M`DONOUGH v. DANNERY

After argument, LOWEL, Judge of the District, delivered the opinion of the court, first recapitulating the facts above stated.

"BY THE COURT. The Libellants have prayed, that the whole of the ship and cargo should be decreed to their use. There have been times in the history of nations, in which vessel and goods, left by necessity on the high seas, have been decreed the property of the finders; and where wrecks on the shore have been with-held from the original proprietors, by the sovereigns of the country, or some great man, on whose lands they have happened to be cast: But in very early times, they have, in both cases, been considered as the property of the original owner. Several of the Roman Emperors made their edicts and decrees, for the preservation of such property, and the restoration of it; and for a long time, the law of nations has been settled on principles consonant to justice and humanity, in favour of the unfortunate proprietors; and the persons who have found and saved the property, have been compensated by such part thereof, or such pecuniary satisfaction, as the laws of particular States have specially provided, or, in want of such provision, (as the writers on the law of nations agree) by such reward as in the opinion of those who, by the municipal laws of the country, are to judge, is equitable and right. In our country, no special rule being established, this court is to determine what, in such case, is equitable and right. The rule in estimation, which ought, in my opinion, to be adopted, would be to give, is possible, to ascertain it, such compensation or reward as would be sufficient inducement to engage reasonable persons, to encounter the peril and expence of the undertaking; what this may be, must, in almost every case, depend on the estimation which the Judge, who is to decide, may make of the expense, the labour, the peril, and the actual suffering of those, by whose exertions the property is saved. And, as several of the most important of these are really mental, to which no measure of weight or capacity can be actually applied, it is probable, different persons would vary considerably in their estimation of them. It may, therefore, be a thing to be wished, that every nation would make, at least, some general rules for determining such cases: but as there are none established in this country, I am bound to exercise my own judgment, in determining what is a just and equitable compensation.

"Admiralty courts having the thing saved under their controul, may either adjudge a portion of such thing to the persons who have saved it, or a sum of money to be paid by the proprietor, or from the produce of the thing sold. And in either case, the same principle ought to operate, and such parts of the thing saved, or sum of money, be decreed to those who save it, as may fully compensate them, and will encourage others to like efforts. In this case, the Mary Ford, when found, was at the mercy of the seas, her fails and rigging partly taken away or lost; very little or no provisions on board her; the George was bound on a foreign voyage, with a valuable cargo, and it does not appear that she had any supernumerary hands; those who undertook to carry her into port, found her greatly disabled and difficult to manage; the risque of their lives must have been considerable, and their exertions great. I think few cases will happen, when the compensation ought to be higher.

"Under all circumstances, therefore, I am of opinion, that one third part of the gross proceeds of the value, ought to be paid to the owners and crew of the ship George, for salvage of the said ship Mary Ford and her cargo, and in full compensation of their services, peril and expenses, in the following proportions which have been since settled by three merchants, named by them, and appointed by the court, viz. — to the owners of the George, nine thousand five hundred and eighty dollars, and twenty-eight cents, being two third parts of the sum decreed for the owners of the George and her crew, after deducting three hundred and seventy dollars and forty-two cents, for the owners, for expenses incurred and paid by them, on the joint account of the owners and the crew — and the remaining one third, viz. four thousand seven hundred and ninety dollars and fourteen cents, to the captain and crew of the George, in the following proportions, viz. to the Captain, eleven hundred and fifty-six dollars and twenty cents — Lemuel Foster, eight hundred and twenty-five dollars and ninety cents — John Classin, four hundred and ninety-five dollars and fifty-four cents — five seamen, three hundred and thirty dollars and thirty-six cents each — one other, two hundred and eighty-nine dollars and seven cents — the cook, two hundred and forty-seven dollars and seventy-seven cents — and the boy, one hundred and twenty-three dollars and eighty-six cents.

"The next question is, to whom shall the residue be decreed? To settle this question, passages have been read from many books written on the law of nations, and others in which the municipal regulations, and decisions of several nations have been reported or commented on; and which have been supposed to be applicable to this case. The gentlemen who have been of counsel for the parties, have ingeniously supported their respective claims; I have, I trust, carefully perused their authorities and attended to their arguments; — very few of their authorities appear to me to apply; their arguments have been pertinent. I lay out of the case, the whole doctrine of postliminy, as applied to re-captures, which I consider as depending on the municipal regulations of States, which every sovereign has a right to make, as far, at least, as their own citizens only, are concerned, in such manner as may appear to them best. Under this head, though blended by some writers with the law of nations, are to be placed the regulations made, variously however, by the European nations, and the late Congress of the United States, by which the property is divested from the former owners, by capture, after twenty four hours possession by the enemy; and all other arbitrary rules, made to settle questions of like nature; also, all questions about total and partial losses on policies of insurance.

