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This court, in the cafe of Bafs and Tingey, have decided that the fituation of this country with regard to France, was that of a partial and limited war. The subftantial queftion here is, whether the cafe of the Amelia is a cafus belli-whether the was an object of that limited war. The kind of war which exifted was a war against all French force found upon the ocean, to feize it and bring it in, that it might not injure our commerce. It is precifely as if congrefs had authorized the capture of all French veffels, excepting thofe unarmed. If fuch had been the expreffions, there could be no doubt of the right to capture. The object of the war being to deftroy French armed force, and not French property, it made no difference in whom the abfolute property of the veffel 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 Hamburgh-or by France? There can be no doubt but the injury would be attributed to France. She was under French colours, armed, and to every intent an object of the partial war which exifted; and if fo, her cafe is governed by the rights of war, and by the law of nations, as they exift 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 cafe, in wrefting from France the armed force, we must now refpect the rights of a neutral nation, and restore the property to its lawful owner. this is a fubfequent confideration. It is only neceffary now to fhew that the capture was fo far a lawful act as to be capable of fupporting a claim of falvage. At first view the certainly prefented the appearance of fuch an armed French fhip as the libellant was bound in duty to feize and bring in, at least for further examination. He had probable cause, at least, which is fufficient to justify the feizure and detention. But if he was liable to be condemned by France, being in the hands and poffeffion 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 congrefs.*
Bayard. What authority is there for American armed veffcls to recapture British veffels taken by the French?
The act of July gives no new authority to re-capture American veffels; it only gives to private armed veffels the fame right, which the act of May gives to the public armed veffels, to make captures and re-captures. But the act of May only authorizes the re-capture of American veffels," which may have been captured by any fuch armed veffel," i. e. by armed veffels failing under authority from the republic of trance, and which shall have committed, or be found hovering on the coafts for the purpose of committing depredations on our commerce." Yet the inftructions from the prefident were to re-capture all American veffels. Thefe inftructions fhew the opinion of the executive upon the construction of the acts of congrefs, 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 counfel for the libellant contended they had a right to read them as matter of opinion, but did not offer them as matter of fact.† The court refused to hear them.
2. The fecond point is, that a fervice was rendered to the owners of the Amelia, by the re-capture, in as much
Chafe, Juftice" Is there any cafe where it has been decided in our "courts that fuch a re-capture was lawful?"
"It has been fo decided in the English courts."
The counsel on both fides admitted that no such case had occurred in this country.
+ Chafe, Juftice I am against reading the instructions, because I am against bringing the executive into court on any occafion. It has been decided, as I think, in this court, that inftructions should not be read..
I think it was in a cafe of inftructions to the collectors. It was oppofed by judge Iredell, and the oppofition acquiefced in by the court. Paterfon, Juftice-The inftructions can only be evidence of the opinion of the executive, which is not binding upon us.
Marfball, Chief Juflice-I have no objection to hearing them, but they will have no influence on my opinion.
Moore, Juftice.-Mr. Bayard can ftate all they contain, and they may be confidered 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-Jacquiefce in the opinion of the court. My reafons for wifhing to read them were, because the opinion of learned men, and men of science, will always have fome weight with other learned men. And the court would confider well the opinion of the executive before they would decide contrary to it.
as fhe was thereby faved from condemnation in a French court of admiralty.
To fupport this pofition, the counsel for the libellant relied on the general system of violation of neutral rights adopted by France.
In general cafes, when belligerents refpect the law of nations, no falvage can be claimed for the re-capture of a neutral veffel, because no fervice is rendered; but rather a differvice, because the captured would, in the courts of the captors, recover damages and cofts, for the illegal capture and detention.
The principle upon which the circuit court decided is not denied; but it is contended that a service was rendered by the re-capture. To fhew this, the counsel for the libellant offered to read the meffage from the prefident to both houses of congrefs, of 4th May, 1798, containing the communications from our envoys extraordinary at Paris, to the department of state, and fundry arrets and decrees of the government of France, in violation of neutral rights, and of the laws of nations; and particularly the decree of the council of five hundred of 29th Nivose, an 6, (Jan. 18, 1798,) which declares, "That "the character of veffels, relative to their quality of neu❝ter or enemy, fhall be determined by their cargo; in "confequence, every veffel found at fea, loaded, in whole "or in part, with merchandize the production of England "or of her poffeffions, fhall be declared good prize, who"ever the owner of these goods or merchandize may be."
