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BROWN condemnation to the crown or the admiralty, as the cir
cumstances require. The Walsingham Packet, 2. Rob. U.STATES, 77.-- The Etrusco, 4. Rob. 262. note.and the cases cited
supra. Nor can I consider these principles of the Britislı Courts a departure from the law of nations. The authority of Piffendorf and Vaitel are introduced to shew that private subjects are not at liberty to seize the property of enemies without he commission of the sovereign, and if they do they are cons dered as pirates. But when attentivel considered, it strikes me that, taking the full scope of these authors, they will not be found to support so broad a position. , Puff: B. 8. ch. 6.9 21.-Vattel, B. 3. ch. 15. § 22.1, 221, 225, 226, 227. l'attel himself admits ( 23 i,) that the declaration of war, which enjoins the subjects at large to attack the enemy's subjects, implies a general order; and that to commit hostilities on our enemy without an order from ou” sovereign after the war, is not a violation so much of the law of nations as of the public law applicable to the sovereignty of our own nation, (0 225.) And he explicitly states, ($ 226.) that, by the law of nations, when once two nations are engaged in war, all the subjects of the one may comunit h stilities against those of the other, and do them all the misirf authorized by the state of war. Ali that he contends for is, that though, by the declaration, all the subjects in general are ordered to attack the enemy, yet that by custoin this is usually restrained to persons acting under commission; and that the general order does not invite the subjects to undertake any offensive expedition without a commission or particular order; (§ 227.) and that if they do, they are not usually treated by the enemy in a manner as favorable as other prisoners of wa'', (0 226.) And Vattel ($ 227) explicitly declares, that the declaration of war "authorizes, indeed, and even obliges every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands. And he then goes on to state cases in which the authority of the sovereign may be presumed, (0 228.) The whole doctrine of Vattel, fairly considered, amounts to no more than this, that tie subject is not required, by the mere declaration of war, to originate predatory expeditions against the enemy; that he is not authorized to wage war contrary to the will of his own sovereign ; and that, though the ordinary declaration of war imports a general authority to attack the en
emy and his property, yet custom has so far restrained BROWN its meaning, that it is in general confined to persons acting under the particular or constructive commission U.STATES. of the sovereign. If, therefore, the subject do undertake a predatory expedition, it is an infringement of the public law of his own country, whose sovereignty he thus invades, but it is not a violation of the law of nations of which the enemy has a right to complain. But if the property of the enemy fall into the hands of a subject, he is bound to secure it.
For every purpose applicable to the present case, it does not seem necessary to controvert these positions ; and, whatever may be the correctness of the others, I am perfectly satisfied that the position is well founded, that no subject can legally commit hostilities, or capture property of an enemy, when, either expressly or constructively, the sovereign has prohibited it. But suppose he does, I would ask if the sovereign may not ratify his proceedings; and thus, by a retroactive operation, give validity to them? Of this there seems to me no legal doubt. The subject seizes at his peril, and the sovereign decides, in the last resort, whether he will approve or disapprove of the act. Thorshaven, 1, Edw. 102. The authority of Puffendorf is still less in favor of the position of the Claimant's counsel. In the section cited (book 8, ch. 6, sec. 21.) Puffendorf considers the question to whom property captured in war belongs; a question also examined by Vattel in the 229th section of the book and chapter above referrid to. In the course of that discussion, Puffendorf observes, “ that it may be very justly questioned, whether every thing taken in war, by private hostilities, and by the bravery of private subjects that have no commission to warrant them, belongeth to them that take it. For this is also a part of the to appoint what persons are to act in a hostile manner against the enemy, and low far : and, in consequence, no private person hath power to make devastations in an enemy's country or to carry off spoil or plunder without permission from his sovereign: and the sovereign is to decide how far private men, when they are permitted, are to use that liberty of plunder; and whether they are to be the sole proprietors in the booty or only to share a part of it: so that all a priváte adventurer in war can pretend to, is no more than
what his sovereign will please to allow him ; for to be a
soldier and to act offensively, a man must be commisU.STATES. sioned by public authority.”
