence which has
been laid before us, and we have also considered the observations and
arguments, which the counsel upon both sides have made upon it.
On the first argument we were of opinion, that the ship ought to
be considered in the predicament of neutral property, and entitled
to all the rights and privileges of neutrality, which the ordinance of
Congress ascertained and conferred; we took up this idea from a con-
struction of the articles of capitulation and the British proclamation,
which issued immediately on the rupture between Great Britain and
the States General, and which protected the ship Resolution for a
limited time from British capture on her passage from Dominica to
Amsterdam: we conceived, that the neutrality of the States General,
with regard to the ship, abstractly considered, was not broken by
the rupture; the proclamation baving controlled the extent of the
war, by its exemption of the ship from being a subject of hostility
and capture.
Such was our opinion on the first argument: but on consideration
of the last argument, we are of a different opinion.
The writers upon the law of nations, speaking of the different kinds
of war, distinguish them into perfect and imperfect: a perfect war
is that which destroys the national peace and tranquillity, and lays
the foundation of every possible act of hostility: the imperfect war
is that which does not entirely destroy the public tranquillity, but
interrupts it only in some particulars, as in the case of reprisals.
CHAP. III.] MILLER V. THE RESOLUTION” (2).
907
Before Great Britain commenced war with the States General, the
States were a neutral nation with regard to the war between Great
Britain, France, Spain, and America: they had taken no part in the
war, and were a common friend to all. This is precisely the legal
idea of a neutral nation: it implies two nations at war, and a third in
friendship with both. The war which Great Britain commenced with
the States General was a perfect war: it destroyed the national peace
of the States General, and with it the neutrality of the nation. The
States became a party in the general war against Britain: they were
no longer a common friend to the belligerent powers; and therefore
they ceased to be a neutral nation.
War having thus destroyed the neutrality of the States General,
they can never resume the character of a neutral until they are in
circumstances to resume the character of a common friend to Great
Britain, France, Spain, and America: but this character is not to be
acquired while war subsists between them and Great Britain. Only
a peace, therefore, between Britain and the States, can put the States
in a capacity to resume their original character of neutrality. But
there can be no peace without the concurrence of both nations: the
British could not therefore, by the mere authority of their proclama-
tion, restore back to the ship Resolution ber original neutrality. The
proclamation could only operate as a protection of the ship from
British capture.
We, therefore, lay out of question the ordinance of Congress with
regard to the rights of neutrality; this case is not within it. But
the ship Resolution is captured and both ship and cargo are libelled
as prize. A question is made; on whom lies the onus probandi?
We think on the captors. There can be no condemnation without
proof that the ship or cargo is prize; and it cannot be expected, that
the persons who contest the capture will produce that proof.
Every capture is at the peril of the party. A privateer is not
authorized to capture every vessel found on the high sea: she is
commissioned to capture only such ships as are the property of the
enemy. Every ship indeed may, in time of war, be brought to and
examined; but she is not to be seized and captured, without the
captors have just grounds to think she is the property of an enemy,
and not the property of subjects of a nation in peace and friendship,
or neutrality. If such seizure and capture are made without just
grounds, the party injured is entitled to have an action for damages:
and it is the policy of all nations at war to oblige the captains of
privateers to give bond and security, to enforce a proper conduct
while at sea, and to prevent seizures and captures from being wan-
tonly made
908
(PART II.
BELLIGERENTS AND NEUTRALS.
7
The sea is open to all nations: no nation has an exclusive property
in the sea. Put the case then, that a privateer meets a ship at sea;
is it to be inferred, from the mere circumstance of the ship's being
found on the high seas, that she is the property of an enemy?
Surely there is no ground for such an inference: on this ground a
privateer might seize and capture the ships of its own nation. But
the privateer attacks, seizes, captures, and brings the ship into port:
it is plain here is an act of violence; a seizure and capture. The
captain therefore must do two things: at all events he must show
just grounds for the violence, or he will be punishable at law by an
action of damages: and in the next place, before he can obtain con-
demnation, he must prove the ship to be the property of an enemy;
for, it can never be enough for condemnation, that he found the ship
at sea.
The captors say: “That in the present case they had not only just
grounds for seizure; but they have also just grounds for condemna-
tion: for both the ship and cargo were found in the possession of
British subjects, and therefore British property."
It must be admitted that possession is presumptive evidence of
property; because possession is a circumstance which generally ac-
companies property; and, therefore, the seizure and capture, in the
present case, was a violence at all events justified by the law of na-
tions, and for which no action would lie, even on acquittal of the
ship and cargo. But the possession in this case is no ground for
condemnation: for what is the nature of presumptive evidence? It
only has the force of evidence whilst it remains uncontested. The
possession is clearly accounted for: the ship came into the hands of
the enemy by capture; and the prior possession was in the hands of
Dutch subjects, and not British subjects. The presumption therefore
relied on by the captors is defeated, and the argument founded on the
possession is in favor of the claimants.
On the question of prize or no prize, what evidence does the law of
nations admit for the determination of it?
The national interest of every commercial country requires, that
some mode or criterion be adopted to ascertain the ship, cargo, des-
tination, property, and nation to which such ship belongs; not only
as a security for a fair commerce according to law; but as a guard
against fraud and imposition in the payment and collectior. of duties,
imposts, and commercial revenues. The peace also and tranquillity of
nations equally require, that the like criterion should be adopted, to
distinguish the ships of different countries found on the high seas in
time of war; to prevent an indiscriminate exercise of acts of hostility,
which may lay the foundation of general and universal war. Hence
1
CHAP. III. ]
909
MILLER V. THE
RESOLUTION” (2).
1
it is, that every commercial country has directed, by its laws, that
its ships shall be furnished with a set of papers called ship papers :
and this criterion the law of nations adopts, in time of war, to dis-
tinguish the property of different powers, when found at sea; not
iudeed as conclusive, but presumptive evidence only. Bills of lad-
ing, letters of correspondence, and all other papers on board, which
relate to the ship or cargo, are also considered as primâ facie evidence
of the facts they speak; because such papers naturally accompany
such a mercantile transaction.
Such then is the evidence which the law of nations admits on a
question of prize or no prize; and it is on this evidence that vessels
with their cargoes are generally acquitted or condemned: and there-
fore, if in this case the papers on board affirm the ship and cargo to
be such property as is not prize, there must be an acquittal, unless
the captors are able, by a contrariety of evidence, to defeat the pre-
sumption which arises from the papers, and can show just grounds
for condemnation. On the other hand, if the papers affirm the ship
and cargo to be the property of an enemy, there must be a condem-
nation, unless they who contest the capture can produce clear and
unquestionable evidence to prove the contrary.
1 In The Nuestra Señora de Regla, 1882, 108 U. S. 92, the court said: “The duty of
a captor is to institute judicial proceedings for the condemnation of his prize without
unnecessary delay, and if he fails in this the court may, in case of restitution, decree
demurrage against him as damages. This rule is well settled. Slocum v. Mayberry,
2 Wheat. 1; The Appollon, 9 Wheat. 377; The Lively, 1 Gall. 315; The Corier Marutimo,
1 C. Rob. 287.” See also Jecker v. Montgomery, supra, for the power to establish a
Prize Court, and see also Fay et al. v. Montgomery, 1852, 1 Curtis, 266, as well for the
duty to send in the prize for adjudication as for circuinstance excusing delay. In
Hooper, Adm'r, v. U. S., 1887, 22 Ct. Cl. 408, 439, Davis, J., says: The distinction
must not be forgotten between a legal and justifiable seizure and an illegal and un-
justifiable condemnation. The seizure of a vessel may be successfully defended upon
grounds which would not support a subsequent condemnation and prize courts deny
damages when there was probable cause for the seizure, and are often justified in
awarding to the captors their costs and expenses,' even when the vessel and cargo are
decided not good prize and returned to their owners. T'he Thompson, 3 Wall. 155;
Jecker v. Montgomery, 13 How. 498; Murray v. The Charming Betsey, 2 Cr. 64.” And
later in discussing the burden of proof, the same learned judge says:
« The burden
of proof in prize proceeding is on the seized vessel. The authorities concur in this gen-
eral statement, but the principle is not teclinical and is not pushed beyond its proper
natural intent. Seized vessels always appear before the court under the taint of
suspicion; that taint it is incumbent upon them to remove, as it is in their power alone
to do so.
What the court looks for is the fact. If it appears that the vessel was in-
nocently pursuing an honest and legal voyage, whether that appear by papers or other-
wise, then the vessel should be released. No particular paper, no specified character
of evidence is marked out and defined as indispensable to attain this end. A case is
easily supposable in which a merchant vessel has lost its papers by accident, or by
theft, or by robbery committed by a pirate or privateer, or through suppression by
910
[PART II.
BELLIGERENTS AND NEUTRALS.
COMMODORE STEWART'S CASE.
UNITED STATES COURT OF CLAIMS, 1864.
(1 Court of Claims, 113.)
He pro-
CASEY, C. J., delivered the opinion of the court:
The claimant sets forth in his petition that, on the 20th February,
1815, he was a captain in the navy of the United States and was in
command of the United States frigate Constitution. That on that
day he overtook, on the high seas, about sixty leagues from the island
of Madeira, the British ships-of-war Cyane and Levant and engaged
them; and, after a sharp conflict of forty minutes, they surrendered
to him and he took possession of them as prizes of war.
ceeded with them and his own ship to the island of St. Iago, in the
possession of the troops, and subject to the dominion of the prince
regent of Portugal, with whom the United States was then at peace,
and who had issued a declaration of neutrality between the belligerents,
the United States and Great Britain.
Having come to anchor in the port of Praya, on the 10th of March,
1815, and while he was preparing to divest himself of the prisoners
taken on the Cyane and Levant by sending them to Barbadoes, he
discovered on the following day, off the port, a squadron consisting
of three British ships-of-war, the Leander, New Castle, and Acasta ;
but which, in consequence of the prevalence of a dense fog, were not
discovered until within three miles, and standing in for anchorage.
Being apprehensive that the enemy would not respect the immunity
afforded by a neutral port, Captain Stewart put to sea with the
Constitution and his prizes, and the squadron immediately gave chase.
the captor, and it could not be admitted — the fact of their non-production being
explained, and the vessel's honest character being shown — that because some partic-
ular document was not on board she therefore should be condemned and confiscated.
The onus probandi is on the captured vessel; which means no more than that she must
explain away suspicious circumstances."
In the ship Tom, 1894, 29 Ct. of Cls. 68, 97, it is held that a belligerent, seizing a
neutral vessel upon mere suspicion, is responsible for the vessel, and is excused for her
loss only where it is caused by unavoidable casualty. In The Caroline Wilmans, 1892,
27 Ct. of Cls., it was held that captors are not liable for loss, without their fault, of a
vessel seized and held as contraband of war.
For the duties of captors, see The Anna Maria, 1817, 2 Wheat. 328, 332; The Vrouw
Johanna, 1803, 4 C. Rob. 348, 351; The San Juan Baptista, 1803, 5 C. Rob. 33; The
Zee Star, 1801, 4 C. Rob. 71; The Felicity, 1819, 2 Dod. 381, 383; The Leucade, 1855,
Spinks, 217, 221; Der Mohr, 1802, 4 C. Rob. 314; Die Fire Damer, 1805, 5 C. Rob.
357. -ED:
CHAP. III.]
911
COMMODORE STEWART'S CASE.
After about an hour's chase, finding the Cyane sailing dull and
dropping down on the Acasta, he signalled her to tack, which she
immediately did, doubled the rear of the enemy and afterwards arrived
safely at New York. The enemy took no notice of the Cyane's change
of course, but continued the pursuit of the Constitution and Levant.
Soon after he discovered the Levant dropping down in the same way
that the Cyane had done, and he ordered her also to tack, which she
did. The enemy continued the chase after her, cut off her retreat,
and forced her back into the port of Praya, where she came to anchor
close to the battery. She was in this position when the enemy's ships
stood in, fired at her, and forced her to surrender, took possession of
her, and carried her out of the harbor, without the Portuguese authori-
ties attempting to hinder or prevent them, or offering any resistance
or remonstrance to the violation of the neutral rights and sovereignty
of Portugal.
The claimant further alleges that the United States had a clear and
undoubted claim upon the Portuguese Government for allowing
hostilities to be carried on and recapture of the ship made within her
neutral territory, and that the claim of the claimant and bis crew
was recognized by Mr. Crowninshield, Secretary of the Navy, in a
letter addressed to the claimant on the 13th June, 1816.
He further avers that in the years 1850 and 1853 he called the
attention of the Secretary of State of the United States to the case,
and that the replies assured him that the matter should receive the
attention and consideration which its importance demanded.
The petition also alleges that claimant memorialized Congress on
the same subject, and that the Naval Committee of the House of
Representatives, in 1816, reported against the payment of the whole
value of the Levant to the officers and crew of the ship Constitution,
but recommended the passage of an act giving them the sum of
twenty-five thousand dollars, which should be deducted from the whole
value, if the United States recovered it from Portugal. The value is
alleged to liave been one hundred thousand dollars. The act passed by
Congress is in the following words:
“An Act rewarding the officers and crew of the Constitution for the
capture of the British sloop-of-war Levant: -
“Be it enacted,” &C., “ That the President of the United States be and
hereby is, authorized to have distributed as prize money, to Captain
Charles Stewart, late of the frigate Constitution, his officers and crew,
the sum of twenty-five thousand dollars, for the capture of the British
sloop-of-war Levant; and that the sum of twenty-five thousand dollars,
out of any money in the treasury not otherwise appropriated, be and
the same is hereby appropriated for the purpose aforesaid."
912
[PART II.
BELLIGERENTS AND NEUTRALS.
This act was approved 26th April, 1816 (3 Stat. 301), and the
money was paid according to its provisions.
The petition also avers that he and those for whom he claims are
citizens of the United States, and can have no redress against the
Portuguese Government, from whom the indemnity is due ; that it
was and is the duty of the United States to prosecute and enforce the
claim, on their behalf, against Portugal, and on the recovery of the
amount to distribute the same to him, his officers and crew; that there
was a convention between the two governments in 1851 for the adjust-
ment of the claims of citizens of the United States against Portugal,
in which this claim was not included, and that by having relinquished
the claim without the authority or consent of claimants, or failed to
prosecute and enforce it, the United States became liable to pay it
themselves.
The 5th and 6th sections of the Act of Congress approved 232
April, 1800 (1 Stat.), in force at the time of the capture of these
vessels, gave the captors the whole of the captured vessels, where
they were superior in force to the vessel making the capture. The
Cyane was libelled in the Admiralty Court at New York and duly
condemned as good and lawful prize to the captors. The clainant
contends that by the capture of the Levant the prize vested in hiin and
his crew; that the recapture under the circumstances alleged was
illegal, and that Portugal was liable to the United States, and they
to the claimants, for the value of the prize:
To this petition the solicitor of the United States has demurred, and
assigns for cause of demurrer:
1st. That the petition sets forth no valid ground of claim.
20. That it does not appear that the United States had released
Portugal, or relinquished any claim the plaintiffs have upon her for
indemnity.
There can be little doubt that the facts set forth in the petition
and on this demurrer they must be taken as true show that the
officer in command of the British squaclron was guilty of the violation
of the neutral rights of Portugal in making her territory the scene of
conflict with and capture of this vessel. For such an insult to her
sovereignty and invasion of her just rights as a neutral, she had just
grounds, under the law of nations, to claiin indemnity and reparation
from Great Britain. It is equally clear, we think, that the United
States had the right to insist upon indemnity from Portugal for this
invasion of her right of asylum in a neutral port.
Hostilities began or continued in a neutral territory must violate
the rights of sovereignty of the nentral power, and therefore the law
of nations forbids the belligerent power to begin or continue hostilities
CHAP. III.]
913
COMMODORE STEWART'S CASE.
in the territory or ports under the dominion of the neutral sovereign.
Marten's Law of Nations, bk. 6, ch. 6, $ 6.
For this reason, when two vessels, enemies of each other, meet in a
neutral port, or one pursues the other into such port, not only must
they refrain from all hostilities while they remain there, but should
one set sail, the other must not sail in less than twenty-four hours
afterwards. Moser's Grundlehren, ch. 21, § 25, p. 269.
And because foreigners can do nothing in a territory against the
will of the sovereign, it is unlawful to attack an enemy in a neutral
country, or commit in it any other act of hostility. The Dutch East
India fleet having put into Bergen, in Norway, in 1666, to avoid the
English, the British admiral had the temerity to attack them there.
The governor of the town fired upon the assailants, and the Danish
Government made it the subject of grave complaint, as being in
violation of her neutrality and injurious to her honor and dignity
as an independent and neutral sovereignty. Vatt. bk. III. ch. vii.
§ 132.
