3 Binn. 220 | Pa. | 1810
This is an action of replevin for a quan* tity of coffee, and cotton, which having been shipped from Jeremie, a port in the island bf St. Domingo, in possession bf the revolted negroes, was captured by two French privateers, and carried to St. yago de Cuba, in the island of Cuba. It was there purchased by the defendant, and brought to Philadelphia, where being discovered by the plaintiff the original owner, this suit was brought. The defendant supports his claim to the property, under a decree of condemnation by the court of the French republic at Santo Domingoi, and an order of sale, by yohn Baptist Audibert, styling himself “ commissary of marine, French agent in the island of Cuba, “ authorized to make the preparatory proceedings in matet ters of prize in this island.”
On the trial of this cause, the plaintiff’s counsel contended, that the French court had no jurisdiction, and therefore its proceedings were void; and they relied on the case of Rose v. Himely, 4 Cranch. 241, in the Supreme Court of the United States, as directly in point. My respect for that court, forbade me to dissent hastily from its decision, in a case, confessed by all to be important and difficult. I therefore requested the jury to find for the plaintiff. But at the same time I declared, that the case of Rose v. Himely involved questions, concerning some of which, notwithstanding the great weight of the authority, my mind was by no means satisfied; and I desired it to be understood, that I expected this cause would be brought before the court in bank, where I might have an opportunity of forming a final opinion, after full argument.
If the French court decided on a subject within its jurisdiction, the plaintiff cannot recover, for we have no right to inquire into the correctness of that decision. How then does this matter of jurisdiction stand? But a previous question is made. Has this court a right to inquire into the jurisdiction of the court of another nation? The general principle is, that what has been decided by a court of competent jurisdiction in one nation, shall not be questioned in the court of another* This would seem to leave the question of compe
The clearest manner of inquiring into the jurisdiction of the French court, will be, to consider the objections that) have been made to it. These objections may be reduced to the following heads.
1. The arrété under which the court proceeded, was a penal municipal law.
2. A municipal law cannot be inforced extra territorium.
3. The seizure was without the territorial limits of the French republic.
4. The property condemned was never brought within the French territory.'
1. The nature of the arrété is to be collected from its words, and from the circumstances of the island of St. Domingo, before and at the time of making it.
For a considerable time before the making of this arrété, there was war between the French republic, and the negroes of St. Domingo; and the French were driven out of possession of the principal part of the island. The revolted negroes were considered by the French government as rebels, and it had been officially notified by their minister in the United States, that all persons carrying on trade or maintaining an intercourse with the inhabitants of St. Domingo, contrary to the ordinances of the French government, should be punished as violaters of the rights of the French republic, and the law of nations. The government of the United States has-taken no part between the contending parties. It has never acknowledged the independence of the revolters. We are not at liberty therefore to consider the island in any other light, than as part of the dominions of the French republic. But supposing it to be so, the republic is possessed of belligerent rights, which may be exercised against neutral nations, who carry on commerce with the revolters. This is not denied; but it is said that the words of the arrété prove, that there was no intention to exercise such rights-. This argument is not conclusive.
The French court of Admiralty founded its decree of condemnation on the fourth article Of the arrété of 9th October 1802, and the first article of the arrété of 1st March 1804» By the former it is declared, that “ every coasting or other vessel, communicating with the points of the coast ic occupied by the rebels, shall be seized, and the vessel and u cargo shall be confiscated»*’ The latter is intitled, u An u arrété relative to vessels taken in contravention of the dis- “ positions of the laws and regulations concerning French “ and foreign commerce in the colony;** and is in the following Words. [Here the Chief Justice read the arrété.j Considering the Words of this last arrété, and the circumstances under which it Was made, it ought not to be understood simply as a municipal regulation, but a municipal fegu* lation connected with a state of war with revolted subjects; and in inforcing it, the republic might avail itself of all rights, which are given by the law of nations to a govern* inent thus circumstanced»
2. If this view of the subject be correct, the second ob* jection falls to the ground, for it is founded on the supposition that the law is purely municipal. When it is said that' this law cannot be inforced, extra territoritim, I presume it Is meant, that it cahnot be inforced on the ocean, at a greater distance than two leagues from the French coast. The rea* son assigned is, that the ocean is common to all nations. If it was not common to all, but the right of one, the reason Would be conclusive» But if it is common, why may not any nation make a seizure on it, for a breach of a. municipal
