Summary
THIS, was ap appeal from the sentence ofthe Cír-. cu*t Gourt for the district of New York;
The American letter, of marque, schooner Adexine; sailed from Bourdeauxr for the United States with a car-owned in part by citizens of the United States, and ift part by French subjects. On the ,14th of March, 1814, she was .captured, in. the bay of Biscay, by a British -squadron, who put a pnze crew on board and, ordered her for Gibraltar. After being six days in the possession of the British she was re captured, near Gibralter, by the American privateer Expedition, who put a crew onboard an- ordered her for the United States where she arrived and was .'libelled, -with her cargo, by the re-captors, in the district Court atlSesv York, as prize of war.' The vessel Was claimed by citizens of the Uni, ted States residing therein, as was also part of her cargó.
Another part of the cargo was claimed by French subjects residenf in the United States. Another part by French subjects, resident in France. Another pstrt by citizens of the United States, resident in France, Another part by French subjects whose, residence was not stated, and another part, by'citizens of^the United States, .wlx'se residence was not stated,' and another part by “ alien friends” without stating of what nation, or where resident. Some of the claims stated the pro perty, at the time of capture to belong to the persons therein mentioned, and did not state to whom it belonged at the time of shipment.
• The district Court condemned, as good prize, all th,e property owned by Frenchmen and other persons resi ■ dent- m France, and all the property of those persons whose residence was not ‘stated; and -restored all tlie property belonging to persons resident irt the United States, upon payment of one sixth. Tar salvage. The vessel was restored, by consent of parties, on payment of one half for salvage. The sentence was affirmed pro forma, by consent, in the Circuit Court.
The re-captors appealed as to the rate of salvage, which they contended ought to have been one half, and those Claimants, whose property was condemned, also -appealed.
That such claims as date the property from the time of capture, instead of the time of shipment, are insufficient and invalid.
That the re-captors are entitled, to the whole of the French property, by the rule of reciprocity.
3. That the captors are entitled to a rate of salvage 0f one half qpon the American property, or such other arul higher rate than the rate decreed in the Courts below, as this Court may adjudge.
, , .... , , ,¶ T «*. That the rc-captors are entitled, by the same rule lvc*Pro’city, to the whole of the property of such Atnericans as were at the time pf capture domiciled in France, or resident there for commercial purposes.
' > . . • - 5. That the re-captors aré likewise entitled to ail proper(;V yic national character of which is not defined by * * ^ J-the evidence.
6- Tiial the property, of those Frenchmen who are described as having amere temporary residence in the United State.s, cannot be considered as American.
That the property of persons described, as alien without mentioning to what nation they belong or where they reside, mus' also be taken to be French, or decreed to the captors for uncertainty.
8. That the persons described in the claims as citizens.ofthe United States, without stating their residence at the time of shipment, or at any other time, must, under the circumstances’ of the case, be considered as re-, siding in France.
Thére are claims which date the property from the time of capture. This we say is insufficient. The claims should state the property from the time of shipment at least. This - necessary to prevent transfer in transitu, and to give effect to, and preserve the simplicity and dispatch of the preparatorio investigation.
An important question in this case is, what is to be-conic of the American part of the cargo of an armed American vessel, re-captured by an American private armed vessel,?
The re-captors' in the first place contend that the part of the cargo above mentioned is casus omissus as to the act of congress of the 3d of March, 1800.
If the Court should decide that there is á casus bmis-sus then the fate of this part of the cargo will depend upon the common law.
The re-captors contend that the common law is that if property so situated has remained twenty-four houj»in possession of the enemy, of the captured party, they , are entitled to the whole of the property as prize of war. To this they cite Grotius de jure belli ac pads, lib. 3, ch. 16. Vattel book '3, ch. 13, § 196. This right upon recapture is here clearly, laid down to privateers to be divested only by the laws of each state and treaties. Our treaty with France is silent except as to restoration on Capture by pirates; this being ex delicto there is no change of property by the original capture. See also professor Marten’s summary of the law- of nations, book VIII, ch. 3, § 10. “ In order to encourage, privateering «those concerned in it are allowed to hold all the mer- « chant vessels and merchandize they take from the « enemy or his subjects without any reserve whatsoever « with respect to the redemption of them. by the pro- - “ prietor.”
The only remaining question on this point would, be what kind of possession consummates the right-of the privateer. Twenty-four hours possession has been considered “firm” possession, and sufficient to consummate this right by an alrnost common usage, and. recognized by almost all the treaties of maritime powers. 1 Rob. 151, Jlmer. ed. 2 Jlzuni, 306, 308,. 312, in a note 275,-276# and 282.
.. If the above considerations are inapplicable and the salvage of this part of the cargo is governed by the acts of congress, then by those acts, the re-captors are enti tied to one half.
The unqualified right of the privateer to the property captured, or re-captured, is, after firui possession,-clear at CQmmon'latv, and the doctrine of taking away that by salvage is derogatory to. that law. If thin be-so, the act of congress is derogatory to the common law, and must be liberally construed in favo? of privateers.,
The reward has always been out of the whole subject matter; the cargo as well as vessel and armament; and it is with confidence contended that a separation of the cargo so as to subject it to one sixth salvage, while the vessel and arihancnt affords one half, is, if.it exist at all, anomalous to the act of the- 3d of March, 1800, and at war with the usage and treaties of all maritime states.