As to the point upon which Puffendorf here expresses his doubts, I suppose that no person, at this day, entertains any doubts. It is now clear, as I have already stated, that all captures in war enure to the sovereign, and can become private property only by his grant. But is there any thing in Puffendorf to authorize the doctrine, that the subject so seizing property of the enemy, is guilty of a very enormous crime-of the odious crime of piracy? And is there, in this language, any thing to show that the sovereign may not adopt the acts of his subjects, in such a case, and give them the effect of full and perfect ratification? It has not been pretended, that I recollect, that Grotius supports the position contended for. To me it seems pretty clear that his opinions lean rather the other way; viz: to support the indiscriminate right of captors to all property captured by them. Grotius, lib. 3, ch. 6, sec. 2, sec. 10, sec. 12. Bynkershoek has not discussed the question in direct terms. In one place (Bynk. Pub. Juris, ch. 3,) he says, that he is not guilty of any crime, by the laws of war, who invades a hostile shore in hopes of getting booty. It is true that, in another place (id. ch. 20,) he admits, in conformity to his doctrine elsewhere, (id. ch. 17,) that if an uncommissioned cruizer should sail for the purpose of making hostile captures, she might be dealt with as a pirate, if she made any captures except in self-defence. But this he expressly grounds upon the municipal edicts of his own country in relation to captures made by its own subjects. And he says, every declaration of war not only permits but expressly orders all subjects to injure the enemy by every possible mcans ; not only to avert the danger of capture, but to capture and strip the enemy of all his property. And, looking to the general scope of his observations, (id. ch. 3, 4, & ch. 16 & 17.) I think it may, not unfairly, be argued that, independent of particular edicts, the subjects of hostile nations might lawfully seize each other's property wherever found : at least, he states nothing from which it can be inferred that the sovereign might not avail himself of property captured from the enemy by uncommissioned subjects. On
the whole, I hold that the true doctrine of the law of BROWN nations, found in foreign jurists, is, that private citizens cannot acquire to themselves a title to hostile pro- U.STATES. perty, unless it is seized under the commission of their sovereign; and that, if they depredate upon the enemy, they act upon their peril, and may be liable to punishment, unless their acts are adopted by their sovereign. That, in modern times, the mere declaration of war is not supposed to clothe the citizens with authority to capture hostile property, but that they may lawfully seize hostile property in their own defence, and are bound to secure, for the use of the sovereign, all hostile property which falls into their hands. If the principles of British prize law go further, I am free to say that I consider them as the law of this country.
I have been led into this discussion of the doctrine of foreign jurists, farther than I originally intended; because the practice of this Court in prize proceedings must, as I have already intimated, be governed by the rules of admiralty law disclosed in English reports, in preference to the mere dicta of elementary writers, thought it my duty, however, to notice these authorities, because they seem generally relied on by the Claimant's counsel. In my judgment, the libel is well and properly brought; at least for all the purposes of justice between the parties before the Court; and I overrule the exception taken to its sufficiency.
Having disposed of this objection, I come now to consider the objection made by the United States against the sufficiency of the claim of Mr. Brown; and I am entirely satisfied that his claim must be rejected. It is a well known role of the prize Court, that the onus probandi lies on the Claimant; he must make out a good and sufficient title before he can call upon the captors to shew any ground for the capture. The Walsingham packet, 2, Rob. 77. If, therefore, the Claimant make no title, or trace it only by illegal transactions, his claim must be rejected, and the Court left to dispose of the cause, as the other parties may establish their rights. In the present case, Mr. Brown claims a title by virtue of a contract and sale made by alien enemies since the war: I say by alien enemies; for it is of no importance what the character of the agent is; the transaction
must have the same legal construction as though made
by the aliens themselevs. Now admitting that this sale U.STATES. was not colorable, but bona fide, which, however, I am
not, at present, disposed to believe, still it was a .contract made with enemies, pending a known war; and therefore invalid. No principle of national or municipal law is better settled, than that all contracts with an enemy, made during war, are utterly void. This principle has grown hoary under the reverend respect of centuries; (19, Edw. 4, 6, cited Theol. Dig. lib. 1, ch. 6, sec. 21. Ex parte Bonsmaker, 13, Ves. jun. 71– Briston v. Towers, 6, T. R. 45,) and cannot now be shaken without uprooting the very foundations of national law. Bynk. Quæst. Pub. Juris, ch. 3.
1, therefore, altogether reject the claim interposed by Mr. Brown. What, then, is to be done with the property? It is contended, on the part of the United States, that it ought to be condemned to the United States, with a recompense, in the nature of salvage, to be awarded to Mr. Delano. On the part of the Claimant's counsel (who, under the circumstances, must be considered as arguing as amicus curiæ to inform the conscience of the Court) it is contended, 1st. That this Court, as a Court of prize, has no proper jurisdiction over the cause. 2d. That if it have jurisdiction, it cannot award condemnation to the United States, for several reasons. 1st. Because, by the law of nations, as now understood, no government can lawfully confiscate the debts, credits, or visible property of alien enemies, which have been contracted or come into the country during peace. 2d. Because, if the law of nations does not, the common law does afford such immunity from confiscation to property situated like the present. 3d. Because, if the right to confiscate exist, it can be exercised only by a positive act of congress, who have not yet legislated to this extent. 4th. Because, if the last position be not fully accurate, yet, at all events, this process, being a high prerogative power, ought not to be exercised, except by express instructions from the president, which are not shown in this case.
Some of these questions are of vast importance and most extensive operation; and I am exceedingly obliged to the gentlemen who have argued them with so