PRIZE. the ship William. Magens 463. 482. 487. 491. 496. 505.* Other au- Findlay et al. thorities from British and other writers might be added, by which it appears, that when two powers have any difference between them, the affair must * 1 Magens, 505. Each crown has no doubt an equal right to erect admiralty courts for the trial of prizes taken by virtue of their respective commissions, but neither has a right to try the prizes taken by the other, or to reverse the sentences given by the other's tribunal. The only regular method of rectifying their errors is by appeal to the superior court. 1 Magens, 491. If a subject of the king of Prussia is injured by, or has a demand upon, any person here, he ought to apply to your majesty's courts of justice, which are equally open and indifferent to foreigner or native; so, vice versa, if a subject here is wronged by a person living in the dominions of his Prussian majesty, he ought to apply for redress in the king of Prussia's courts of justice. If the matters of complaint be a capture at sea, during war, and the question relative to prize, he ought to apply to the judicatures established to try these questions. 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 or supported by the state, and justice absolutely denied in re minime dubia, by all the tribunals, and afterwards by the prince. Where the judges are left free, and give sentence according to their conscience, though it should be erroneous, that would be no ground for reprisals. Upon doubtful cases, 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. 1 Magens, 496. For as to the Prussian commission to examine these cases ex parte, upon new suggestions, it never was attempted in any country in the world before. Prize or no prize must be determined by courts of admiralty, belonging to the E PRIZE. Findlay et al. political considerations. They are also courts, to whose decisions, for reciprocal benefit, all nations pay a particular respect. the ship William. I have given this subject every consideration I am capable of, and have deliberated on the arguments and authorities brought forward by the advocates on both sides the question, with the attention they justly merit. But it seems to me that much has been said not immediately applicable to the only point I have now to determine, to wit,..... Whether this court is vested with the power to enquire into the legality of the prize, and to investigate the fact on which all the reasonings are founded? If this fact is established, and the extent of our territorial limits ascertained, so as to make it clear that a capture has been made within the territories of the United States, there is not a doubt but that a flagrant violation of the rights of neutrality has been committed. And this is followed by many of the consequences mentioned by the advocates for the libellants, so far as they respect our national dignity and duty towards a friendly power, in endeavouring to cause restitution or recompence to be made. Nor does this seem to be denied by the other side of the question. But the embarrassment still exists. Who is to enquire into the matter, and either give or attempt the redress? It is difficult for a neutral nation, with the best dispositions, so to conduct itself as not to displease one or the other of belligerent parties, heated with the rage of war, and jealous of even common acts of justice or friendship on its part. Neither is it easy a Vatell, 1. 3, § 132, Lee. c. 9, p. 151. PRIZE. the ship William. for the nations at war to restrain their subjects from Findlay et al. acts of violence, even in the territories of their friends. The least under control are those whose object is not honourable conflict, or patriotic exertion. These are actuated by a spirit of lucre, which, not only incites to plunder the base and lawless freebooter, but tarnishes even heroism, by seducing into unjustifiable actions the bravest men. It would be for the interest of nations, and the happiness of mankind, if, by universal consent, the quarrels of nations were prevented from being turned to the purposes of private advantage. But the swords of those who fight for gain will not, in our day, be beaten into ploughshares. We must take nations and men as we find them, and consider as lawful what those at war authorize, so far as it respects the parties engaged. After all, it depends much on the interest, the convenience, or the good temper of governments, whether a neutral shall or shall not be engaged in war. A prudent and just conduct, on the part of the neutral particularly, is the surest preventive. But how to evidence this, is a matter of consideration with those to whom the government is delegated. The simplest mode of evincing our impartial disposition, is to confine ourselves to the customs of other nations in our predicament; an over anxious zeal to avoid contests may otherwise lead us into errors; and, while we are endeavouring to avoid one rock, we may split on another. Mutual toleration must be exercised; for those who are at war, and those who are not, have their share of difficulties on this subject. Under this view of the matter before me, I have given a patient hearing to both sides; and have particularly attended to the arguments by 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. US. the ship William. Liberty of selling prizes of the U.S. may be conforbidden. in the ports trolled and U. States have similar sovereign powers with 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 |