"The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this. Without taking a comparative view of the justice or fairness of the rules established in the British courts, and of those established in the courts of other nations, there are circumstances not to be excluded from consideration, which give to those rules a claim to our attention that we can not entirely disregard. The United States having, at one time, formed a component part of the British Empire, their prize law was our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it. "It will not be advanced, in consequence of this former relation between the two countries, that any obvious misconstruction of public law made by the British courts, will be considered as forming a rule for the American courts, or that any recent rule of the British courts is entitled to more respect than the recent rules of other countries. But a case professing to be decided on ancient principles will not be entirely disregarded, unless it be very unreasonable, or be founded on a construction rejected by other nations. "The rule laid down in the Phanic is said to be a recent rule, because a case solemnly decided before the lords commissioners in 1783 is quoted in the margin as its authority. But that case is not suggested to have been determined contrary to former practice or former opinions. Nor do we perceive any reason for supposing it to be contrary to the rule of other nations in a similar case. "The opinion that ownership of the soil does, in some degree, connect the owner with the property, so far as respects that soil, is an opinion which certainly prevails very extensively. It it not an unreasonable opinion. Personal property may follow the person any where; and its character, if found on the ocean, may depend on the domicil of the owner. But land is fixed. Wherever the owner may reside, that land is hostile or friendly according to the condition of the country in which it is placed. It is no extravagant perversion of principle, nor is it a violent offence to the course of human opinion, to say that the proprietor, so far as respects his interests in this land, partakes of its character; and that the produce, while the owner remains unchanged, is subject to the same disabilities. In condemning the sugars of Mr. Bentzon as enemy property, this court is of opinion that there was no error, and the sentence is affirmed with costs." Thirty Hogsheads of Sugar v. Boyle (1815), 9 Cranch, 191. See, also, The Prize Cases (1862), 2 Black, 635, 671; Rivier, Principles, 4. PROPERTY IN THE ENEMY'S SERVICE. § 1186. The neutral owners of a ship may, by taking a decided part with the enemy, expose such ship to seizure and confiscation as enemy's property. Darby v. The Erstern, Federal Court of Appeals (1782), 2 Dallas, 34. "Neutrals who place their vessels under belligerent control, and engage them in belligerent trade; or permit them to be sent with contraband cargoes, under cover of false destination, to neutral ports, while the real destination is to belligerent ports; impress upon them the character of the belligerent in whose service they are employed, and the vessels may be seized and condemned as enemy property." Chase, Ch. J., The Hart, 3 Wall. 559. Where several witnesses stated facts tending to prove that a vessel was in the employment of an enemy government, and that part, at least, of her return cargo was enemy property; but the statement of others made it probable that the vessel was what she professed to be, a merchant steamer, belonging to neutrals; that her outward cargo was consigned in good faith by neutral owners for lawful sale; that the return cargo was purchased by neutrals, and on neutral accountthe court directed restitution, without costs or expenses to either party as against the other. The Sir William Peel, 5 Wall. 517. "The voyage of the Haytian Republic was commenced on October 4 from the United States, with peaceful and lawful intent, and with no knowledge of Haytian disorders or desire to mingle in Haytian disputes. "On her voyage from Port de Paix to Gonaïves, on October 15–16; from Gonaïves to Miragoâne, on October 16--17; and from the latter port to Aux Cayes, on October 17-18, it is true that she transported as passengers persons variously armed, and, as is supposed, in sym pathy with those in possession of the districts in which the ports above named are situated. In such transportation she met with no interference or protest, and merely acted as a common carrier of passengers whom she found awaiting transportation in the ports at which she traded. Such action can not be regarded as constituting complicity in Haytian disorders; and, at the time that the vessel was seized by the Dessalines in the service of Provisional President Légitime, at Port au Prince, the persons whom she had thus carried had been left at their ports of destination and she was proceeding on her voyage." Mr. Bayard, Sec. of State, to Mr. Preston, Haytian min., Nov. 28, 1888, "Referring to your despatch No. 113 of the 19th instant, I have now to acknowledge the receipt of your despatch No. 196 of November 12th ultimo, with its accompanying enclosures, covering your correspondence with the minister for foreign affairs of Ecuador on the subject of the steamer Washington and its ramifications. "The enclosed memorandum or report on the case, which has been prepared by my direction, after taking into consideration not only your despatch No. 196, but also the whole of your previous correspondence with this Department upon the same subject, will, with the instructions hitherto given you, govern your future proceedings in the conduct of the case as it at present stands, and it is sincerely hoped that you will be enabled by adopting the suggestions made in the report now transmitted to you, to bring the question to a successful and amicable termination." Mr. Seward, Sec. of State, to Mr. Hassaurek, min. to Ecuador, Dec. 28, 1865, MS. Inst. Ecuador, I. 184. "Memorandum as to the case of the steamer Washington, condemned, "The parties complaining of the detention and use by the Ecuadorian "The steamer was admittedly engaged in hostility to Ecuador and was "Her condemnation is based on these facts and, if correct, establishes "So we may dismiss all consideration of the delay in bringing on the Upon the conceded facts thus far stated the propriety of the condemnation admits of no serious question. "It is said however that restitution to the owners should have been decreed because the Washington passed into the hostile service by the barratry of her master, and 2d that the seizure and employment of her by the insurgents were piratical. 