Rose v. Himely

• Decision Date: 01 February 1808
• Parties: ROSE v. HIMELY
• Court: U.S. Supreme Court

8 U.S. 241 4 Cranch 241 2 L.Ed. 608 ROSE v. HIMELY. February Term, 1808

THIS was an appeal from the sentence of the circuit court for the district of South Carolina, which reversed that of the district judge, who awarded restitution, to Rose the libellant, of certain goods, part of the cargo of the American schooner Sarah.

This vessel after trading with the brigands, or rebels of St. Domingo, at several of their ports, sailed from thence, with a cargo purchased there, for the United States; and had proceeded more than ten leagues from the coast of St. Domingo, when she was arrested by a French privateer, on the 23d of February, 1804, carried into the Spanish port of Barracoa, in the island of Cuba; and there, with her cargo sold by the captors, on the 18th of March, 1804, before condemnation, but under authority, as it was said, of a person who styled himself agent of the government of St. Domingo, at St. Jago de Cuba. The greater part of the cargo was purchased by _____ Colt, the master of an American vessel called the Example, into which vessel the goods were clandestinely transferred from the Sarah, in the night time, and brought into the port of Charleston, in South Carolina, where they were followed by Rose, the supercargo of the Sarah, who filed a libel against them, in behalf of the former owners, complaining of the unlawful seizure on the high seas, and praying for restoration of the goods: whereupon process was issued, and

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the goods were arrested by the marshal, on the 4th of May, 1804. No steps appear to have been taken by the French captors, towards obtaining a condemnation of the vessel, until time enough had elapsed for them to receive information of the proceedings against the goods in this country. The forms of adjudication were begun in the tribunal of the first instance, at Santo Domingo, in July, 1804, and the condemnation was had before the middle of that month.

This condemnation purports to be made conformably to the first article of the arrete of the captain general (Ferrand) of the 1st of March, 1804, which was issued six days subsequent to the seizure of the vessel.

This article was as follows; 'The port of Santo Domingo is the only one of the colony of Santo Domingo, open to French and foreign commerce; consequently every vessel anchored in the bays, coves and landing places of the coast occupied by the revolters, those destined for the ports in their possession, and coming out with or without cargoes; and generally every vessel sailing within the territorial extent of the island, (except between cape Raphael, and the bay of Ocoa,) found at a less distance than two leagues from the coast, shall be arrested by the vessels of the state, and by privateers bearing our letters of marque, who shall conduct them, as much as-possible, into the port of Santo Domingo, that the confiscation of the said vessels and cargoes may be pronounced.'

On the 6th of September, 1806, no sentence of condemnation having been produced in evidence, the judge of the district court decreed restitution of the property to the libellant, from which sentence the other party appealed to the circuit court, and there produced the sentence of condemnation, by the tribunal of the first instance, at Santo Domingo. The circuit court reversed the sentence of the district court, and dismissed the libel.¹

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From this sentence, the libellant appealed to this court.

For the libellant, the case was argued by C. Lee, Harper, S. Chase, jun. Dallas, Rawle, Ingersoll, and Drayton, and

For the respondent, by Duponceau, E. Tilghman, and Martin.²

For the libellant, it was contended,

1. That this was not a seizure as prize of war, but as a forfeiture for violation of the municipal law of France, and

2. That whether it were seized jure belli, or jure civili, it was not competent for the court, sitting at

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Santo Domingo, to condemn the property, which it was in a neutral foreign port.

1st. Point.

This is not a case of prize of war, but of municipal forfeiture.