3. The third objection is founded on the words of the arrété of the 1st March 1804. It is supposed, that the seizure is restricted to the distance of two leagues from the coast of St. Domingo. But I atn not satisfied of the correctness of that construction. The description of vessels “ cleared “from, or bound to, the ports in the possession of the rebels,” seems to be independent of, and not included in the subsequent general description of “ all vessels under sail in the “ territorial extent of the island, found at a distance of less “ than two leagues of the coast.” It appears that Chief Justice Marshall was furnished with an imperfect translation of the arrété, when he delivered his opinion in Rose v. flimely; perhaps his opinion of its construction would have been different, had the translation been correct.- But even if the seizure was restricted to the distance of two. leagues from the coast, how would the jurisdiction of the French Court be affected by it? It is not a court instituted only for the trial of captures within two leagues of the coast, but a court of'general jurisdiction, styled “ the provisional com- “ mission of justice established at Santo Domingo, judging “ in the first instance, in matters of prize, by virtue of the “arrété of the consuls of the republic of the 4th October “ 1802, on the capture of vessels found acting in contrave n- “ tion of the laws and regulations concerning the French “ and foreign commerce in the French colony of Su Do- “ mingo.” When a vessel is libelled in this court, a breach of gome law is set forth, to bring the case within its jurisdiction. If the claimant pleads that the capture was without
On the other hand, if that court, appearing by its style, to possess general jurisdiction in case of captures for contravention of the laws respecting commerce, has decided that the distance from the coast is not material, I know not by what principle we can inquire into the correctness of their construction of their own law. I mentioned before, that the case of Rose v. Himely was urged by the plaintiff’s counsel' on the trial of this cause. But it now appears, that the authority of the Supreme Court of the United States, on which the plaintiff relied, is to be thrown into the opposite scale. In Rose v. Himely, five judges of the Supreme Court were for reversing the judgment of the Circuit Court of South Carolina, by which the French decree was held to be conclusive. But the five judges, though they agreed that the French court had no jurisdiction, differed widely in their reasons. The Chief Justice and Judge Washington founded their opinions on the circumstance of the seizure being more than two leagues from the French coast. Judges Cushing, Chasev "and Livingston, assigned as the sole reason of their opinion, that the vessel and cargo were condemned by a French tribunal, sitting at Santo Domingo, without having beea carried into that dr any other French port, and while lying in the port of Charleston (South Carolina), whither they had been carried by and with the consent of the captor. It was afterwards decided in Hudson v. Guestier, that the French court had jurisdiction in a case circumstanced like that described by Judges Cushing, Chase, and Livingston. The principle on which these three judges relied being thus o vet-
4. It remains to b.e considered whether the French court had jurisdiction in a case, where the thing captured had never heen brought within the limits of the republic.
This question has of late, years been much discussed, applied to vessels captured as prize of war. It must depend on the custom of nations; for without such custom, it does not seem essential that there should be any judicial proceeding, the property being vested in the captors by the act of cap.ture. In cases of capture by armies, on land, the plunder is divided among the eonquerers, without process of law. Fortunately for the world, it has been thought proper to proceed differently with marine captures. Courts are established iq all civilized nations, who proceed or profess to proceed according to the laws and usages of nations. The courts of the captor exclusively take cognisance of prizes. Xt is the business of those courts to inquire, whether captures have been regularly made under the authority of the nation in which they arc established, and where a neutral is concerned, to ascertain whether be has. done any thing which may justly subject his property to confiscation. They are to make the necessary inquiry, and give a decree of condemnation or acquittal with all possible despatch. Seizure and safe possession are all that has been deemed necessary to give jurisdiction; but whether the possession was within the dominion of the captor, or of a neutral, has not been thought material, Sir William Scott, who presides with great ability in the F.nglish court of Admiralty, seemed once disposed to think that jurisdiction could not be assumed, unless tho thing captured was within the dominions of the captor; but on full research and reflection, he abandoned that principle, being satisfied that the custom of his own nation as well as of France, and the other principal nations of Europe, justified the condemnation of a prize, lying in the dominions of a. neytral power. This will appear from the case of the Hen
Having thus considered the objections to the jurisdiction of the French court of Admiralty, I am led to the conclusion, that it had jurisdiction of the cause which it decided, and consequently that its decree vested the property in question in the captors, under whom the defendant derives his title. I am therefore of opinion that there should be a new trial. On the other reasons offered by the defendant for a new trial, I give no opinion.
