PRIZE. VS. the ship William. Findlay et al. which it has been endeavoured to establish a jurisdiction in this court. It must certainly be allowed, by the advocates for the libellants, that they have not been able to shew any direct authority upon the point. For the two cases of the duke of Tuscany, seizing the vessel committing the outrage near the port of Leghorn, and 'that of the king of England, ordering restitution of the effects taken out of the houses of the inhabitants, and belonging to a ship of a friendly power, driven by its enemy on his shore, appears to have been acts of power, and not done in consequence of decrees or orders of courts of admiralty. Yet these jurisdictions existed, in both the countries above mentioned. The case of captain Landy, in the American frigate Alliance, who was ordered by the court of France to restore a ship taken by him, is not in point; for the Forsters, who appeared as owners, were either subjects of, or persons resident and domiciliated in, France, and the ship was sailing under a passport of that nation. They, therefore, could not be considered as enemies; and, the capture not being made from enemies, the case was not comprehended in the treaty, or the capture authorized by the laws of nations. In the case falling under the notice of the king of England (except that of his having the powers of peace and war, as an appendage to which he might have exercised this kind of authority) I should not have supposed him vested, without an act of the legislature, with the authority he used; and it is doubted, by Bynkershoek, whether he did right in interfering at a Lee. 131. b Bynk. c. 8, 177. Molloy. 85. c Code de Pris. vol. ii, p. 877. PRIZE. Findlay et al. the ship William. Liberty of selling prizes in the ports of the U. S. may be conforbidden. trolled and U. States have similar sovereign all on the occasion. If it be consistent with treaties, and otherwise right, our legislature can vest the executive in future with similar powers. I should suppose, too, that the liberty of selling prizes, in a neutral country, is not a perfect right; and may also be considered, by our national legislature, as a subject of regulation. If any captures are made within our limits, and the vessels or plunder is brought within our ports, the sale may be forbidden.... They must then be either abandoned or carried within the jurisdiction of the captors, where the proper courts will consider of their legality. Yet this is a matter, not of judicial, but political arrangement; and must be left to those who have the authority to direct. The sovereignty of our nation is as complete as that of any other; therefore, whatever other sovereigns can do, we have in our power. other nations. But because, at this time, the authority, supposed necessary on this occasion, is not, as it is alleged, to be found in the executive branch, I do not see that the judiciary ought to exercise it, as a consequence resulting from political convenience, or the necessity of the particular case. This, I fear, would be a novelty dictated by our zeal, and might give cause of offence to one, while we were aiming at justice to ourselves, or gratification to the other. I hesitate not to use any plain authority I know this court to possess, let the consequence be what it may; but this is a question too important in its effects, to be acted on but on the surest grounds. I agree here, as I do in many of their other positions, with the advocates for the libellants, when they say that "courts of admiralty jurisdiction are less liable to objection, as these courts are regulated by the PRIZE. VS. the ship William. customs of nations should be cautious in silent on the subject. Findlay et al. laws and customs of all nations, and not liable to political bias, or entangled in political considerations.” This should induce the greater caution in their deCourts of terminations. I have not seen any proofs that “the admiralty laws and customs of all nations" warrant the interferbeing regulated by general ence of this court. If they do not, no authority can usages and be derived from our own laws, if they were not In the existing arrangement their conduct. of our government, we did not calculate on our relative situation, as to contests between other nations. If, for this reason, no immediate remedy is at hand, who can justly censure the executive, when he has given decided evidence of his impartial and just inclinations? Who can with reason blame the judiciary, if they will not assume a power not conceived to be vested in them? Not the government of the country, whose subjects are the libellants, and to whom I wish every degree of justice may be done. The principles established in the decisions of their own courts, and the opinions of their most celebrated lawyers in the contest with the king of Prussia, in the case of the Silesia loan, in a great degree reach the point, as to judiciary authority in a neutral nation. In Palache's case, I am aware that it is only said the vessel "was taken at sea," But if not, it rather appears, that it would be more proper for a diplomatic than a judiciary examination. The general principle, as to the capture, is agreed; and is similar to that established in our treaty with France, which ought to have its proper weight. "It was resolved, by the whole court of King's Bench, upon conference and deliberation, that the a 4 Inst. 154. 1 Ro. Rep. 175. PRIZE. the ship William. Spaniards (whose ship had been taken by an enemy Findlay et al. and brought into England, a friend to both parties) had lost the property of the goods forever, and had no remedy for them in England; and it relied principally upon the book in 2 R. 3, ubi supra, being of so great authority; for, by that book, he that will sue to have restitution of goods robbed at sea, ought by law to prove two things.......1. That the sovereign of the plaintiff was, at the time of the taking, in amity with the king of England...2. That he who took the goods was, at the time of the taking, in amity with the sovereign of him whose goods were taken: for, if he who took them was in enmity with the sovereign of him whose goods were taken, then was it no depredation or robbery, but a lawful taking, as every enemy might take from another." It is true that, by the laws and customs of nations, the capture, if taken in neutral bounds, is not lawful prize. But I do not see that this court can get at that circumstance, without hold- court cannot ing plea as to the lawfulness of the prize. It is the original question, and not collateral matter, which determines jurisdiction. The courts of common law in England will not take cognizance of any thing arising out of the question, prize or no prize, “because the original cause must all come into question again:" and yet the admiralty had determined that the ship was no prize. This will be a proper subject of enquiry on the part of our government, or in a court of the country of the captor. Every nation has established these a Woodeson, 443. Douglass, Rep. 612. Le Caux vs. Eden. The district get at this case without enquiring into the lawfulness of the prize. PRIZE. the ship William. Findlay et al. courts, and knowing that, if at war, they are answerable to a nation at peace, or in amity; if violations of territory happen in captures, care is taken to examine into this circumstance. If, on this account, the capture is illegal, it is so adjudged; and the party taking is liable to damages. Whether such damages shall exceed the amount of the security given by commanders of private ships of war, or whether one nation is answerable to another for injuries done by its subjects to others, contrary to or without its orders, is a matter in which there are differences of opinion among civilians, and which it is unnecessary for me now to investigate. It is doubtless contrary to the instructions of the French government, that any of the ships, commissioned by them, act in a hostile manner in a friendly and allied territory. It is to be expected by one power from another, that her courts and her administration will do justice to the rights of sovereignty and neutra lity. It will be the more to be lamented if a friend and ally should disappoint this expectation. But, should this be the case, it is not for me to say what proceedings should be had. I have subjoined to this decree some extracts from the "expositions of the motives, &c." from the duke of Newcastle, the British minister's letter to Mr. Mitchell, the minister of Prussia, and from the report and opinion of Sir George Lee, Dr. Paul, Sir Dudley Rider and Mr. Murray, the late lord Mansfield, on the subjects I have mentioned, which are to be found in a Lee 226, 227, 228, 229, 230, 231, 222. Grotius de J. B. & P. 1. ii, c. 17, § 20. |