Hallett v. Novion

14 Johns. 273 | N.Y. Sup. Ct. | 1817

Lead Opinion

Thompson, Ch. J.,

now delivered the opinion of the court. Several very important and difficult questions have been raised and discussed on the argument, which, according to the view I have taken of the case, it becomes unnecessary for me particularly to notice. That the brig Jane, and her cargo, were the property of the plaintiff at the time of the capture by the privateer, was very satisfactorily proved; and the conversion by the defendant was equally well established. The only question of doubt in the case was, whether this court has jurisdiction of the cause, or whether it is a case exclusively qf admiralty jurisdiction. That courts of common law have cognizance of marine trespasses, is a point no where questioned. It is. not the place, Rut the nature of the question that will determine the jurisdiction of rhe court.

Le Caux v. Eden, (Doug. 594.) is a leading case on the question whether common law courts have jurisdiction when the question is prize or no prize. It is there expressly admitted, that trespass will lie at common law, for taking a ship on the high seas: and the reason assigned in all the cases on this subject, why common law courts have not cognisance of the question, whether taken as prize or not, is because prizes are acquisitions jure belli, and the jus belli is to be determined by the law of nations, and not by the particular municipal law of any country. Whenever, therefore, the rights of the parties are to be governed by the municipal law, and not by the law of nations, it would seem to follow, as matter of course, that coni" mon law courts have jurisdiction of the case. In the act of congress establishing the judicial courts of the United States, there is a saving to suitors, in all cases, of the right of a common law remedy when the common law is competent to give it. If courts of common law have cognizance of marine trespasses, then, prima facie, this court has jurisdiction, and it is matter of defence, and to be shown on the part of the defendant, that this jurisdiction is taken away. When this defence shows and involves in it a violation of an act of congress, it appears to me to be going great lengths to yield our jurisdiction. This is surely a question depending on the municipal law of this country, and not upon the law of nations; and the reason for sending the parties to a court of admiralty ceases. A court of common Jaw is as competent to try the question as a court of admiralty. That the privateer, in this case, was fitted out in direct violation of the act of congress cannot be denied. The act of the 5th of June, 1794, and which is made perpetual by an act of the 24th of April, 1800, makes it a misdemeanour, and subjects to a penalty any person who shall, within any ports, harbours, bays, rivers, or other waters of the United States, fit out and arm, or attempt to fit out and arm, or shall, knowingly, be concerned in furnishing, fitting out, or arming any ship or vessel with intent that she shall be employed in the service of any foreign prince or state to cruise or commit hostilities upon the subjects, citizens, or property of another foreign prince or state with whom the United Slates are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States for any ship or vessel, to the intent that she may be employed as aforesaid. In the case before us, it is very satisfactorily proved that the privateer Whiting, which captured the plaintiff’s brig, was fitted out at Washington, in North Carolina; and that the commission to cruise was put on board while she was within the jurisdiction of the United Stales, which commission authorized cruising against the Spaniards xvith whom the United Slates were at peace.

