2 Paine 324 | U.S. Circuit Court for the District of Connecticut | 1835
This case comes up on appeal from a decree of the district court of the United States for the district of Connecticut. This libel filed in the case is for salvage upon a quantity of seal-skins, alleged to have been saved and rescued from the unlawful and piratical capture of Lewis Vernet, at Port St. Lewis, in. the Eastern . Falkland Island, on the 19th of August, in the year 1831. The libel alleges the skins to have been taken from on board the schooner Superior, Congdon, master, by the said Vernet; who was wrongfully and unlawfully pretending and claiming .to be-governor of the Falkland Islands, under the government of Buenos Ayres, and landed and put into a store-house. Salvage is also claimed upon a quantity of seal-skins, alleged to have been taken in like manner from a boat’s crew, commanded by Isaac-P. Waldron, and put into the same store. The libellant [Gilbert R. Davison] states that he was carried a prisoner on board the schooner Harriet, to Buenos Ayres, where lie arrived on the 20th of November, when he was liberated; and on the 1st of December he shipped as second sailing-master on board the Lexington, a sloop-of-war of the United States, commanded by Captain Duncan, and sailed for Port Lewis, and arrived there on the 27th of December, and sent a boat on shore and took the skins from the store-house, and broke up Vernet’s establishment there: that he obtained a discharge as sailing-master, for the sole purpose of saving the skins for the rightful owner. The skins having been delivered by Captain Duncan to him, were put on board the schooner Dash, on the 5th day of January, 1832, and were afterwards transhipped to the schooner Carrier, of Stonington, John S. Barnum, master; who signed a bill of lading for 790 prime fur, and 401 pup-skins, consigned to Thomas Davison. The Carrier arrived at Stonington on the 15th of April, 1833. And the salvage claimed is for the personal services of the libellant, bestowed upon the skins after they were delivered over to him by Captain Duncan. The skins by order of the district court, were sold by the marshal of the district, and the money brought into court, and a claim for the proceeds was filed by Silas E. Burrows, as owner of the schooner Superior, and her cargo.
Isaac P. Waldron, in behalf of the boat’s crew mentioned in the libel, or under the right of purchase made from them, filed a claim for a portion of the skins. The freight of the skins having been ordered to be paid out of the proceeds, the court decreed against the claim of the libellant for salvage; and after deducting the costs, that $704.52 should be paid to Isaac P. Waldron on his claim, and the remainder of the proceeds to be paid to Silas E. Burrows on his claim. From this decree the libellant and Burrows have severally filed an appeal; and the questions which arise under this appeal, relate, in the first place, to the claim for salvage, and, in the next place, to the respective .pro
The right to salvage in this case has been placed on the ground that the taking wats piratical,
Mr. Slocum, in his letter to the minister of foreign affairs, dated 21st November, 1831, complaining of the conduct of Vernet, asks whether the government of Buenos Ayres intends to avow and sustain the capture. The minister of foreign affairs, in his reply of November 25, informs him that the subject was under the consideration of the government, which would adopt such decision as the laws of the country required; which Mr. Slocum, by his letter of the 26th of November, informs the minister that he cannot consider the answer in any other light than as an express admission, on the part of his government. of the right to capture American vessels fishing for seals at the Falkland Is
I do not mean to enter into the question whether or not American citizens had a right to take seals upon the Falkland Islands: that was a disputed question between our government and that of Buenos Ayres. But if these islands were held in the possession and under the jurisdiction of the Buenos Ayrean government, and Vernet’s establishment then was under the authority and protection of that government, as it clearly was, and even admitting that Vernet had abused his power, Captain Duncan could have no right, without express directions from his government, to enter into the territorial jurisdiction of a country at peace with the United States, and forcibly seize upon property found there and claimed by citizens of the United States. Such a principle would be too hazardous to the peace of nations to be admitted in practice. If the seizure of these skins by Vernet was wrongful, and a violation of the rights of American citizens, the presumption is, that on. application to the judicial tribunals of Buenos Ayres, there would have been a restoration of the property; and if that, and all appeal to the government, should fail of redress it might become a case for the interference of the government of the injured party, and might ultimately lead to a just war. Such, according to the law of nations, would be the course to be adopted toward the citizens or subjects and the government of every sovereign power; and the weakness or strength of such power does not alter the principle. And .this would seem to have been the