The reason of encreasing the salvage- upon an armed vessel is the merit of battle, and it is evident that the cargo is as well won by battle as the armament and vessel..
( if thé .whole of the act of congress be-to be taken together, and the 2d section be permitted to reflect alight upon the 1st section, it will appear that congress could have had no other, meaning than that the 'salvage should belfioreosed upon the cargo as well as the vessel and armament. In'the .second section, where'they give a salvage upon their owft property thus captured by a private armed vessel, they-give one half of the goods on board as well as of the vessel and armament.
But should not the cargo be considered as a mere in-, cident to the vessel ami follow its fate and character ?'
As lo the French property we are .entitled to the whole as prize of war by. the foregoing rule of twenty- . four hours possession which is the rule'in France. • Reciprocity is the rule in this case. ’ See the act of 1800, ■ section 3.
The twenty-four hour rule is established in France by ordinance of 15th June, 1779, with respect to all re-captures by privateers. Franee, in her treaty with Holland, -1st" May, 1-781, secures the twenty-four hour right to privateers. The Court will find.those acts of France referred to in-2.Muni, 276 qnd 282. 2 Dallas, 2, Milier et. al, v. ship Resolution. This is a strong' case establishing the twenty-four hour right. It refers to an ordinance of congress declaring this rule as to us, and refers to the French ordinance to the same point. It admits the twenty-four hour rule, but excludes its application to that cáse, that being the case of a neutral capture w hich conveyed no right. See also the case of the Mary Ford,, S Sail. 188, M’Sonough v. Sannery..
On the right of the re-captors on the 4th point of the case they will not enlarge by argument, as they consider it well established; nor on that of the 5th point than merely to observe that it appears to be just, ex necessitate, and-comes under the description of confusion in.the civil law; nor as to the 6th point than to observe that .there is no standard by which a character can be reflected Upon these Claimants but the voyage itself ■; which makes them either American or French. The description of the claim negatives the idea of their being American ; they must, of course, be French. The 7th point must meet the same construction for the same reason.
As to the principle contended for in the 8th point of the case, it may be remarked, for elucidation, that, some of the Claimants, desci ibed as in this point, turn out, by the evidence, to be resident in France for commercial purposes.
Is the owner of the vessel entitled to freight exclusive of salvage?
The re-raplors say the vessel is not entitled to freight because she would have been condemned had she been, brought into England. But if entitled to freight, the captors have saved that freight, and are therefore entitled to one half as salvage.' Freight may remain, after all the rights of the captors are deducted, to be adjusted between the vessel and the freighters.
This question can only apply to the American part of the cargo ; for as to the Frencli, the rule is to vest the property absolutely in cases, of re-capture after twenty-four hours possession: the postliminii right and all its incidents are destroyed.
The schooner Adeline is a registered American vessel owned by IsáaC Levis and William Weaver, native citizens of the United States, and residents of Philadelphia, and was commissioned as an American letter of marque. She commenced her voyage from Bordeaux, to a port in the United States, in tile month of March, 1814, having on board a cargo owned principally by; citizens of the United States and others residing in our territory. In the course of this voyage, she was first captured by two British vessels of war, and was afterwards, and before her condemnation as prize, re-captured by an . American private armed vessel. .Upon her first capture, most of her papers were taken from on board by the captors, and those which were left have been delivered up to the district' Court at New York, and transcripts of the same are Contained in the record before this Court.
In these cases most of tile claims and test affidavits spicify the property respectively claimed, at the time of shipment in the Adeline, and at the time of capture, to have been owned by citizens and residents in the United States.
Many of the claims and test affidavits testify that the goods Urns churned vested in the Claimants before and at tifie timé of capture and re-capture.; and generally" all the claims are supported b_> the respective bills of lading. In truth there is not a paper attached to this record which falsifies any claim or casts any suspicion upon them. An objection has been taken to some of those claims, because they do not state that the property vested in the Claimants at the time of shipment, and that, for aught that appears to this Court, the property might have been transferred in transitu.
Admitting this to be the fact, how can such transfer prejudice those Claimants ? The vessel was an AmerL, can vessel coming from a French port to a port of the United States.
The rule, that the character of property must he de-. tormined by its shipment, that the same cannot bé transferred in its transit, but, as respects belligerent rights, must, be considered as remaining the same as at the time of shipment, applies only to enemy property. Danckebaar dfiicaan, 1 Rob. 90. diner. Edit. — the Vrow Margaretha, 1 Rob. 285, dmer. Edition.
But the claims objected to will be found, on examination, to agree with those which are in common use in the admiralty Courts of England, even in cases where the property is captured as prize of war. The Fortuna, 2 Rob. in the appendix, 3Í3. It is sufficient to assert property in the Claimants and to negative the all- gation of title in the enemy at the time of capture. , Those claims and test affidavits sire testimony in a prize cause, and will be deemed satisfactory, unless there.is some evidence in the ship’s papers or preparatory examinations to in-; validate them'. See .the duke of Newcastle’s letter in the appendix to (thitty. 6 Rob. 55, the Haabet.
But to proceed to the merits of this case. Upon examining the libel of the captors, the first enquiry w ili be, Whether this property could be captured as prize, for it has been so libelled.
