the President delivered the resolution of the Court.
Dickenson, President:-
There are two principal
qualities
concerning jurisdiction in this cause.
First.
Whether the Court of Admiralty for this State had jurisdiction?
Second.
Whether this Court has jurisdiction!
The first has been sub-divided into these
secondary
questions:
First. Could the Court of Admiralty for this State take cognizance as an
Instance
Court, supposing this cause not to be a cause of
Prize?
Second.
Did that Court take cognizance as a
Prize
Court?
It is acknowledged by the Council for the Appellants, that if this is not a cause of
Prize,
the Court of Admiralty might take cognizance as an
Instance
Court, it being now settled that damages may be affected in the Admiralty—if it was not for an objection arising from the Act of Assembly for regulating and establishing Admiralty jurisdiction in this State. By that Act the Judge of the Admiralty shall “have cognizance of all controversies, suits, and pleas of maritime jurisdiction,
not cognizable at the common law,
and thereupon shall decree as the maritime law, the law of nations, and the laws of this Commonwealth shall require.” The objection made, is, that the present controversy
is cognizable at common law.
It is manifest from this Act, that in framing it, the legislature took into consideration the
English
statutes relating to things done upon the High seas, and particularly the statutes of the 13th of
Richard
the
second,
ch. 3, and 5, and the 2d of
Henry
the
fourth,
ch. 11 by which, “Admirals and their deputies are prohibited from medling with any thing done within the realm of
England,
but only with things done upon the seas, according to that which hath been duly used in the time of
Edward
the
third,”
and it is “declared, that the Court of the Admiral hath no manner of conusance, power, or jurisdiction of any contract, plea or quarrel, or of any other thing done or rising within the bodies of counties except in cases of death or
Mayheme
done in great ships being in the main stream of rivers beneath the
points of the same.”
It is clear even from these cautions against encroachments of the Admiralty upon the Courts of common law, and from the well-known dispute mentioned in
Cooke’s 4th Inst.
that the jurisdiction of that court, as to “things done upon the sea,” is acknowledged to be
proper:
and, that as to
them
the jurisdiction of the common law courts was
not proper,
but only acquired by a
Fiction
in supposing them to have been done in the same county, when they were not. 4
Inst.
134 to 143. 3
Blackst.
43, 106,
&c. Fortescue
de Laudibus 67.
et in notis.
The common law courts had a great advantage. They used it. There was no superior Court to
prohibit
them. They went beyond the “
Credo quia impossible
est;" for they upon certain suggestions,
without
“believing” them, but
knowing
them to be both
false
and
impossible,
assumed jurisdiction
;
and would
not permit
evident truth
to be regarded. With such laboured ingenuity has the jurisdiction of common law courts, as to acts upon the High Seas, been sustained, to the great mortification of Sir
Thomas Rydlye
and other learned Civilians,
the former, with much commendation from the rest, very gravely undertaking to prove, that a ship could not fail in
Cheapside
in the city of London,
the place usually assigned in suggestions, as the scene of naval transactions.
Yet, notwithstanding these statutes, mariners have in
England
been allowed to sue for wages in the Admiralty, upon contracts made there within the body of a county, “against the statute
expressly,"
as was held by the Judges, when that great man, Lord Chief Justice
Holt,
presided in the King’s Bench.
Salk
33. The reasons were, that the remedy was
easier,
because they could join in the suit, and
letter,
because the ship would be answerable.
In the present case, the owners, masters and sailors of the three brigs could not be jointly sued at common law. If they could not, what a multiplicity of actions must be brought. Supposing the owners, commander and men of the
Argo
could join in a suit at common law, one of them might destroy the action by a
release. The vessels are not liable in the same manner at common law, as they are in a Court of Admiralty.
If the Court of Admiralty for this State cannot take cognizance of things which courts of common law may draw into their cognizance, it seems to have been nugatory in the legislature to have given that Court any other jurisdiction than in cases of
Prize;
for even in the case of wages, justly a favourite object of Admiralty jurisdiction, mariners may sue for them at common law.
It appears to have been the intention of the legislature, that justice should be done in the easiest and best manner, and that by the words “not cognizable at common law,” should be understood, “not properly cognizable at common law.”