"I embrace as found doctrine, the principle, that neutral nations ought not to decide respecting the lawfulness or unlawfulness of capture, if it appears that the captor, and the nation from whom the property is taken, are at war with each other, and the captors or their vendees, are in possession of the property, save where the territorial rights of the neutral, or the rights of their citizens, are involved in the question; and that neutrals are always to take the existing state of things as right; so that if either of the powers at war, or those to whom they have transferred it, are in possession of a thing taken from their enemy in war, neutral powers are to suppose them lawfully possessed, and ought not to enquire how long, or under what circumstances, they have possessed them. To interfere and decide in such cases, must necessarily imply a partiality contrary to the idea of neutrality; for, they must either give greater firmness to the capture by deciding it to be lawful, or weaken and render it less secure, by determining it to be unlawful. Neither are neutral powers to give aid to either party, by conducting their prizes for them, when they are too weak to protect and conduct them.

"These principles, I think, will serve as a guide to a decision in this case. — Neither of the belligerent powers was in possession of this property when found; — the British claimants say, it has been their's; — this is admitted by the French claimants; — and we have evidence of this fact by the construction of the ship which is in our fight, by the cargo on board and divers ships papers which were found with her. The French claimants say, we took her in open war, — we firmly possessed her, — and she ought to be restored to us. The reply in behalf of the British claimants is, you did not complete your capture; you did not firmly possess her; — you were too weak, consistent with other views you held more important, to retain her. Is it necessary that we should decide these questions between them? Shall we try the legality of the capture, and decide the firmness of the possession? Will it not be to aid, to make the capture and possession firm and legal, which is said to be incomplete? The French claimants say, we were under apprehension of weakening our force and so left her from necessity. The vessel had been British, — of this, there is no question: did she by capture and firm possession, according to the law of nations, become French? Of this there is at least a doubt. On considering the whole matter, I do adjudge, order, and decree, that one third part of the money, arising from the sales of the ship Mary Ford and her cargo, be paid to the persons who saved them, in the proportions before mentioned. And that the duties and all other costs and charges be first deducted from the other two third parts, and the residue remain in Court for the use of the British owners of said ship and cargo, or such other persons, who may derive right thereto from them, when the same shall be ascertained in Court."

From the decree of the District Judge, so far only as it respects the British owners, the French Consul appealed, and the appeal being argued before the Circuit Court, the following decree was there pronounced, (Judge LOWELL declining however to give any opinion:)

"CUSHING, Justice.

The court having fully heard the parties on the appeal in this case, by their counsel, it appears that the said ship Mary Ford and her cargo, being the property of some British subjects, were, on or about the 28th day of September, A.D. 1794, captured on the high seas, by a French squadron of ships, under the command of Commodore Vil Maudarine, and were taken into actual and quiet possession of said fleet, and so held for above twenty-four hours, and were then left on the high seas, without any hands aboard, after some unsuccessful attempts, by his order, to burn her, which was in consequence of many of the people of his squadron being sick, and incapable of doing duty, and from an apprehension of weakening his force in parting with any of his people, to keep on board and to conduct the said ship Mary Ford.

"That the said ship George, met with the said ship Mary Ford, and brought her and her cargo into the harbour of Boston, as set forth in the libel; not with intent to aid either party, in the war subsisting between the French Republic and the British nation, but to save the property from absolute loss, or in expectation of proper compensation for the trouble. On which case the operation of the law of nations appears to the court to be, that by the said capture, the property became immediately the captor's. The questions about firm possession, appearing to relate chiefly, if not only, to cases of possession or recapture, or to that of a neutral vendee; things which 'tis apprehended have no place in this cause; and about which the municipal laws and regulations of different countries are very different.

"The property, then, in this case, becoming the captor's immediately by conquest, and the right of war, must so continue, until divested by recapture, or by some legal means or act to that effect. And it is not conceived, that the abandoning the ship from the occasion stated in the evidence, could amount to a recapture, so far as to invest the property in the original owners, or prevent the captors from reclaiming the possession, when opportunity offered at any time previous to a recapture. It is, therefore, considered and decreed BY THE COURT, That the decree made in the District Court, as far only as it decrees, that the said residue of the said two third parts of the money arising from the sales of the said ship Mary Ford and her cargo, remain in court for the use of the British owners of the same ship and cargo, or such other persons who may derive right thereto from them, when the same should be ascertained in court, be, and hereby is, reversed. And it is now further adjudged and decreed BY THIS COURT, That the same residue of the said two-third parts of said money, remain in court for the use of the French Republic, and those concerned in said capture."