The commission to our private armed vessels, under the act declaring war, authorizes the re-taking of property captured which was originally American. The property thusre-taken can only present a case of salvage, because the- title of the original proprietors never has been divested ; and that equally whether the property was originally American or neutral.
The interest of the captured property does not vest in the captor until after final adjudication. 5 Rob. 167, dm. Edit, the Elsebe — 4, sect, prize act, 11 th vnl. United States laws. And the fifth section of the prize act provides, “ that all vessels, goods and effects the property of any citizen’of the United States, or of persons within and under the protection of the United States, or of persons permanently residentwitjnn and under the protection of any foreign prince, government s* state in amity with tlie U. States, which have befen captured bythfe enemy .and which have been re-captured by vessels Commissioned as aforesaid, shall be restored to the rightful owners, upon payment by them respectively of a just, and reasonable’ salvage, to be determined by the mutual Agreement of the parties concerned, or by the decree of any Court having competent jurisdiction, according to the natux*e of each case, agreeably to the provisions heretofore established by law.”
The present case, then, before the Coúrt determines itself to be a case of salvage, if there was a right to recapture,-and if the service rendered was meritorious. The rigid is lint questioned, fori the re-capture was from the énémy; nor is the service questioned, for the property would have been otherwise lost.
It becomes however a matter of enquiry, whether the re-captors under their present libel can have a decree for salvage. The papers taken from on board the vessel and the examinanoris in preparatorio proved that the recaptured vess^i was an American vessel, and that her cargo was in part'American and in part French. ,It was evident, therefore, that the re-capture efeuld only present a cáse, of salvage; and as such the vessel and cargo should haVe been libelled. But tfie libellants have proceeded against the property as pri%e of war, and have asserted title to it as such.in all their allegations. Must théy not make out those allegations, and, if theyfail, can they,,as a last resort, seek for salvage, when such has not been prayed for in their libel, nor in any manner spread upon the record before this Court ?
But if the Court should be of opinion that a decree for salvage can be made upon the libel, claiths and disclosures in this record, then the only question will’be the. amount of this salvage. The re-c'aptors contend for a moiety, and we, that they should Have but a sixth. Which is right must depend upon a just construction of the act in cases of re-1 apture. passed 3d March, 1800, 5 voí. UÍ 4States laws, £8 — 1 Graydon, 418.
The first branch of the first section nf this act provides that “ a re-raptured vessel,-other than a vessel of war or private armed vessel, shall be restored, on payinent’of one.eighth, (if taken by a public armed vessel,) of .the válue. oí'.the re-cáptured vessel and cargo; and if re-taken by a private armed vessel, of one sixth.”
The second branch of that section provides «that if the re-captured vessel shall appear to have been set forth and armed as a vessel of war before such.capture, or afterwards and before there-taking, the salvage shall be one moiety of the true value of such vessel of war or privateer.”
The act contemplates two descriptions of hasps as to vessels, viz. armed and unarmed ; the former are to pay a moiety, thp latter a Sixth. The law having settled the amount the Court when it ascertains whát the law is, will adhere to the provision. Now the construction must depend on the evident meaning and intent of the legisla-' ture, as dearly to he gathered from a view of the whole provision; and.it may be. adopted as a fundamental rule,, that where there is an express provision, -there shall not be a provision by implication * expressiq unius est 'exdusio alterius*
The first clause provides for the case of unarmed yes* seis and goods. It commences by stating «that when « any vessel unarmed, or when any goods,” (not on board stich vesse), but wholly.in the disjunctive,) when flap, goods (reaching any and every case of goods) whpn any .such are captured by a private arme.d vessel, one sixth shall be allowed. It proceeds throughout the whole clause in tiie disjunctive', saying that .such vessel or goods ..shall be restored on payment of one sixth as salvage.
The second clause is studiously confined to Vessels* « and if such vesseV’ (passing by goods altogether and leaving the general provision for goods unimpaired,) and if such vessel is armed, then one moiety of the true value, of such vessel is to be allowed ; repeating and carefully confining the provision to thermei, and that, top, with r - peculiar particularity. Congress, in express .words distinguish; they place private unarmed vessels and all goods re*captured on the same footing,
■ The fifth section of the prize act, laws of the United States, voL 11, p. 24 exist as mementos of their triumph ; the national prosperity, deeply interested in preserving to us the means of our own strength and in preventing the same from being added to that Of the enemy i these are sufficient inducements for our government to make .an extraordinary provision. The service is riot rendered to an individual, it is rendered to the nation; it is more meritorious; feelings of patriotism more than of interest may have impelled to the. performance of the duty ; the danger was1 greater, the object ihore important; the recompense should therefore be encreased.
But the first and second sections of this-statute • wholly independent. The first relates to the re-capture by our public on private ai med ates tQ the re-capture of public property pither by our public or private armed vessels. Each section is perfect in itself, and each independent of the other; neither requires the interposition of any Court to explain them. . of private property either vessels; The second, rel
Whereyer. any words of a statute are. obscure or doubtful, the intention of the.legislature is tobe resorted to in order4o find the. meaning of, the words.” Ploioden 57, Wímbish v. Tailbois.
Where words, of a statute are plain and positive, it is not the province of the Court to search after new constructions.