The first question which has been raised in
1. This point has been solemnly determined in this court in Brown v. Girard, 1 Binn. 40., in December term 1802, when the arguments on both sides underwent full consideration. Though the English adjudications, 7 T. R. 158., differ from our decision, yet such has been the uniformity of judicial opinions and practice in Pennsylvania for at least forty-eight years past, that I feel myself bound to acquiesce therein, whatever might he my individual sentiments on the subject, considered as a new point. At the same time, I do not hesitate to declare, that it becomes the duty of jurors, cautiously, and scrupulously to weigh the credibility of such testimony, and contrast it with the peculiar circumstances of each particular case.
2. Have the transactions in the island of Cuba, or the proceedings in St. Domingo, changed the property of this coffee?
On full consideration it does not appear to me, that thp mere purchase of the coffee at St. Jago, effected an alteration of the property by the operation of the laws of Spain. The unbending maxim of the common law is, nemo potest plus juris ad alium transferre, quam ipse habet; Co. Litt: 309. 6; and it accords with the plainest dictates of common sense. The.same rule holds in the civil law. Traditio nihil amplius transferre debet, vel potest, ad eum qui accepit, quam est apud eum qui tradit. L. 20 ff de acquis. Rer. Dom. The doctrine holds throughout all the civilized countries of Europe, where the civil law is adopted, as far as I can collect from the books. 1 Domat's Civ. Law. lib. 1, tit. 2, sect. 2, 11.; Poth. Traite du Contrat de Vente, part 1. n. 7.; Ersk. Institut. of Law of Scotld. vol. 2. 485.; 1 Johns. 479. In all the different stages of the much contested case of Rose v. Himely, all the judges of the Supreme Court of the United States concurred in opinion, that as far as between neutrals, at least a sentence of condemnation is indispensably necessary to produce a complete devestiture of property. 4 Cra. 280, 281-2. 514.
The validity of the condemnation of the coffee at St. Jagot ■ must therefore form the great object of inquiry on this ques
The schooner Mars, after her capture by the two French privateers, was carried into the Spanish port of St. Jago, where she arrived on the February 1804. On the next day, John Baptiste Audibert, the French prize agent, ordered her cargo to be sold. Two Spanish merchants became the purchasers of the coffee now in dispute, and the defendant, by his supercargo John Ribaut, bought it from them at second hand. It arrived here in the schooner Two Brothers, in March 1804; and while in this port, and after the present suit had commenced, the condemnation took place on the 21st July following, having a retrospective operation on the merits of the cause.
It was insisted, that while the possession remained, the res might be either restored or sold, and the sentence of the court be executed; and therefore the possession was the essential fact, on which the jurisdiction of the court depended. But if the res be out of the power of the sovereign, he cannot act upon it, nor delegate authority to act upon it, to his courts. 4 Cra. 294. The whole world are, or may become parties to a suit in the court of Admiralty, either by claim, or appeal; but relief can only be obtained by application to the tribunals of justice of the country of the captors. The neutral owners cannot enjoy this benefit, however unsubstantial, if their property when arrested may be carried into one port, and proceedings to a condemnation be had in another port, however remote therefrom, of which they can have no knowledge. Possession must therefore be essential to the jurisdiction of a prize-court. It is the duty of a.prize-court to give a prompt and fair hearing to all parties, and to restore instantly, if upon a summary examination there does not appear sufficient ground to proceed. But how, say they, can this hearing be had, and this restoration made and enforced, when the subject matter in controversy, and perhaps the captors and captured are in a foreign country? The admission of a practice so incompatible with the very constitution of a prize-court would lead to the greatest confusion. Suppose a foreign prize-court should sustain a libel against a vessel lying within one of our
More calm reflection has led my mind into a different train of thinking, and effaced my first impressions. I no longer view the defendant’s doctrine as a degradation of our national character. It is not pretended that if by any means whatever a prize-court should be induced to condemn as prize of war, a vessel which was never captured, that this condemnation would operate a change of property; and it is admitted, that recapture, escape, or a voluntary discharge of the captured vessel, would deprive the court of jurisdiction. 4 Cra. 269. 294.
The decisions of this court agree with those of the Supreme Court of the union, that the sentence of a foreign court of competent jurisdiction directly upon the point, is conclusive evidence of the fact which it professes to decide, between the same parties, upon the same matter coming incidentally in question in another court for a different purpose. This doctrine most frequently occurs in cases between insurers and insured, where there is no express stipulation to the contrary in the policies. The respect required to be shewn to the decrees of foreign tribunals, has for its foundation that universal independence and equality of ail governments, from which it results, as Vattel observes, “ that to undertake to examine the justice of a definitive “ sentence, is an attack on the jurisdiction of him who passed “it.” 4 Cra. 511. The doctrine rests upon three very obvious considerations; the propriety of leaving the cognisance of prize questions exclusively to courts of prize jurisdiction; — the very great inconvenience amounting nearly to an impossibility of fully investigating such cases in a court of common law; — and the impropriety of revising the decisions of the maritime courts of other nations, whose jurisdiction is coordinate throughout the world. 4 Cra. 435. Meré locality will not of itself, deprive the prize-court of one nátioh of its jurisdiction, nor give jurisdiction to an
Much reliance was placed during the argument of this case, on the reversal of the judgment of the Circuit Court of South Carolina, in Rose v. Himely, by the Supreme Court
Upon the whole, I am of opinion that a new trial should be awarded.