Belligerent powers must be exercised within the belligerent territory,
on the high seas or on territory belonging to no one; and all hostilities
exercised within the territorial jurisdiction of the neutral power are
unlawful, and are strictly prohibited by the law of nations. Wheat.
L. of Nat. p. 713–14. It follows that all captures made within such
neutral territory are absolutely void. Ibid. 715. Bynkershoek
indeed mentions an exception to this rule in the case of an hostile
vessel met at sea, which he says in the pursuit may be chased into the
neutral territory; but he is not sustained by any writer of authority
or by the adjudications of the prize courts. “When the capture within
the neutral territory is established," says Sir William Scott, “it over-
rules every other consideration, — the capture is done away; the
property must be restored, notwithstanding it may actually belong to
the enemy." The Vrouw Anna Catharina, 5 Rob. 15; Wheat. Law of
Nations, p. 722.
So far has this doctrine been carried that it is held to be a violation
of the rights of sovereignty of the neutral power to issue a belligerent
commission within a neutral country, or to equip and fit out cruisers
in such country, or to augment the force of a belligerent ship in a
neutral port. In all these, and the like cases, if captures are subse-
quently made on the belligerent territory, or the high seas, and
prizes are brought into a port of such neutral country, restitution will
be decreed and enforced by the tribunals of the country whose neutral-
ity has been violated. Talbot v. Jansen, 3 Dall. 133; The Alesta, 9
Cranch, 359; The Estrella, 4 Wheat, 298; The Arragonte Barcelones,
7 Wheat. 496; La Conception, 6 Wheat. 235; The Santa Maria, 7
914
BELLIGERENTS AND NEUTRALS.
(PART II.
Wheat. 490; The Santissima Trinidad, 7 Wheat. 233; Abbot on
Shipping, p. 34, in note; The Anna, 5 Rob. 373.
These authorities, and many others that might be cited, show very
clearly that the acts and proceedings of the British officer in command
of the squadron were unlawful, and the recapture of the Levant, under
the circumstances and in the place it occurred, a high-handed and
unjustifiable proceeding. But Portugal alone had a right to complain
of his conduct to the government he represented, and in whose behalf
he committed the act. The claimant, through the government of the
United States, whose flag he carried, could only complain to Portugal
of her conduct. in failing, through weakness, timidity, or favor to our
enemy, to maintain her neutrality, and secure to our citizens the
protection they had a right to expect from a neutral sovereign within
his territory.
So far as the case before us develops the facts, it does not appear
that Portugal ever obtained from Great Britain any reparation or
indemnity for this act, and it is certain that the United States received
none from Portugal. Whether the claimant can maintain this suit
against the United States will depend upon whether the claimants
had such a right in the captured ship as required the United States to
prosecute and enforce it against Portugal. And also whether, if the
United States released and relinquished the claim on considerations
of public policy, they became liable for the amount to the claimants.
The argument on behalf of the claimants assumes that the captors
had a right and title to the captured ship, and of which they were
illegally divested or deprived.
There is no doubt if this vessel had reached a port of the United
States she would have been condemned as a good prize to the claim-
ants; for the Cyane, taken in the same engagement and at the same
time, was actually so condemned. The title to property lawfully
taken in war may, upon general principles, be considered as imme-
diately divested out of the original owner and transferred to the captor.
As to personal property, it is considered as lost to the owner as soon
as the enemy has acquired a firm possession, which is in general
considered as taking place after the lapse of twenty-four hours, or
after the booty has been carried into a place of safety, infra præsidia.
Grotius, Lib. III. cap. 6, § 3; cap. 9, § 14; Klüber Droit des
Gens. Moderne de l'Europe, $ 254; Vattel, bk. III. cap. 14, $ 196;
cap. 14, § 209; Heffter das Europäische Völkerrech, § 136.
It is upon authorities like the foregoing that the right and title of
the claimants in the present case is predicated. But these general
expressions refer to the time when the title of the original owner is
rivested, rather than when the right of the individuals making the
1
CHAP. III.]
915
COMMODORE STEWART'S CASE.
92
capture vests. Attention for a moment to the foundation and origin
of the right of the individual to the captured property will assist us in
the solution of this question. That right is acquired not in virtue of the
seizure of it as enemies' property, but by grant of the sovereign whose
commission the captor bears. Judge Story says: “It is now clear that
all captures in war inure to the sovereign, and become private property
only by his grant.” The Emulous, 1 Gall. 569; 11 East. 619.
The right all to captures from the earliest times has vested primarily
in the sovereign, and no individual can have any interest in a prize,
whether made by a public or private armed vessel, except that which
he receives from the bounty of the State. Law of Marine Warfare,
p. 374; Valin Com. II. 235; Bynk., cap. 17; Sir L. Jenkins's Work,
p. 714. An interest in a prize can only be derived from the govern-
ment. 1 Phillips on Insurance, 182, $ 320; The Joseph, 1 Gall. 558;
11 East. 428. It is even denied that the individual captors, prior to
condemnation, have any insurable interest in the captured property.
Routh v. Thompson, 11 East. 432; De Vause v. Steele, 6 Bingh. N.
C. 370; Lucena v. Crawford, 3 B. & P. 75; 5 Id. 323; Crawford v.
Hunter, 8 T. Rep. 13.
The principle applicable to this case to be extracted from the
authorities cited is, that by the capture of this ship the property to
it vested in the United States, and whatever right to or title in it the
claimants aoquired must be derived from their sovereign authority.
Such a grant is set up under the act of Congress approved the 23d
April, 1800, § 5, which is as follows:
“ The proceeds of all ships and vessels, and the goods taken on
board of them, which shall be adjudged good prize, shall, when of
equal or superior force to the vessel or vessels making the capture, be
the sole property of the captors; and when of inferior force, shall be
divided equally between the United States and the officers and men
making the capture.” Bright. Dig. p. 665, pl. 78.
The property of the original owner cannot be considered as fully
divested until there has been a condemnation by a regular prize tribunal
having jurisdiction of the subject matter. Until such adjudication is
made, the right of recapture continues, as well as the right of post
liminii. And in case the captured vessel escapes, is recaptured, or is
voluntarily discharged, the jurisdiction of the prize court is lost, and
all rights acquired by the capture are divested. 1 Kent's Com. 359.
The Supreme Court of the United States say: “The right of capture
is a limited right, is derived from the law, and is subject to all the
restrictions the law imposes, and is to be exercised in the manner in
which its wisdom has prescribed." The Thomas Gibbons, 3 Cranch, 421.
The question of prize may always be contested, either on account of
916
BELLIGERENTS AND NEUTRALS.
[PART II.
the character of the vessel or cargo, the conduct of the captors, or
the place and circumstances where and under which the capture was
made; and until their right is established by the sentence of a compe-
teut tribunal, the captors are not invested with the property. Vincen's
Exposition raisonnée de la Legislation Commerciale, ch. 17.
A citizen may seize the property of an enemy wherever found, and
it rests with the sovereign whether he will ratify and consummate
the capture by proceeding to condemnation. Per Story, J., The
Emulous, 1 Gall. 566.
These authorities are very full and conclusive that this capture,
whatever right it conferred or property it changed, was in favor of the
United States. It remains to inquire what property or interest the
individual captors acquired by the surrender of the ship and her
conveyance to this neutral port. The claimants contend that under
the act cited they were once invested with the right to the vessel, that
it operated as an immediate transfer of the right of the United States.
to them. Such a position is assumed, we think, without due attention
to the form of the grant and the character of the grantor. · It being
the grant of the sovereign, it is contrary to the general rule to be most
strongly against the grantee and in favor of the grantor. It can only
take effect when its stipulations, limitations, and conditions have been
complied with. The act prescribes that those vessels or cargoes
"which shall be adjudged good prize" shall be the property of the
captors. This, of course, upon the rule we have stated, excludes all
such as have not been adjudged good prize ; for expressio unius, est
exclusio alterius. The title depends. upon a grant, and must conform
to it and comply with its conditions. The condition in this case is,
that it shall be brought in and condemned as lawful prize before any
title accrues. Chief Justice Taney says: “All captures jure belli are
for the benefit of the sovereign under whose authority they were
made; and the validity of the seizure, and the question of prize or no.
prize, can be determined in his own courts only upon, which he has
conferred jurisdiction to try the question.” Jecker v. Montgomery, 13
How. 515. To the same effect is the judgment and opinion of Sir
William Scott. That eminent admiralty judge says: “All grants of
the sovereign are to be strictly construed against the grantee, contrary
to the usual policy of the law in the consideration of grants; and
upon this just gronnd, that the prerogatives, rights, and emoluments
of the sovereign being conferred upon him for great purposes and for
public use, it shall not be intended that such prerogatives, rights, and
emoluments are diminished by any grant beyond what such grant by
necessary and unavoidable construction shall take away." The Rebercah,
1 C: Rob. 230.
0
CHAP. III.]
917
COMMODORE STEWART'S CASE.
The case which bears most strongly on the question in hand is the
judgment of the same great jurist in the case of The Elsebe, 5 Rob.
173. In that case there was a capture of a vessel jure belli. She was
brought into an English port and libelled, but before adjudication, on
the application of the diplomatic representative of the nations whose
citizens were principally interested, the executive government of Great
Britain directed the lords of the admiralty to release the ship and
hand her over to the original owners. The case rose on a inotion in
the High Court of Admiralty to proceed to adjudication upon the
rights of the captors, notwithstanding the release and discharge of
the ship. The grounds taken on the part of the libellants were that
the Crown had not the right to release ; because such a right and
interest had vested in the captors at the time of seizure, under the
grant of prize, &c., as to entitle them to proceed to adjudication,
notwithstanding an order of release on the part of the government.
In delivering the opinion, that great judge says: “It is admitted on
the part of the captors that their claim rests wholly on the order of
council, the proclamation, and the prize act. It is not (as it cannot
be) denied that, independent of these instruments, the whole subject-
matter is in the Crown, as well in point of interest as in point of
authority. Prize is altogether a creature of the Crown.
“No man has or can have any interest but what he takes as the
inere gift of the Crown. Beyond the extent of that gift he bas
nothing. This is the principle of law on the subject, and founded on
the wisest reasons. The right of inaking war and peace is exclusively
in the Crown. The acquisitions of war belong to the Crown; and the
disposal of these acquisitions may be of the utmost importance for
the purposes both of war and peace. This is no peculiar doctrine of
our Constitution; it is universally received as a necessary principle of
public jurisprudence by all writers on the subject, bello parta cedunt
reipublicæ. It is not to be supposed that this wise attribute of sover-
eignty is conferred without reason; it is given for the purpose
assigned, that the power to whom it belongs to decide on peace or
war may use it in the most beneficial manner for the purposes of both.
"A general presumption arising from these considerations is, that
government does not mean to divest itself of this universal attribute
of sovereignty, conferred for such purposes, unless it is so clearly and
unequivocally expressed. In conjunction with this universal presump-
tion must be taken also the wise policy of our peculiar law, which
interprets the grants of the Crown, in this respect, by other rules than
those which are applied in the construction of the grants of individuals.
Against an individual it is presumed that he meant to convey a benefit
with the utmost liberality that his words will bear. It is different to
918
BELLIGERENTS AND NEUTRALS.
[PART II.
the public in which person an interest remains, whether in the grantor
or the taker. With regard to the grant of the sovereign it is far
otherwise. It is not held by the sovereign himself as private property;
and no alienation shall be presumed except that which is clearly and
indisputably expressed.”
Having shown that all prizes vest in the Crown - that the right of
the captors rests only on the gift of the Crown, in the order in council,
the proclamation, and the prize acts — he proceeds to show that it was
merely a right to seize and bring in for adjudication a certain description
of property, and that the interest of the captors in the prizes only
vested when condemnation took place, and that prior to such time the
sovereign could dispose of them as he saw proper, without impiuging
upon the vested rights of the people.
If these principles are sound, and we think they are sustained by
the strongest reasons and the highest authorities, it must follow that
this suit cannot be maintained by this claimant, for want of title to
and interest in the subject-matter in respect of which the claim is
made.
By the seizure of the ships they acquired a right to carry them into
a port of this country for adjudication. It is the condemnation under
the act which gives the interest, and not the seizure. The capture
vests it in the United States the condemnation in the captors. It
follows, as a necessary consequence from this, that there never having
been a condemnation by a competent tribunal, there never has been
any legal right vested in the claimants. Nor could there be any such,
for it required the judgment of a competent prize tribunal to vest that
right in them under the act of Congress. No other court is competent
to supply the want of it, because that is an essential condition of the
grant, and cannot be supplied by anything else. What follows then ?
Simply this, that when the Levant was permitted to be unlawfully
recaptured by the Portuguese Government, in violation of the rights
of hospitality, as well as her neutrality, the sole right to and interest
in the captured prize was in the United States alone. The injury was
committed against her rights; and whether she should demand repara-
tion in any form, or to any extent, was a matter to be dictated and
controlled by considerations of public interest and policy alone, and
not by any considerations of private interest or grievance, for none
existed.
The case of the brig Armstrong, decided by a majority of this court
some years ago, has been pressed upon our attention as ruling this
case. We do not think so.
. The question upon which this case is
ruled did not and could not arise in that case. There was no question
of prize in that cause. It was the destruction of a ship owned by
$
CHAP. III.]
919
THE
'FLAD OYEN."
private individuals. I may, however, be permitted to say for myself,
that the very able opinion delivered by Judge Gilchrist has failed to
satisfy me of the soundness of the conclusion reached in that case.
Congress seems to have taken much the same view of the questions
involved that we do now when they passed the act giving the claimants
the sum of twenty-five thousand dollars for the capture of the Levant.
That the capture was an act of general merit and heroism is universally-
admitted. And we confess that it would have afforded us sincere
gratification if the law and the facts of this case had permitted us to
convey a more substantial acknowledgment of the great services
rendered by the venerable and illustrious commander of the Constitu-
tion and his gallant crew, who have contributed so much to make our
flag respected on the seas, and to the lasting renown of our country.
But we are restrained and guided by the law of the case, leaving all
other considerations for that department of the government to which
they appropriately belong.
We, therefore, are compelled to sustain the demurrer and dismiss
the petition.
THE 5 FLAD OYEN.”
HIGH COURT OF ADMIRALTY, 1799.
(1 C. Robinson, 114.)
Judgment. — Sir W. Scott:2 —
This is the case of a ship taken by a French privateer, and carried
into the port of Bergen in Norway, where it appears she underwent a
sort of process, which terminated in a sentence of condemnation, pro-
nounced by the French consul; and under that sentence, she asserted
to have been transferred to the present neutral proprietor.
But another question has arisen in this case, upon which a great
deal of argument has been employed; namely, whether the sentence
of condemnation which was pronounced by the French consul, is of
1 This is the second occasion on which the famous frigate appeared in court. The
other case of The Constitution will be found ante, 218. For a description of the naval
battle out of wbich Commodore Stewart's Claim arose, see Hollis, The Frigute Con-
stitution (1901), pp. 196–215.
It may be of interest to note that Stewart remained in active service until he was
retired as senior commodore in 1856 and flag-officer in 1860; that on July 16, 1862, he
was commissioned rear-admiral in his eighty-fourth year, and that lie remained on
waiting orders until his death, in 1869. His fighting qualities as well as his name
appeared in his grandson, the late Charles Stewart Parnell. -Ed.
2 The statement of facts and part of the judgment have been omitted. — Ed.
920
[PART II.
BELLIGERENTS AND NEUTRALS.
such legal authority as to transfer the vessel, supposing the purchase
to have been bona fide made? I directed the counsel for the claimants
to begin; because, the sentence being of a species altogether new, it
lay upon them to prove that it was nevertheless a legal one.
It has frequently been said, that it is the peculiar doctrine of the
law of England to require a sentence of condemnation, as necessary to
transfer the property of prize; and that according to the practice of
some nations twenty-four hours, and according to the practice of others
bringing infra presidia, is authority enough to convert the prize. I
take that to be not quite correct; for I apprehend, that by the general
practice of the law of nations, a sentence of condemnation is at pres-
ent deemed generally necessary; and that a neutral purchaser in
Europe, during war, does look to the legal sentence of condemnation
as one of the title-deeds of the ship, if he buys a prize vessel. I
believe there is no instance in which a man having purchased a prize
vessel of a belligerent, has thought himself quite secure in making
that purchase, merely because the ship had been in the enemy's pos-
session twenty-four hours, or carried infra presidia : the contrary has
been more generally held, and the instrument of condemnation is
amongst those documents which are most universally produced by a
neutral purchaser; that if she has been taken as prize, it should
appear also that she has been, in a proper judicial form, subjected to
adjudication.
Now, in what form have these adjudications constantly appeared ?