Justice Buffer remarks in the case of Bradley versal in all Courts in which there are regular judicial proceedings, that as a party cannot recover upon allegations w ithout proof, so neither can he recover upon proofs without proper allegations. The judgment of the Court must he according to the proofs and allegations.
What are the allegations of the parties in this case ?
The libel is in the nature of a declaration in a common law' Court, or of a bill of complaint id a Court of equity. It must state sufficient facts for condemnation, with sufficient certainty, and conclude with a proper and. sufficient prayer. It must apprize the person claiming the property libelled of the grounds upon which a condemnation will be dskcd, otherwise it would be more thaq useless to require a libel at all.
Now this libel alleges or charges that this is. enemy’s property, and asks for a condemnation of it as such.
Unless the evidence in the cause proves it to beene- . my’s property, I apprehend the Court never ynill, under this libel, condemn it.
The documents on board the,captured vessel, and all the examinations in preparatorio, so far from proving the property to be enemy’s property, pi-ove directly the reverse,; arm indeed it is not pretended by the counsel for the captors that there is the least ground to suspect the property or any part of it to be hostile.
Can tire captors have a decree for salvage in this case? I th nk not, because they do not ask for it in their libel $ because the question here, is not whether the captors are entitled to salvage or'not, but whether this is enemy’s. property or not 1 1 do not believe a single case can be pi-odüred in the books where salvage has been decreed unless it was specially asked tor by the libel. A libel, like a declaration, nsay contain several grounds of a or, to speak in common law language, several counts And there must be a count for salvage, or it cannot be decreed.
In Hall’s Jkhnirallij practice, 144, will be found a precedent of a libel where salvage isclaimed, drawn by one of the most learned and experienced lawyers, particularly as'a civilian,in tbe United States; which,.although no authority, witi certainly be coftsidcrcd as entitled to some weight, as shewing the opinion of an enlightened lawyer upon the subject.
It is ■ no answer to this argument to say that where property has been libelled as prize, property of friends . is frequently condemned upon the.ground of residence in an enemy’s country or trading with an ene. y, because siK'ii property is considered, quoad hoc, as /enemy’s property, and therefore comes within the allegation of enemy’s property in the libel.
If I am right in the argument upon this subject, then I think it follows of course that if this is not enemy’s property it cannot be condemned to the captors; but must be wholly, restored to the Claimants without any salvage whatever. It is no hardship t,o the captors to acquit the property ; they knew the facts-when-they filed their libel; they made their election in. what way to proceed against it; and, like all other parties in a Court of justice, they must be bound by that election.
This., being property re-captured from the enemy, must, be considered, pntaa/aeier notasenemy’s property., It. cannot be presumed that they would capture their own, property. ■
Now property re-captured from an enemy never can-he proceeded against as prize of war; it is not considered as enemy’s property until, in some countries, it lias been . carried infra presidia; in others, has been twenty-four hours in possession of the enemy; in England, and wilder our prize act, until it has been condemned in a coni peten t'Court.
If the captors have any claim to any part of this property, it must be because' rt-ctmiurea jrom the -enemy. But ho stick clami'is set up in the libel: the right of property remains,in the Claimants; it has never bi en changed, and must therefore be restored to them.
But it is said that some of these,claims are insufficient, because they dp not $ay that the property belonged to the Claimants at the tinte of'shipment, but.nierely at the time of capturp.
I answer, if the property belongs to the Claimants now it is all which the Court wili require in tins cast., I have, already, endeavored to shew that the capiors have no' claim to the property; it follows, then, that, the. Court will, restore it to the proper owners at the time of the decree. Suppose, however, that 1 am wrong in the principles-which i have endeavored to establish, and that the captors en of the United States, or of presons tesident within “and,under the protection of the United Stages,” shall be restored « agreabiy to the provisions heretofore established bylaw.”
Now there were no other provisions established by law, than those contained in the act of March, 1800.
It is evident that congress must have intended by the. act of March, 1800, to provide for restitution of the property of any citizen pf the United States, whether he resided within the United States or not. This is the only construction by which the provisions of these two acts can be reconciled.
That this was the. construction intended by congress, when these laws were passed, will.be still more evident when we examine with a little more care, the different phraseology of them.
The act of March, 1800, says nothing about citizens of the United States, but speaks of property belonging to persons resident within or under the protection of the United States, thereby meaning, .as T contend,' all persons who reside within the United States, and all citizens under t-hp protection of the United States, let them reside where they may.
The act of June, 1812, provides for the cases of property “ of any citizens of the United States,” and oi “ person's resident within and under the protection of the « United States.” .
A foreigner, residing in and under the protection!)? the United States, is entitled to have his property restored under this act. This clause of the sentence does not apply to citizens at all, because their property is already provided for by the words *‘.any citizen of the United States.”
By the act of March, 1800, thé property of all persons resident within, or of persons under the protection of the ■United States, is to be restored; without which latter, words, no provision was made for citizens out of the country, these words were for that reason unquestionably inserted.
. For these reasons I, contend that it is ¡inmaterial where the American citizens reside, they are entitled t° have their property restored upon paying one sixth ás aalvage.
Fowiih, as to property of alien friends, resident in the United States.
No observations are necessary to prove that under the acts of congress referred to, they are entitled to restoration upon paying one sixth salvage.