•The
nextfecondary.
queftion is fo connected with the definition of
a caufe of Prize,
and the treating of
that
fubjedt introduces fo many Considerations concering relative Circumstances in these States, and the Law of Nations, and thefe again are fo combined with Enquiries as to the Jurisdiction of this Court, that they cannot bs conveniently, at leaft, not ea-fily feparated. We will at prefent therefore pafs to the fecond
principal
queftion, referving till that íhall be diííuíled, what peculiarly relates to the queftion we now leave.
This State has all the powers of Independent Sovereignty by the Declaration of
Independence
on the 4th of July, 1776, except what were resigned by the subsequent
Confederation
dated the 9th of
July,
1778, but not completed by final ratification until
the first
of
March,
1781.
By the Confederation,
The United States
are vested, among other things, with the “sole and exclusive power of establishing rules for deciding in all cases what captures on land and water shall be legal, and in what manner Prizes taken by Land or Naval Forces in the service of
The United States
shall be divided or appropriated; of granting Letters of Marque and Reprizal in times of peace; appointing Courts for the trial of Piracies and Felonies committed on the High Seas, and establishing Courts for receiving and determining finally appeals in all cases of Captures.”
Such a Court was established by the stile of “The Court of Appeals in cases of Capture.” Acts of Congress,
May
24, 1780.
By
the commission, the Judges are “to hear, try and determine all appeals from the Courts of Admiralty in the States respectively, in cases of capture, which now are, or hereafter may be duly entered and made in any of the said States.” Acts of Congress,
February
2d, 1780.
It was resolved by Congress,
May
24th, 1780, “that all matters respecting appeals in cases of capture, now depending before Congress or the Commissioners of Appeals, consisting of members of Congress, be referred to the newly erected Court of Appeals to be there adjudged and determined according to Law.”
It is necessary to enquire, what is the reasonable and legal meaning of the
words of the Confederation,
and of Congress in their several acts relative to this subject, for that is the true meaning.
Thus we shall be led into a construction, by which the positive words may be properly and justly modified.
What are the foundations of such a construction here? First—The Council for the Respondent, are themselves compelled to qualify the generality of the expression, “establishing Courts for receiving and determining finally, appeals in all cases of captures,” by adding,
as prize.
The addition is indispensably necessary; for without it, the words would comprehend every kind of taking, on land and water, in peace and war. Having been obliged to go so far, in qualifying the extent of the original expression, we are under the same necessity of explaining
the terms of qualification themselves;
and certainly we have the same right, founded on reason and law, to
explain
them, that we had to
introduce
them. In doing this we shall find, Secondly—That
“
captures,
as prize,
by citizens of
The United States,
may be carried into
foreign countries,
and be
legally
proceeded against in the Courts of Admiralty
there
; and therefore it is to be inferred that
the Confederation intended
only such captures,” brought
infra præsidia
of T
he United States. T
hat this was the intention thereof, further appears, as Thirdly—Congress, in the commission and resolution before mentioned, have shewn their sense of the words “Cases of Captures,” by using them in reference to appeals
“in
Cases of capture, which then were duly entered and depending,” as well as to future cases; but none were “then entered and depending,” except where the “Captures” were brought
infra præsidia
of The
United States.
This sense of Congress, will
appear still more plain from their several following resolutions, prior to the Confederation; which were in force at the time of the capture made by Captain
Talbot,
and which were the ground-work of the
ninth
section of the Confederation, “
November
25, 1775—That it be recommended to the several Legislatures, as soon as possible to erect Courts of Justice, or give Jurisdiction to the Courts now in being, to determine concerning captures to be made.—If the capture be made on open sea, the prosecution shall be in the Court of such colony as the captor may find most convenient; provided, that nothing in this resolution, shall be construed so as to enable the captor to remove his prize from any colony competent to determine concerning the seizure, after he shall have carried the vessel so seized, within any harbour of the same. That in all cases an appeal shall be allowed to Congress, or persons appointed by them.—That when vessels are fitted out by private persons, the captures made, shall be to the use of the owners.