They are the sentences of courts acting and exercising their functions
in the belligerent country; and it is for the very first time in the
world, that in the year 1799, an attempt is made to impose upon the
court a sentence of a tribunal not existing in the belligerent country,
but of a person pretending to be authorized within the dominions of a
neutral country: in my opinion, if it could be shown, that, regarding
mere speculative general principles, such a condemnation ought to be
deemed sufficient; that would not be enough; more must be proved;
it must be shown that it is conformable to the usage and practice of
nations.
A great part of the law of nations stands on no other foundation:
it is introduced, indeed, by general principles; but it travels with
those general principles only to a certain extent: and, if it stops there,
you are not at liberty to go farther, and to say, that mere general specu-
lations would bear you out in a further progress : thus, for instance,
on mere general principles it is lawful to destroy your enemy;
and
mere general principles make no great difference as to the manner by
which this is to be effected; but the conventional law of mankind,
which is evidenced in their practice, does make a distinction, and
$
CHAP. III.]
921
THE “FLAD OYEN."
allows some, and prohibits other modes of destruction; and a bellig-
erent is bound to confine himself to those modes which the common
practice of mankind has employed, and to relinquish those which the
same practice has not brought within the ordinary exercise of war,
however sanctioned by its principles and purposes.
Now, it having been the constant usage, that the tribunals of the
law of nations in these inatters shall exercise their functions within
the belligerent country; if it was proved to me in the clearest manner,
that on mere general theory such a tribunal might act in the neutral
country; I must take my stand on the ancient and universal practice
of mankind; and say that as far as that practice has gone, I am will-
ing to go; and where it has thought proper to stop, there I must stop
likewise.
It is my duty not to admit, that because one nation has thought
proper to depart from the common usage of the world, and to meet
the notice of mankind in a new and unprecedented manner, that I am
on that account under the necessity of acknowledging the efficacy of
such a novel institution ; merely because general theory might give it
a degree of countenance, independent of all practice from the earliest
history of mankind. The institution must conform to the text law,
and likewise to the constant usage upon the matter; and when I am
told, that before the present war, no sentence of this kind has ever
been produced in the anals of mankind; and that it is produced by
one nation only in this war; I require nothing inore to satisfy me, that
it is the duty of this court to reject such a sentence as inadmissible.
Having thus declared that there must be an antecedent usage upon
the subject, I should think myself justified in dismissing this matter
without entering into any farther discussion. But even if we look
farther, I see no sufficient ground to say, that on mere general prin-
ciples such a sentence could be sustained : proceedings upon prize are
proceedings in rem ; and it is presumed, that the body and substance
of the thing is in the country which has to exercise the jurisdiction.
I have not heard any instances quoted to the contrary, excepting in a
very few cases which have been urged, argumentatively, in the way
which is technically called ad hominem, being cases of condemnations
of British prizes carried into the ports of Lisbon and Leghorn ; but in
those the condemnations were pronounced by the High Court of
Admiralty in England. The only cases are of two ships carried into
foreign ports, and condemned in England by this court; the very
infrequency of such a practice shows the irregularity of it. Upon
cases in the practice of other nations antecedent to the present war,
the advocates have been silent.
Now, as to these condemnations of prizes carried to Lisbon and
922
[PART II.
BELLIGERENTS AND NEUTRALS.
Leghorn, it has been said, that if the courts of Great Britain venture
this degree of irregularity, other countries have a right to go farther.
That consequence I deny: the true mode of correcting the irregular
practice of a nation is, by protesting against it; and by inducing that
country to reforin it: it is monstrous to suppose, that because one
country has been guilty of an irregularity, every other country is let
loose from the law of nations; and is at liberty to assume as much as
it thinks fit.
Upon these ports of Lisbon and Leghorn it is to be remarked, that
they have a peculiar and discriminate character, a character that to
a certain degree assimilates them to British ports: the British exist
there in a distinct character, under the protection of peculiar treaties;
and with respect to Portugal, those treaties go so far as to engage, that
if a ship belonging to one country shall be brought by its enemy into
the ports of another, which happens to be at peace, this neutral coun-
try shall be bound to seize that ship, and restore it to its ally: to be
sure no covenant can have more the effect of giving the ports of Eng-
land and Portugal a reciprocal relation of a very peculiar sort — to
make the British ports Portuguese ports, and the Portuguese ports
British ports to a certain degree. Now, unless I am given to under-
stand that peculiar treaties between France and Denmark have im-
pressed such a distinctive character upon the port of Bergen, I cannot
allow that it can be considered, on the mere footing of general neutral-
ity, to be a French port, exactly in the same manner in which London
way be considered as a Portuguese port, or Lisbon as a British port.
But supposing this possible, still it would not follow that such con-
demnations could be pleaded as authorities in the present case ; because,
in the first place, the validity of such condemnations themselves may
be the subject of reasonable doubt. For it by no means appears that
the enemy, or neutrals, who might have an interest in contesting them,
have ever acknowledged their validity. Whoever purchases under
such sentences must be content to purchase them subject to all the
questions that may arise upon their sufficiency.
But, 2dly, Supposing that no doubts could be entertained respecting
the sufficiency of such sentences; it by no means follows that the
efficacy of the present sentence can be supported : there the tribunal
is acting in the country to which it belongs, and with whose authority
it is armed. Here a person, utterly naked of all authority except over
the subjects of his own country, and possessing that merely by the
indulgence of the country in which he resides, pretends to exercise a
jurisdiction in a matter in which the subjects of many other States
may be concerned. No such authority was ever conceded by any
country to a foreign agent of any description residing within it: and
(
CHAP. II.)
923
THE
66
FLAD OYEN.”
least of all could such an authority be conceded in the matter of prize
of war
a matter over which a neutral country has no cognizance
whatever, except in the single case of an infringement of its own ter-
ritory; and in which such a concession of authority cannot be made
without departing from the duties, and losing the benefits, of its
neutral character.
Mark the consequences which must follow from such a pretended
concession : observe in the present case how it would affect the neutral
character of the ports in the north! If France can station a judge of
the Admiralty at Bergen, and can station there its cruisers to carry
in prizes for that judge to condemn; who can deny that to every pur-
pose of hostile mischief against the commerce of England, Bergen will
differ from Dunkirk, in no other respect than this, that it is a port of
the enemy to a much greater extent of practical mischief. To make
the ports of Norway the seats of the French tribunals of war, is to
make the adjacent sea the theatre of French hostility.
It gives one belligerent the unfair advantage of a new station of
war, which does not properly belong to him; and it gives to the other
the unfair disadvantage of an active enemy in a quarter where no
enemy would naturally be found. The coasts of Norway could no
longer be approached by the British merchant with safety, and a sus-
pension of commerce would soon be followed by a suspension of amity.
Wisely, therefore, did the American Government defeat a similar
attempt made on them, at an earlier period of the war: they knew that
to permit such an exercise of the rights of war, within their cities,
would be to make their coasts a station of hostility.
Whether the government of Denmark has shown equal vigilance in
observing, or equal indignation in repelling the attempt, is more than
I am warranted to assert: but though the publicity of the transaction
in the town of Bergen may subject the police of that place to some
degree of observation, I see nothing in the papers which issue
immediately from the royal authority that at all affects the govern-
ment itself with the knowledge and approbation of the fact; and
indeed it would be indecent to suppose that a country, standing upon
the footing of ancient and friendly alliance to this country, could have
given its sanction to a measure so full of hostility to its friend, and
of possible inconvenience to itself: I must, therefore, deem the act of
1 The incident referred to was the attempt in 1793 of the French minister, “ Citi-
Genêt, to offer conmissions to citizens of the United States to cruise in the
service of France against Great Britain, to fit out privateers, to set up French con-
sular prize courts, so that prizes brought in could be condemned in American ports,
and otherwise to employ the territory of this country for belligerent purposes.
5 Moore, Int. Arb. 4404-4411; Taylor, Int. Law, $ 640. See also Hall, Int. Law,
§ 213. — Ep.
zen
924
BELLIGERENTS AND NEUTRALS.
(PART II.
this French consul a licentious attempt to exercise the rights of war
within the bosom of a neutral country, where no such exercise has
ever been authorized.
ODDY V. BOVILL.
King's. BENCH, 1802.
(2 East, 473.)
1
In the war between Great Britain and France, Spain was in 1799
an ally of the latter power. A prize was taken by a French privateer,
carried into a port of Spain, and condemned as enemy's property by a
French court sitting in Spain.
LAWRENCE, J.:- - The question is, Whether this sentence of con-
demnation be conclusive evidence that the property insured was
British, and consequently, that the warranty of its being neutral was
not complied with? The argument was attempted to be carried into
a wider field than we think it fit now to enter into, since the case of
Hughes v. Cornelius, T. Ray. 473; Skin. 59, and 2 Show. 232, and a
long string of authorities which have followed that decision. We
must now therefore take it for granted, that if this sentence were
given by a court of competent jurisdiction, it is conclusive upon the
point then in judgment, namely, against the neutrality of the prop-
erty. The case of the Flad Oyen has been made the basis of the
argument, to show, that unless the prize court were constituted
according to the law and practice of nations, it could have no juris-
diction. If there were no other case on the subject determined by
the same learned judge, to explain how far he meant to go in that
case, it might be doubtful, from some expressions there used, whether
it did not extend to a case circumstanced like the present: but if we
look at his other decisions on this subject, particularly in that of the
Christopher [2 C. Rob. 209], though I do not mean to say that it is
directly in point, it sufficiently appears from the reasons assigned by
him in giving judgment, to what extent he meant the doctrine laid
down by him in the Flad Oyen case should be understood; and that
he did not intend to deny the legality of such sentences of condemna-
tion by the captors in the country of a co-belligerent or ally in the
war; because, as he observes, there is a common interest between
such on the subject, and both governments may be presumed to
authorize any measures conducing to give effect to their arms, and
to consider each other's ports as mutually subservient. This very
i Short statement substituted for that of original report. -- ED.
.
t
CHAP. III.]
925
ODDY V. BOVILL.
question appears to have arisen in several subsequent cases; and
in the case of the Betsy Kruger, in August, 1800, seems to have been
considered by the advocates as so thoroughly understood and settled,
that the question of law was waived, as one not to be discussed; and
the court, proceeding on the ground that the condemnation was legal,
directed further proof to be made of the fact of the transfer. We
find then this question already determined by a court having peculiar
jurisdiction in cases of this sort, of which we have only incidental
jurisdiction. That'determination therefore is as conclusive on us, as
to the proper rule of decision, as a judgment of the common law courts
on a question of real property would be on the civil law courts.
LE BLANC, J.:--The subsequent cases referred to are explanatory
of the opinion delivered by Sir W. Scott in the case of the Flud
Oyen, and show that he considered that there was a material distinc-
tion between a sentence of condemnation, pronounced by the authority
of the capturing country in the state of a co-belligerent, and one so
pronounced in a neutral country. Now this is the case of a sentence
of condemnation in the country of a belligerent power, an ally of the
captors; and is exactly like the cases of The Harmony, 2 Rob. 210 n.,
the Adelaide (Id.], and the Betsy Kruger [Id.). The first was a con-
demnation by the French commissary of marine at Rotterdam, of a
British prize taken and carried into Helvoetsluys, which was in the
country of a belligerent ally; which was so far considered as different
from the case of such a court sitting in a neutral country, that the neu-
tral claimant was directed to go into proof of the merits as to the trans-
fer, reserving the question of law. And in the last mentioned case
of the Betsy Kruger, the point was considered to be so settled, that
the advocates waived the discussion of it, and the court considered the
condemnation as legal. That I consider as a case directly in point,
to support the legality of a condemnation in the country of a bellig-
erent ally. This court therefore must decide the question consistently
with the opinion of a court of peculiar jurisdiction on the same point,
until we are told by a superior tribunal that that determination was
improper
Judgment of nonsuit.
1
1 In Donaldson v. Thompson, 1808, 1 Camp. 429, 431, Lord Ellenborough said:
“While a government subsists as this did [Corfu under Russian occupation], we
cannot look to the degree in which it might be overawed by a foreign force. The
sentence was pronounced by a belligerent on neutral territory, and is therefore void."
A decision of a prize court sitting in a neutral state does not condemn and therefore
passes no vaild title. Flad Oyen, 1799, supra. While the prize should be brought
into captor's port and there passed upon by a prize court, the physical presence of
the prize is not necessary : it may be in the port of a neutral, on the high seas, or at
the bottom of the seas, Hudson v. Guestier, 1808, 4 Cr. 293; especially The Invin-
cible, 1814, 2 Gall. 27, 39. The decision of a prize court is necessary to pass title to the
926
(PART II.
BELLIGERENTS AND NEUTRALS.
DALGLEISH V. HODGSON.
COMMON PLEAS, 1831.
(5 Moore di Payne, 407.)
Lord Chief Justice TINDAL now delivered the judgment of the
Court as follows: 1
The principal question in this case is, whether the sentence of con-
demnation of the brig George, and her cargo, in the Prize Court at
Monte Video, dated the 13th of December, 1826, is to be received in
our courts as conclusive evidence of the fact, that the ship was cap-
tured in attempting to break the blockade of Buenos Ayres? For, if
that is to be taken as a fact conclusively proved, then the plaintiffs in
this action are in no condition to recover; not upon the count for cap-
ture and detention, because such capture was occasioned by the volun-
tary act of the master, in violation of the law of nations; nor upon the
count for barratry, because it appears upon the whole evidence, that
the master, supposing him to have broken the blockade, acted honestly
and bona fide ; his conduct being attributable rather to ignorance, or
want of caution, than to such fraudulent design as is necessary to
.constitute the crime of barratry.
The general law upon this subject is well known, that the sentence
of a foreign Court of Admiralty, of competent jurisdiction, is binding
upon all parties, and in all countries, as to the fact upon which the
condemnation proceeded, where such fact appears on the face of the
sentence, free from doubt and ambiguity. But it is, at the same time,
as well established, that, in order to conclude the parties from contest-
ing the ground of condemnation in an English Court of law, such
ground must appear clearly upon the face of the sentence; it must not
be collected by inference only, or left in uncertainty, whether the ship
was condemned upon one ground, which would be a just ground of
individual captor and the decision of a competent prize court having jurisdiction binds
the world. For, in the language of Lord Kenyon, C. J.: "In general there is no doubt
that the sentence of a Court of Admiralty is conclusive, as to the points which it pro-
poses to decide; it was so ruled in the case of Hughes v. Cornelius (32 Chas. II.),
2 Show. 232; and that has been acknowledged to be law ever since.” Christie v. Secre-
tan, 1799, 8 Term R. 192, 196.
Other cases on this elementary point are: Havelock v. Rockwood, 1799, 8 Term R.
268; The Kierlighett, 1800, 3 C. Rob. 96; The Falcon, 1805, 6 C. Rob. 194; The Invin-
cible, 1816, 1 Wheat. 238; Wheelwright v. Depeyster, 1806, 1 Johns. 471; Page v. Lennox,
1818, 15 Johns. 172. - ED.
Statement of the case omitted as the judgment sufficiently states the facts. — ED.
CHAP. III.]
927
DALGLEISH V. HODGSON.
condemnation by the law of nations, or on another ground, which
would amount only to a breach of the municipal regulations of the
condemning country. The cases of Fisher v. Ogle, 1 Camp. 418, and
Calvert v. Bovill, 7 Terin Rep. 523, are express authorities to this point:
and the sentence of condemnation in the latter case bears a strong
resemblance to that in the present. There, Lord Chief Justice Kenyon
said: “If, indeed, that court had stated in their sentence, that they
condemned the goods, because they were British property, I should
have considered myself bound by their sentence; but they have
assigned other reasons for their adjudication. The express grounds
of the sentence of condennation are, that the ship was destined for
one of the West India Islands; that she was hired and loaded at
London, and had a certain quantity of gunpowder on board : therefore
they condemned her and her cargo as good prize.” The sentence in
that case was: “Forasmuch as the true destination of the said vessel
was for the English islands, having been hired and loaded at London,
and that there has been found on board ber eighty barrels of gun-
powder, the court declares the said brig to be a good prize for the
benefit of the captors."
Now, looking at the adjudicatory part of this sentence, which is the
important part for the discovery of the precise ground of condemnation,
it is in these terms, viz. : "From all which, and from what the docu-
nients state, I judge the said brig George and her cargo to be good and
lawful prize to the capturers."
The words “ from all which” refer us back to the premises, to dis-
cover the grounds of the sentence; and, in these premises, we find
enumerated three distinct statements: first, “ that it plainly appears
from all the documents, that the brig sailed from Liverpool knowing
of the blockade, and which the captured do not even deny, nor that her
destination was Buenos Ayres, at a short distance from which she was
taken; secondly, that, for the reason last given, she ought to be con-
sidered as violating the blockade; thirdly, that the ship had not even
the plausible excuse of coming to Monte Video first, and thereby com-
plying with the published instructions.” Now, upon referring to these
premises, we think we cannot safely infer that the precise ground of
condemnation was the attempt to break the blockade. The first state-
inent refers to the illegality of the ship's destination from Liverpool
to Buenos Ayres, then being under blockade. It is impossible to say
with certainty that the sentence may not have proceeded on that
ground, in part, if not altogether. It is more than probable it did so;
for, in another part of the premises, the Judge reverts to this state-
ment in these terms: "Forasmuch as besides not doing away the
proof that Buenos Ayres was the first port the shipment was destined
928
[PART 11.