As' to them the decree I presume will be affirmed with costs and expenses.
Fifth, as to the property of subjects of France residing in that country.
By the 3d sect, of the act of March, 1800, vol. 5, p. 40, ■this property is to be restored upon the samé salvage on which, by the laws of France, the property of American citizens would have been restored to them under similar circumstances. And if no law or usage of France is known upon the subject* the same salvage is to be allowed as if it were the property of a person resident in the States, (viz. one sixth.)
. Now I confess I have not. been able to find what was the rule in France upon that subject.
'Whether the ordinance of 1779-, made upon this subject, and which is referred to in the argument on the other side, was in force at the time of this re-capture or not, orwlicther that ordinance* like almostevery thing, else in that country, was destroyed during the dreadful revolution which she has just passed through, Í know not. I confess my ignórancc, and I have endeavoured in vain, to obtain intormatioirabout it.
If no such French rule is known to the Court, then I claim'this property belonging to French subjects, residing in France, upon the same salvage which by the act of congress, it ought to be restored to them, if they resided in the United States;
Most of the cargo has been claimed; but no claim whatsoever has been put in for the property expressed in the bill of lading, No. 23, (26 bundles of steel to be delivered to'C. W. Huty, of Philadelphia,) nor to that ex-pressed in' No. 33* (a harp and case of strings to be delivered to T. Delort* who has come in and claimed other property,) nor to that expressed in No. 39, (1 case of pencils, on account and risk of Mr. Fongarolly, of New York.) This circumstance would not have been noticed here, but that it is called for by part of Mr. Ogden’s argument, who (partially admitting that a bad claim is tantamount to none at all) contends that the want of one is no ground for condemnation. In England, by the prize áets, regulations aremadc incase of non-claims for a limited time. In our Courts, for want of any such regulations, defaults, as I understand, áre usually taken, but the property not put out of the power of the Court for a reasonable time. It is unnecessary to discuss the propriety of that arrangement in the present case; for certainly, after the lapse of a year* where the parties, who ought to claim-, afe in the immediate .vicinity of the Court,' and have come forward , with no claim at all, or one not'disclosing what is necessary to ascertain the innocent character of the property, or the foundation or. terms upon which restoration should be had ■; where they have refused the sanction of an. oath to. verify documents that, without jt, may well be questionable; there can be ho ground for awarding restitution to them. Their silence, or evasive mode -of claiming, must be regarded as intentional; and indicating that they cannot make «ut a fair casé for restoration.
Mr. Ogden contends for restitution without salvage, on,another ground; that this libel being for condemnation as enemy’s property and prize .of war, salvage cannot be awarded under ittherefore, says he. it.must be restored without salvage.. That conclusion is clearly illogical, for if it were true that salvage could not be awarded under these proceedings, the only consequence would he that the property should be retained, an;d.the re-captors turned round to libel for salvage. The position itself, from which'the conclusion is drawn, is, also, erroneous .for in all cases of military salvage, the proceedings are as against, a prize, and the payment of salvage , is a condition necessarily imposed by the decree of res-' titution on the Claimant. It is not properly the thing sought for by the Libellant and contested by the Claimant. I do not mean to say that it may not have beep: done from greater caution aqd perhaps want of practical experience, in the United States ; or that if done, it ought not to be supported, b.ut it is neither usual nor necessary. Mr. Ogden refers to a precedent of that kind in Half's admiralty practice, I have not the book by me, and can-: not refer to the authority, but if it be a libel for mere military salvage, the introduction of it in that book shews that the authors ideas were not very well arranged upon the subject which occupied him ; for his book is only k translation, of Clark’s Praxis Curiae JIAmiralitatiS’, which treats exclusively of the Instance Court, ami has no relation to the prize Court óf admiralty. It is sufficient.1 however for me to "say that no precedent o.f a libel for military salvage is to be found in Maryatt’s Formulary, or any English book of authority, and that obviously all the'cases in Robinson’s reports, where suph salvage is decreed, are brought up under the prize- jurisdiction, and were proceeded against as prize of war. Let me ask by'what right was the Adeline taken by the Expedition and held? Unquestionably jure belli. By what right, or by what course of proceedings were the re-captured crew examined in preparatorio, or the papers on board her opened and inspected by the prize commissioners ? Because she was subject to be dealt with according to prize liiw. By a former prize act of England (33 G. 3 c. 66, § 42,) it was enacted that re-captured ships set forth by the enemy as vessels of war,-should wholly belong to the captors, and not be restored to the original owners. How was sucli a vessel to be proceeded against, but by libelling her as prize, and condemning her as enemy’s property ? So in the present case, part of the re-captured property is French, which we contend (and for the present I shall take for granted) ought to be condemned to the captors and not restored at all. How are we to proceed for that condemnation, but by libelling as prize of war ? Why, under the rule of reciprocity, is it not to be restored ? Because by the French law belligerent property, of which an enemy has had .24 hours possession, is considered to have changed owners, to be the absolute property