By article 3, sec. 2, of the constitution of the United States, it is provided, that “the judicial “ power shall extend to ail cases of admiralty and maritime “jurisdiction.” This might be construed as giving to the courts of the United States exclusive jurisdiction of all admiralty and maritime cases; but the judiciary law of the United States, 1 U. S. Laws 54., has not construed it so extensively; for by sect. 9 of that law, there is a saving to “ suitors in all cases, of the right of a common law remedy, “ where the common law is competent to give it.’’ A suitor therefore has a right to demand of the court of any state, the remedy of a wrong, where the common law is competent to give it. It follows, that it is démandable of this court, that we give a remedy in this case of alleged wrong, if we are competent to give it.
Our competency will depend upon the question, are wé excluded from the “jurisdiction?” Cases of admiralty and mai'itime jurisdiction, in the meaning of the constitution,, must have a reference to cases of that nature as they were understood before the framing of the constitution; and that understanding must have a reference to the admiralty and maritime jurisdiction of the courts of England, whence wé have drawn our laws. In the courts of England, the boundaries are clearly settled, both as to where the jurisdiction is concurrent, and where it is exclusive. The cases of prohibition shew where the admiralty and maritime courts may
The admiralty and maritime jurisdiction of the United States must therefore be the same with that of the English courts, as to what they shall possess exclusively of the common law courts of the individual states; and what the courts of the United Stales cannot exclusively take, we must concurrently possess. It is clearly settled by the English cases, that it is not the place, supra altum mare or high seas, but the nature of the question, that must determine. Of what nature then must the question be that will exclude? The answer to this may be anticipated from the reason of the thing, even were not the decisions of the courts very clear upon this head. The purport of these is, that it must be a question which will involve a claim of some foreign power originally or derivatively; that is, immediately from the foreign power, or derivatively, by some claiming under it. For it must be a question, on the determination of which the preserving peace with some foreign power may depend. Every case of capture as prize of war, must be of this nature. A case of seizure and condemnation for the violation of a prohibitory law, with relation to the subjects of a foreign power, is within the same reason, and must be of the same nature. For the sovereign has a right to prohibit an intercourse with all, or any part of his dominions. The subject of a foreign power violating such a prohibition, subjects himself by the law of nations to the forfeiture of the prohibition. If a forfeiture of the property be the comminution, that property may be seized. But the subject of the foreign power is under the protection of his sovereign, to whom the power prohibiting is answerable for the seizure of the property. He is bound to shew the grounds of the seizure, that it may appear to be justifiable. It ultimately comes therefore to be a question between the respective sovereigns, whether at peace with each other or at peace with all the world. Why is it that capture jure belli is made cognisable only in what are called prize-courts, but in order the better to preserve the relations of amity with other powers, with whom
Considering forfeiture under a prohibitory law, as giving a right of seizure, in the same manner as the breach of blockade gives the right of capture, it will follow that' the property forfeited may be pursued and taken on any seas, excluded only by the jurisdictional limits of another power; so that it would not make any difference with me, whether the seizure was within the territorial jurisdiction, or without upon the high seas, after a forfeiture legally incurred; nor whether the seizure was for the actual entry of a port, or for hovering within the jurisdiction, and raising the presumption of an intention to enter, such hovering being prohibited. As to the limits of the jurisdiction alleged to be violated, territorial jurisdiction seems to be what any nation •chooses to make it, and what other nations will suffer it to be. If this extent is to be contested, it must lie with the sovereign power of a state to say what that of another shall be. I do not know that our government has said what shall be the territorial jurisdiction of France, in Europe or the ■Indies; and until that is done, we cannot say what it shall be: for the law of nations, which is a part of our common law, has not ascertained this distance without controversy. In case of vessels bound to the United States, our government exercises the right of search to the extent of four leagues.
