The Amelia.

the court should so decree; and that the clerk should retain the other half in his hands, together with all costs and charges, &c.

Afterwards, on the 25th of February 1800, the judge of the district court (HOBART) made his final decree, directing half of the gross amount of sales of the ship and cargo, without any deduction whatever, to be paid to the libellant for the use of the officers and crew of the ship Constitution, to be distributed according to the act of congress for the government of the navy of the United States. And that out of the other moiety, the clerk should pay the officers of the court, and the proctors for the libellant and claimant, their taxed costs and charges, and that the residue should be paid to the owners of the Amelia, or their agent. From this decree, the claimant appealed to the circuit court.

At the Circuit Court for the district of New York, in April 1800, before Judge WASHINGTON and the district judge, the cause was argued by B. Livingston and Burr for the appellant, and Harrison and Hamilton, for the respondent; and on the 9th of April 1800, the circuit court made the following decree, viz.:

[*4

"That the decree of the district court, so far forth as it orders a payment, by the clerk, of a moiety of the gross amount of sales, to Silas Talbot, commander, &c., and to the officers and crew of the said ship Constitution, is erroneous, and so far forth, be reversed without costs; that is to say, the court considering the admission on *the part of the respondent, that the papers brought here by Jacob Frederic Englebrecht, master of the ship Amelia, prove her and her cargo to be Hamburg property, and also considering that as the nation to which the owners of the said ship and cargo belong, is in amity with the French republic, the said ship and cargo could not, consistently with the laws of nations, be condemned by the French as a lawful prize, and that, therefore, no service was rendered by the United States ship of war the Constitution, or by the commander, officers or crew thereof, by the recapture aforesaid.

"Whereupon, it is ordered, adjudged and decreed by the court, and it is hereby ordered, adjudged and decreed by the authority of the same, that the former part of the decree of the district court, by which a moiety of the proceeds is allowed to the commander, officers and crew aforesaid, be and the same is hereby reversed. And the court further considering all the circumstances of the present case, arising from the capture and recapture stated in the libel and claim and answer, and that by the sale of the said ship Amelia and her cargo, made with the express consent of the appellant, the costs and charges in this cause have nearly all accrued, and that, therefore, the expenses should be defrayed out of the proceeds, thereupon, it is hereby further ordered, adjudged and decreed by the court, that so much of the said decree of the said district court as relates to the payment by the clerk, to the several officers of the court, and to the proctors of the libellant and claimant in this cause, of their taxed costs and charges, out of the other moiety of the said proceeds, and also of the residue of the said last-mentioned moiety, after deducting the costs and charges aforesaid, to the owner or owners of the said ship Amelia and her cargo, or to their legal representatives, be and the same is hereby affirmed.”

To reverse this decree, the libellant sued out a writ of error to the

The Amelia.

supreme court, and by consent of parties, the following statement of facts was annexed to the record which came up.

*5] *The ship Amelia sailed from Calcutta, in Bengal, in the month of April 1799, loaded with a cargo of the product and manufacture of that country, consisting of cotton, sugars and dry goods in bales, and was bound to Hamburg. On the 6th of September, in the same year, she was captured, while in the pursuit of her said voyage, by the French national corvette La Diligente, L. J. Dubois, commander, who took out her master and part of her crew, together with most of her papers, and placed a prizemaster and French sailors on board of her, ordering the prize-master to conduct her to St. Domingo, to be judged according to the laws of war. On the 15th of the same month of September, the United States ship of war the Constitution, commanded by Silas Talbot, Esq., the libellant, fell in with and recaptured the Amelia, she being then in full possession of the French, and pursuing her course for St. Domingo, according to the orders received from the captain of the French corvette.

"At the time of the recapture, the Amelia had eight iron cannon mounted, and eight wooden guns, with which she left Calcutta, as before stated. From such of the ship's papers as were found on board, and the testimony in the cause, the ship Amelia and her cargo appear to have been the property of Chapeau Rouge, a citizen of Hamburg, residing and carrying on commerce in that place. It is conceded, that the republic of France and the city of Hamburg are not in a state of hostility to each other; and that Hamburg is to be considered as neutral between the present belligerent powers.

"The Amelia and her cargo, having been sent by Captain Talbot to New York, were there libelled in the district court, and such proceedings were thereupon had in that court, and the circuit court for that district, as may appear by the writ of error and return.”

*6]

*The cause now came on to be argued, at August term 1801, by Bayard and Ingersoll, for the libellant, and Dallas, Mason and Levy, for the claimant.