From this decree of the Circuit Court, the British Consul appealed; but the appeal being disallowed, the proceedings were removed into the Supreme Court by writ of error; and the Plaintiff assigned for error the decree in favor of the French claimants, and also the disallownace of his appeal; the defendant pleaded in nullo est erratum, and thereupon issue was joined.

The cause was argued on the 4th and 5th of February, 1796, by E. Tilgham, for the plaintiff in error, and by Ingerjoll Duponceau in error.

For the Plaintiff in error, two points mere made; 1st. That the courts of the United States had no jurisdiction in this cases and 2d. That the property of the British owners of the Mary Ford, was not so divested as to give a perfect right to the captors.

1 st. Point. The court cannot determine on the validity of the capture between the belligerent powers. In cases where there have been illegal outfits within the jurisdiction of the United States; or where their territorial neutrality and sovereignty have been invaded; or where their municipal laws have been violated; the judicial power of the Union will interpose. But the present, is barely a question of prize; unconnected with any incidental or collateral circumstances, which justify a neutral nation in taking cognizance of the cause. Lee on Capt. 77.

2 d. Point. The property in a prize, is not so divested by capture, as to give the captor a full right, until the vessel is brought into a place of safety. The Mary Ford was not in a place of safety; there was ground to entertain a reasonable hope of recapture; and there must be a condemnation, in a court of competent jurisdiction, before the property is conclusively transferred from the original owner to the captor. Till that is done, any length of possession will not, of itself, furnish a tide to the prize. Grot. 582. B. 3. c. 6. s. 3. Puff. 845. b. 8. c. 6. s. 20. 2 Hience. b. 2. c. 9. s. 202. p. 197. Marten: L.N. b. 8. c. 3. s. 11. p. 197. Vatt. b. 3. s. 196. p. 571. Lee on Capt. 72. It is true, however, that a right of possession, and an inchoate right of property, were acquired by the capture; but the right of possession being abandoned, it reverted to the original proprietor.

For the Defendant in error, it was answered: 1st, That the court has jurisdiction; 2d, That the court must restore the ship to the possession of the captor, whether the capture was legal or illegal; for they must consider every capture made in a war in form as valid.

1 st Point. It is remarkable that the person who claims the exercise of the authority of the court, should except to its jurisdiction; but even by him, it is conceded, that the court may exercise a jurisdiction on the subject matter. This court has jurisdiction, if any court of the United States can take cognizance of the controversy; and if this court cannot hold plea of the dispute, it will not be pretended that any other court may. It is, then, an universal rule, without exception, that whoever pleads to the jurisdiction of a court, must shew another competent jurisdiction. Doct. Plac. 234. The only book read in support of the exception, ( Lee on Capt. 77.) repels the Appellant's claim; for it is the principle, and not the mode, of adjudication, which forms the subject of the chapter referred to. Lee on Capt. 72. The original proprietor claims; the vendee says that he purchased from the captor; and the inference is that the Judges cannot decide upon the legality of the prize, but must consider each belligerent party, the proprietor of what he has taken. The general principle is best exemplified in the justificatory memorial on the Silesia loan: the court of the captor is the proper court to decide the question of prize, or no prize; 1 Magens. p. 487. 490. 496. 505. but still the reason of the law must shew its extent. Not only the reason of the rule restricts its operation to the cases, where the question can be decided by the appropriate court of the captors; but the theoretical writers, as well as uniform practice, demonstrate the existence of such a restriction. If, likewise, the capture be made within neutral limits, an exception to the general rule arises. 2 Wood. 443. Act of Congress of June, 1794. The regulations established by the Executive Department, and the adjudications of this court, concur in the position. Another exception arises, where neutral property of another nation, or of our own citizens, has been captured at sea, and is brought within our port. Glass et al. versus Betsey ant. p. 6. 2 Wood. 439. Bink. Q. j.p.l. 1. c. 17. But if the sovereign will protect his citizen from injury, he must, also, compel him to do justice. Now, therefore, as no subject of a neutral State, can take from the captors the prizes which they have made, without violating their right of possession; 2 Wood. 455. 2 Burr. 693; it follows, that when such a case happens within our jurisdiction, the courts of the United States must decide between our citizens and the foreign captors; nor can the relief to the captors be refused, by the interposition of a claim on the part of the captured, as original proprietors. The order in which the claims of captor and captured have been filed, cannot vary the jurisdiction of the court; for, if the captured property is brought into port by our citizens, forcibly, or charitably, the jurusdiction must be the same, and the question of prize will be equally involved.