BELLIGERENTS AND NEUTRALS.
for, in itself criminal.” But, if this was the ground on which the
sentence proceeded in the first place, it is no ground for condemnation
by the law of nations, unless there was an intention to violate the
blockade; and, in the next place, the sentence leaves untouched the
question of fact, whether the blockade was broken, or attempted to be
evaded. If it formed an ingredient in the judgment of the Brazilian
Court of Admiralty, no one can say how much it weighed with them,
or that, if this ground of condemnation had been out of the case, the
court intended to rely on the fact of the blockade being broken as
their ground of adjudication. Again, in the latter part of the preamble
to the sentence, the judge refers to a non-compliance with published
instructions, as a charge against the master of the ship. What these
instructions are, does not appear; whether some regulations ordained
by their own authority or not, is uncertain. But, if this, which is no
ground of condemnation by the general law of nations (Mayne v. Walter,
E. T. 22 Geo. 3; Park on Insur. 6th ed. 474), operated on the mind of
the foreign judge to condemn the ship and cargo, there is an end again
to the conclusive finding of the fact, that the ship violated the blockade
of Buenos Ayres.
Still further, the terms in which the fact of the violation of the
blockade is adverted to in the preamble of the sentence, are far from
direct and declaratory, but afford, at most, an inference that the judge
felt himself warranted in drawing such a conclusion. " For this
reason,” says the judge, "she ought to be considered as violating the
blockade, and which she would have effected but for the diligence of
the captors."
Uuder a sentence, therefore, expressed with so much doubt and
ambiguity as to the real ground on which it proceeded, we hold our-
selves at liberty to determine, whether, upon the evidence given at the
trial, such violation of the blockade did in fact take place or not; and,
upon that question, we are satisfied on the evidence, that the captain did
not break, nor did he intend to break the blockade, but that he honestly
intended to obtain instructions from the blockading squadron, not
having been before warned off by any of the Brazilian cruisers.
The only remaining objection that has been insisted on against the
plaintiffs' right to recover is, that the voyage in question was an illegal
voyage in its commenceinent, because the ship was destined to a port
which was notified to be under blockade. But that this was not an
illegal voyage was determined so lately by the Court of King's Bench
(Naylor v. Taylor, 9 Barn. & Cress. 718; S. c. 4 Man. & Ry. 526), upon
a voyage described in the policy in the very same terins as the present,
and under circumstances so precisely similar, that it is unnecessary
for us to say more, than that we entirely concur with the judgment
1
CHAP. ITI.] CUSHING, ADMINISTRATOR, V. UNITED STATES. 929
there given, founded, as it is, upon the authority of Lord Stowell's
judgment in the case of The Shepherdess, 5 Rob. Adm. Rep. 262.
We therefore think the verdict should stand, and that judgment
should be entered for the plaintiffs.
Judgment for the plaintiffs.
CUSHING, ADMINISTRATOR, V. THE UNITED STATES.
UNITED STATES COURT OF CLAIMS, 1886.
(22 Court of Claims, 1.)
DAVIS, J., delivered the opinion of the court:1-
The jurisdictional act requires us to inquire into legal condemna-
tions, and it is urged on behalf of the defendants that all condemna-
tions by the French courts are final and conclusive upon this court if
the French court had jurisdiction. Many citations are made in sup-
port of this contention, among them is the case of Baring and others
v. The Royal Exchange Assurance Company, 5 East. 99 et seq., which
may be taken as a fair illustration.
The American ship Rosannd, insured by the defendants, was
captured and condemned by the French, whereupon the plaintiffs sued
on the policy and recovered. Lord Ellenborough, Ch. J., interrupting
the argument, said :
“Does not this (French) sentence of condemnation proceed suffi-
ciently on the ground of infraction of treaty between America and
France in the ship not having those documents with which in the
judgment of the French court the American was bound by treaty to be
provided ? I do not say that they have construed the treaty rightly;
on the contrary, suppose them to have construed it ever so iviqui-
tously; yet, having competent jurisdiction to construe the treaty, and
having professed to do so, we (the court) are bound by that comity of
nations which has always prevailed amongst civilized states to give
credit to their adjudication when the same question arises here upon
which the foreign court has decided. After arguing for hours, we
1 The facts of the case are omitteil, and only part of the opinion is given relating
to decisions of prize courts. In this connection reference should be made to the
elaborate and closely reasoned opinion on the finality of judgments of prize courts,
delivered by the celebrated William Pinkney, Commissioner, in The Betsey, 1797,
3 Moore, Int. Arb. 3180-3206. Mr. Wheaton pronounced Pinkney's opinions (delivered
while a member of the Board of Commissioners under Art. VII. of Jay's Treaty,
Nov. 19, 1794) “ finished models of judicial eloquence, uniting powerful and compre-
hensive argument with a copious, pure, and energetic diction." - ED.
59
930
[PART II."
BELLIGERENTS AND NEUTRALS.
must come to the same conclusion at last, that the French court has
specifically condemned the vessel for an infraction of treaty which
negatives the warranty of neutrality. Then, having distinctly adjudged
the vessel to be good prize upon a ground within their jurisdiction,
unless we deny their jurisdiction, we are bound to abide by that
judgment. Whenever a case occurs of a condemnation by a foreign
court on the ground of ex parte ordinances only, without drawing
inferences from them to show an infraction of treaty between the
nation of the captors and captured, and referring the judgment of the
court to the breach of treaty, I shall be glad to hear the case argued,
whether such ordinances are to be considered as furnishing rules
of presumption only against the neutrality, or as positive laws in
themselves, binding other nations proprio vigore."
The decision of the English court, then, goes to this extent, that in
an action between individuals the decree of the French court which
had jurisdiction is final; so would it also be final as to the vessel, and
the purchaser at the confiscation sale could rest upon the decree as
good title against all the world.
But all this does not affect the position of the United States
Government against the government of France.
Lord Ellenborough says that no matter how iniquitous the con-
struction given the treaty by the French court, he, as a judge, is
bound to follow it. But so is not the government of the United
States. That government could have objected that either the court
was corrupt, or that there existed no treaty, or that there had been
manifest error in construing it. All such questions may be outside
the right of a court to consider, but they are within the right and form
part of the duty of the political branch of the government. If the
French court, acting within its jurisdiction, construed the treaty
iniquitously, the courts might not have power to remedy the wrong,
but the owner had a right to appeal to his government for redress, and
that government, when convinced of the justice of his complaint, was
bound to endeavor to redress it.
The decree is an estoppel on the courts, but it is no estoppel on the
government; in fact, the right to diplomatic interference arises only
after the decree is rendered. Of course, precedents for cases of this
kind are not to be found in the reports of courts, for no such case can,
in the nature of things, come before a court unless by virtue of a
special and peculiar statute, such as that under which we now act;
but diplomatic history is full of them.
Rutherforth (Institutes, Vol. II. ch. 9, p. 19), speaking of the right
of a state to proceed in prize, says:
“This right of the state to which the captors belong to judge
t
CHAP. III.] CUSHING, ADMINISTRATOR, v. UNITED STATES. 931
exclusively is not a complete jurisdiction. The captors who are its
own members, are bound to submit to its sentence, though this
sentence should happen to be erroneous, because it has a complete
jurisdiction over their persons. But the other parties in the con-
troversy, as they are members of another state, are only bound to sub-
mit to its sentence as far as this sentence is agreeable to the law of
nations, or to particular treaties, because it has no jurisdiction over
thein in respect either to their persons or of the things that are the
subject of the controversy. If justice, therefore, is not done them,
they may apply to their own state for a remedy; which may, con-
sistently with the law of nations, give them: a remedy either by solemni
war or by reprisals." See Dana's Wheaton, 391.
This brings us naturally to another point, admitted as a general
principle, that appeal should not be prosecuted to the court of last
resort before there can be diplomatic intervention.
The exceedingly able British-American commission which sat in
Washington in 1872 not only unanimously decided that they had
jurisdiction in prize cases in which the decision of the ultimate
appellate tribunal of the United States had been had, a conclusion in
which even the agent of the United States concurred, but also that
they had jurisdiction when the claimant had not pursued his remedy
to the court of last resort, provided satisfactory reasons were given for
the failure to appeal. Papers relating to the Treaty of Washington,
Vol. VI. pp. 88–90. To this last conclusion the American commissioner
dissented; but even he held that a misfeasance or default of the
capturing government, by which means an appeal was prevented,
was sufficient to excuse the failure to appeal. Id. 92.
The rights of the prize courts are the rights of the capturing state.
These courts are its agents, deputed by it to examine into the conduct
of its own subjects before becoming answerable for what they have
done, and the right ends when their conduct has been thoroughly
examined. Therefore the state has a right to require that the captor's
acts be examined in all the ways which it has appointed for this
purpose, and on this principle is founded the doctrine that the com-
plainant, unless he exhaust his appeal, shall be held to confess the
justice of the decision. This pre-supposes, first, that there are ap-
pellate courts; second, that they are open to the complainant freely and
honestly. The captor has no right to insist for his own protection
upon the fulfilment of a form which he by his own acts prevents.
There is also a distinction, not often clearly drawn, between the
validity of a claim per se and the right to enforcement. The justice of
the claim is founded upon the injustice of the sentence. The appeal
does not affect the merits of the claim; it does not palliate or destroy
932
[PART 11.
BELLIGERENTS AND NEUTRALS.
any wrong done; but it is simply a course provided for the captor's
protection, that he may fully examine into the acts of his own agents,
through his other agents, the courts.
" The whole proceeding, froin the capture to the condemnation, is a
compulsory proceeding in invitum by the state in its political capacity,
in the exercise of war powers, for which it is responsible, as a body
politic, to the state of which the owner of the property is a citizen.
Dana's Wheaton, note 186.
Therefore the capturing state may waive şuch demand, and not
insist upon exhausting its right to further investigation, and may
waive it by failing to provide an appellate, tribunal, or by preventing
recourse to it, or in any other way which shows an intention not to in-
şist upon this right of examination; but appeal or no appeal, the
validity of the claim is founded upon the injustice to the claimants.
All writers lay down the principle that appeal should be taken from
the inferior to the superior tribunal before resort by the injured
government to measures of redress; but this principle is always
coupled with the extreme measures of war and reprisals (see Ruther-
forth, supra; Grotius, bk. III. ch. 2, 4, 5), and there is no assertion in
the writers that illegal capture necessarily does not found an inter-
national claim, even when appeal has not been taken.
1
1 It has generally been held that the commander of a belligerent cruiser has no right
to decide controverted questions arising in cases of prize. He seizes a vessel on the
belief or suspicion that she is enemy's property, or that she is engaged in a forbidden
commerce, it is left to the prize court of the captor's country to determine whether these
suspicions are warranted or not.
Captain Semmes, of the Confederate steamer Sumpter, and later commander of
the Alabama, seems to have turned his cabin into a prize court on the occasion of every
capture made by him.
During his cruises, in the Sumpter and the Alabama, Captain Semmes had occasion
to adjudicate in more than seventy cases of prize; in fifty-nine of these cases, ship
and cargo were condemned as enemy's property, and burned ; in nine cases the ships
were released on ransom bonds, the cargoes being plainly neutral. But in a large
number of the cases of those condemned and burned, there were claims for the cargoes
as neutral property. Captain Semmes seems to have condemned the cargo, unless
there was positive proof of its neutrality. This practice was carried on by him and.
others for four years, and was acquiesced in by neutral nations, who permitted their
ships to be searched and their property adjudicated upon by these commanders. They
received them into their ports, and supplied them with provisions and coal. Who.
shall say, herefore, that hereafter a prize court may not be established on the deck
of every belligerent man-of-war, the commander constituting such court?
The following is a specimen of Captain Şemmes' procedure, taken from his own
memorandum.
Case of the Lafayette (“Cruise of the Alabama," I. 346) :
Ship and cargo condemned. The cargo of this ship was condemned by me as
enemy.'s property, notwithstanding there were depositions of the shippers that it had
been purchased by: them on neutral account. These ex parte statements are precisely
t
CHAP. III.] CUSHING, ADMINISTRATOR, V. UNITED STATES.
933
such as every unscrupulous merchant would prepare, to deceive his enemy and save
his property from capture.”
After an extended discussion of the case, showing that there was fraud, and that
the neutrality of the cargo was not established, Captain Semmes continues :
“30 Phillimore, 599, to the effect, that further proof' is always necessary where
the master cannot swear to the ownership of the property (as in this case). And as I
cannot send my prizes in for adjudication, I must of necessity condemn in all cases
where ‘further proof' is necessary, since the granting of 'further proof' proceeds on
the presumption that the neutrality of the cargo is not sufficiently established; and
where the neutrality of the property does not fully appear from the ship’s papers and
the master's deposition, I had the right to act upon the presumption of enemy's
property."
Again, in the case of the Express (Id. 167), in which ship and cargo were con-
demned. “It must be admitted that this is a case in which, perhaps, a prize court
would grant further proof;' but as I cannot do this, and as a distinct neutral charac-
ter is not impressed upon the property by former evidence, I must act under the pre-
:sumption of law. See 3d Phill. 589.”
The following is an extract from the “Cape Argus,” giving an interview with
Captain Senmes :
“You English people won't be neighborly enough to let me bring my prizes into
your ports and get them condemned, so that I am obliged to sit here a court of myself,
try every case, and condemn the ships I take.”
For the constitution, functions, and procedure of prize courts, see: 1 Dana's Wheaton,
note 186, pp. 480-487; Lawrence's Wheaton, 960–976; 2 Halleck, 392–431; 3 Philli-
more's Int. Law, 648–769; Benedict's Admiralty Practice, 3d ed. SS 509-512. -Ed. .
INDEX-DIGEST.
The Syllabus is referred to by sections; the text by pages.
ABANDONMENT of territory once occupied, § 36.
Acquisition of territory by accretion, $ 39.
Acquisition of territory by conquest or cession; the loss of territory, $ 40.
Adams, J. Q., on recognition of independence, 44-45 n.
Adula, The, - de facto and de jure blockade considered and held inter alia that
occupation of blockaded port does not raise blockade, 826.
Agent-in enemy's country, if appointed before war, may transact business for
principal. – Small's Adm'r v. Lumpkin's Ex'x, 538 ; $ 143.
Alabama claims — neutral port may not be used for building, equipping, or
basis of supplies for either belligerent, 713.
Aliens residing within United States may by the law of nations be expelled
therefrom Fong Yue Ting, 382; are aliens exempt from military duty ?
$ 64.
Alleganean, The, -- enclosed bays, such as the Chesapeake and Delaware, not
high seas, 143.
Allegiance - expatriation, 370-375.
Allegiance at common law subject may not change without permission of
State Æneas Macdonald, 370; Williams' case, 372.
Ally - recapture of property of, see Recapture.
Ambassadors — act for preserving privileges of, 4; see also Diplomatic agents.
American Insurance Co. v. Canter — cession of territory changes public not
private rights, 657.
Amicable settlement of disputes and attempts to mitigate the harshness and
hardships of war, SS 112, 113, 114.
Amory v. McGregor — American citizen allowed to withdraw his goods from Eng-
land after outbreak of war between United States and Great Britain, 561.
Ann Green, The ship - property may not change character in transit, nor does
neutrality of shipper protect property consigned for delivery to enemy's
port, 620.
Anna, The capture within territorial waters of neutral is illegal and vessel
should be restored by prize court of captor, 684.
Anna Catharina, The — goods shipped to become property of enemy on arrival,
condemned, 612.
Anne, The capture in neutral waters is good as between enemies, rights of
neutral nation are, however, violated. If captured vessel begins hostilities
in neutral waters, claim to protection lost. 688.
936
INDEX.
Antoine v. Morshead bills of exchange drawn by prisoner of war in enemy
country on subject of home country held valid, 573.
Antonia Johanna, The — freight properly charged upon wbole cargo, i. e. upon
that restored as well as upon that condemned, 632.
Arbitration, § 112.
Arbitration award — award under arbitration treaty has force of law, La
Ninfa, 443.
Arbitration, Permanent Court of, first decision of - The Pious Fund Case,
449 n.
Archives works of art, etc., not subject to capture in war, $ 159.
Armed forces and ships of war in foreign territory are exempt from local juris-
diction, $ 56.
Arming and equipping vessels of war in neutral territory, § 174.
Armistices, $ 146.