December
5. That in cases of re-captures, the re-captors shall retain for salvage, according to the time, &c.
March
23, 1776. That all vessels and goods belonging to inhabitants of
Great Britain,
taken on the high seas, by armed vessels of private persons, and commissioned, being libelled and prosecuted in any Court erected for trial of maritime affairs in any of the colonies, shall be deemed and adjudged to be lawful prize.—Vessels and goods taken near the shores of a colony, by the people, or a detachment of the army, shall be deemed lawful prize, and condemned in the Court of Admiralty of that colony.—Commissions to be obtained, and bonds to be given for observance of instructions from Congress. Instructions to the Commanders of private vessels of war: You shall bring such vessels, &c. as you shall take, to some convenient port of the United Colonies, that proceedings may thereupon be had in due form, before the Courts which are or shall be there appointed to hear and determine causes civil and maritime.—You shall bring one or two of the principal persons of the vessel, as soon as may be, to the Judge of such Court to be examined, and deliver to the said Judge all papers, &c.—You shall keep and preserve every vessel, &c. by you taken, until they shall, by sentence of a Court properly authorized, be adjudged lawful prizes, not breaking bulk, nor suffering such a thing to be done.” Fourthly—By the maritime law of nations, the
appropriation
of jurisdiction to
a particular
Court of Admiralty, depends upon the capture being
infra præsidia,
3
Blackstone,
108.
that law
regarding proceedings
in rem,
the acquittal or condemnation of the ship or goods. Answer of the
British
Court, to the memorial delivered by order of the King of
Prussia, Exposition des motifs,
11. 12. Mod. 143. It would be injurious to nations if it was otherwise; for it would cause competition of jurisdictions, and would occasion frauds. The usual method is simple and fair. Fifthly.—The articles in the treaties of
The United States
with
France,
the
United Netherlands
and
Sweden,
with relation to prizes, refer to the cases of prizes
conducted into the ports
of the contracting powers,
relying on cautions against malversations and contraventions to
be
given by commanders of private vessels of war, rules and regulations for deciding the legality of prizes, and trials in Courts of Admiralty generally. Sixthly—An authority to “establish rules for deciding in all cases, what captures on land or water shall be legal, and Courts for receiving and determining finally, appeals in all cases of captures,” as prize, brought
infra præsidia
of
The United States,
together with the other powers vested in Congress, will sufficiently obviate the mischiefs apprehended from the irregularities of citizens of
Confederated America
upon the high seas.
Foreigners
are protected by the confederation, from the irregularities mentioned; for, Congress can, “exclusively, appoint Courts for the trial of piracies and felonies committed on the high seas,” and can send out a naval force to cruize for and seize the offenders. If the Respondent was a
Frenchman,
and the decree goes against him, he could not justly complain; for he instituted his suit in an
American
Court. If the appellants were
Frenchmen,
and the decree goes against them, they could not justly complain, for they took, without battle, by force and violence, from a friend and ally, that which in their fight, according to their own allegations and proofs, he had before fought for and captured, and afterwards voluntarily put themselves within the jurisdiction, precinct and power of an
American
Court. What are the sentiments of learned authors, treating of the law of nations, upon such an occasion? "Quæ ab hostibus capiuntur,
statim
capientium fiunt; which is to be understood,
when the battle is over. Voel,
and many writers he refers to, maintain with great strength, per solam
occupationem
dominium prædæ hostibus acquiri. One argument used to prove it, is, that
the instant
the captor has got
possession,
no friend, fellow-soldier, or ally, can take it from him, because it would be
a violation of his property.”
Lord
Mansfield,
delivering the resolutions of the Court, in the case of
Goss and another,
against
Withers.
In either case, and in the strongest light in which the affair can be viewed, it is no more than a matter to be treated of between their Sove reign and
The United States.
2.
Shower,
232. Raym. 473. If it be said that Congress should have a legal mode of making compensation, by rectifying improper decisions against foreigners, thereby to prevent disagreeable consequences, it is a doctrine that cannot be universally admitted, for reasons too plain to be insisted on. If it be confined to acts on the high seas,
provision has been mace by the Confederation, in the cases where it was judged necessary.