The tribunal of the first instance was a municipal court; and it is doubtful whether it had cognizance of questions of prize of war. But if it had a general prize jurisdiction, it could not, consistently with our treaty with France, (Laws U. S. vol. 6. p. 34. art. 22.) condemn a prize not carried into a French port. The words of the article are, 'it is further agreed that, in all cases, the established courts for prize causes, in the country to which the prizes may be conducted, shall alone take cognizance of them.' Hence it is to be inferred, that as they could not consistently with the treaty, take cognizance of the case as prize of war, they themselves must have considered it as a mere seizure, for violation of a municipal regulation. It is characteristic of prize of war, that it is done with a view to annoy an enemy. When a neutral violates his neutrality, he becomes. quoad hoc, an ally to the enemy, and the ground of condemnation is always as enemy property. But here was no feature of public war. It was merely an insurrection. All the world considered the blacks of St. Domingo as revolted subjects. Our government has acknowledged the right of France to legislature over those colonies. The French arrete is not a measure of war, but of government; and is a mere municipal regulation to enforce obedience to her laws, and for the reduction of the insurgents. The law of France rendered the trade illicit, but a seizure for illicit trade, is not the exercise of a right of war. It had no relation to a state of war; and might have been passed, if the most profound peace had existed throughout the world.

In the year 1802, France, Spain, and England were at peace with each other, and with all the world. The proceedings of France against her revolted colonies, were of a civil nature; at least they were so considered by her. (See Bonaparte's letter to Toussaint, and Le

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Clerk's letter of November, 1802, and his address to the people of St. Domingo.) Toussaint also considered himself as holding under the government of France, and to show his confidence, left his children in France as hostages.

The tribunals in Santo Domingo, were the ordinary tribunals of municipal jurisdiction, and not exclusively courts of prize. Their jurisdiction depended upon the arretes of the consuls of France, of the 18th of June, and 2d of October, 1802,³ (a time of profound peace,)

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and which refer to the year 1789, a time when France was also at peace with all the world. There was then no necessity of a prize court; and neither of those

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arretes allude particularly to the insurrection of the blacks. That of 2d October, 1802, relates generally to the smuggling trade of the colonies; and refers to the ancient laws, not to the laws of war; but the municipal laws. From the jurisdiction of the court, then, it cannot be inferred that this was a case of prize of war; nor will such an inference be drawn from the colonial regulations respecting the trade.

The first of these is the arrete of the captain-general, dated the 22d of June, 1802,⁴ which is entirely municipal, and applies as well to French as to foreign vessels, and is limited in its operation, to within two leagues of the coast.

The next is that of the 9th of October, 1802, which is to the same effect.

The last is that of 1st March, 1804, which as to these cases was clearly ex post facto, but if applicable at all, shows itself to be merely an exercise of a municipal right. The sentence of condemnation itself, does not pretend to consider the vessel as prize of war, but as a seizure made for the violation of those municipal regulations of trade, which it recites. The order that the proceeds should be distributed according to the laws respecting prizes, would have been unnecessary, if it had been a case of prize, to which those laws would have applied independent of the order.

There would have been a gross inconsistency in France treating the revolters as rebels, and yet claiming that other nations should consider them as acknowledged enemies. Yet before France can claim the rights of war from neutrals, in regard to the insurgents of St. Domingo, she must

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admit them to be enemies, and not rebels. If they are independent, and France is at war with them, France can claim from us only the rights which war gives. We shall have a clear right to trade with them, unless in contraband of war, or to blockaded ports.

It either is, or is not, prize of war. There are only two sides to the question. Prize is a seizure jure belli. There must be a war to raise a question of prize. No open war then existed with any nation. It is said that by aiding rebels we make a common cause with them; but the assistance, to justify such an inference, must be the act of the nation, not the unauthorised act of individuals. Until the year 1806, the United States had never declared the trade to be unlawful; nor did France require our government to take notice of the trade, until the fall of 1805. The law of nations does not authorise the seizure and confiscation of the property of foreigners trading with rebels. No authority to that effect has been cited from any writer upon that law. A state has, by the law of nations, a right to regulate its own trade. A parent state may chuse to exercise a greater or less degree of severity, with regard to the trade of its colonies. England did not, until 1776, wholly prohibit trade with her North American colonies. The statute of 16 Geo. III. c. 5. prohibiting such trade, would have been altogether useless, if such trade had been unlawful in consequence of the rebellion. It declares 'that all manner of trade and commerce is and shall be prohibited with the colonies of New-Hampshire,' &c. (naming the colonies,) 'and that all ships and vessels of or belonging to the inhabitants of the said colonies, together with their eargoes,' &c. 'and all other...