Arins, ammunitions - delivered to insurgent vessel in United States ports, held
not violation of United States neutrality laws, United States v. Trumbull,
731; sale of, by United States to belligerent, beld legal, 747 n.; sale of muni-
tions of war by a neutral State, $ 176.
Art, works, of -- not subject to capture in war, § 159.
Articles of Confederation, 1777, 10.
Asylum, right of, $$ 60-62 ; 256–273; does not exist ordinarily in legations
except in Central and South American Republics, United States v. Jeffers,
256; and 257-258 n. ; on men-of-war, $ 61; on merchant ships, not per-
mitted, $ 62.
Atlas, The -- goods placed on neutral vessels consigned to enemy port, or some
other market, are enemy property and may be captured. In this case
neutral vessels in voyage from Vigo to Seville held engaged in coasting
trade of enemy, 895.
Atalanta, The — carriage of despatches to enemy port subjects ship to con-
fiscation, 780.
Augmentation of force or equipment of belligerent cruiser is illegal; if prize
captured after such augmentation, will be restored if brought within neu-
tral waters, the Santissima Trinidad, 701, see also Equipment.
BAIN v. Speedwell — capture made after treaty of peace invalid, 675.
Baiz, In re — diplomatic agents of all grades are exempt from suit, but consuls,
although temporarily exercising diplomatic functions, are not, or need not
be, so privileged, 197.
Balloons used in war, $ 129.
Barbary States — how far subject to international law, The Helena, 45.
Bays — Bay of Fundy, open arm of sea, 153 n. ; Chesapeake Bay, Delaware
Bay, closed seas, The Alleganean, 143; if entrance to bay not more than
six miles across, considered closed sea, The Alleganean, 143; bays and
gulfs, $ 49 b.
Beaver, The master of vessel and boy allowed salvage on rescue of vessel
from enemy, 653.
Beers v. Arkansas -- sovereign may not be sued in his own courts without
DĐT.
937
his consent, and he may prescribe the terms on which suit may be brought;
this applies equally to the United States and State of the union, 186.
Behring Sea Arbitration, see Ninfa, 443.
Belgenland, The — action arising from collision of two foreign vessels on the
high seas may be maintained in United States (Admiralty) Court, 338.
Belligerency, rights flowing from, 758 n.; recognition of, $ 24; views of Presi-
dents Grant ann McKinley on recognition of, 758 n.
Belligerent communities, $ 23; succession to the rights of, § 27; relations of,
after acquiring independence, to the contract rights and duties of the
parent state, $ 28; legal right to recognition by sovereign states, $ 25.
Belligerents — pacific intercourse of, $ 146 ; relations between, and neutrals,
historical sketch of, § 172 ; right of, to interfere with neutral commerce,
see Visit and Search, $$ 187–189; 858–899.
Benito Estenger, The - colorable transfer of enemy's property does not affect
liability thereof to capture, 621.
Bentzen v. Boyle - unsold produce of enemy's soil is hostile, irrespective of
domicile of owner of soil, 598.
Betsey, The mere declaration by commander without actual investment will
not constitute blockade, 798.
Bills of exchange --- drawn by prisoner of war in enemy country ou subject
of home country held valid, Antoine v. Morshead, 573; not regarded as
trading with the enemy, $ 142.
Blackstone's Commentaries - law of nations is part of common law, 8.
Blair 2. Silver Peak Mines definition of citizenship and rights thereto apper-
taining, 376.
Blockade, 796–845 ; purpose of, § 182; absence of blockading fleet excuses
entry and departure during such absence, The Nancy, 817; attempt to leave
blockaded port subjects vessel and cargo to condemnation, The Johanna
Maria, 803 ; de facto blockade, ş 182; de facto and de jure blockade con-
sidered, and held inter alia that occupation of blockaded port does not raise
blockade, The Adula, 826; notification, $ 182 ; by notice, and blockade ile
facto when notice is required, The Neptunus, 796 ; in case of de fucto
blockade, runner must be taxed directly or indirectly with knowledge of
its existence, The Franciska, 804; mere declaration by commander with-
out actual investment will not constitute blockade, The Betsey, 798 ; mas-
ter is agent for cargo as well as ship, therefore attempt of master to enter
blockaded port affects cargo, The Panaghia Rbomba, 800; merchandise
shipped by land or inland navigation from blockaded port, thence from
port not blockaded, not liable to confiscation for breach of blockade, The
Ocean, 819; neutral not forbidden to trade with blockaded port, but sub-
jects property to capture and confiscation by so doing, The Helen, 821 ;
effective blockade, $ 182; blockade to be binding must be effective, pres-
ence of a single cruiser held sufficient, The Olinde Rodrigues, 835; vessel
leaving blockaded port temporarily occupied by enemy not liable to capture;
prohibition to import does not necessarily extend to export, The Gerasimo,
811; pacific blockade, $ 115; penalty for breach of blockade -- French rule,
§ 183.
Boedes Lust, The - definition and nature of hostile embargo, 460.
938
INDEX.
i
T
Bombardment of towns, $ 162 ; fortified, open, § 128.
Booty, right to, § 160.
Bosphorus and Dardanelles, § 49 a.
Boundaries — between independent nations determined by political departinent,
Foster v. Neilson, 75 ; between States of the American Union determined
by judiciary, United States v. Texas, 76 ; political department of the gov-
ernment determines what are boundaries under treaties, § 44 ; determina-
tion of river-boundaries, $ 45; determination in the cases of lakes and
mountains, $ 46.
Boussmaker, Ex parte — property in form of dividend arising from contract
made before war held not liable to confiscation, 494.
Breach of blockade, American courts, $ 186.
Brig Joseph, The — Citizen of United States residing in enemy country at out-
break of war may not bring back his property if it involves trade with
enemy, 556.
Brig Sea Nymph, The -- vessel sailing under convoy is presumed to remain
under convoy and therefore liable to capture; right of search implies right
to use force if necessary in its execution, 869.
British Foreign Enlistment Acts, $ 174 ; 693.
Brown v. United States - debts due the enemy and private property in country
at outbreak of war confiscable by law of nations. In the United States,
act of Congreys necessary to confiscate them, 486, and 493 n.
Brussels Conference, § 114.
Buron v. Denman exterritorial acts by order of the State, bind State, but not
agent, 305.
Buttenuth v. St. Louis Bridge Co. — middle or main chaunel of river is divid-
ing line or boundary, 121.
CANALS, interoceanic: Suez, Corinth, Kiel, Panama, $ 50.
Capitulations, $ 146.
Capture — passes title to captor's country, but title only passes to individual
captor by condemnation in prize court of captor's country, Commodore
Stewart's case, 910.
Capture of property on land and sea — difference between, 899 n.
Carlos F. Roses, The — previous or subsisting liens ou captured ship not
respected in prize court, 637.
Carlotta, The - salvage on neutral property recaptured or rescued from emeny
not given unless such property really exposed to condemnation, 650.
Caroline, The - State may abate a nuisance in foreign country, 67, and 319 n.
Carrington v. Merchant's Insurance Co. — contraband and penalty for carriage
thereof, 769.
Cartels, $ 146.
Castioni, In re — political offenders not extraditable, 285, and 293 n.,
Cession of territory changes public not private rights, American Ins. Co. v.
Canter, 657; territory definitely ceded to United States ceases to be foreign
territory from ratification of treaty of cession, Fourteen Diamond Rings v.
United States, 667 ; see Conquest.
294 n.
INDEX.
939
go in
Change of sovereignty, see Sovereignty, change of.
Chargé d'Affaires, see Diplomatic agents.
Charkieh, The definition and nature of sovereign and semi-sovereign States
(Egypt), 48.
Charming Nancy, The who may sue on ransom bill, 568.
Chesapeake Bay - not a part of the high seas, The Alleganean, 143.
Chinese — status of, in United States, $ 93 ; born in United States are citizens
thereof, 379.
Chin King, Ex parte — Chinese born in United States are citizens thereof, 375.
Church v. Hubbard municipal seizures may not be made beyond the three-
mile limit, 343; The Itata, 344 n.
Citizen — duty of, to return home on outbreak of war, The William Bagalay,
565 ; American citizen may not bring back property from enemy's country
eleven months after outbreak of war, The St. Lawrence, 559; American
citizen may not send vessel to enemy's country after outbreak of war to
bring away property, The Rapid, 557 ; American citizen on British vessel
on high seas subject to jurisdiction of Great Britain, Regina v. Anderson,
331; American citizen permitted to withdraw goods from England after out-
break of war between United States and Great Britain, Amory v. McGregor,
561; citizen of United States residing in enemy's country at outbreak of
war may not bring back his property if it involves trade with enemy, The
Brig Joseph, 556; after outbreak of war, citizen may neither person
nor send agent to enemy country to bring away his property, 139; citi-
zens residing in the enemy's country should return home on the outbreak
of war, and should be granted reasonable time to withdraw their property
and return, $ 140.
Citizens protection of, in foreign parts, Koszta's case, 400 n.; Tousig's case,
401 n.; a Prussian subject's case, 399 n.; slaughter house cases, 400 n.; De
Bode v. Regina, 400 n. ; Wagner's case, 400 n.; Hausding's case, 399 n.;
Embden's case, 399 n.
Citizenship – Naturalization, 376-397, § 88; definition of citizenship and
rights appertaining thereto, Blair v. Silver Peak Mines, 376; Littell v.
Erie R. R. Co., 378; Chinese born in United States are citizens thereof,
Ex parte Chin King, 379; citizenship does not attach upon declaration of
intention by alien, Minneapolis v. Reum, 390; In re Moses, 396.
Civil War definition of, $ 118; Prize cases, 475.
Clayton-Bulwer Treaty, 1850, $ 104.
Collision on high seas -action for may be maintained in United States (Ad-
miralty) Court, The Belgenland, 338.
Colonial trade -- coasting trade — extension in 1793, § 185.
.
Combatants, who are
lawful — conditions authority organization
dress, § 122.
Commercen, The - effect of carrying contraband on provisions, freight, and
ship, 765.
Commercia belli, $ 146.
Commercial domicile, 585-607; see also Domicile.
Commonwealth v. Blodgett - exterritorial acts by a state in self-defence, bar
to action against agent, 308.
940
INDEX.
1
Commonwealth 2. Blanding — crime committed in one state to take effect in
another, punishable in latter, 300 n.
Confederate States, recognition of, 1861, § 26; legislative and judicial acts of,
61-63 n.; how considered by United States government, Home Insurance
Co. case, 59.
Confederation, S 14 ; see also States.
Congo State — recognition of, § 19.
Couquest — Cession, $ 171; works no change in private title to land, United
States v. Moreno, 666.
Constitution of the United States, 1789, 11.
Constitution, The - ships of war exempt from civil and criminal jurisdiction
of foreign port, 218.
Consuls — origin of office, function, appointment, dismissal, privileges, diplo-
matically accredited, “ Lettres de Provision," exequatur, § 99; judicial
functions in semi-civilized lands, $ 100; not diplomatic agents, In re Baiz,
197; may not exercise jurisdiction in foreign port over crew of home ship
unless authorized so to do by treaty, Ellis v. Mitchell, 234.
Consular courts — in foreign countries exercise jurisdiction by virtue of express
treaty, In re Ross, 238.
Continuous Voyages, Colonial trade, and Coasting trade extension in 1793,
$ 185; as applied in American civil war, The Stephen Hart, 852, and 857 n.;
applied to carriage of contraband, § 186.
Contraband of war, 760-779; definition and kinds thereof, The Peterhoff,
760; carriage of, § 186 ; carriage of, does not, as a rule, involve confiscation
of ship, The Neutralitet, 767; carriage of despatches to enemy port sub-
jects ship to confiscation, The Atalanta, 780 ; carriage of enemy despatches to
neutral port not contraband, The Madison, 785; carriage of despatches gen-
erally subjects vessel to capture, but loss of time and expenses only penalty
if master not taxed with knowledge, The Rapid, 782; carriage of military
persons in neutral vessel subjects vessel to confiscation, The Orozembo, 786 ;
despatches and persons, as, § 181 ; 779–796 ; classification of, res ancipitis
usus, occasional, $ 179; provisions going to enemy's port of naval equip-
ment may be treated as, The Jonge Margaretha, 762; The Commercen,
765; trade in, not illegal, Seton v. Low, 778; The Helen, 821 ; penalty for
carrying, as to provisions, freight, and ship, The Commercen, 765; penalty
for carrying, time when penalty attaches, rule of English and American
courts, French rule, $ 180; general law of contraband, § 178; and lists of
contraband articles, 766-767 0.
Contracts - effect of war upon, between enemies made before the war, executed
contracts, executory contracts, statutes of limitation, interest on debts,
§ 135; entered into with enemies during war by citizens residing in
enemy's country, § 141; made during civil war for sale of property, real
or personal, to aid Confederate States held void, Ware v. Jones, 517; and
520 n.; executory, if time is material and of the essence, are annulled by
Life insurance policies are of this character, but assured is entitled
to equitable value of policy at time of outbreak of war, New York Life
Ins. Co. v. Stathem, 512; and 516 n.
Contracts, private, 498-520.
war,
INDEX.
941
Contributions and requisitions, § 161.
Convoy vessel sailing under armed convoy to avoid visitation and search,
subject to condemnation, The Maria, 858; The Nancy, 861; vessel sail-
ing under convoy is presumed to remain under convoy, and therefore liable
to capture, right of search implies right to use force, if necessary, in its
execution, The Brig Sea Nympi, 869; see also search, right of; visit and
search.
Cooley u. Golden river boundary is changed by accretion, but avulsion or
sudden change, or abaudonment of channel does not affect the boundary,
129.
Cornu v. Blackburne ransom bills held either not trading or permissible
trading with the enemy, so that recovery could be had in suit thereon, 566.
Crawford & McLean v. The William Penn - hypothecation of vessels in enemy
port for purpose of repairs held not trading with enemy, 580.
Crawford v. The William Penn voluntary, not involuntary trading with the
enemy, illegal, 575.
Credentials of diplomatic agents, § 96.
Creole, The - internal order and regulation of merchant ship in foreign port
held not subject to municipal law of such port, 252.
Crime – committed beyond the jurisdiction of Uạited States not punishable
in United States, United States v. Smiley, 302; committed within juris-
diction of foreign country not triable in United States, United States v.
Davis, 294; committed in New York, not punishable in New Jersey, State
v. Wyckoff, 296; and 300 n., 301 n. ; committed in one state to take effect
in another, punishable in latter, Commonwealth v. Blanding, 300 n. ; Cut
ting's case, 301 2.
Cushing, Adm'r, v. United States - decision of prize court binds parties thereto,
but does not estop government, which may proceed diplomatically against
country of prize court for failure or miscarriage of justice, 927.
Cutting's case crime committed in one country to take effect, and which
actually does take effect, in another, punishable in latter, 301 n.
DALGEISH V. Hodgson -- judgment of prize court conclusive in points neces-
sarily involved and clearly upon face of sentence, 926.
Darby v. The Brig Erstern - though neutral vessel protects enemy goods on
board, upneutral conduct will forfeit the protection, 896.
Deceit, how far permitted in war, § 129.
Declaration of Paris, 1856, § 134; $98 n.
Declaration of St. Petersburg, § 114.
Declaration of War - war without declaration, civil war, date of beginning
of war, § 117.
Debts — interest on, § 135; of a state due enemy, and interest thereon, are not
confiscable, $ 132; due the enemy legally may be, but from motives of policy
generally are not, confiscated, Hamilton v. Eaton, 481;: Ware v. Hylton,
485. 1. ; due the enemy, and private property in country at outbreak of war,
confiscable by law of nations. In United States act of Congress necessary
to confiscate them, Brown v. United States, 486 ; and 493 n.
942
INDEX
De Bilboa Packet, The-goods shipped in time of war, or in contemplation
thereof, held to belong to consignee, if consignee enemy, property con-'
demned, 609.
De Facto States, $ 23; see States.
De Haber v. Queen of Portugal -- foreign sovereign inay not be sued without
consent, 180.
De Jarnett v. De Giversville — sale of property within Northern lines held valid
after publication of notice to parties within Confederate lines, 542.
Despatches and persons as contraband, $ 181; see also Contraband.
De Wutz v. Hendricks loan of money to insurgents illegal, 721.
Devastation - is it ever lawful? § 127.
Diplomatic agents — persons designated by the constitution of a state to man-
age its foreign affairs, department of foreign affairs, state department in
the United States, $ 95; rights of; refusal to receive ; must be a persona
grata ; credentials ; letters of credit; letters patent ; full powers; instruc-
tions; passport, $ 96; right of legation; rights, privileges, and duties of,
$ 53; rights and immunities of, in friendly states, on the way to and from
their posts, $ 98; immunities of, SS 54, 57; see also Heathfield v. Chilton,
189; termination of mission, recall, and dismissal, $ 97; may not be sum-
moned as witness, Guiteau's Trial, 190 11.; exempt from criminal juris-
diction, 191n.; exempt from civil jurisdiction, 192 n.; exempt from suit
in third country, Wilson v. Blanco, 206; see also Ambassadors.