understanding-of the libellant himself, by the contract he entered into with Vernet, relative to the appeal to the tribunals of Buenos Ayres, for the trial of the right of seizure by Vernet, of the Harriet and Superior; and the employment of the Superior in sealing, until the determination and result of such trial should be known. This was an arrangement beneficial to all parties, and is not at all consistent with the charge that it was a piratical capture. I can discover nothing in the evidence to warrant the conclusion that this contract was forced upon the libel-lant and Captain Congar, by Vernet. It purports to have been entered into at the instance of these captains; and I see no reason to conclude that the trial would not have been proceeded in had not the property been retaken, and the whole establishment broken up by Caijtain Duncan, which the government of Buenos Ayres considered a gross violation of their rights. This right of taking seals (or fishery as it is called, though, perhaps, not strictly proper, as the seals are taken on shore) at the Falkland Islands, was then under discussion between our government and that of Buenos Ayres, as would appear by the letter of the secretary of state to Mr. Forbes, of the date of 10th of February, 1S31, in which he says it is the wish of the president that you should address an earnest remonstrance to that government against any measures that may have been taken by it, including the decree and circular letter referred to, if they be genuine, which are calculated in the remotest degree to impose any restraint whatever upon the enterprise of our citizens engaged in the fisheries in question (the taking seal at the Falkland Islands), or to impair their undoubted right to the freest use of them. But notwithstanding this strong language on the part of our government, it did not undertake to pronounce this a piratical establishment, or to direct our public vessels to proceed there and break it up; but was negotiating on the question. Our government must have been fully apprized of the course pursued by the government of Buenos Ayres; for the decree referred to in this letter was undoubtedly the decree under which Vernet was acting. And that decree, which bears date on the 10th of June, 1S29, in terms declares, that the Falkland Islands shall be governed by a military and civil governor, to be
I have not been able to arrive at so satisfactory a conclusion in relation to the distribution of the proceeds of the skins, as between Mr. Burrows and Captain Waldron. It is not denied but that all the skins taken on board the Superior belonged to Mr. Burrows; nor is it denied but that Captain Waldron was the owner of the skins taken from the boat’s crew of the Belville, he having purchased the rights of the other part owners; and it is very satisfactorily established that all these skins were put into the same storehouse at Port Lewis. But the doubt arises from the difficulty of ascertaining whether the whole of the skins taken from the boat’s crew were shipped on board the Thomas Lowry and sent to London, or whether a part remained, and were taken away by Captain Duncan.
The evidence -upon this part of the case is certainly very contradictory in several respects, and cannot be reconciled. Yeraet swears that the skins taken from the boat’s crew were put separately in the store-house, and were all put on board the Thomas Low-ry. In this he is contradicted by several witnesses, who swear that these skins were stored promiscuously in the store-house with the skins of the Harriet and Superior, and that the skins shipped on board the Lowry were selected from the aggregate quantity. Under this view of the case, it cannot with any satisfactory certainty be said on which side the evidence preponderates, so as at all events to justify an appellate court on this ground to disturb the decree of the court below. I am, accordingly, of opinion that the decree of the district court be affirmed.
By article 1, § 8, of the constitution of the United States, congress has power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. If any person commit, upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence, which, if committed within the body of a county, would, by the laws of the United States, be punishable with death; or if any captain or mariner of any vessel, shall piratically and feloniously run away with such vessel, or any goods or merchandise to the value of fifty dollars, or yield up such vessel voluntarily to a pirate; or if any seaman shall lay violent hands upon his commander, thereby to hinder and prevent his fighting in de-fence of his ship, or goods committed to his trust, or shall make a revolt in the ship, every such offender shall be deemed, taken, and adjudged to be a pirate and felon, and being thereof convicted shall suffer death; and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be brought. Act 30th April, 1790, § 8 [1 Stat. 113]. If any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high sea. under color of any commission from any foreign prince or state, or on pretence of authority from any person, such offender shall, notwithstanding the pretence of any such authority, be deemed, adjudged and taken to be a pirate, felon, and robber, and on being convicted thereof, shall suffer death. Id. § 9.