If it became necessary to inquire whether the government at Carthagena was competent to issue the commission under which the privateer acted, this might most properly belong to admiralty jurisdiction. But whether the commission issued from competent authority or not, cannot be a subject of inquiry ; and, indeed, this is altogether immaterial, for the very putting it on board within the jurisdiction of the United States, was illegal, and the commission a nullity. The defendant cannot be alloxved to set up, as a justification or excuse for his trespass, an act made penal, arid a criminal offence, under the law of congress. To inquire into this matter is not entertaining the question whether prize or not. This is a point depending entirely on our own municipal laxv, with which the law of nations has no concern. It is no answer to say, that the defendant may be proceeded against for the penalty and offence prescribed by the statute. This is a prohibitory statute, and every act done against it is' not only illegal, but absolutely void. It xx'ould, in my judgment, be a dangerous doctrine, and subversive of all sound rules and principles, to listen to a defence, founded on a violation of this act of congress. Courts of law will not assist an illegal transaction in any respect, or permit it to be set up as a protection. Although this act contains no express prohibition, yet it is a well-settled rule that a penalty implies a prohibition. (Carthew, 252.) 1 can. discover no reason whatever, xvhy courts of common law are not as well adapted to inquire into a violation of this act, as courts of admiralty. It is surely not enough to take away our jurisdiction, barely to pretend th.at the taking xvas as prize. Suppose no commission had been on board at all, or the captors were acting under a forged commission, without any pretence that it had been granted by any government or sovereignty whatever, xvould it not be competent for courts of common law to take cognisance of such inquiries f A vessel cannot be said to be captured, as prize, unless the act be done bona fide, and under a commission, at least, prima facie, valid, and where the responsibility of the government, which must be settled according to the law of nations, is involved. In such case, there is a great propriety in sending a party to a court of admiralty jurisdiction for redress. But not so, where our own municipal law furnishes the rule by which the claim, and rights of the parties must be tested. The illegal fitting out of this privateer, in direct violation of the act of congress, precludes the defendant from setting up the claim or pretence, that the taking was as prize: and it is upon this ground alone that I place my opinion that this court has jurisdiction of the cause. All the facts which show that the fitting out of the privateer was directly in the face of the act of congress, appear orr the bill of exceptions; and we are called upon to pronounce the law upon those facts. Putting out of view the question of prize, it is not denied that the plaintiff has shown enough to entitle him to recover; and the rule of damages adopted by the jury has not been questioned. The opinion of the court, therefore,, is, that the plaintiff is entitled to judgment.

‡ ‘rrz¡ SZg' eoifíná there cited, $ See also Mos-tips v Fabrigas, Coivp, 179. Nightingale Bridges. Carth. 131. i Shower, 135. Hughes v. Cornelius, 2 Shorn. 232. T. Raym. 473

* ~Sa~~nd.

†† ^3 ¡jat¡R^ 55, liH‘

+ ] Rep. 482. Answer to the Prussian Me ni -al See 4ppar. Chitiy's L. of ¿V. 302 3 DaNaf, 163. 4 Cranch, 514.

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Dissenting Opinion

Spencer, J.,

dissented. He observed that the verdict of the jury being generally for the plaintiff, without any special finding of the facts, the court must examine the opinion of the judge as expressed to the jury; and if the law was not correctly laid down, a new trial must be awarded, unless, indeed, admitting all the facts proved by the defendant to be true, the taking of the plaintiff’s vessel was a marine trespass, and not as prize of war.

The only point for our decision is, whether, as a court of common law, we have jurisdiction of this case. It cannot be questioned that if the plaintiff’s brig was taken as prize of war¿ this court has no jurisdiction. I believe this proposition has never been doubted since the cases of La Caux v. Eden, (Doug. 526.,) and of Lindo v. Rodney, (Dong. 591., note 1.) In the latter case, we have the authority of Mr. Justice Buller, “ that there is a current of authorities from the time of Queen Elizabelk, to the present time, all of which agree that the admiralty has jurisdiction, not only of the question of prize or not prize, but of all its consequences.” He cites the case of Rous v. Hazard, argued at the Cockpit, in 1749, and determined by Ch. J.s Lee, who held, with the concurrence of the court, “ that though for taking a ship on the high seas, trespass would lie at common ]aw; yet, when it was taken as prize, though taken wrongfully, though it were acquitted, and though there was no colourfor the taking, the judge of the admiralty was judge-of the damages and costs, as well as of the principal matter; and if such an action was brought in England, and the defendant pleaded not guilty, the plaintiff could not recover.” Mr. Justice Buller assigns the true reason, why the question of prize or no prize, was solely conusable in the admiralty; “ prizes are acquisitions jure. belli, and the jus belli is to be determined by the law of nations, and not by the particular municipal law of any country.” Lord Mansfield held the same doctrine in Lindo v. Rodney. “ A thing,” he said, “ being done on the high seas, does not exclude the jurisdiction of the common law; for seizing, stopping, or taking a ship on the high sea, not as prize, an action will lie; but for taking as prize, no action will lie, the nature of the question excludes, not the locality.” The same doctrine was reiterated in Smart v. Wolfe, (3 Term Rep. 344.,) and the same principles were recognized in the court of appeals of North-Caro-Una, in Simpson v. Nardeau (Cameron and Norwood, 115.) In tha; case, one of the points relied on arises in this case, that is as to the conduct of the captors after the capture; and it was contended, that by such after conduct the defendant became a trespasser ab initio. Judge Hall observes, that to ascertain the merits of that argument, the court must have recourse to the usages and regulations between us and France; and that, to go in search of these, would lead the court out of its course ; they exclusively belong to the prize courts.