Discovery, acquisition of title by, Johnson and Graham's Lessee v. McIntosh,
71; $ 34.
Dole v. Merchants' Mutual Marine Insurance Co. - definitions and kinds of
$
war, 470.
Domicile --- nature and definition of, Mitchell v. United States, 605; commer-
cial, 585-607 ; time most important element, The Harmony, 585; effect of,
and declaration of intention to become a citizen, upon nationality of
foreigner ; his relation to adopting state, when abroad, and protection it
may accord him, § 91; what constitutes, how determined; animus manendi;
time, $ 148; national character of property in time of war depends upon the
domicile of owner, French rule, $ 147; American citizen domiciled in enemy
country is enemy, and goods shipped before, but captured after outbreak
of war, lawful prize, The Venus, 591; unsold produce of enemy soil is hos-
tile, irrespective of domicile of owner of soil, Bentzen ». Boyle, 598; neutral
merchant residing in enemy country treated as belligerent trader ; enemy
character, however, lost the moment he starts home, The Indian Chief, 588;
property of persons residing within Confederate States during civil war,
and engaged in commerce upon the sea, is enemy property and subject to
capture, The Prize cases, 601.
Don Pacifico, Case of country may protect its citizen abroad against denial of
justice by resort to reprisals or war, if necessary, 45 n., 450.
Duty of subject or citizen to return home on outbreak of war, 556-565.
.
ELK v. Wilkins - Indian born within United States, but unnaturalized and
untaxed, not citizen of United States, 398; $ 93.
Ellis v. Mitchell -- consul may not exercise jurisdiction over crew of home ship,
unless authorized so to do by treaty, 234 ; $ 58.
INDEX.
943
Emanuel, The - neutrals may not carry on trade, such as coasting trade, from
which they are excluded in peace, 847.
Embargo, hostile, $ 116; definition and nature of, The Boedes Lust, 460-463.
Enemy character, $$ 147-150; see also Domicile.
Enemy property - product of the enemy's soil takes national character of the
country where it is produced, $ 150 ; right to capture enemy goods in neutral
vessels, and neutral goods in enemy vessels, $ 190; enemy goods in neutral
vessel protected, though unneutral conduct will forfeit the protection,
Darby v. The Brig Erstern, 896; and 898 n. ; found on the sea or in the
ports of enemy, is confiscable as prize of war, $ 134; found afloat in ports,
on the breaking out of war, was generally confiscable as prize until recent
time, $ 131 ; compared with embargo, $ 131 ; public property of the enemy,
lands, buildings, archives, work of art, movable or personal property, $ 159 ;
private property, real and personal, as a rule, is not confiscable, at least not
by way of booty, though personal property may be taken by way of con-
tributions and requisitions, § 160 ; coinparison of different rules applied to
enemy property at sea and on land, § 160 ; immovable property, lands
and houses, of the eneny within the limits of the other belligerent are
never confiscated, § 133; goods placed on neutral vessel consigned to
enemy port, or some other market, are enemy property and may be cap-
tured. In this case neutral vessels in voyage from Vigo to Seville held
engaged in coasting trade of enemy, The Atlas, 895; see Enemy, trade of;
Trade.
Enemy, trade of — goods placed on neutral vessel consigned to enemy port, or
some other market, are enemy property, and may be captured, The Atlas,
895; see Enemy property.
Equality of states, $ 15.
Equipment --augmentation of force or equipment of belligerent cruiser is
illegal; prize captured after such augmentation will be restored if brought
within neutral waters, The Santissima Trinidad, 701; of vessels of war
in neutral territory, $ 174.
Exchange of prisoners, $ 124; see also Prisoners of war.
Expatriation - Allegiance, 370-375.
Exterritoriality - fiction of, $ 59; origin and purpose explained, $ 59.
Extradition leading authorities and references on, $ 71; interstate rendition,
$ 70; 274–293; of fugitives from justice, $ 67; person extradited is triable
for offence for which he was extradited, but for no other, $ 67; states do
not as a rule surrender person charged with political or military offences,
$ 69; as a person is extradited for the commission of a conventional crime,
the nationality of criminal is immaterial; however, it is customary to
exclude citizens of the contracting states from operation of the provision of
treaty: $ 68; states do not as a rule surrender their own citizens, Trimble's
case, 293 n.; exists by virtue of treaty, and fugitive only triable for crime
for which extradited, United States v. Rauscher, 274.
Extraterritorial acts by order of the state bind state but not agent, Buron v.
Denman, 305; McLeod's case, 67 n., 309 n.; acts of persons by order of
their government, $ 72; acts done by a state in self-defence, $ 73; 308-
319; acts by a state in self-defence bind state but not agent, Cominon.
944
INDEX.
wealth v. Blodgett, 308; The Caroline, 67, and 319 n.; The Virginius,
320 n., 322 n.
Extraterritorial crimes see Offences committed abroad, jurisdiction of, $ 65;
see also Crime.
.
FISHERIES alleged right of the United States in the British-American, .$ 29;
convention of 1818 between England and United States, $ 104.
Fishing-boats - generally exempt from seizure, but exemption does not extend
to vessels employed in the great fisheries, $ 155.
Flad Oyen, The - judgment of prize court in neutral country does not change
title, 919.
Flags of truce, $ 146.
Fleming v. Page goods imported into United States from Mexico, during
American occupation thereof subject to duty as imported from foreign
country, 659.
Flindt v. Scott — insurance policy on licensed trade with enemy good, 526; and
529 n.
'
Florida, The --- capture in neutral waters is unlawful, 699.
Fong Yue Ting — aliens residing within United States may, by the law of
nations, be expelled therefrom, 382.
Forbes. v. Cochrane — refusal to surrender or to aid in the delivery of slaves
escaping to man-of-war, in foreign port, held not actionable, 258.
Foreign sovereigns, $ 52; see also Sovereigns.
Foreigners — offences committed abroad by, $ 65; exemption from military
duty, $ 64.
Fortuna, The— captor allowed freight for carriage of neutral property to place
of destination, 631.
Foster & Elam v. Neilson treaty is a contract between two or more nations;
in the United States it is law of the land, 412; the political department
determines questions of boundary between United States and foreign
nations, 76.
Franciska, The - in case of de facto blockade, blockade runner must be taxed
directly or indirectly with knowledge of its existence, 804.
Free ships, Free goods, $ 190.
Freight— its nature considered and defined. Hooper, Adm'r, v. United States,
633; in the case of captured vessels, $ 156.
Freight and liens, 629-648; captor allowed freight for carriage of neutral
property to place of destination, The Fortuna, 631; freight properly
charged upon whole cargo, i.e., upon that restored as well as upou that
condemned, The Antonia Johanna, 632; previous or subsisting liens on
captured ship not respected in prize court, The Carlos F. Roses, 6:37; neu-
tral carrier of enemy property generally allowed freight; in this case
freight postponed to captor's law expenses, The Vrow Henrica, 629.
Fourteen Diamond Rings n. United States -- territory definitely ceded to United
States ceases to be foreign territory from ratification of treaty of cession,
667.
Fugitives from justice, see Extradition.
t
INDEX.
945
Furtado v. Rodgers - insurance effected in Great Britain on French ship, pre-
vious to war between Great Britain and France, does not cover a loss by
British capture, 549.
GENEVA award, 715.
Geneva convention, § 125.
Geofroy v. Riggs — treaty as law of land subject, in the United States, to con-
stitutional limitations, 413.
Gerasimo, The — vessel leaving blockaded port temporarily oocupied by enemy
not liable to capture; prohibition to import does not necessarily extend to
export, 811.
Goodrich v. Gordon contract for ransom of vessel held lawful contract, 571.
Grant, President, message of expatriation, 374 n.
Grapeshot, The -- during civil war, President possessed right as Commander-
in-chief to establish provisional courts to try causes arising under laws of
state and nation, 666 n.
Gray, Adm'r, v. United States reprisals, definition and nature of, 452.
Griswold v. Waddington — partnership existing between citizens of belligerent
states dissolved by outbreak of war; notice of dissolution unnecessary,
504.
Guarantee treaties, $ 106.
HAGUE Conference, The, $ 125.
Hamilton v. Eaton debts due the enemy legally may be, but from motives of
policy generally are not confiscated, 481.
Handly's Lessee v. Anthony - middle of river is boundary, unless, as in this
case, parties determined otherwise, 116.
Hanger v. Abbott statute of limitations ceases to run during war, 500.
Harcourt v. Gaillard – grants of American territory made by British authority
after Declaration of Independence void, unless confirmed by treaty of
peace, 70.
Harmony, The — in matter of domicile, time most important element, 585.
Haver v. Yaker — treaty dates from signing, in case involving individual rights,
from ratification, 420, 421 n.
Heathfield v. Chilton – diplomatic agents and servants bonâ fide in their employ
exempt from suit, but exemption does not apply to consuls, 189.
Heirn v. Bridault -- definition of international law, 1.
Helen, The - municipal law does not forbid neutral to trade with blockaded
port, but the law of nations subjects neutral property, in such case, to
'capture and confiscation, 821.
Helena, The — Barbary States, how far subject to international law, 45.
High seas straits and lakes, part thereof, United States v. Rodgers, 132.
Hoare v. Allen interest on debts suspended, not extinguished, during war,
498.
Home Insurance Company's case the legal status of the Confederate States as
defined by United States courts, 59.
60
946
INDEX.
Honduras, Republic of, v. Soto - state is a moral person, 24.
Hoop, The trade with the enemy without license held void in admiralty
court, 521.
Hooper, Adm'r, v. United States treaties other than in rem extinguished by
war, 433; Ib., nature of freight considered and defined, 633.
Hostile expeditions, fitting out, $ 173.
Hostile occupation, conquest, cession, 655–674; see also Occupation, Conquest,
Cession.
Hypothecation of vessels in enemy's port for purpose of repairs, held not trad-
ing with enemy, Crawford & McLean v. The William Penn, 580.
IMINA, The — contraband goods should be taken in voyage to enemy port; pro-
ceeds not generally liable on return voyage, 776.
Immanuel, The -- neutrals may not engage in trade from which they are ex-
cluded in peace, 845.
Impressment of seamen, $$ 77, 189.
Incorporeal things - as debts, etc., invader's right over, $ 167.
Indelible allegiance, $ 87.
Independence, recognition of — views of J. Q. Adams, 44-45 n.
Indian Chief, The = neutral merchant residing in enemy country treated as
belligerent trader; enemy character, however, lost the moment he starts
home, 588.
Indians -- status of, in United States, 398-412; $ 94.
Insurance on ships of the enemy, § 144; effected in Great Britain on French
ship, previous to war between Great Britain and France, does not cover loss
by British capture, Furtado v. Rodgers, 549; and 553 n.
Insurgents aid to, 721-760, § 177; loans, munitions of war, § 177; may be
held pirates for depredations against third powers, The Magellan Pirates,
351; loan of money to, illegal, Thompson v. Powles, 37; De Wutz v. Hen-
dricks, 721; Kennett ». Chambers, 723; British vessel fitted out in aid
thereof liable under British foreign enlistment act, The Salvador, 744; un-
recognized (wrongly) held pirates in United States v. Ambrose Light, 346.
Interest on debts -- suspended not extinguished during war, Hoare v. Allen,
498; § 135.
International law or the law of nations, definitions of, § 1; origin of the
terms “Law of Nations" and "International Law," $ 2; is a branch of
true law, § 3; nature and sources of, $ 4; historical sketch of, $ 5; is a
part of the law of states, § 6; leading writers on, $ 7; private, or the
conflict of laws, $ 8.
Interstate rendition - criminal may be tried for crime other than that for
which he was extradited, State v. Patterson, 283.
Intervention character and conditions of, $ 83 ; on the ground of self-pres-
ervation for the protection of (1) institutions, (2) good order, (3) the
external safety of the intervening state, $ 84; against illegal or immoral
acts ; case of Greece, 1826 ; Bulgaria, 1876 ; Cuba, 1898; China, 1900;
§ 85 ; under a treaty of guarantee on invitation of one of the parties to co
civil war, $ 86; under collective authority of the body of states, $ 86.
0
INDEX.
947
JAN FREDERICK, The -- contract in contemplation of war or transfer of colonial
produce in transitu illegal, 618.
Jecker 1. Montgomery – neither president nor inferior executive officer can
establish prize court in territory occupied by American troops, 644.
Jenkins, Sir Leoline -- opinion of, on piracy, $ 80; 345.
(La) Jeune Eugénie ---- definition of international law, 3.
Johanna Maria, The -- attempt to leave blockaded port subjects vessel and
cargo to condemnation, 803.
.John, The Schooner capture after declaration of peace invalid, 677.
Johnson & Graham's Lessee v. McIntosh — discovery followed by occupation
gives title ; European claims to American territory considered in the light
of international law, 71 ; § 34.
Jones v. United States — recognition of the existence of a state, 38.
Jonge Margaretha, The provisions going to enemy's port of naval equip-
ment may be treated as contraband; vessel property of same owner
condemned, 762.
Joseph, The, see The Brig Joseph.
Jurisdiction on the high seas, 329–369; oper passing vessels, $ 63; is the
jurisdiction of a state over its citizens and property on the high seas exclu-
sive ? $ 75; are offences committed by citizens or foreigners, beyond the
limits of a state, subject to the jurisdiction of its courts ? $ 65; criminal
jurisdiction of state courts in the nited States, $ 66.
KEITH v. Clark - internal changes do not affect identity of state in interna-
tional relations, 28.
Kennett v. Chambers - political department recognizes independence; loan of
money to insurgents illegal, 723.
Kershaw v. Kelsey — all trade across enemy lines without license illegal, 535.
Koszta's case alien domiciled in United States, who has declared intention
to become citizen, may be protected by United States in foreign country,
400 n.
LAKES — connected with open sea considered high seas, United States v.
Rodgers, 132.
Law of nations — is part of common law, Blackstone's Commentaries, 8 ; see
International Law.
Laws of war, $$ 119–129.
Legates, $ 95; see Diplomatic Agents.
Legations, right of asylum in ; see Asylum.
Legislation to give effect to treaties, $ 107.
Letters of credence, § 96.
„Letters patent, & 96.
Letters of marque and reprisal, $ 123.
License - trade across enemy lines without, illegal, Kershaw v. Kelsey, 535;
to trade, $ 146; to trade must, as a rule, be granted by the supreme au-
thority of the state, and must be granted or assented to by both belligerents,
948
INDEX.
$ 138; to trade must be substantially complied with, Williams v. Marshall,
530; and 530 n.; trade with the enemy without license held void in admi-
ralty court, The Hoop, 521; trade with the enemy without license held
void at common law, Potts v. Bell, 525 ; Fliudt v. Scott, 526 ; to trade, in
the United States by act of Congress conferred solely on President, 531;
and 534 n.
Lilla, The Prizé courts of Confederate States did not pass titlë, 62 n.
Littell v. Erie R. R. Co. - who are citizens of the United States ? 378.
Loans of money to belligerents, § 175; aid to insurgents, loans, $ 177.
Lola, The - international law is part of municipal law of United States, 19.
(Le) Louis —- slave trade not piracy jure gentium, 352.
MACDONALD, Æneas at common law subject may not change his allegiance-
without permission of state, 370; $ 87.
McLeod's case command of the state is bar to action against agent, 67, 309.
Madison, The carriage of enemy despatches to neutral port lawful, 785.
Magellan Pirates, The - insurgents may be held pirates for depredations .
against third powers, 351.
Mail steamer --- not exempt from capturé, The Panama, 788.
Mare clausum and iarè liberum, § 49.
Marginal seas — jurisdiction over passing vessels in, Queen v. Keyn, 154 ; and
note to case.
Maria, The vessels sailing under armed convoy to avoid visitation and search
sübject to condemnation, 858.
Marianna Flora, The — held inter alia that vessel suspected of piracy may be
visited, searched, and captured by any nation; right of search in other cases.
does not exist in peace, it is belligerent right, 873.
Maritime War, & 123; requisitions and contributions in land wars; will they
be resorted to in maritime wars ? 161.
Marque and reprisal — letters of, $ 123.
Mary Ford, The -- property captured but abandoned by enemy rescued by
neutral liable to salvage, 642.
Matthews v. McStea — The civil war did not of itself dissolve partnerships.
between citizens of North and South; dissolution was effected by Presi. .
dent's proclamation of Aug. 16, 1861, 508.
Mediation, § 113.
Mentor, The — capture after declaration of peace invalid, 676.