Every person who shall, either upon the land or the seas, knowingly and willingly aid and assist, procure, command, counsel, or advise any person to do or commit any murder or robbery, or other piracy aforesaid, upon the seas, which shall affect the life of such person, and such person shall thereupon do or commit any such piracy or robbery, then every such person so as aforesaid aiding, assisting, procuring, commanding, counselling, or advising the same, either upon the land or the sea. shall be. and they are hereby declared, deemed and adjudged to be accessory to such piracies, before the fact, and every such person, being thereof convicted, shall suffer death. Act 30th April. 1790, § 10. After any murder, felony, robbery, or other piracy whatsoever aforesaid, is or shall be •committed by any pirate or robber, everyperson who, knowing that such pirate or robber has done or committed any such piracy or robbery, shall, on the land or at sea, receive, entertain, or conceal any such pirate or robber, or receive or take into his custody any vessel, goods or chattels, which have been by any such pirate or robber piratically and feloniously taken, shall be, and are hereby declared, deemed and adjudged to be accessory to such piracy or robbery after the fact, and on conviction thereof, shall be imprisoned not exceeding three years, and fined, not exceeding five hundred dollars. Id. § 11. If any person shall, upon the high seas, or in any open roadstead, or in any haven, basin or bay, or in any river where the sea ebbs and flows, commit the crime of robbery, in or upon any vessel, or upon any of the ship’s company of any vessel,- or the lading thereof, such person shall be adjudged to be a pirate; and being thereof convicted before a circuit court of the United States for the district into which he shall be brought, or in which he shall be found, shall suffer death. Act 15th May, 1820, § 3 [3 Stat. 600], And if any person engaged in any piratical cruise or enterprise, or being of the crew or ship’s company of any piratical vessel, shall land from such vessel, and on shore shall commit robbery, such person shall be adjudged a .pirate, and on conviction thereof before a circuit court of the United States for the district into which he shall be brought, or in which he shall be found, shall suffer death. - Provided, that nothing in this section contained shall be construed to deprive any particular state of its jurisdiction over such offences, when committed within the body of a county, or authorize the courts of the United States to try any such offenders. after conviction or acquittance, for the same offense in a state court. Id. § 3. If any citizen of the United States, being of the crew or ship’s company of any foreign vessel engaged in the slave trade, or any person whatever, being of the crew or ship’s company of any vessel owned in whole or in part, or navigated for, or in behalf of any citizen or citizens of the United: States, shall land from any such vessel, and on any foreign shore seize any negro or mulatto, not held to service or labor by the laws of either of the states or territories of the United States, with intent to make such negro or mulatto a slave, or shall decoy, or forcibly bring or carry, or shall receive such negro or mulatto on board any such vessel, with intent as aforesaid, such citizen or person shall be adjudged a pirate, and on conviction thereof before the circuit court ot the United States for the district wherein he may be brought or found, shall suffer death. Id. § 4. If any citizen of the UnitPd States, being of the crew or ship’s company of any foreign vessel engaged in the slave trade, or any person whatever, being of the crew or ship’s company
The president of the United States is authorized and requested to employ so many of the public armed vessels as in his judgment the service may require, with suitable instructions to the commanders thereof, in protecting the merchant vessels of the United States, and their crewá from piratical aggressions and depredations. The president of the United States is authorized to instruct the commanders of the public armed vessels of the United States, to subdue, seize, take, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint. depredation, or seizure, upon any vessel of the United States, or of the citizens thereof, or upon any other vessel: and also to retake any vessel of the United States, or its citizens, which may have been unlawfully captured upon the high seas. Act 3d March, 1819, 8 1 [3 Stat. 511], The commander and crew of any merchant vessel of the United States, owned wholly or in part by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation or seizure, which shall be attempted upon such vessel, or upon any other vessel owned as aforesaid by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States; and may subdue and capture the same: and may also retake any vessel owned as aforesaid, which may have been captured by the commander or crew of any such .armed vessel, and send the same into any port of the United States. Id. § 3. Whenever any vessel or boat, from which any piratical aggression, search, restraint, depredation or seizure. shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall and may be adjudged and condemned to their use, and that of the captors, after due process and trial, in any court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel shall be brought; and the same court shall thereupon order a sale and distribution thereof accordingly, and at their discretion. Id. § 4. If any seaman or other person shall comrPjt manslaughter upon the high seas, or confederate, or attempt or endeavor to corrupt any commander, master, officer or mariner, to yield up or to run away with any vessel, or with any goods, or turn pirate, or to go over to or confederate with pirates, or in anywise trade with any pirate, knowing him to be such, or shall furnish such pirate with any ammunition, stores or provisions of any kind, or shall fit out any vessel knowingly and with a design to trade with or supply or correspond with any pirate or robber upon the seas; or if any person shall any ways consult, combine, confederate or correspond with any pirate or robber on the seas, knowing him to be guilty of any such piracy or robbery; or if any seaman shall confine the master -of any vessel, or endeavor