of that enemy, and when re-captured it is treated as the absolute property of that enemy, and condemned as such by libel for prize of war. The rule of reciprocity, (1 Rob. Ad. Rep. Jim. Edit. p. 53, in the ease of thé Santa Crux,) induces us to consider French property, (placed in such circumstances as would, under the laws of that country, be held to make a complete hange of ownership of American belligerent property,) as also acquired by the enemy; and to adjudicate upon it as actual enemy’s property ; of course to libel and condemn it as prize of war. JVbra constat till the claims are put in and sworn to, but that property, apparently American,.is actually French; and it ik necessary to proceed for prize, irt order, to get those, claims and ascertain that fact. A remarkable instance of that occurs, eyen in the present case. The bill of lading (No. Í5.) of 280 cases of .claret, state them to be shipped by order and for account and risk of David Dunham, (presenting a prima facie case of American property,) but when Mr. .Dunham comes to claim on oath, he states them to be the property of Messrs. Johnson and Dowling subjects of the French empire. How was the knowledge of that fact to be obtained, but by forcing a claim on oath ? and if we had proceeded by libelling only for salvage of the property as American, how should we have learned that it was really subject to total, condemnation as enemy’s property, under the reciprocal application of the French law ? The proceedings in this way are also the most simple. The Libellant claims the benefit of iiis prima facie right arising from capture ou t of enemy hands j ure belli. If there be any title to be opposed to this, it must be shewn and.sworn to, and the Court will then decree, according totheextentofthattitle, either total restitution oí* restitution on terms of salvage. In ordinary civil salvage, which falls within the jurisdiction of the Instance Court, 2 Rob. Ad. Rep. Am. Ed. p. 178, note on "the case of the Hope, the salvors never acquire a right of seizing the property, and their first step (if they proceed against it), is a warrant of ari'est; they then libel for salvage, be-, cause they have no superior or prima facie title to the thing itself; and the contestation is about the’amount. But a careful examination of Robinson’s reports, 1 Rob. Am. Ed.. 32, Aquila. 42 Santa Cruz, 228, The ■ Two Friends: 3 Rob. Am. Ed. 249, TheAppóllo. 4 Rob. Am. Ed, 120, The Franklin. 5 Rob. ,Eng• Ed. -54, The Carlotta, 6 Rob. Eng. Ed. HO, The Sansom, will shew that is not the course' of proceeding, where the property has been re-captured in war; and the only reason why it is not more clear, is that the matter, being long established and of course, is not noticed in the very brief statements which' that reporter prefixes to the arguments of counsel and judgment of the Court. Enuugh, bowfever, is given to establish my position. The Aquila, (1 Rob. 32, 35,) was a case of derelict, and, properly speaking, would have belonged to tile Instance C -urt. It pp -ars, however, from the judgment, that “some suspicions occurred that “ it was in fact the property of an enemy; and under “these circumstances it became expedient to proceed “ against it as prize, for thepv/rpose of meeting'the preten- « sions of the ostensible neutral owner, and of bringing the “ examination of his claim, where aloné it could be proper- “ ly diseussefl, into the prize Court. These measures were “ highly necessary, and therefore no objection can justly “ be made against, the mode of proceeding.” In the c.ase oi-Tlie Two Friends, 1 Rob. 228, 231,238, a protest was made against the jurisdiction of the Court over an American ship. The counsel on both sides allow that re? capturéis a matter of prize jurisdiction ; and in the judgment, sir William Scott sáys, “ but whatever may be the “ law as to wreck and. derelict, I .conceive it does not ap“ply to these goods, which I consider to'be goods of “ prize ; for I know no other definition of prize goods, “ than that they are goods taken on the high seas Jure “ belli out of the hands of tile enemy $ and there is no ax- “ iom more clear than that such goods, when they come “on .shore, may be followed by the process- of this “ Court,”. In the-case of The Franklin, 4 Rolf. 140, the property wms libelled as enemy’s property and prize of war¿ and further proof whs ordered of the. property and destination. It was made and deemed satisfactory ; .but the captors insisted that restoration should only be made on terms of salvage. This was resisted by the Claimants with arguments which perhaps have given rise to the present point by the Claimants, although it was not a case of re-capture-or seizure jure belli from an enemy. Sir William Scott.held it was acase in which no military salvage was due •, hut directed (as the price of restoration in this prize cause,) a civil salvage' of 500Í. to be paid. In the case of the Jonge Lambert, 5 Rob. 54, reported in abiote to the Carlotfa, a Dutch ship and cargo captured by a French privateer and re-captured was libelled as enemy’s property arid prize-.of war. She was condemned in the Court below. The sentence was.reversed on appeal, but as it was neutral property re-captured, the. lords of appeal referred it to their surrogates to decide whether any and what salvage-was due,'with provisions'for executing their decree. The surrogates decided .that no salvage was due ; but it is clear that if it had been a case, for salvage, the restitution, on this reversal of the sentence. >f condemnation, would have only been on payment of it. It .is unnecessary to discuss .the arguments drawn from oiir different and totally inapplicable modes of proceeding under our municipal code. And I.shall Only, add that if. the objection taken to this mode of proceeding should be sustained, as the error, though fallen into after much consideration, arose from want of sufficient light and information’ in our books, it is hoped that the opportunity will be afforded to the salvors nf instituting such proceedings as may be thought adapted to their case.