Merchant vessels, 225–255; jurisdiction over, on the high seas, $ 78; of the
United States on high seas subject to jurisdiction of United States, Wilson
v. McNamee, 329; theory of the territoriality of, $ 76 ; in foreign ports,
subject to jurisdiction thereof, United States v. Diekelman, 264, and 273-
275 n.; in foreign port always subject to municipal law of such port; but
see The Creole, 252; national character of, and their transfer during war
from a belligerent to a neutral, § 153 ; proofs of the national character of,
§ 154 ; do not, as a rule, enjoy exemption from local jurisdiction in foreign
ports; the exemption, if it exist, is the result of a special custom based
upon a tacit or express renunciation of territorial sovereignty, § 58 :
INDEX.
949
:
tion;
şubject, unless exempt by express treaty, to civil and criminal jurisdiction
of foreign port; French rule otherwise, Wildenhus? Case, 225, American
citizen on British vessel on high seas subject to jurisdiction of Great
Britain, Regina v. Anderson, 331 ; vessel owned by British subjects subject
in Chilian waters to Chilian jurisdiction, on high seas to British jurisdic-
Chilian prisoners may therefore bring action for false imprisonment
on arrival in British port, Regina v. Lesley, 337 ; see also Ships of war.
Mexico, Republic of, v. Arrangoiz — foreign state or sovereign may sue in state
or federal courts, 170.
Military occupation, see Occupation, military.
Miller » The Resolution (1) – The mere capture or illegal capture of property
does not pass title to captor, 899.
Miller v. The Resolution (2) — judicial proceeding in prize court necessary to
pass title; evidence required for condenination comes, in first instance, from
ship and its papers, 906; and 909 n.
Ministers, see Diplomatic agents, Ainbassadors.
Minneapolis v. Reum declaration of intention does not clothe alien with
rights of citizenship, 390.
Mississippi, navigation of, $ 42.
Mitchell v. United States — nature and definition of domicile, 605.
Mob violence -- injury to foreigners by, 320-328, and 328–329 n. ; responsi-
bility for injury to foreigners by civil commotions and, $ 74 ; New Orleans
not responsible for injury to foreigners by, New Orleans v. Abbagnato,
320; United States government liable by international if not by constitu-
tional law for, 328-329 n.
Moses, In re — rights of citizenship do not attach by mere declaration of inten-
tion, 396.
Municipal seizures may not be made beyond the three-mile limit, 343; Church
v. Hubbard, The Itata; beyond the three-mile limit, $ 79.
Munitions of war, see Arms, Ammunitions.
NANCY, The absence of blockading fleet excuses entry and departure during
such absence, 817.
Nation definition and character of, 36 n.
Nationality - doctrines of indelible allegiance and expatriation, $ 87; of chil-
dren born abroad, of illegitimate children, of married women, § 90; per-
sons destitute of, “Heimatlosen," 92; see also Domicile.
Naturalization condition of a naturalized citizen who subsequently returns to
his native land ; $ 89; see also Citizenship.
Navigation of rivers, see Rivers, navigation of.
Navy, volunteer, 123.
Neptunus, The - blockade by notice and blockade de facto ; when notice is
required, 796.
Nereide, The -- neutral may charter and ship goods on armed belligerent vessel;
is not responsible for resistance of belligerent vessel provided said neutral
did not aid in armament or resistance, 884; Ib., definition and nature of
reprisals, 451.
950
INDEX.
Neustra Señora de los Dolores — right of claimant upon declaration of peace
revived unless property condemned or forfeited, 681.
Neutral duties, $$ 173–177.
Neutral natious — will not take jurisdiction of captures made by, belligerent
men-of-war, United States v. Peters, 697.
Neutral property - visit and search of, 858–899; unlawful capture of, does not
pass title to captor, Miller v. The Resolution (1), 899; neutral may charter
and ship goods on armed belligerent vessel and is not responsible for resist-
ance of belligerent vessel provided said neutral did not aid in arinament
or resistance, The Nereide, 884.
Neutral territory — equipment of vessels in, § 174, 692-720; neutrals should
not permit their territory to be used for hostile purposes by either belliger-
ent, § 173.
Neutral trade - neutrals may not carry on trade, such as coasting, from which
they are excluded in peace, The Emanuel, 847; neutrals may not engage in
trade from which they are excluded in peace, The Immanuel, 845; neutral
citizens may send armed vessels to belligerent ports for sale if venture is.
bona fide commercial transaction, The Santissima Trinidad, 701.
Neutral waters — captures in, 681-691 ; capture in, illegal, The Anna, 684;
capture of vessels in, § 173; capture in, illegal, but only neutral has right
to complain, Commodore Stuart's case, 910; capture in, illegal, The Twee
Gebroeders, 687; capture in, unlawful, The Florida, 690; capture in, good
as between enemies, although rights of neutral are violated; captured vessel
beginning attack forfeits claim to protection, The Anne, 688.
Neutralitet, The — carriage of contraband does not as a rule involve confisca-
tion of ship, 767.
Neutrality — violated by fitting out vessel in aid of unrecognized insurgent.
communities or insurgents, The Three Friends, 748; neutral ports may
not be used for building, equipping, or base of supplies for either belliger-
ent, The Alabama Claims, 713; vessel built in United States subsequently
sold or sent as commercial venture not violation of neutrality laws, United
States v. Meteor, 711; fitting out in neutral port to cruise against belliger-
ent is violation of neutrality laws, United States v. Quincy, 706.
Nentrality act of United States, $ 174; 692. British Foreign Enlistment Act,
§ 174; 693.
Neutralized states, § 14; see also States.
Neutrals — relations between, and helligerents, historical sketch of the subject,
172; may not engage in a trade during war from which they were excluded
in time of peace, $ 184.
New Orleans v. Abbagnato — held New Orleans not responsible for injuries to
foreigners by mob violence, 320; incorrectly held that United States gov-
ernment is not responsible therefor, 328–329 n.
New Orleans Mob (1891), § 74; 328–329 n.
New Orleans Riot (1851); $ 74; 327 n.
New York Life Insurance Co. v. Stathem - executory contracts, if time is
material and of essence, are annulled by war; life insurance policies are of
this character, but assured is entitled to equitable value of policy at time
of outbreak of war, 512.
INDEX.
951
(La) Ninfa — award under arbitration treaty has force of law, 443.
Non-combatants - who are, $ 121.
Nuncio, $ 95; see Diplomatic agents.
OBLIGATION of treaties, see Treaties.
Occupation — as a mode of acquiring territory, $ 35.
Occupation, de facto and constructive, $ 165.
Occupation, law of - tendency to change, $ 37; Berlin Conference, 1885, $ 37.
Occupation, military - general character of the right and jurisdiction of an
invader over territory occupied by his armies, old theories, modern views,
$ 163; relation of the territory occupied to the government of the invader,
to that of the state invaded, § 164; American port in occupation of British
forces is British port during such occupation, and goods imported during
such occupation not liable, after evacuation, to American duty, United
States v. Rice, 655; goods imported into United States from Mexico during
American occupation thereof, subject to duty as imported from foreign
country, Fleming v. Page, 659; neither President nor inferior executive
officer can establish prize court in territory occupied by American troops,
Jecker v. Montgomery, 664 ; during civil war President, as Commander-in-
chief, may establish provisional courts in occupied districts, The Grapeshot,
666 n.
Occupier - right of, over the persons of the territory occupied, -- "War Rebel,”
$ 166.
Ocean, The - merchandise shipped by land or inland navigation from block-
aded port to a port not blockaded, not liable to confiscation for breach
of blockade, 819.
Oddy vi Borill — judgment of prize court in country of ally passes title, 924.
Offences -- committed abroad, jurisdiction of, 294–304.
Offences, political, see Political offences.
Olinde Rodrigues, The blockade, to be binding, must be effective; presence
of a single cruiser held sufficient, 835.
Oregon Territory, $ 34.
Orozembo, The — carriage of military persons in neutral vessel subjects vessel
to confiscation, 786.
Pacific, blockade, $ 115; see also Blockade.
Pacifico, Don, $ 115 ; see Don Pacifico.
Packet de Bilboa, The, see De Bilboa Packet, The.
Panaghia Rhomba, The — master is agent for cargo as well as ship, therefore
attempt of master to enter blockaded port affects cargo, 800.
Panama, The - mail steamship not exempt from capture by law of nations,
788.
Panama Canal, $ 50.
Paquette Habana, The - international law is part of municipal law of the
United States, 19.
Parkinson v. Potter – diplomatic agent exempt from suit, 192.
35%
INDEX:
Parlement Belge, The - public ship, other than ship of war, exempt froni civil
and criminal jurisdiction of foreign port, 220.
Parole, $ 124.
Partnership — the civil war did not of itself dissolve partnerships between
citizens of the North and South; dissolution was effected by President's
proclamation of Aug. 16, 1861, Matthews v. McStea, 508 ; existing between
citizens of belligerent states dissolved by outbreak of war; notice of dis-
solutiou unnecessary, Griswold v. Waddiugton, 504,
Patrixent, The -- held that the hostage must first be shown to be detained or
dead before action can be maintained against master or owner, 569.
Peace --- capture made after declaration of, invalid, Bain v. Speedwell, 675;
The Mentor, 676; The Schooner John, 677; rights of claiınant upon dec-
laration of, revived unless property condemned or forfeited, Neustra Señora
de los Dolores, 681; effect of treaties of, § 169.
Perkins v. Rogers - sumniary of the law of nations on trade with enemy, 554.
Peterhoff, The definition and kinds of contraband, 760.
Pious Fund Case, The først decision of tậe Permanent Court of Arbitration,
449 n.
i
Piracy, 13; 345–369; opinion of Sir Leoline Jenkins, $ 80; 345; definition
and character of, jure gentium, $ 80 ; may rebels and insurgents be regarded
as pirates ? $ 81 ; by municipal law, $ 81 ; slave trade is not piracy, jure
gentium, § 82; Le Louis, 352.
Political department --- l'ecognizes existence of a state, 37-44.
Political offences -- not subject to extradition, In re Castioni, 285, and 293–
294 n.
Postliminium, in international law, $ 170.
Potts v. Bell — trade with the enemy without license held void at common law,
525.
Pre-emption in matter of contraband, 775, 776 n.
Prescription gives valid title to territory by the rules of international law,
$ 38.
President- of United States may not be made defendant in suit, Prioleau v.
United States and Johnson, 173.
Prioleau v. United Stales and Johnson -- though President could not be made
defendant to a suit, proceedings stayed until answer of United States put
in, 173.
Prisoners of war-who may be taken prisoners? treatment, parole, exchange,
· ransom, $ 124.
Private contracts, 498-520.
Privateers, § 123 ; definition and nature of, 900, 901 n.
Prize Cases, The -- çivil war exists, is not declared, 475; property of persons
residing within Confederate States during civil war, and engaged in com-
merce upon the sea, is enemy property and subject to capture, 601.
Prize courts constitution of, in different countries, § 191 ; principles and
practice of, $ 192; they are courts of the captor's country, § 193; of the
Confederacy; on land and on board ships, $ 194; property when con-
demnerl need not lie within jurisdiction of, 925 n.; of Confederate States
did not pass title, The Lilla, 6?n.; Captain Semmes', procedure, 932 11. ;
INDEX.
953
f
decision of, binds parties thereto, but does not estop government: it may
proceed diplomatically against country of prize court for failure or mis-
carriage of justice, Cushing, Adm'r, v. United States, 929; judgment of,
conclusive on points necessarily involved and clearly upon face of sentence,
Dalgleish v. Hodgson, 926; of ally passes title, Oddy v. Bovill, 924; judg-
ment of, in neutral country, does not change title, The Flad Oyen, 919;
capture vests title in captor's country; title only passes to individual captor
by condemnation in prize court of captor's country; capture in neutral
waters illegal, but only neutral has right to complain, Commodore Stewart's
case, 910; judicial proceeding in prize court necessary to pass title; evi-
dence required for condemnation comes, in first instance, from ship and its
papers, Miller v. The Resolution (2), 908; and 909 n.
Proclamations in civil wars, § 168.
Property - in form of dividend arising from contract made before war, held not
liable to confiscation, Ex parte Boussmaker, 494 ; state's title to, $ 31.
Property of enemy — within the territory and debts due the enemy, 481-497;
see also Enemy property.
Property, private – in form of debts due enemy held not confiscable by usage
of nations, 496.
Property, sale of within Northern lines, held valid after publication of notice
to parties within Confederate lines, De Jarnett v. De Giversville, 542; and
545 n.
Protector, The -- date of beginning and ending of civil war, 682.
Protectorates — protected states, $ 14; see also States.
Protectorates over semi-civilized peoples, “Spheres of Influence,” $ 43.
Public ships - immunities of, 208–225; other than ships of war, exempt from
civil and criminal jurisdiction of foreign port, The Parlement Belge, 220;
other than wen-of-war, exempt from process in foreign ports, $ 57.
QUEEN v. Keyn -in absence of statute, English court refused to take jurisdic-
tion of offence against English subject committed by foreigner on foreign
merchant vessel (The Franconia) within three-mile limit, 154; and note to
case,
RANSOM bills and permissible trading, 566-585.
Ransom bills — who may sue thereon? The Charming Nancy, 568 ; permis-
sible trading with the enemy, Cornu v. Blackburne, 566 ; ransom contracts,
ransom bill, safe conduct constitute exceptions to the rule against trading
with the enemy, § 145; held lawful contract, Goodrich v. Gordon, 571;
should first be shown that hostage was detained or dead before suit could
be maintained against master or owner, The Patrixent, 569.
Ransoms, $ 146.
Rapid, The
American citizen may not send vessel to enemy country after
outbreak of war to bring away property, 557 ; Ib., carriage of despatches to
enemy generally involves confiscation of ship; loss of time and expenses
only punishment if master not taxed with knowledge, 782.
954
INDEX.
Ratification of treaties, tacit and express, $ 103.
Recapture, rescue, 649-654; by law of England is law of reciprocity ; question
of recapture and salvage considered, The Santa Cruz, 649; recapture and
vesting of title to recaptured property in captor, $ 157.
Recognition - methods of, $ 19; The Congo State, $ 19; of belligerency, $ 24;
have belligerent communities any legal right to, by sovereign states? $ 25;
forms of, § 25; of independence, J. Q. Adams on, 44-45 n. ; when is rec-
ognition by third states of a new state claiming independence proper?
§ 18; of the existence of a state, 37.
Red-Cross Society, $ 125.
Regina v. Anderson an American citizen on British vessel on high seas sub-
ject to jurisdiction of Great Britain, 331.
Regina v. Lesley - British vessel in Chilian waters subject to Chilian jurisdic-
tion; on the high seas such vessel subject to British jurisdiction ; Chilian
prisoners may therefore bring action for false imprisonment on arrival of
vessel in British port, 337.
Reliance, The — United States courts may grant salvage for rescue of foreign
vessel on the high seas, 230.
Reprisals -451-459; definition and nature of, The Nereide, 451 ; Gray, Adm'r,
v. United States, 452 ; reprisals, retorsion, pacific blockade, $ 115.
Republic — may sue in own name, 175.
Republic of Honduras v. Soto state is a moral person, 24.
Republic of Mexico v. Arrangoiz – foreign state or sovereign may sue in state
or federal courts, 170.
Requisitions -- and contributions in land wars, will they be resorted to in
niaritime wars? § 161.
Res ancipitis usus, $ 179.
Rescue by neutrals, § 158.
Retorsion, definition and nature of, 459 n. ; $ 115.
Rivers — as boundaries, Handly's Lessee v. Anthony, 116; effect of ayulsion
and accretion on boundaries, Cooley ü. Golden, 129; middle or main chan-
nel of, Buttenuth v. St. Louis Bridge Co., 121; navigation of, § 42.
Rivers, navigation of, $ 42.
Ross, In re - consular jurisdiction in foreign country exists only by treaty,
238.
Rule of the war of 1756, § 184.
Sr. LAWRENCE, The --held that American citizeu may not bring back property
from enemy's country eleven months after outbreak of war, 559.
St. Lawrence --- navigation of the, $ 42.
Sale of arms to France, § 176 ; 747 n.
Sally, The merchandise shipped to become property of enemy on arrival con-
demned as enemy's property if taken in transitu ; capture considered de-
livery, 607.
Salvador, The - British vessel fitted out in aid of insurgents liable under
British foreign enlistment act, 744.
Salvage, $ 157; recapture, when does title to recaptured property vest in the
t
INDEX.
955
1
captor? § 157.; not allowed in neutral property recaptured or rescued from
enemy unless such property is really exposed to condemnation, The Car-
lotta, 650 ; and 654–656 n. ; allowed to ship’s master and boy on rescue of
vessel froin enemy, The Beaver, 653; property captured but abandoned by
euemy, rescued by neutral; liable for salvage, The Mary Ford, 642; United
States courts may grant, for rescue of foreign vessel on the high seas, The
Reliance, 230.