What the Rulers of nations desire and stipulate for in treaties, as to transactions on the high seas, is to secure their people from being plundered by the citizens or subjects of those with whom they treat. That great point being guarded, and it is guarded here, the danger of consequences from cases that rarely occur, complicated with a variety of circumstances, and decided upon in open Courts, are not to be apprehended. When Sovereigns are determined to quarrel, they will never want pretences; but while they revere the
sacred obligations of justice and humanity, or the precious sentiments of the good and wife in their own and succeeding ages, they will not disturb the repose of the world, by violating the law of nations, upon flight claims of their subjects, or “
in re minime dubia.” An
swer of the
British
Court. 23.
Vattel,
bo. 11, ch. 4, 5, 7. Neither can
one of these States
prey upon another, without violating the Confederation, for by that, “No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by
The United States
in Congress assembled, for the defence of such State, or its trade; nor shall any State engage in any war without their consent, unless invaded by enemies, or certainly advised of an intended invasion by
Indians:
Nor grant commissions to any ships or vessels of war, nor letters of marque, or reprisal, except it be after a declaration of war by
The United States
in Congress assembled, and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, unless infested by pirates, and then only until
The United States
in Congress assembled, shall determine otherwise.” Besides, “All disputes and differences concerning
any cause whatever,
are determinable by Courts to be established under the authority of Congress.”
Let us now enquire whether the present case is
such a cause of prize
as is mentioned in the many cases quoted by the Council for the Respondent.
In what circumstances is any of those cases like this? Does it appear from any of them, that the
Prize Court
in England, would decide
such a case as this is?
Does it appear that the Courts of West
minster-Hall,
in any action for
such a trespass as this,
would refuse to take cognizance, because the original taking was a capture
as prize?
Does it appear that they would refuse to take cognizance, under colour that the second taking was a capture
as prize?
If they should, ought any such decision to have weight with us in this case? What are the cases quoted? A justification by persons of original
captures made by themselves,
because made as prize. What is this case? A justification by persons of
their conduct, after a capture made in battle, by others in their fight,
under pretension of right, founded on
that circumstance.
If they say, the second taking was an original capture
as prize,
their assertion is
falsified
by
their own proofs,
that
they saw the capture made by others,
the day before. If they say, their proceedings were
united
with the original capture
as prize,
by being
in sight
at the time, let them take care that their
pretension
of right is well founded.
Comb
367. If it is not, their proceedings are
distinct
from the original capture, and they are plainly Trespassers, and must abide by the consequences. We are clearly of opinion, that their
pretension
of right is utterly unfounded, and that the whole conduct of the Commanders and Crews of the Brigs, was cruel, unprovoked, wanton, and
mala fide.
In this very singular and extraordinary case, they have exerted themselves to disable the Respondent from proving the capture to be prize; and
is the sole question afterwards, to be,
prize or not?
What necessity is there for determining whether the
Betsey
was prize or not? Is it not evident from the case of
Combs,
against
the Hundred of Bradley,
in
Salkeld’s
Reports, and of
Goss and
another, against
Withers,
in
Burrow,
and many other cases, that an action will lye on
possession
by the plaintiff? and with what peculiar force does the reason apply in this cafe, for the action being maintained merely on the possession? This Court, and the Court of Admiralty are competent, not only to direct proceedings, but to ascertain facts, judge of them, and the law upon them, and assess damages, as justice may require. As to the notion of
mistake
excusing, it is a
petitio principii.
The
mistake
does not appear—the
crime
does. So far from
behaving as partners
in the capture,
with the Argo,
the Commanders of the three Brigs, who saw the surrender to her, chase her off; send the
Betsy as prize to themselves only,
for a port
distant from the home of the captors, and in the eye of the
wind, though in a part of the sea where she was
particularly exposed
to dangers from the enemy, with orders to avoid certain ports,
for fear of the Argo’s falling in with her.
In fact it was not a
real
but a
pretended
capture,
as prize,
by them. Are we then bound,
in such a case,
to call it
a cause of prize
because the original taking
was
a capture, as prize? Or are we to refuse to call it
a trespass
though the second taking
was not
a capture, as prize?
How far soever, the learned Judges in
England,
have carried the justification of captures, from the circumstance of their being made as prize, yet they never have carried it as far as this case extends. That they have gone a great way is evident. In the cited case of
Vanderwoodst and others
against
Thompson,
the defendant, in an action of trespass, having a letter of
Marque,
took a vessel that made some resistance, and carried her to
Newcastle,
where she was seized by the Custom-House Officers,
for having smuggled goods on board;
and she was afterwards condemned in the
Exchequer.