In the second proposition laid down by the judge to the jury, he instructed them that if the San Francisco de Paula, had a Carlhagenian commission on board, and acted under it, in capturing the plaintiff’s brig, the subsequent conduct of the captors in not proceeding against the brig as a prize, but bringing her into the United States under the circumstances she was brought in, and selling her as the defendant’s private property, would rendey the defendant a trespasser ab initio, and the plaintiff would be entitled to recover. I repeat it, that the jury may have founded their verdict on this part of the direction, and, therefore, we cannot conclude, from the finding, whether the capture was as prize or not. There is abundant proof in the bill of exceptions, that the schooner had a Carthagenian .tiommission on board, and that her captain and crew professed, in making the capture, to act under it. They took forcible possession of the brig, and her captain and crew were taken out. This appears to me either a capturing as prize of war, or an act of piracy; and as the jury have not pronounced it to be the one or the other, I am relieved from the necessity of examining the question, whether courts of common law have jurisdiction in cases of piracy-, and thus the point to be decided is narrowed down to this, whether the subsequent conduct of the captors, admitting the capture to have been as prize, will render the act of capture a trespass ab initio, and give a court of common law jurisdiction.

I can discover no principle of law to warrant this; if the principal question, of prize or no prize, is exclusively of admiralty jurisdiction, how can it be that a court of common law, proceeding according to the municipal law, and not the law of nations, and, confessedly, having no conusance of the principal question, shall assume jurisdiction over the principal question, by the application of its own peculiar law to the incidents of the main question ?

It is as exclusively appurtenant to the admiralty to determine whether the subsequent treatment of the prize, invalidates the capture, as it is to decide whether the capture is valid or not. It requires the same application of the laws and usages of nations to the posterior conduct of the captors, in determining whether the captured vessel has ceased to be prize, as in the primary question of prize or not. In the case of Rous v. Hazard, Chief Justice Lee held, that where the captured vessel was acquitted in the admiralty, the court of common law was equally excluded from jurisdiction, the sentence not altering the nature of the original taking; it being a taking as prize, the common law could not notice it as a trespass. So, here, if the capture was as prize, the common law cannot notice it as a trespass. Every principle which excludes the jurisdiction of a court of common law, on the question of prize or no prize, equally excludes it in every stage of the business; and it does not belong to this court to apply the principles of the municipal law to any of the consequences of a prize, to ascertain whether the captured property retains, or has lost that character.

1 understand my brethren as not contesting the soundness of the principles I have here advanced, but that the decision of this cause, in favour of the plaintiff, rests on the fact, that the San Francisco de Paula had been fitted out in the United States, contrary to the 3d section of the act of congress of the 5th of June, If94; and that the original fitting out being unlawful, the capture of the plaintiff’s brig must necessarily be so. There is no doubt that the fitting out of this privateer was unlawful; it was a high misdemeanor, subjecting the offender to fine and imprisonment, and the vessel to forfeiture. But 1 cannot perceive that this precludes the question of jurisdiction. The act is silent as to the consequences to result from a capture by a vessel thus •fitted out; and it seems to me that it cannot be doubted that a vessel though armed and fitted out in violation of that act, may take a prize. It is another question, whether it would be a valid capture; and in the discussion of that question, in an admiralty court of the United States, it might well be urged, and with an overwhelming effect, that the capturing vessel had no right to cruise or capture. This could not be objected against the captor in the courts of admiralty of any other nation, for those courts would not carry into effect the penal laws of another country. These considerations, however, dd not belong to this court; it is immaterial what we may think of the illegality ■ of the capture complained of; we have no power to entertain the question, or to afford redress ; and the arguments addressed to us are misdirected.

The plaintiff is not without remedy, if his rights have been invaded ; I only insist that he has applied to the wrong forum*

Yates, J., declared himself to be of the same opinion.

Judgment for the plaintiff.