For the libellant, three points were made. 1. That at the time, and under the circumstances, the ship Amelia was liable to capture by the law, and instructions to seize French armed vessels, for the purpose of being brought into port, and submitted to legal adjudication in the courts of the United States. 2. That Captain Talbot, by this capture, saved the ship Amelia from condemnation in a French court of admiralty. 3. That for this service, upon abstract principles of equity and justice, according to the law of nations, and the acts of congress, the recaptors are entitled to a compensation for salvage.

I. Had Captain Talbot a right to seize the Amelia, and bring her into port for adjudication?

The acts of congress on this subject ought all to be considered together and in one view. This is the general rule of construction, where several acts are made in pari materia. Plowd. 206; 1 Atk. 457, 458.

The first act authorizing captures of French vessels, is that of 28th May 1798. (1 U. S. Stat. 561.) The preamble recites, that "whereas, armed vessels sailing under authority, or pretence of authority, from the republic of France, have committed depredations on the commerce of the United

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The Amelia.

States," &c., therefore it is enacted, that the president be authorized to instruct and direct the commanders of the armed vessels of the United States 'to seize, take and bring into any port of the United States, to be proceeded against according to the laws of nations, any such armed vessel, which shall have committed, or which shall be found hovering on the coasts of the United States, for the purpose of committing, depredations on the vessels belonging to citizens thereof; and also to retake any ship or vessel of *any citizen or citizens of the United States, which may have been captured by any such armed vessel."

[*7

The Amelia was "an armed vessel, sailing under authority from the republic of France," and if she had committed, or had been found hovering on the coast, for the purpose of committing, depredations on the vessels of the citizens of the United States, she would have been clearly liable to capture under this act of congress. This act is entitled "an act more effectually to protect the commerce and coasts of the United States ;" and by it, the objects of capture are limited to "armed vessels, sailing under authority, or pretence of authority, from the republic of France, which shall have committed, or which shall be found hovering on the coasts of the United States, for the purpose of committing, depredations," &c.

It was soon perceived, that a right of capture, so limited, would not afford, what the act contemplated, an effectual protection to the commerce of the United States. Congress therefore, on the 9th July 1798, at the same session, passed the "act further to protect the commerce of the United States" (1 U. S. Stat. 578), and thereby took off the restriction of the former act, which limited captures to vessels having actually committed depredation, or which were hovering on the coast for that purpose. This act authorizes the capture of any "armed French vessel, on the high seas," and if the Amelia was such an armed French vessel as is contemplated by this act, she was liable to capture, and it was the duty of Captain Talbot to take her and bring her into port.

Another act was passed at the same session, on the 25th June 1798 (1 U. S. Stat. 572), entitled "an act to authorize the defence of the merchant vessels of the United States against French depredations," which, as it constitutes a part of that system of defence and opposition which the legislature had in view, ought to be taken into consideration. It enacts, that merchant vessels of citizens of the United States may oppose and defend against any search, restraint or seizure which shall be attempted "by the commander or crew of any armed vessel, sailing under French colors, or acting, or pretending to act, by or under the authority of the French republic;" and in case of attack, may repel the same, and subdue and capture the vessel.

[*8

The court, *in construing any one of these laws, will not confine themselves to the strict letter of that particular law, but will consider the spirit of the times, and the object and intention of the legislature. It is evident, by the title of the act of the 9th July 1798, and by the general complexion of all the acts of that session upon the subject, that it was not the intention of congress, by the act of July 9th, to restrict the cases of capture contemplated by the act of 28th May, but to enlarge them. The spirit of the people was roused; they demanded a more vigorous and a more effectual opposition to the aggressions of France, and the spirit of congress rose with that of the people. It cannot be supposed, that having, in May,

The Amelia.

nsed the expression, "armed vessels, sailing under authority, or pretence of authority, from the republic of France," and in June the expression, "any armed vessel, sailing under French colors, or acting, or pretending to act, by or under the authority of the French republic," they meant to restrict the cases of capture, in July, when they used the words "any armed French vessel." On the contrary, the confidence in the national opinion was increased, and further measures of defence were adopted, intending not to recede from anything done before, but to amplify the opposition. The act of July was in addition to, not in derogation from, the act of May. Congress evidently meant the same description of vessels, in each of those acts. "Armed vessels, sailing under authority, or pretence of authority, of France," and "armed vessels sailing under French colors, or acting, or pretending to act, under the authority of the French republic," and "armed French vessels," must be understood to be the same.