2 d Point. But taking cognizance of the present case does not lead to a decision of the question of prize, or no prize; for, the court must consider the capture to be lawful. No neutral power can doubt the validity of a capture made in a public war. Vatt. B. 3. c. 14. s. 208. 1 Wood. 125. Vatt. B. 3. c. 3. s. 40. s. 190. s. 209. s. 212. s. 229. Grot. B. 3. c. 6. s. 2. Bariem. ch. 7. s. 12. 14. 2 Wood. 441. An inchoate right, therefore, a right to the possession, a special property, is enough for the captor. Of his possession, however slight, a neutral power cannot deprive him: if his enemy were still in pursuit if he would have been recaptured the next moment; the neutral power cannot interfere with the possession, or, interfering must restore it. 2 Burr. 696. 2 Inst. of Just. tit. 1. s. 17. Dig. B. 41. tit. 1. law 5. s. 7. 2 Ruth. 594. B. 2. c. 9. Collect. Jurid. 134. 135. In the present instance, the interference was charitable, yet if the vessel had been detained after payment, or tender of a reasonable salvage, the detainer would be deemed a trespasser; and the rule and remedy must be the same, as if he had been a trespasser ab initio. If the captors had abandoned their property, let all the legal consequences follow; but that is a question which the captors have a right to controvert with those who saved the property: The British claimants can ceartinly advance no title by finding it. The distinction between perfect rights, and inchoate rights, can only occur between a re-captor and the original owner, or between a vendee and the original owner: the authorities, that have been cited on the opposite side, are all of that description. Martin. 291. Emerig. 494. Grot. 582. Puff. 845. 2 Heince. 197. 199; and the subject is so explained by the latest English writers. 2 Wood. 455. 6. The distinction, indeed, arises entirely out of the jus postliminium; and the very definition of that right shews its inapplicability to the present case. "The right of postliminium (says Vatt. B. 3. c. 14. s. 204.) is that in virtue of which persons and things taken by the enemy, are restored to their former state, when coming again under the power of the nation to which they belonged: but it can have no operation with regard to foreign or neutral nations." 2 Wood. 443. Vatt. B. 3. c. 14. s. 208. Then, wherever a court takes cognizance of any original matter, it naturally draws to its jurisdiction, every incidental, or necessary, question. 3. Bl. Com. 106, 107, 108. Though where the Admiralty, or, as we contend, any foreign court, had not original jurisdiction, it shall not by the incidental occurrence of a question properly cognizable there, defeat the jurisdiction of the common law, or as we contend, the neutral court. It has been said, that in cases of prize between two other nations, the court of prize has jurisdiction; 3 Bl. Com. 108. where 2 Show. 232 Comb. 474. are cited; but the citation is incorrect; for the authority merely recognizes the general principle, that where the admiralty has jurisdiction of the original matter, it may, incidentally, try a question, not otherwise triable there. Comb. 462. and the case in Show. 232. is the celebrated case of Hughes Cornelius, which merely says, that a foreign sentence is conclusive. Raym. 473. S.C. Quod inconveniens est non licitum est, is a good maxim applied to new, undecided, points. Doug. 388. Where the question of prize comes in collaterally, even a common law court may decide it, not operating as a sentence to bind the property of the goods. 2 Wood. 453. 454. 10. Mood. 77. 2 Stra. 1250. 2 Burr. 683. 1198. 1734. for, it is essential to the court that it may examine the question as far as is necessary for their purpose, though generally considered, the question may be reserved for exclusive jurisdictions. Doug. 588. P. Buller. Harg. L.T. 452. 1 Lev. pl. 2. Roll. Abr. 584. 21. Vin. Abr. 43. But, after all, the question of abandonment, is the only proper subject of controversy; and, if a right of possession ever attached, the abandonment of the prize can have no other effect, than if the captors had set fire to one of their own ships and abandoned her. The abandonment, if not done by choice, but from necessity, leaves the right unimpaired; and the vessel being brought into port by a friend, ought to be restored, on paying a reasonable salvage. Lee on Capt. 256. 257. Molloy 82. for, it will not interfere with the jurisdiction of any foreign court, as to the question of prize, that our courts should, in this case, assert a jurisdiction to make restitution to the captor.

"CUSHING, Justice.

BY THE COURT: — We are unanimously of opinion, that the District Court had jurisdiction upon the subject of salvage; and that, consequently, 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.