66 "It is not denied that the master of the Washington was in conspiracy with the revolutionists to whom he voluntarily surrendered her. Assuming that the owners of the steamer were guiltless of any complicity with the master, the question is how does his conduct, criminal both as respects the Ecuadorian Government and the owners, affect the rights of the latter? "It is doubtless true that the owners of a ship are often held responsible for offences committed by the master against belligerent rights, so as to involve the forfeiture of the vessel and sometimes even personal damages in addition, although they neither commanded nor knew of them. "I think, however, that such cases will be found to have in them this element, viz, that the acts were such as the master could have supposed himself to be doing in the course of his general employment, and in the interest of his owners. The abandonment of the ship to pirates or to mere insurgents can hardly be brought into this category. Then these are maritime instances, and it seems to me there is such a difference between the very large authority and discretion necessarily entrusted to the master of a seagoing vessel, and that which suffices for short river voyages, as to justify a corresponding distinction in the liability of the owners for his acts. At sea, out of reach of his owners, and of courts, he may be taken to represent them in a much ampler sense than on a river. "I am bound to say however that this view of the case does not strike me as so irresistible that I could characterize an opposite determination by any judicial tribunal as manifesting such flagrant disregard of law and justice, as to lose its title to respect and submission. "Let us suppose that we had permitted a steamer, owned about half by English residents of Baltimore, and commanded by such a resident, to ply between that port and City Point, at the time of the outbreak of the late rebellion; the steamer to have been surrendered by him to rebels in the James River; to have been armed by them and to have captured one of our small cruisers in the Potomac; to have been subsequently captured by us and brought before a prize court. The evidence wholly failing to inculpate the owners who intervene and ask a restitution of the vessel, the court may be supposed to say: “Public policy requires that those who entrust a steamer, capable of the mischief which this has wrought, with the power to put her into a position to do that mischief, should be answerable for the consequences of his acts, though not contemplated, or approved by them. True, we find no evidence of their complicity, and this act, as it turns out, was manifestly opposed to their interests. But, if the captain was acting in conformity with their secret instructions, or with their real, though unexpressed desire, it would always be a matter of the greatest ease to conceal the proofs. A consideration of the general interest in having a plain rule capable of ready practical application, must override that of occasional hardship to the innocent.' "Would such a decision be so manifestly outrageous, as to authorize Great Britain to declare that it could not have proceeded from error but must have been dictated by interest, malice or wilful disregard of universal principles of justice? I think not. "I attribute no consequence whatever to the fact that the Ecuadorian Government denounced the seizure as piratical, nor does it seem important to enquire whether in truth it was piratical either under the municipal law, or the law of nations. It was a naval operation for a political insurrection. That it so overstepped the limits which nations prescribe to themselves in the prosecution of war, as to be piratical also, does not seem to me so to restrict the rights which the capturing government may assert in its discretion, or waive in its generosity. "This I think disposes of any question under article 10 of our treaty with Ecuador. That must I think be understood to refer to cases of simple piracy, unconnected with insurrection or belligerency in any form. "I understand the rule to be that before a nation intervenes in behalf of its citizens domiciled abroad whose rights have been passed upon by a judicial tribunal, it is required, 1st. That he should have defended those rights himself and done what was in his power to enlighten the court. 2d. That he should prosecute the case through all the appellate tribunals to that of last resort, so that it may appear that no farther remedy is left to him in the courts. 3d. That the final decision should be not merely erroneous, but so flagrant as to shock the moral sense and beget the conviction that the court could not be supposed to have acted from mistake of judgment but have wilfully disregarded plain rights. "Our citizens who go to reside under foreign jurisdictions, go there to take such law, and such modes of administering it, as are dealt to native subjects, however imperfect they may be-except in such countries as China, Japan, &c., where special treaties relieve them of the obligation. "In this case there is no pretence that the injustice alleged is aimed at American citizens as such, for a majority of the owners of the Washington are Ecuadorians. "On the whole, I think, that our minister should desist from farther discussion until, after final judgment in the court of last resort, he has reported its decision and the reasons it may assign, and has received such instructions as the case may then seem to require. "If it were practicable to advise the American owners of the Washington. I should recommend them to offer to the Ecuadorian Government the same salvage (of the value) which that Government offered for the recapture of its warship captured by the Washington, and ask restitution on those terms, before the prize court had reviewed the judgment in the first instance. It is unreasonable (dismissing all question of legal rights) that the government should bear the expense of restoring to the owners a ship of which they had been deprived by their own agent. The salvage is probably quite insufficient to reimburse Ecuador for the expenses to which it has been subjected. "Approved. "WILLIAM II. SEWARD." |