It was contended for the plaintiff, that the capture was
unlawful,
because the defendant
did not belong to the Custom-House,
and he could not justify the seizure under the
hovering
act of 6
Geo. I. ch.
11. as
King's ships only
can seize
under such circumstances.
It was held, “ As there was reason to
suppose
that the ship was a pirate, though
the Jury should be satisfied she was not really so,
yet the action would not lye.” Afterwards, “ there was a motion for a new trial, which upon consideration, was denied by the Court.”
If that cause
was
cognizable in the
Prize Court,
and if that Court determines solely by the law of nations and treaties, as is laid down by the Judges, how were other nations interested in the principle of such a decision? If it
was not
cognizable in the
Prize
Court, how can it be applied to the present cafe, in favor of the Respondent?
To proceed—If the Courts of
Westminister Hall,
in an action for such a trespass as this,
should
refuse to take cognizance because the original taking was a capture
as prize,
or under colour that the
second taking was a capture
as prize,
ought any such decision to have weight
with us in this case
?—It ought not.
Such a decision must turn entirely upon the municipal law of
England.
It must be founded upon this principle governing in the cases cited by the council for the respondent; “ that, of a seizure
as prize,
the
Common Law
does not take notice as a trespass.”
Le Caux
and
Eden.
Admit the principle. It applies not.
This
is not a
Common Law
Court. The Act of Assembly establishing this Court, makes it a “a Court of Appeals from definitive sentences or decrees of the Admiralty.” We are
therefore
a Court of Admiralty.
“
If the sentence of the Court of Admiralty is thought to be erroneous, there is, in every maritime country, a Superior Court of
Review, &c. to
which the parties who think themselves aggrieved, may appeal; and this Superior Court judges by the same rule which governs the Court of Admiralty, viz. the law of nations and treaties. This manner of trial and adjudication is supported, alluded to, and enforced by many treaties.” Answer of the
British
Court,
&c.
We are a Court of Admiralty, competent to judge by
that rule.
The act of Assembly establishing Admiralty Jurisdiction in this state, declares, that the Court shall be governed by “ the law of nations.” Whatever in the law of nations relates to a Court of Admiralty, relates to this Court,
because no treaty has diverted the application.
Answer of the
British
Court,
&c. Vattel.
b. 2, ch. 7. 3
Blackst.
69.
Much has been said of a distinction in
England,
between the
Instance Court
and the
Prize Court,
though the powers of both are exercised by the same person; and it is urged that
only the latter
judges by the law of nations and treaties. We are told, “ it is no more like
a Court of Admiralty,
than it is to any Court of
Westminister-Hall;
that the manner of proceeding is totally different; that the appeal is different—to Delegates from the Admiralty—to Commissioners consisting of Privy Councellors, from the Court of Prize.—That to constitute the authority of the Prize Court, or to call it forth in every war, a commission under the Great Seal issues, &c.”
Such a distinction may prevail in
England,
but is it known or regarded in other nations? The words “
to call it
forth,” are material. It seems only a solemn, official, notification to the Admiralty, that there is a war, and that it may proceed accordingly, as a declaration of war is a notification to the people in general. But this declaration does not make the war in the one case; nor, perhaps, does the commission constitute the authority in the other. It is confessed, “ that
the most antient instrument
shews
a Prize Jurisdiction
either
inherent
or by commission
in the Admiral.
It is a letter from
Edward the Third
to the King
of Portugal.”
And, “that since the reign of Queen
Elizabeth,
the
Judge of the Admiralty,
either by virtue of an
inherent
power, or the King’s commission,
or both, has
solely
exercised
the jurisdiction of
Prize—and that as far back as particular cases can be traced, which is for a century, the
Admiralty
has judged of and condemned goods taken on land,
as prize,
as well as goods taken on sea.” Lord
Mansfield,
delivering the resolution of the Court, in the case of
Lindo
against
Rodney and another.
