L'Invincible/Opinion of the Court

by William Johnson

It would be difficult to distinguish this case, in principle, from those of the Cassius and the Exchange,g decided in this court. The only circumstance, in fact, in which they differ, is, that in those cases, the vessels were the property of the nation; in this it belongs to private adventurers. But the commission under which they acted was the same; the same sovereign power which could claim immunities in those cases equally demands them in this; and although the privateer may be considered a volunteer in the war, it is not less a part of the efficient national force, set in action for the purpose of subduing an enemy. There may be, indeed, one shade of difference between them, and it

But it is contended that, admitting the general principle, that the exclusive cognizance of prize questions belongs to the capturing power, still the peculiar circumstances of this case constitute an exception, inasmuch as the recapture of the Mount Hope puts it out of the power of the French courts to exercise jurisdiction over the case. This leads us to inquire into the real ground upon which the exclusive cognizance of prize questions is yielded to the courts of the capturing power. For the appellants, it is contended, that it rests upon the possession of the subject matter of that jurisdiction; and as the loss of possession carries with it the loss of capacity to sit in judgment on the question of prize or no prize, it follows, that the rights of judging reverts to the state whose citizen has been devested of his property. On the other hand, I presume, by the reference to Rutherforth, we are to understand it to be contended that it is a right conceded by the customary law of nations, because the captor is responsible to his sovereign, and the sovereign to other nations.

But we are of opinion that it rests upon other grounds; and that the views of Vattel on the subject are the most reconcilable to reason, and the nature of things, and furnish the easiest solution of all the questions which arise under this head. That it is a consequence of the equality and absolute independence of sovereign states, on the one hand, and of the duty to observe uniform impartial neutrality, on the other.

Under the former, every sovereign becomes the acknowledged arbiter of his own justice, and cannot, consistently with his dignity, stoop to appear at the bar of other nations to defend the acts of his commissioned agents, much less the justice and legality of those rules of conduct which he prescribes to them. Under the latter, neturals are bound to withhold their interference between the captor and the captured; to consider the fact of possession as conclusive evidence of the right. Under this it is, also, that it becomes unlawful to devest a captor of possession even of the ship of a citizen, when seized under a charge of having trespassed upon belligerant rights.

In this case the capture is not made as of a vessel of the neutral power; but as of one who, quitting his neutrality, voluntarily arranges himself under the banners of the enemy. On this subject there appears to be a tacit convention between the netural and belligerant; that, on the one hand, the neutral state shall not be implicated in the misconduct of the individual; and on the other, that the offender shall be subjected to the exercise of belligerant right. In this view the situation of a captured ship of a citizen is precisely the same as that of any other captured neutral; or, rather, the obligation to abstain from interference between the captor and captured becomes greater, inasmuch as it is purchased by a concession from the belligerant, of no little importance to the peace of the world, and particularly of the nation of the offending individual. The belligerant contents himself with cutting up the unneutral commerce, and makes no complaint to the netural power, not even where the individual rescues his vessel, and escapes into his own port after capture.

Testing this case by these principles, it will be found that, to have sustained the claim of the appellants, the court below would have violated the hospitality which nations have a right to claim from each other, and the immunity which a sovereign commission confers on the vessel which acts under it; that it would have detracted from the dignity and equality of sovereign states, by reducing one to the condition of a suitor in the courts of another, and from the acknowledged right of every beligerant to judge for himself when his own rights on the ocean have been violated or evaded; and, finally, that it would have been a deviation from that strict line of neutrality which it is the universal duty of neutrals to observe-a duty of the most delicate nature with regard to her own citizens, inasmuch as through their misconduct she may draw upon herself the imputation of secretly supporting one of the contending parties. Under this view of the law of nations on this subject, it is evident that it becomes immaterial whether the corpus continue sub potestate of the capturing power, or not. Yet, if the recapture of the prize necessarily draws after it consequences so fatal to the rights of an unoffending individual as have been supposed in the argument, it may well be asked, shall he be referred for redress to courts which, by the state of facts, are rendered incompetent to afford redress?

The answer is, that this consequence does not follow from the recapture. The courts of the captor are still open for redress. The injured neutral, it is to be presumed, will there receive indemnity for a wanton or illicit capture; and if justice be refused him, his own nation is bound to vindicate, or indemnify him.

Some confusion of idea appears to hang over this doctrine, resulting chiefly from a doubt as to the mode in which the principle of exclusive cognizance is to be applied in neutral courts to cases as they arise; and this obscurity is increased by the apparent bearing of certain cases decided in this court in the years 1794 and 1795.