San Jose Indiano title to goods in transitu and stoppage in transitu, 614.
Santa Cruz, The — in considering questions of recapture and salvage, held
that law of England on recapture of property of allies is the law of reci-
procity, 649.
Santissima Trinidad, The neutral citizens may send armed vessels to bellig-
erent ports for sale if venture is bona fide commercial transaction, 701.
Sapphire, The — deposition or change of sovereign does not affect or abate
suit, 174.
Schooner Exchange v. McFaddon ships of war exempt from civil and crimi-
nal jurisdiction of foreign port, 208.
Schooner John, The capture after declaration of peace, invalid, 677.
Scotia, The courts take judicial notice of international law, 17.
Sea Lion, The — in the United States by act of Congress only. President
authorized to grant license, 531.
Seals, protection of, $ 189.
Search, Right of resistance to search, ground for condemnation, except when
resistance is to extreme and outrageous violence, The Ship Rose v. United
States, 879; see Visit and search.
Seas – Marginal Seas -- subject to territorial jurisdiction of state, Queen 19.
Keyn, 154; and 169 n.
Self-defence, acts of state in, $ 73; see Extraterritorial acts by state in self-
defence.
Semi-sovereign states — The Charkieh, 48.
Semmes, Captain — procedure of, in “prize court,” 932.
Servitudes in international law, $ 41.
Seton v. Low neutral may engage in trade of contraband articles ; an insur-
ance policy effected on such goods is valid, 778.
Ship Rose v. United States resistance to search, ground for condemnation,
except where resistance is to extreme and outrageous violence, 879.
Ships of war — exempt from civil and criminal jurisdiction of foreign port, The
Schooner Exchange 1. McFaddon, 208; The Constitution, 118; see also
Asylum.
Sick care of, and wounded in war, § 125.
Slave trade is not piracy, jure genitum, $ 82; right of visit and search in,
§ 189.
Slaves — refusal to surrender, or to deliver, escaping to man-of-war in foreign
port, held not actionable, Forbes v. Cochrane, 25.8.
Sinall's Adm'r v. Lumpkin's Ex'x -- agent in enemy country, if appointed be-
fore war, may transact business for principal, 538.
Society for the Propagation of Gospel v. Wheeler — treaty in rem suspended, not
extinguished by war, 428.
956
INDEX.
Soil of enemy country, produce of, $ 150.
Sovereigns - rights, privileges, and immunities of, 170-189; $ 52; deposition
of, does not abate suit, The Sapphire, 178; domestic or foreign, may not
be sued without consent, Beer v. Arkansas, 186; foreign, may not be sued,
De Haber v. Queen of Portugal, 180; Vavasseur v. Krupp, 192; may sue in
courts of foreign state, Mexico v. Arrangoiz, 170); may sue in courts of
foreign state, $ 51; are exempt in (1) their persons, (2) in their official
representatives, and (3) in their property from the jurisdiction of foreign
courts of law, $ 52.
Sovereignty, change of — effect of, upon public rights and obligations, $ 20;
Kent's opinion, 96 n.; effect of, upon laws, $ 22; 104-116 ; effect of, upon
private rights, § 21; United States v. Percheman, 95; United States v.
Repentigny, 98; effect of, on public rights and obligations, United States
v. Priolean, 85; United States v. Smith, 89.
Spies, $ 129.
State v. Patterson - in interstate rendition the surrendered fugitive triable for
crime other than that for which he was surrendered, 283.
State v. Wyckoff - crime committed in New York, not punishable in New
Jersey, 296; and 300 n. ; 301 n.
State - definition and characteristics of, 36 n. ; kinds of, The Helena, 45; defi-
nition of, Yrisarri v. Clement, 23 ; definition of sovereign state, Texas v.
White, 25; identity of, unaffected by internal changes, Keith v. Clark,
§ 12; 28; definition of states of American Union, Texas v. White, 23; as
a moral person, Honduras v. Soto, 24 ; title to property, $ 31; rivers of a,
116-132; effect of the recognition of a new state by the parent state, and
by third states, g 17.
States — definition and nature of sovereign, $ 10 ; sovereign, are the subjects
or persons of international law, $ 9; distinction between internal and
external sovereignty of, § 11 ; fundamental rights and duties of, § 13;
classification of,“ Centralized states," “ Personal Union," " Real Union"
(Bundesstaat), “Oonfederate Union," (Staatenbund), Protected state,
Neutralized states, $ 14; equality of, ş 15 ; date of the commencement of,
$ 16 de jure and de facto, Thorington v. Smith, 53 ; acts of military com-
mander in de facto or de jure states, Underhill v. Hernandez, 62.
Statute of limitations ceases to run during war, Hanger v. Abbott, 500;
§ 135.
Stephen Hart, The - doctrine of continuous voyages applied in American civil
war, 852.
Stewart, Case of Commodore — capture vests title in captor's country ; title
only passes to individual captor by condemnation in prize court of captor's
country; capture in neutral waters illegal, but only neutral has right to
con plain, 910.
Straits and lakes United States v. Rodgers, 132; bodies of water more than
six miles wide, § 49 a.
Suez Canal, $ 50.
Sutton v. Sutton — treaty in rem suspended, not extinguished by war, 427.
INDEX.
957
i
TERLINDIEN 1. Ames — treaty held not extinguished by absorption of one of
parties thereto, 436.
Terrce dominium finitur ubi finitur armorum vis, $ 48.
Territorial property of a state, $ 30.
Territorial waters - history of attempts to appropriate the seas, or portions of
them ; contests between mare clausum and mare liberuin, $ 47; origin of
the rule lirniting the territorial right of a state in the sea to a marine deague
from the shore; “ Terrde dominium finitur ubi finitur armorum vis,” $ 48
bodies of water more than six miles wide, & 49.
Territoriality of merchant vessels, $ 76.
Territory -- acquisition of, by prescription, Rhode Island v. Massachusetts ;
Virginia v. Tennessee, 74 n. į acquisition of, Harcourt v. Gaillard, 70;
acquisition by "alluvium and increment," The Anna, 74 n. ; modes of
acquiring, $ 32 ; title to, based on discovery, $ 38; title to, based on prior
discovery of the coast and mouths of rivers, upon occupation, exploration,
and contiguity, $ 34.
Teutonia, The — war inay exist de facto without declaration, 471.
Texan bonds, 94-97 n.
Thompson v. Powles recognition of the existence of a state, 37 ; Ib., recog-
nition of statehood, function of political department, 37.
Thorington v. Smith - definition and nature of sovereign states, de facto and
de jure ; Confederate states held entitled to rights and privileges of de facto
states, 53.
Three Friends, The - fitting out vessel in aid of unrecognized insurgent com-
munities or insurgents held violation of neutrality laws, 748.
Three-mile zone, $ 48.
Title acquired by discovery and occupation, $ 35.
Tousig's Case an unnaturalized foreigner, residing in United States, not en-
titled to protection if he return to his home country, 401 n.
Trade — license to, $ 146 ; house of, takes national character of country in which
it is established, g 149 ; with enemy, is wholly interdicted ; in all cases-
illegal, unless under license of the state, $ 137 ; summary of the law of
nations on trade with enemy, Perkins v. Rogers, 554 ; with the enemy,
521-556.
Trade with the enemy, 521-556; see also Enemy, trade of ; Enemy property.
Transfer in transitu, see Transitu, transfer in.
Transit, ownership of goods in, 607-615.
Transitu, capture in — goods shipped to become property of enemy on arrival,
condemned, The Anna Catharina, 612; title to goods in transilu and stop-
page in transitu, San José Indiano, 614; goods shipped in time of war, or
in contemplation thereof, held to belong to consignee; if consignee is enemy,
property condemned, The Packet de Bilboa, $ 151; 609; merchandise,
shipped to become property of enemy on arrival, condemned as enemy's
property if taken in transitu; capture considered delivery, The Sally, 607.
Transitu, stoppage in, § 152.
Transilu, transfer in, 616-628; $ 152; bona fide transfer of property not illegal,
but. colorable or fraudulent trausfer in transitu clearly so, The Vrow Mar:
garetha, 616; colorable transfer of enemy property does not affect liability
958
INDEX.
i
thereof to capture, The Beneto Estengen, 621; contract in contemplation
of war or transfer of colonial produce in transitu illegal, The Jan Fred-
erick, 618; property may not change character in transit nor does neu-
trality of shipper protect property consigned for delivery to enemy port,
The Ship Ann Green, 620.
Treaties — nature and kinds of, $ 101; kind of, not subjects of international
law, $ 102; forms of, tacit and express ratification, $ 103; interpretation
of, $ 104; conflict between different, $ 105; of guarantee, $ 106; legislation
necessary to carry into effect, § 107; treaty dates from signing, not from
date of ratification, § 108; Haver v. Yaker, 420; Davis v. Police Jury,
421 n.; obligations of, test of voidability, $ 109; most favored nation clause
in commercial, § 110; extinction and renewal of, $ 111; the law of the land,
412–449; as law of the land, subject to constitutional limitations, Geofroy
v. Riggs, 413; as law of the land, treaty takes precedence over state statute,
Wunderle v. Wunderle, 414; not extinguished by absorption of one of
parties thereto, Terlinden v. Ames, 436; superseded by subsequent treaty
or act of Congress inconsistent therewith, Whitney v. Robertson, 422; in
rem, suspended, not extinguished by war, Sutton v. Sutton, 427; Society for
Propagation of Gospel v. Wheeler, 428; other than in rem extinguished by
war, Hooper, Adm'r, v. United States, 433; effect of war upon, between
belligerent states, $ 136; of peace, $ 168; effect of ti aties of peace in
settling general rights and obligations, $ 169.
Trent, The — enemy subjects not belonging to armed or naval forces, not liable
to capture in neutral transport, 788 n.
Trimble's Case -- states do not, as a rule, surrender their own citizens, 293 n.
Triquet v. Bath - international law part of common law, 6; Ib., an interpreta-
tion of the Statute of Anne, 6.
Troops, trânsit of, § 173.
Truce, flags of, § 146.
Truces, § 146.
Twee Gebroeders, The — capture within neutral waters illegal, 687.
UNDERHILL v. Hernandez consideration of de facto and de jure states; mili-
tary commander representing a de facto government in the prosecution of
war not civilly liable for his actions, 62.
United States v. The Active - War
War - Definition, object, rights acquired by,
464.
United States v. Ambrose Light - unrecognized insurgents (wrongly) held
to be pirates, 346.
United States v. Davis — crime committed within jurisdiction of foreign coun-
try not triable in United States, 294.
United States v. Diekelman — merchant ships in foreign ports subject in all
respects to jurisdiction thereof, 264; and 253–275 n.
United States v. Guinet — held unlawful for belligerents to arm vessels within
neutral port, 695.
United States v. Jeffers — asylum does not exist in legations, 256; exception in
Central and Southern American Republics, 257–258 n.
1
INDEX.
959
United States v. Kagama Indians born within United States controlled by
treaties or acts of Congress; states have no control over tribal Indians
within their boundaries, 404.
United States v. The Meteor — vessel built in United States and sent or sold
as commercial venture to belligerents not violation of neutrality laws, 711.
United States v. Moreno - conquest or cession of territory works no change in
private titles to land, 666.
United States v. Percheman — title to private property unaffected by cession of
territory, 95.
United States v. Peters vessels of war are not amenable to neutral nations
for violation of sovereignty thereof, 697.
United States v. Prioleau upon end of civil war in 1865 title to public prop-
erty of Confederate government vested immediately in government of
United States, 85.
United States v. Quincy — vessel may be built in United States, but if fitted
out in foreign port, neutrality laws of United States not violated, 706.
United States 2. Rauscher a duty to extradite exists solely under treaty, and
fugitive triable only for crime for which he was extradited, 274.
United States v. Repentigny-on conquest and consequent change of sover-
eignty, inhabitants who do not remain and become citizens of conqueror
deprived of protection to themselves and property unless secured by treaty.
If provided by treaty that former inhabitants adhering to their vanquished
sovereign may sell property to certain class of persons and within time
specified, failure to comply with treaty by so selling forfeits or abandons
property to conqueror, 98.
United States v. Rice American port in occupation of British forces is
British port during such occupation, and goods imported during such occu-
pation not liable, after evacuation, to American duty, 655.
United States v. Rodgers - rivers, sounds, straits, connecting high seas, are
themselves high seas, 132.
United States v. Smiley crime committed beyond the jurisdiction of United
States not punishable in United States, 302.
United States v. Smith upon suppression of insurrection, as in the case of the
Confederate States, the public rights and obligations of the de facto (Con-
federate States), vest immediately in the de jure government (United
States), 89.
United States v. Smith — piracy, 13.
United States v. Texas definition and nature of sovereign states of the
Union, 76.
United States v. Trumbull arms and ammunitions delivered to insurgent vessel
in United States port, held not violation of United States neutrality laws, 731.
United States v. Wagner --- republic may sue in its own name, and need neither
have nor create officer to maintain suit on its behalf, 176.
Uti possidetis - as applied to territory; $ 170..
VAVASSEUR 2. Krupp – foreign sovereign may not be sued, and if in suit
against his agents he adds his name so as later to be in position to claim
property, he is not thereby subjected to jurisdiction of court, 182.
960
INDEX
Venus, The - American citizen domiciled in enemy country; is enemy, and
goods shipped before, but captured after, outbreak of war, lawful prize, 591.
Vessels, mercbant, see Merchant vessels.
Vessels, see Ships of war; Fréé ships, Free goods; Neutral waters.
Virginius, The state may seize vessel on the high seas in self-defence, 320 n.,
322 n.
ܪ
Visit and search of neutral property, 858–899; right of, is a belligerent right
to which neutrals are subject, $ 187; formalities of the exercise of right
of, false documents, spoliation papers, § 188; right of, in time of peace,
§ 189; vessel sailing under convoy is presumed to remain under convoy
and therefore liable to capture; right of search implies right to use force if.
necessary in its execution, The Brig Sea Nymph, 869 ; vessel sailing under
armed convoy to avoid visitation and search subject to condemnation, The
Maria, 858, The Nancy, 861; held, inter alia, that vessel suspected of piracy
may be visited, searched, and captured by any nation; right of search in
other cases does not exist in peace; it is belligerent right, The Marianna
Flora, 873.
Voluntary, not involuntàry, trading with the enemy illegal, Crawford v. The
William Penn, 575.
Volunteer navy, § 123.
Vrow Henrica, The neutral carrier of enemy property generally allowed
freight, in this case freight postponed to captor's law expenses, 629.
Vrow Margaretha, The - bona fide transfer of property not illegal, but colorable
or fraudulent transfer in transitu clearly so. 616.
WAR
- purpose and declaration, 464-480 ; definition, object, causes, kinds, $ 118;
definition, object, rights acquired by, United States v. The Active, 464;
declaration of, without declaration, beginning of, § 117; civil, date of be-
ginning and ending thereof, The Protector. 682; $ 117; definition of, and
kinds of, Dole v. Merchants' Marine Insurance Co., 470; perfect and im-
perfect kinds of, 471 n.; may exist de facto without declaration, The Teu-
toni:2, 471; instruments of, § 126; effects of, as between enemies, $$ 119,
120; property confiscable in, S. 130; termination of, 675-683; $ 168.
Ware v. Hylton debts due the enemy legally may be, but from motives of
policy generally are not confiscated, 485 n.
Ware v. Jones -contract made during civil war for sale of property, real or
personal, to aid Confederate States held void, 517.
Washington Thrée rules of, 714 n.
Whitney r. Robertson — treaty as law is superseded by subsequent treaty or
act of Congress inconsistent therewith, 422.
Wildenhus' Case - merchant vessels subject, unless exempt by express treaty,
to civil and criminal jurisdiction of foreign port; French rule otherwise,
225 (227-228).
William, The — by rule of 1756, neutrals may not trade directly between enemy
and his colonies; touching at neutral port to avoid penalty not permitted,
848.
William Bagalay, The - duty of citizen to return home ou outbreak of war,
565.
0
INDEX.
961
Williams' Case at common law subject may not change allegiance without
permission of state, 372.
Williams v. Marshall --- license, to be a protection, must be complied substan-
tially with, 530.
Wilson v. Blanco - diplomatic agent exempt from suit in third country,
whether going to or returning from post, 206.
Wilson v. McNamee merchant vessels of the United States on the high seas
subject to jurisdiction of United States, 329.
Wolff v. Oxholm private property in form of debts due enemy, held not con-
fiscable by usage of nations, 496.
Wunderle v. Wunderle — treaty as law of the land takes precedence of state
statute, 414.
-
ri
YRIBARRI v. Clement - definition, nature and constituent elements of
statehood, 23.
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