What do treaties, ancient and modern, stipulate for, in order to guard against violences on the seas? A trial in
the Court of Admiralty,
as soon as possible, before the effects taken are in any manner to be disposed of. Why? because, by the maritime law of nations, that court judges by the law of nations and treaties. Sir
George Lee, Doctor Paul,
Sir
Dudley Ryder,
and Mr.
Murray,
now Lord
Mansfield,
in their report, which forms the principal part of the answer of the
British
Court, and is so celebrated by Messrs
Montesquieu
and
Vattel,
say, “ By the maritime law of nations, universally and immemorially received, there is
an established method of determination,
whether the capture be, or be not, Lawful Prize. Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon, as prize, in
a Court of Admiralty,
judging by the law of nations and treaties. The proper and regular Court for these condemnations, is the Court of that state to whom the captor belongs.”
Are we then, because in
England
they call the Admiralty Court a Prize Court when it acts in a cause of prize, and it then proceeds in a different manner, with an appeal to Commissioners of the Privy Council, to reject the
“
universal and immemorial” compact of mankind? There was a time-when we listened to the language of her Senates and her Courts, with a partiality of veneration, as to oracles. It is past—we have assumed our station among the powers of the earth, and must attend to the voice of nations—the sentiments of the society into which we have entered.
Lord
Mansfield,
in the cause of
Lindo
against
Rodney and another,
said, “ The end of a Prize Court is to suspend the property till condemnation; to punish every fort of misbehaviour in the captors; to restore instantly,
velis levatis,
if upon the most summary examination, there does not appear a sufficient ground; to condemn finally (if the goods really are prize) against every body, giving every body a fair opportunity of being heard:—A captor may, and must force every person interested, to defend; and every person interested, may force him to proceed to condemn without delay.
These views
cannot be answered in any Court of
Westminster-Hall,
and
therefore
the Courts of
Westminster-Hall
never have attempted to take cognizance of the question—Prize or no Prize; not from the locality of being done at sea, but from their incompetence to embrace the whole of the subject.”
“
These views
are answered” here in the Court of Admiralty, and with as good cautions as in
England;
and as far as a Court of Appeals is concerned, they can be answered in this Court as fully as in a Court of Appeals to Commissioners there.
It seems proper here, to take notice of the objection against the authority of this Court, founded on the words of the law by which it was established, prior to the completion and final ratification of the confederation. It is constituted “ a Court of Appeals for reviewing, re-considering, and correcting, the definitive sentences and decrees of the Court of Admiralty,
other than in cases of capture upon the water in time of war, from the enemies of the United States
&c.”
The construction of these words depends upon the resolutions of Congress, the Confederation, and the law by which the Admiralty Jurisdiction is established, taken together. If the principles of our preceeding construction are right, they apply as aptly here, and the appeal is regular. If it is not, there will be a defect of justice. The Legislature intended to give this Court an authority to receive all Appeals from the Judge of Admiralty, where they were not resigned to a Continental Court of Appeals. This was not resigned. It therefore belongs to this Court. We will endeavour to promote justice, according to the intentions of the Commonwealth, conveyed in the laws; and not demit any part of her sovereignty, unless we are convinced beyond a doubt, that it is our duty to do so.
We now return to
the last
of the
secondary
questions. Did the Court of Admiralty take cognizance
as a Prize Court?
In considering this question, a very strict attention must be had to
the proceedings
of the Court of Admiralty in this case.—That Court was also erected by an act of Assembly, prior to the completion and final ratification of the Confederation. It is, to be sure, a Court of Prize, and an Instance Court, if that mode of expression be preferred; or in other words, the Judge who has but one commission, may try causes of Prize, and other matters of Admiralty Jurisdiction. There is a difference in his proceedings for condemnation in causes of prize, and those in other cases. His stile by law is, “Judge of the Admiralty,” The reasonable and legal meaning of the 3d, 4th and 6th sections of the law under which he acts, is, that in trying a cause of prize, the vessel or goods taken, must be within his jurisdiction, precinct and power. They are there,—“ That in cases of prize, capture or re-capture upon the water, from enemies, or by way of reprisal, or from pirates, the same shall be tried, adjudged, and determined,
as well as
to the question whether
prize or
not, as to
the claims of the parties interested or pretending to be interested in the same,
by the law of nations and the acts and ordinances or Con
gress, before the said Judge, by witnesses, according to the course of the civil law;" and—“ That the Captain or Commander of any ship or vessel of war, or Prize-Master, or other person,
having charge
of any capture or re-capture, or other property seized upon the water as aforesaid, who shall
conduct or bring the same into port,
shall immediately deliver the same, without diminution, to the Marshall of the said Court of Admiralty.”