There is a matter about which the counsel for the Claimants have fallen into, a mistake: they state the Li-bell ants to have appealed from that part of the decree which restores the ship on payment of a ihoiety of the value for the salvage. There is fit! such decree on the record. The restoration of'the vessel on paying a ety for salvage was agreed toby all parties, and therefore has in fact never been decreed at all and never has been disputed. If the vessel were understood to be included in the words of the decree, “American property,” we should indeed have ample grounds of appeal; for the salvage ordered would be only one sixth. That, however, is not the case, and nothing is brought before this Court, but the questions relating to. the re-captured goods. The same answer applies to the mistake, that we have appealed from the decree of the Court refusing us salvage on the freight. There is no such decree and we never asked it, as our libel shews,, though the case of the llorothy Foster, 6 liobt Eng. Ed. 88, shews we are entitled to it. No question of freight was ever presented in this case, but by the claim of Ah xander Cranston' (for the .ship owners,) of-freight for the goods not claimed by him for them; meaning to make oúr salvage on the goods pay. a proportion of it, and so diminish its amount. That was not adjudged, and of course we have not appealed 5 .though if it had been decreed, wre certainly should ; for it could be supported by no principle, and would he directly contrary to the act .of congress.
These questions being out of the way, nothing more remains but to consider what is to be the fate of the recaptured goods which have been claimed, with the incidental consideration of costs and expenses. Part of this property has been claimed, and.sworn to, only as belonging to the alleged owners before and at the time of capture, without, say ing any tiling as to its ownership at the time of shipment. On this insufficient mode of claiming and its consequences I shall add nothing to Mr. Woodwards arg iment except a reply to Mr. Ogden’s observation, that there is no reason why smell transfers in transitu■ between belligerent friends should be prevented. This very case shews otherwise.; for if the property continued French, it would be subject to condemnation as enemy’s property and prize of war; which belligerent jqight would be defeated by such a transfer.
I shall endeavour to simplify the discussion by first considering, the great general division of French property, and of American property re-captured ; and will endeavour to class the doubtful cases under ohe or other of those heads.
As to the French property, it clearly must be judged upon according to the rule of reciprocity. In France, Amt rican belligerent property .which had been 24 hours' in the possession of the enemy captors would be treated and,Considered as their property, and not restored on salvage. The law of 24 hours possession has in truth been always the rule adopted by France- and Spain, and most if not all the powers on the continent j for although they may desire a decree of condemnation, they desire it only as the. most portable and compendious proof of the facts (including 24 hours possession) from which the title lias accrued. -They do not regard the decree as cred-ting a title to the property, which doctrinéis in truth only confined to England and this country; and was not held even by this country during the revolutionary war. France has ajso made an ordinance on that subject, which is to be found in 2 Azurd, 276, and of which this Court must well be held to have judicial knowledge; for the prize Court, to'which it has succeeded, has recognized it in the case of Miller ^al, Appellants v. ship Resolution, 2 Dallas, 2. That this was the Jaw of France down to and long after tin- revolution, has not been doubted; and indeed cannot; for Azuni’s work was published after ■4803, fVtd. 2 Azuni. 218,J but it is thought possible that it may have been subsequently altered ; and from the pretended ignorance on that subject, a claim for restoration on American salvage is made. The claim is singular; for it is predicat'd not on the rights of the parties, but on the supposed ignorance of the Court. It is not sanctioned by the words of the act of March 3d, 1800. (§ 3, icol. 5, p. 38.) which provides that “ where no such law or usage shall lie known.” the same salvage shall be allowed as is provided by the 1st section of that act. That inbans, where no such law or usage shall be made knowrn or promulgated or acted upon. It refers to cases in which, on enquiry, a state shall not be found to have adopted any precise law or usage on.the subject; but it founds no right to a suitor, on supposed judicial ignorance. The ordinance of 1779 is,- however, a known law, -and it must be considered as valid until those who insin«áte its abrogation give some proof of their assertion. The onus is v\ itli them, and the'means of proof, coming from their ówncountry, are certainly within their.power; Í Rob. Jim. Ed.]>. 56, 57. The presumption as wéfl as the fact, therefore,-is that there has been no variation or abrogation oi the ordinance of 1779.
