The Resolution

• Decision Date: 01 August 1781
• Citation: 2 Dall. 1,1 L.Ed. 263,2 U.S. 1
• Parties: Miller et. al. Libellants and Appellants v. The Ship Resolution, and Ingersoll, Claimant and Appellee. Miller et. al. Libellants and Appellants v. The Cargo of the Ship Resolution, and O'Brien Claimant and Appellant
• Court: U.S. Supreme Court

2 U.S. 1

2 Dall. 1

1 L.Ed. 263

Miller et. al. Libellants and Appellants v. The Ship Resolution, and Ingersoll, Claimant

and Appellee.

Miller et. al. Libellants and Appellants

v. The Cargo of the Ship Resolution, and O'Brien

Claimant and Appellant.

Federal Court of Appeals

August Session, 1781

These were Appeals from the Admiralty Court of Pennsylvania, where the Ship had been acquitted and the Cargo condemned.

After argument by Wilcox, Lewis and Sergeant, for the Appellants, and Morris and Wilson for the Appellees, the opinion and judgment of the Court (comprising a statement of all the facts and documents material to the case) were delivered by Cyrus Griffin, the presiding Commissioner, in the following terms:

By The Court: We have considered these Appeals, and are now ready to give our judgment.

It has been very truly observed, that this Appeal is a case of importance, not only with regard to the subject in contest, but also with regard to the great Questions of Law, which the investigation and discussion of the merits necessarily introduced; and being before this Court for their determination, the Judgment and Decree of this Court must be directed by the Resolves and Ordinances of Congress, and, where they are silent, by the Laws, Usage and Practice of Nations.

Upon these grounds, the case has been considered and argued by the counsel on both sides; and considered so thoroughly and argued so copiously, fully and ably, that we have now every possible light of which the subject admits.

The General Question is, 'Whether on all the circumstances of this case, the Ship or Cargo, or both, or any part of the Cargo, be a prize; and as such ought to be condemned and confiscated?' The Libellants contend that both Ship and Cargo are prize if not the Ship, yet the Cargo is prize; if not the whole of the Cargo, yet the principal part of it must be condemned.

Different grounds have been taken to support these several positions One ground is taken to affect both Ship and Cargo; other and different grounds to affect the Cargo; other and different grounds to affect the principal part of it.

The argument directed against both Ship and Cargo is this: By the Law of Nations, after a capture and occupation for twenty-four hours, the Property captured is transferred to the Captors: But the Ship and Cargo in question were captured and occupied twenty-four hours therefore the property was transferred to the Captors and as the Captors were British subjects, the property was British property, and therefore legally attacked and captured by the American Privateer Ariel.

There is no doubt, but that a capture authorized by the Rights of War transfers the property to the Captor; but the Question is, whether a Capture not authorized by the rights of war can have that legal operation: for, the Claimant says, 'that the Ship was not originally British but Dutch and Neutral property, and that the Cargo also was not originally British but Neutral Property, in consequence of Articles of Capitulation, stipulated on the conquest of Dominica, by the arms of his most Christian Majesty.'

All the authorities cited on cases of Capture authorized by the rights of war, are where the property captured was the property of an enemy; not an instance has been produced where a capture, not authorized by the rights of war, has been held to change the property; but many authorities have been brought to show, that no change is effected by such capture. To say that a capture which is out of the sanction and protection of the rights of war, can nevertheless derive a validity from the rights of war, is surely a contradiction in terms. The rights of war can only take place among enemies, and therefore a capture can give no right, unless the property captured be the property of an enemy. But it is stated, that both Ship and Cargo, in the present case, were originally (that is antecedently to the British capture) in the predicament of neutral property: No property then was transferred by the capture, and of consequence the property in question was not upon the ground it has been considered British property. 'But, it is said, the fact cannot be ascertained, that the capture in this case was not authorized by the rights of war for it depends upon the will of the sovereign, whether an outrage and capture, supra altum mare, by his subjects of the property of subjects of another nation, shall be an illegal and piratical act, or an act of hostility: That the sovereign is not obliged to promulge his will on the moment he makes war, and that as the human will has no physical existence, it cannot be ascertained but by a declaration of it by the sovereign himself, and therefore non constat, but that the capture in the present case was authorized by the British crown, and so a fair act of hostility, authorized by the rights of war.'