The law then goes on to direct the mode of proceeding to the condemnation, ordering, “That the Judge shall cause notice to be published immediately in some news-paper of the day appointed for the trial of
such prize,
inserting therein the name, size or burthen, and other description of the said vessel,
so taken and brought into port,
the name and sur-name of the master, the place she last failed from, the port for which destined, and in case of a re-capture, by what ship or vessel taken, to the end that all persons concerned may appear and shew cause, if any there be, wherefore
such capture,
or
re-capture,
goods, merchandize, or other property, should not be condemned and adjudged to the Libellants.”
Does the present case in any manner resemble the “
cases of prize" described in this law?
Where are “
Claimants interested or pretending to be interested?”
Claimants are
voluntary
Applicants for Justice. Shall trespassers,
compelled
to answer for their wrong, cover themselves with that character? Can there be “
Claimants,”
but in a proceeding
in rem?
How would the publication before mentioned
suit such Claimants
as the appellants? Were the proceedings of th
e
Judge in this case,
such as he constantly has observed
in cases of prize? They were not. Application was made to him for
damages.
He proceeded in that line. Here is neither libel nor process against the capture.—no monition,—“no notice” under the act of Assembly.
What could give the Judge of the Admiralty for
this state,
jurisdiction to proceed as a Court of Prize upon a capture contested
between citizens of different states,
which is the case here, rather than any Court of Admiralty in any other state, when the property captured was not within the power of his Jurisdiction? Because, it is said, some of the offending Captains and their vessels came into this port. Does the jurisdiction of a Court of Prize depend on certain offenders, with respect to the capture coming into a port? Where are the authorities of law to shew that
this circumstance
can give such jurisdiction, or, that there can be an institution of
a cause of prize, according to the maritime law of nations, for damages only?
The authorities cited, that were thought most apposite, and were most relied on by the Counsel for the Respondent, were those of
Brown
and
Burton
against
Franklin,
the King’s Proctor; and of the
King
against
Broom.
But they are not in any manner applicable. In the first, the Plaintiffs, Masters of two vessels, but having no regular Letters of
Marque,
took a
French
ship, cargo and money, upon land, in the
East
Indies—they being
English
subjects, it was held, that they acquired no right by this capture, but that it was
a perqui
site of the Admiralty
. The King’s Proctor, upon the usual monition, got a sentence of condemnation for the whole, in order to make them account. In brief,
they had effects in their hands,
which by the maritime law of
England,
belonged to the King or his Admiralty, and they were obliged to account for them
according to that law.
12 Mod. 135. Lord
Mansfield
calls it a proceeding
in rem. Le Caux
and
Eden,
in the notes. The second case was of the same kind, and was decided on the same principles. It was further said by the Council for the Respondent, that the Court of Admiralty that
first
proceeds in such a case as the present, acquires an exclusive right of deciding upon it, in the same manner as the nation that first commences a judicial process against pirates, may pronounce sentence against them. To say no more on this comparison, it is sufficient to observe, that such a right may be attributed to the attrocity of the guilt, as the offenders are
hostes humani generi
s.
If the coming of Trespassers, or of the vessels in which they trespassed upon the high Seas, within the power of a Judge’s jurisdiction, authorises him to proceed against them, to what confusion may it lead? A capture is made from an enemy; afterwards friends trespass against the prize, and arrive in different ports, the fate of the prize being unknown. They are prosecuted in one or more Courts of Admiralty. The prize at length arrives in a different port, and is libelled in a different Court of Admiralty, for condemnation in the usual manner. What contests for jurisdiction must ensue?
“ Quod inconveniens est non licitum est.”
We are unanimously of opinion, that the Judge of the Admiralty for this state, had jurisdiction in this cause, and that the appeal to us is regular. We decree, that the Respondent recover and have of the Appellants, 1, 141l. 5s.4d. with costs, except those in this Court, of which each party is to pay a moiety.