If there is a difference, no reason can be given for it. A vessel, in the circumstances of the Amelia, was as capable of annoying our commerce, as if she had been owned by Frenchmen. Her force was at the command of France, and there can be no doubt, but she would have captured any unarmed American that might have fallen in her way. She was, therefore, one of the objects of that hostility which congress had authorized. Congress have the power of declaring war: they may declare a general war or a partial war: so, it may be a general maritime war, or a partial maritime war. *9] *This court, in the case of Bas v. Tingy (The Eliza, 4 Dall. 37), have decided, that the situation of this country with regard to France, was that of a partial and limited war. The substantial question here is, whether the case of the Amelia is a casus belli? whether she was an object of that limited war? The kind of war which existed was a war against all French force found upon the ocean, to seize it and bring it in, that it might not injure our commerce. It is precisely as if congress had authorized the capture of all French vessels, excepting those unarmed. If such had been the expressions, there could be no doubt of the right to capture. The object of the war being to destroy French armed force, and not French property, it made no difference in whom the absolute property of the vessel was, if her force was under the command of France. Suppose, the Amelia had captured an American, by what nation would the capture be made? by Hamburg or by France? There can be no doubt, but the injury would be attributed to France. She was under French colors, armed, and to every intent an object of the partial war which existed; and if so, her case is governed by the rights of war, and by the law of nations, as they exist in a state of general war.

Perhaps, it may be said, that this proves too much, and that, if true, the Amelia must be condemned as prize. This would be true, if the rights of a third party did not interfere. Having accomplished the object of the war, as it relates to this case, in wresting from France the armed force, we must now respect the rights of a neutral nation, and restore the property to its lawful owner. But this is a subsequent consideration it is only necessary now to show that the capture was so far a lawful act, as to be capable of supporting a claim of salvage. At first view, she certainly presented the appearance of such an armed French ship as the libellant was bound in duty to seize and bring in, at least, for further examination. He had probable

:

The Amelia.

cause, at least, which is sufficient to justify the seizure and detention. But if she was liable to be condemned by France, being in the hands and possession of the French, she was within the scope of the war which existed between the United States and France; she was within the meaning of the act of congress. (a)

*The act of July gives no new authority to recapture American ves[*10 sels; it only gives to private armed vessels the same right which the act of May gives to the public armed vessels, to make captures and recaptures. But the act of May only authorizes the recapture of American vessels, "which may have been captured by any such armed vessel," i. e., by armed vessels sailing under authority from the republic of France, and which shall have committed, or be found hovering on the coasts, for the purpose of committing, depredations on our commerce." Yet, the instructions from the president were to recapture all American vessels. These instructions show the opinion of the executive upon the construction of the acts of congress—and for that purpose they were offered to be read.

The counsel for the claimant objected to their being read, because they were not in the record. The counsel for the libellant contended, they had a right to read them as matter of opinion, but did not offer them as matter of fact. (b) The court refused to hear them.

II. The second point is, that a service was rendered to the owners of the Amelia, by the recapture, inasmuch as she was thereby saved from [*11 condemnation in a French court of admiralty. To support this position, the counsel for the libellant relied on the general system of violation of neutral rights adopted by France.

In general cases, when belligerents respect the law of nations, no salvage can be claimed for the recapture of a neutral vessel, because no service is rendered; but rather a disservice, because the captured would, in the courts

(a) Bayard.-What authority is there for American armed vessels to recapture British vessels taken by the French?

CHASE, J.—“Is there any case, where it has been decided in our courts, that such a recapture was lawful? It has been so decided in the English courts."

The counsel on both sides admitted that no such case had occurred in this country. (b) CHASE, J.—I am against reading the instructions, because I am against bringing the executive into court on any occasion. It has been decided, as I think, in this court, that instructions should not be read. I think it was in a case of instructions to the collectors. It was opposed by Judge IREDELL, and the opposition acquiesced in by the court.

PATERSON, J.-The instructions can only be evidence of the opinion of the executive, which is not binding upon us.

MARSHALL, C. J.-I have no objection to hearing them, but they will have no influence on my opinion.

MOORE, J.-Mr. Bayard can state all they contain, and they may be considered as part of his argument.

Bayard.-May I be permitted to read them as a part of my speech?

THE COURT.-We are willing to hear them as the opinion of Mr. Bayard, but not as the opinion of the executive.

Bayard. I acquiesce in the opinion of the court. My reasons for wishing to read them were, because the opinion of learned men, and men of science, will always have some weight with other learned men. And the court would consider well the opinien of the executive, before they would decide contrary to it.