The counsel for the claimant objected to the reading of those dispatches, because they were matter of fact. No new fact can be fhewn on the writ of error. Neither the pleadings, nor the statement of facts accompanying the record, give notice of introducing this new matter. By the act of congress, vol. 1. p. 60, 61, a ftate of the cafe must come up with the record; and is conclufive on this court. 3 Dal. 321, Wifcart v. Dauchy. ib. p. 327, Ellfworth, chief justice, faid, a writ of error removes only matter of law. Arrets and decrees of foreign governments, are matters of fact, and must be proved as fuch, and the court can not notice them unless fhewn in the
pleadings, admitted or proved. 1. P. Wms. 429, 431. Freemoult v. Dedire. Douglas, 557. Bernardi v. Motteaux. The fame cafe in the 2d edition, p. 575 to 579. In that cafe the court could not take notice of the arret of July, 1778, as it had not been given in evidence at the trial.
The general conduct of France is a matter of fact, which can only be noticed by the fovereign of the state. Judgment upon a writ of error must be upon the fame facts upon which the judgment below was predicated. 3 Bl. Com. 405. (Williams's edition 407.) 8. Term Rep. 438, 434, 566. If it is matter of law, it is not fuch law as is binding upon this court, and therefore they cannot officially take notice of it. Foreign laws must be proved as facts. 3 Woodefon 306. 2 Eq. ca. ab. 289, 476. 2. Salk. 651. Way v. Yally, 6 Mod. 195. fame cafe. Cowp. 174, 175, Mofyn v. Fabrigas. The law muft be given in evidence. Bos. & Pul. 171, 175, 138. 8 Term Rep. 566. Facts cannot be adduced to contradict the record. 8 Term Rep. 438. In 2. Rob. 126. (American ed.) the Providentia. Dr. Scott relied on the king's inftructions, but that was because the king has the power of war and peace.
A ftate of the cafe is like a fpecial verdict; nothing new can be added to it.
In 1. Rob. 57. The Santa Cruz. Dr. Scott required the ordinances of Portugal to be proved, and evidence of the decifions of their tribunals upon them.
On the contrary, it was faid by the counsel for the libellant, that this cafe differs from evidence offered to a jury. In chancery, if evidence is not legal the chancellor will hear it, but will give it no weight. The pamphlet containing the dispatches is offered to be read, not to fhew what are the municipal laws of France, but what is the law of nations in France; to fhew how it has been modified by that government. We are before this court as a court of admiralty, and not as a court of common law. All the world are parties to a decree of a court of admiralty. Bernardi v. Motteux. Doug. 560 or 581. This court is now to decide by the law of nations, not by municipal regu
lations. All the cases cited against us are cafes in common law courts. But courts of admiralty take notice of foreign ordinances which affect the law of nations, without their being fhewn in evidence. 1 Rob. English ed. 341. American ed. 287. The Maria. and 1 Rob. English ed. 368. American ed. 304 fame cafe.
The object in reading these dispatches is to fhew that the law of nations was not refpected in France; that the conftruction of their courts of admiralty was fuch that their decifions could not conform to the law of nations; that the law of nations has been fo modified in France that there was no certainty of indemnity for neutrals, and that by the decrees and arrets of that government, the Amelia would have been condemned. They are offered as the official communications of our authorized agents abroad to the executive, and by that department communicated to congrefs, and published in conformity to an act of congress (4. vol. p. 239.) for the information of the citizens of the United States. This act of congrefs has made them proper evidence before this court, who are therefore bound to notice them. On the subject of admitting foreign ordinances in a court of admiralty no difficulty ever occured. The objections are only to private municipal regulations. Such, it is admitted, must be proved as facts, but not when they are offered as explaining the law of nations. In 1 Rob. American ed. 288. (The Maria.) this very decree is cited; and it is immaterial to us whether we read it out of the dispatches or out of the book which the oppofite counsel have already cited for other purposes. By the fame rule that they read pages 57 and 126, we may furely read page
On the part of the claimant it was replied,
That this decree is not an act of congress, nor the law of nations, but fimply a law of France. The record is confined to the facts which originally came up with the writ of error, or such as may afterwards be procured upon a fuggeftion of diminution. It is admitted that in equity, on an appeal to the houfe of lords, nothing new can be received. And nothing ought now to be read which was not before the circuit court, or which that