But it will be said, that whether capture as prize of war, or seizure for the violation of a prohibitory law, be alleged, it must be examinable whether such capture or seizure and condemnation have been legally made. The sentence of a foreign court of Admiralty will not conclude as to such capture, or seizure and condemnation, but the legality of these will be examinable to a certain extent. It is so determined by the-Supreme Court of the United States. Going as they presume on the same law which is adopted in the English courts, they have determined in the case of Rose v. Himely, 4 Cranch. 241., that the capacity of the court to act upon the thing condemned, arising from its being within, or without their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence. “ The court will examine the constitutional.
Admitting that there might be a change of property as , amongst the subjects of the seizing power, by a sale by admiralty decision, can the courts of other nations regard a transfer that is not previously covered with a sentence of condemnation, that has not this to produce as the title deed or evidence of the property of the goods purchased?
The reason on which respect is paid to a foreign court of Admiralty, so as to protect the subject of a sale, is the maintaining the relations of amity with foreign powers. Is not a comity founded in this reason carried far enough, when we respect the sentence of the court, by supporting the sale made under it, without confirming it by relation? That is a step farther; and is there any good policy to warrant it? Is it not enough if they are protected after condemnation? The purchase is otherwise at the risk of the purchaser, that if he take the property out of the dominions of the power seizing, he cannot call upon the municipal law of another country to protect him.
But in this case it is said that the property is covered by a sale made by an agent of the foreign government, by the French agent at St. fago de Cuba. The British government would seem, as in the case at Lisbon,,to have commissioned
But, are not these considerations proper for the determination of the prize-court? F or, admitting that the Admiralty Courts of one nation, have a right to judge of the jurisdiction of the Admiralty Courts of another nation, though it would seem to involve an inconsistency to say that the assumption of jurisdiction, which is the principal and primary act of the court, and not the legality of the adjudication or sentence on the merits, should be examinable, the same reasons of policy which forbid in the one case, would seem to exclude in the other, and every court is presumed to be a competent judge of its jurisdiction; nevertheless, I say, admitting that the, jurisdiction is examinable to a certain extent, is it competent to any but the Admiralty Prize-court to examine? “ If “ the taking has been as a prize, though from want of legal “ condemnation there has not been a complete prize, claim w of restitution must be in the prize-court. If in any other “ way a suit for restitution is proper in the instance court, “ it is not easy to conceive such a case unconnected with “ either piracy or war. We may however suppose or ima- “ gine a case of possession unlawfully taken, where no cir- “ cumstance of capture in war was concerned, as if there was “ a disputed property in'a ship, and one of the claimants “ prevailed upon the master at sea to betray to him the pos-
These observations are extracted from 2d Brown Civ. and Adm. 113.115., who goes on to add, that though such suits for restitution may be proper in the Admiralty, yet it may be asked whether the courts of common law have not here concurrent jurisdiction; for though the tort be committed upon the sea, the main question is a simple question of possessory right between man and man, and which in its nature savours not necessarily of a marine business. Lord Mansfield has answered this question in the case of Lindo v. Rodney; “ a thing,”, says he, “ being done upon the high sea, “ does not necessarily exclude the jurisdiction of the courts “ of the common law; for seizing, stopping, or taking a ship “ upon the high seas, not as prize, an action will lie; though “ for taking as prize, no action will lie. The nature of the “ question excludes not the locality. The proper distinction “ seems to be, that if 'the suit be in rem for the restitution “ of the ship itself, the suit should be in the Admiralty. “ If for damages only, at common law. But Sir Leoline “ Jenkins agrees with the attorney and solicitor-general of 14 his time in opinion, that even for spoil and damage and “ loss of time or demurrage occasioned by violence, suits might be brought either in the courts of common law, or “ in the Admiralty. But he adds weighty reasons for preferring the latter. Having, says he, the authority of two
So far the sentiments of this elementary writer, to which I subscribe, and add that I can see no distinction between, the instance court being excluded from a proceeding in rem, and sustaining a proceeding for damages on account -of the taking or detention, where the taking has been as prize. For the same i-easons of policy would require the intervention of the peculiar jurisdiction of the prize-courts in the one case as in the other; and if questionable in the instance court of Admii-alty, so at least in the common law-court.
Are there not reasons arising from the constitution of the federal government, that render it necessary to confine the
This consideration would perhaps not seem to have been duly weighed by the legislature of the union, in the judiciary act, in saving a common law remedy in the state courts where the constitution would have warranted an exclusive jurisdiction to the courts of the union in all matters of admiralty jurisdiction, whether as instance or prize-courts.
But on the ground of policy I will consider them as not intending to give jurisdiction to the state courts, where prize, or its incidents or consequences come in question.
New trial granted.