The property of American citizens resident in France must, as I conceive, or considered as French, and subject to the same rule. This effect of domicil dr national character is producid in every (as'e. where that character is judged of merely by'the law of nations. Birth, by the municipal laws of many countries,Js considered as fixing an indelible national characterj but that doctrine seems entirely dependent on municipal law, and is n d tó be found in the writers on the law of natiorfs. Birth, with them, affords a prima facie presumption of residence, and serves to establish it where other facts are equivocal or silent; and in that sense sir W. Scott must be understood, when he says, in the case of La Vtrginie, 8, Rob. 98, 99, “ that■ the native character ea- « sily n-verts, am! that it requires fewer circumstances to « constitute domicil in the case of a native subject than « to impress the national1 character on one who is ori- « ginally' of another country.” But birth ceases to afford evidenced the national character under the law of nations-, when opposed to a clear residence, animo manendi, in another country ; for, says sir William Scott, in the Imitan Chief, 3 Rob. Mi. ed. 23, “ no position is more « established than this, that if a person goes into ano'-' «ther country, and engages in trade,: andi*esides.there, he «is by the law of nations to be considered as a merchant ofthat country.” in some of thesecases (the particulars of which I shall hereafter point out) it may perhaps be contended that, although the owner of the property appears to be resident in France, the permanency of his residence or the animus .manendi does not appear ; but to that I again answer in the words of sir Wm. Sco'tl, in the case of the. Demon, 1 Rob. Jim. ed. 87, 88, «wherever it appears that the purchaser was in '« France, he must explain the circumstances of bis « residence there: the presumption • arising from his « residence is, that he is there animo manendi, and it « lies on him to explain -it.”. For every purpose,'therefore, either of conimerce or of war, to be decided upon solely by the law1 of nations, these American citizens resident in France must he regarded as l' rent hmen. But it is contend', d that with resp»-ct to salvage they are protected by the woikis used in the act of congress of March 3d. 18Ó0, § l, vol. 5,'p. 3S, “ any pers ‘ been cited, it is my duty, and I trust I shall do it successfully, to maint ain the opposite doctrine. In order to do so* Eshall observe that salvage has, in every country and in every code of laws, been considered as a matter of general average: the service is an act done f- >r the common benefit, and to be recompensed by common and proportionate contributions. Vessel and cargo always contribute expressly; freight, in some cases, expressly; in others, really but less obviously, where the salvors receive their proportion of the cargo or its value without paying freight. If the act of 3d March, 1800, meant to break in upon tins established principle of proportionate contribution for a common benefit, it-is witbput. precedent in any other codo; arid an unreasonable departure from an universal usage 'founded' on justice and common utility. Such a supposition should not be indulged in; and it is indeed fully confradicted by the second section of the same, law; tor there, regulating the salvage on the' rc-capture of a public armed vessel, it enacts that for the re-rapture of a public armed vessel or any goods therein, one moiety of the true value thereof shall be paid. No satisfactory reason has been or can. be assigned why the United States should be obliged to pay differently and in a greater-proportion for the benefit of re-Capture than private individuals deriving equal advantage from'the act. This second section of the act naturally, presents the question, how it .happened that the legislature omitted to mention expressly in the first section, goods on board such armed vessel ? I think I can answer it. The first section is copied from the English statutes on the same subject, varying tbe proportion ofsalvage, and with one addition the operation and force of winch, perhaps was not sufficiently adverted to at. the time. Statutes of 13, G. 2, c. 4. — 17, G, 2, c. 3.— 29, G. 2, c. 34. — 16, G. A, c. 5, cf 33, G. 5, c. 66. They give one eighth for salvage of vessel and goods, but enact, that if the re-capturcd vessel shall have been set forth as a vessel of war during iis possession by the enemy, the salvage for the vessel shall be one had'. Here the principle of proportionate contribution for a common benefit was not departed from; for to s>-t (be vessel out for war, it must have been conducted into po'-t, and, of course, the cargo-which it carried at tbe time of capture discharged, and tbe connexion between them'broken ; the goods which such a vessel might have on board when re-captured would be enemy’s property, and condemned as prize of war. The British acts, therefore, made no mention of such goods, they not being a fit subject for restoration on salvage. Congress, in preparing their system, although they adhered to the phraseology of the English code, thought that the same service was. rendered by capturing an armed vessel, whether it1" was originally fitted for war by Americans or their ene!mies, and therefore7 awarded 'ah equal compensation in both cases ;. but perhaps (hey ditj riot advert to the. fact, that, in the new case which they were, introducing,'re©aptured. goods would have to be restored, and they therefore adopted the language of the British laws wiín-, out inserting a provision to meet a situation of tilings that could not exist under them. Or else, considering the character of average contribution as necessarily fixed on salvage by universal usage, and equal justice, they thought it unne. esnary to do more than settle the rate of contribution; and the stale of the vessel being the circumstance, that was to affect that rate, .they spoke of it alone; but conceived and intended that a proportionate contribution from every thing connected with it in danger and benefit conferred, would follow as an incident. If the first supposition lie true, the awarding of salvage for the re-raptured goods oft board an armed vessel is á casus omissus ; and the least w t clearly .nade out to be permanent, the Claimants must take the consequence of tiie insufficiency of their claims and proofs. Tiiey are all Frenchmen. and if they have oof, shewn a sufficient domicil to obtain for them .the American national character, they must he considered as Frenchmen and abide the reciprocity resulting from their lavv. Where they are clearly permanent, residents within the United States, they will be entitled to the benefit of that character, if my reasbning as to Americans domiciled in France be correct^ if it be not, they must suffer under the rule the Court will then lay down and be regarded as Frenchmen.
It only remains for me now to say a few words of costs and expenses which are asked for by the Claimants. This case is brought before this Court by their Voluntary act and a clear consent, without which it could not have been presented on appeal. The district judge declared the principles fie would adopt for his decision ; but, strictly speaking, he made no decree on the case of any individual Claimants Those principles were considered in some respects erroneous by the counsel for the captors, and in others, by those for the Claimants. It-was therefore considered better to bring all the principles iu review before the Supreme Court, as the ex-pence would be little if at ail increased by so doing; and if any Claimant had h tan unwilling to become « party ío tliis arrangement, he might have withheld his consent; and his case could not have been brought up on appeal, till a decree had been made on his individual claim. I submit that it is therefore now too late for him to talk costs and expenses; and in truth impossible to ascertain what propprtion of costs or expenses he can sustain,
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