This argument is ingenious and plausible, but not solid. As the state of nature was a state of peace, and not a state of war, the natural state of nations is a state of peace and society, and hence it is a maxim of the law of nations, founded on every principle of reason, justice and morality, that one nation ought not to do an injury to another. As the natural state (that of nations) is a state of peace and benevolence, nations are morally bound to preserve it. Peace and friendship must always be presumed to subsist among nations; and therefore he who founds a claim upon the rights of war, must prove that the peace was broken by some national hostility, and war commenced; but mere conjecture, supposition and possibility, can render no competent evidence of the fact. But it is said 'here was a national hostility viz. The capture by the British privateer; and the act of the subject is the act of the sovereign.'

The act of the subject can never be the act of the sovereign; unless the subject has been commissioned by the sovereign to do it: But, in this case, there is no evidence that the commission of the British privateer extended to property, under the circumstances of the property captured.

But it is asked 'what private or public mischief can be apprehended from considering property under the circumstances of this case as prize: For, the wrong was committed by the British privateer, and therefore the British nation is chargeable with it, and bound to make compensation.'

We are inclined to think, that were the claimants to apply to the British crown for compensation, they would be told 'that altho' satisfaction were done, yet it would be in proportion only to the wrong done by the British privateer, which consisted only in the seizure and detention. But if compensation was expected for ship and cargo, they must look to that nation for it, whose courts declared a condemnation, and whose subjects reaped the fruits of it.'

But, 'tis alledged, that 'the late ordinance of Congress is express and decided, that after a capture and occupation for twenty-four hours the property captured shall be prize.'

The ordinance of Congress certainly speaks of a legal capture; to admit a different construction would be a violence both to the terms and spirit, or intention, of it. Prize is generally used as a technical term to express a legal capture; and Congress having adopted it in framing of the ordinance, the general sense or acceptation of it must determine its import and signification. But suppose the term prize merely imported a capture, without any reference to its legality, and that it was the spirit and intention of the ordinance to subject to prize all captures, both legal and illegal, after twenty-four hours; it does not follow that it would affect the present case. The municipal laws of a country cannot change the law of nations, so as to bind the subjects of another nation; and by the law of nations a neutral subject, whose property has been illegally captured, may pursue and recover that property in whatever country it is found, unless a competent jurisdiction has adjudged it prize. The municipal laws of a country can only bind its own subjects.

The ordinance of Congress is in truth a new regulation of the jus post liminii, and limits it to a recapture within twenty-four hours, and therefore can only relate to the subjects of the United States: it adopts the ordinance of France, and that ordinance relates only to the subjects of France. In both cases, with regard to the owner, a subject, the property captured is not passed away before the expiration of twenty-four hours. But put the case of a capture and the sale of it before twenty-four hours to a neutral subject; the sale is certainly good and conclusive upon the owner; for the question must be decided by the law of nations, and by the law of nations, the property captured is transferred to the captor as soon as it is taken.

Both the ordinances therefore of Congress and of France, in our opinion, relate only to property captured from a subject and recaptured; and not to property captured from a neutral and recaptured. It is said, 'that arguments drawn from the law of nations with regard to Pirates, do not apply to the present case, because pirates have not the rights of war.'

If the principal fact was properly attended to, the present case could not be questioned. Whence is it that pirates have not the rights of war? Is it not because they act without authority and commission from their sovereign? And is it not objected and proved, that the British privateer, with regard to the property captured, acted without commission and authority from the British crown? So far from there being any dissimilarity in the cases, it is in fact the very case in judgment, considering it on the first ground of argument.

But, it is alledged, 'that the capture by the British privateer must be considered as legal: For, after a capture and occupation for twenty-four hours, the legality of the capture is not open for question and examination.'

This doctrine must never be suffered; there is no example...