to make a revolt in such vessel: such person so offending, and being thereof convicted, shall be imprisoned not exceeding three years, and fined not exceeding one thousand dollars. Act 80th April, 1790. § 12. By the common law,, piracy consists in committing upon the high seas, or elsewhere within the jurisdiction of the admiralty, such acts of robbery and depredation, as if committed on land, would have amounted to felony there. The admiralty jurisdiction does not extend in general to any of-fence done infra corpus eomitatus. All rivers in England till they flow past the furthest point of land next the sea, are infra corpus eomitatus. As to havens, creeks and arms of the sea, where the sea flows in between two points, a straight imaginary line being drawn from one point to the other, the courts of common law have jurisdiction of all offences committed within that line, as being infra corpus eomitatus. It would seem, however, to be infra corpus eomitatus, one must be able to see with the naked eye from one side of the creek, &c„ to the other. The admiralty has exclusive jurisdiction on the coasts beyond low-water mark. And between low and high-water mark, the admiralty has jurisdiction if the offence be done upon the high water when the tide is in, and the courts of
In England, in a case at the admiralty session, of a murder committed in a part of Milford Haven, where it was about three miles over, about seven or eight miles from, the mouth of the river, or open sea, and about sixteen miles below any bridges over the river, a question was made whether the place where the murder was committed, was to be considered as within the limits to which commission granted under St. 2S Hen. VIII. c. 15, do by law extend. Upon reference to the judges, they were unanimously of opinion that the trial was properly had. And it is said that during the discussion of the point, the construction of this statute by Lord Hale (2 Hale, P. C. 16, 17) was much preferred to the doctrine of Lord Coke (3 Inst. Ill); and that most, if not all of the judges, seem to think that the common law has a concurrent jurisdiction with the admiralty in this haven, and in all •other havens, creeks and rivers in this realm. Brace’s Case. 2 Leach, 1093. It appeared to them that 28 Hen. VIII. applied to all great waters frequented by ships; that in such waters the admiral, in the time of Henry VIII., pretended jurisdiction; that by havens. &e., havens in England were meant to be included, though they áre all within the body of some county; and that the mischief from the witnesses being seafaring men was likely to apply to all places frequented by ships. MS. Bayley. J. If a robbery be committed in creeks, harbors, ports. &e., in foreign countries, the court of admiralty indisputably has jurisdiction of it, and such offence is. consequently, piracy. Rex v. Jemot, Old Bailey, 28th Feb. 1812. It is clear that upon the open sea-shore the common law and the admiralty have alternate jurisdiction between high and low-water mark i3 Inst. 113); but it is sometimes a matter of difficulty to fix the line of demarcation between the county and the high sea in harbors, or below the bridges in great rivers. The question is often more a matter of fact than of law, and determinable by local evidenc»: but some general rules upon the point are collected by Mr. East. He says, that “in general it is said that such parts of the rivers, arms or creeks, are deemed to be within the bodies of counties, where persons can see from one side to the other. Lord Hale, in his treatise De Jure Maris, says, that the arm or branch of the sea which lies within the fauces terrae. where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county. Hawkins, however, considers the line more accurately confined, by other authorities, to such parts of the sea where a man, standing on the one side of the land, may see what is done on the other: and the reason assigned by Lord Coke in the admiralty case (13 Coke, 52), in support of the county coroner’s jurisdiction, where a man is killed in such places, because that the county may well know it, seems rather to support the more limited construction. But at least, where there is any doubt, the jurisdiction of the common law ought to be preferred.” 2 East, P. C. c. 17, § 10 pp. 803. 804.
The question, whether the act was committed on the sea, or within the body of a county, is of main importance. For if it turn out that the goods were taken anywhere within the body of a county, the commissioners under St. Hen. VIII., can have no jurisdiction to inquire of it; and if it should appear that the goods were taken at sea and afterwards brought on shore, the offender cannot be indicted as for a larceny -in that county into which they were carried, because the original felony was not a taking of which the common law takes cognizance. 2 East, P. C. c. 17, § 12, p. 805. And St. 39, Geo. HI. c. 37, relates only to offences committed on the high seas, and out of the body of any county. Where a man was indicted for stealing three chests of tea out of the Aurora, of London, on the high seas, and it was proved that the larceny was committed while the vessel lay off Wampa, in the river, twenty or thirty miles from the sea, but there was no evidence as to the tide flowing, or otherwise, at the place where the vessel lay, it was held, from the circumstance, that the tea wras stolen on board the vessel, which had crossed the ocean, that there was sufficient evidence that the larceny was committed on the high seas. Rex v. Allen, R. & M. C. C. R. 494. It was decided that where A., standing on the shore of a harbor. fired a loaded musket at a revenue cutter, wdiich had struck upon a sand-bank in the sea, about one hundred yards from the shore, by which firing a person was maliciously killed on board the vessel, it was piracy: for the offence was committed where the death happened, and not at the place from whence the cause of death proceeded. 1 Hawk. P. C. c. 37, § 17. And if a man be struck upon the high sea, and die upon the shore after the reflux of the water, the admiral by virtue of his commission, has no cognizance of the offence. 2 Hale, P. C. 17, 20. And as it was doubtful whether it could be tried at common law. it wras provided by statute that the offender may be tried in the county where the death stroke, poisoning, or hurt happened.