The material questions necessary to be considered, in order to dissipate these doubts, are, 1st. Does this principle properly furnish a plea to the jurisdiction of the admiralty courts? 2d. If not, then does not jurisdiction over the subject matter draw after it every incidental or resulting question relative to the disposal of the proceeds of the res subjecta?

The first of these questions was the only one settled in the case of Glass v. The Betsey, and the ease was sent back with a view that the district court should exercise jurisdiction, subject, however, to the law of nations on this subject as the rule to govern its decision.

And this is certainly the correct course. Every violent dispossession of property on the ocean is, prima facie, a maritime tort; as such, it belongs to the admiralty jurisdiction. But sitting and judging, as such courts do, by the law of nations, the moment it is ascertained to be a seizure by a commissioned cruiser, made in the legitimate exercise of the rights of war, their progress is arrested; for this circumstance is, in those courts, a sufficient evidence of right.

That the mere fact of seizure as prize does not, of itself, oust the neutral admiralty court of its jurisdiction, is evident from this fact, that there are acknowledged cases in which the courts of a neutral may interfere to devest possessions; to wit, those in which her own right to stand neutral is invaded: and there is no case in which the court of a neutral may not claim the right of determining whether the capturing vessel be, in fact, the commissioned cruiser of a belligerant power. Without the exercise of jurisdiction thus far, in all cases, the power of the admiralty would be inadequate to afford protection from piratical capture. The case of Talbot v. Jansen, as well in the reasoning of the judges as in the final decision of the case, is fully up to the support of this doctrine. But it is supposed that the case of the Mary Ford supports the idea, that as the court had acknowledged jurisdiction over the question of salvage, its jurisdiction extended over the whole subject matter, and authorized it to proceed finally to dispose of the residue between the parties litigant.

That case certainly will not support the doctrine to the extent contended for in this case. It is true, that the court there lay down a principle, which, in its general application is unquestionably correct, and which, considered in the abstract, might be supposed applicable to the present case. But this presents only one of innumerable cases which occur in our books to prove how apt we are to misconceive and misapply the decisions of a court, by detaching those decisions from the case which the court propose to decide. The decision of the supreme court in that case is in strict conformity with that of the circuit court in the present case. For when the court come to apply their principle, they do not enter into the question of prize between the belligerants, but decree the residue to the last possessor: thus making the fact of possession, as between the parties litigant, the criterion of right; and this is, unquestionably, consistent with the law of nations. Those points, which can be disposed of without any reference to the legal exercise of the rights of war, the court proceeds to decide; but those which necessarily involve the question of prize or no prize, they remit to another tribunal.

It would afford us much satisfaction could we, with equal facility, vindicate the consistency of this court in the case of Del. Col v. Arnold. To say the least of that case, it certainly requires an apology. We are, however, induced to believe, from several circumstances, that we have transmitted to us but an imperfect sketch of the decision in that case. The brevity with which the case is reported, which we are informed had been argued successively at two terms, by men of the first legal talents, necessarily suggests this opinion; and when we refer to the case of the Cassius, decided but the term preceding, and observe the correctness with which the law applicable to this case, in principle, is laid down in the recital to the prohibitions, we are confirmed in that opinion.

But the case itself furnishes additional confirmation. There is one view of it in which it is reconcilable to every legal principle. It appears that, when pursued by the Terpsicore, the Grand Sachem was wholly abandoned by the prize crew, and left in possession of one of the original American crew, and a passenger; that, in their possession, she was driven within our territorial limits, and was actually on shore when the prize crew resumed their possession, and plundered and scuttled her. Supposing this to have been a case of total dereliction, (an opinion which, if incorrect, was only so on a point of fact, and one in support of which much might to said, as the prize crew had no proprietary interest, but only a right founded on the fact of possession,) it would follow, that the subsequent resumption of possession was tortious, and subjected the parties to damages. On the propriety of the seizure of the Industry, to satisfy those damages, the court give no opinion, but place the application of the proceeds of the sale of this vessel on the ground of consent; a principle, on the correctness of the application of which to that case, the report affords no ground to decide.

But, admitting that the case of the Grand Sachem was decided under the idea that the courts of the neutral can take cognizance of the legality of belligerant seizure, it is glaringly inconsistent with the acknowledged doctrine in the case of the Cassius and of Talbot v. Jansen, decided the term next preceding; and in the Mary Ford, decided at the same term with that of the Grand Sachem. The subject has frequently, since that term, been submitted to the consideration of this court, and the decision has uniformly been, that it is a question exclusively proper for the courts of the capturing power.

Sentence affirmed.

Notes