8212 Consul of France Hill Cobb
| Decision Date | 11 March 1816 |
| Citation | 14 U.S. 238,4 L.Ed. 80,1 Wheat. 238 |
| Parties | L'Invincible. —The CONSUL OF FRANCE, and HILL & M'COBB, Claimants |
| Court | U.S. Supreme Court |
Teazer, carried into Portland, and libelled in the district court of Maine for adjudication, as prize of war. The proceedings, so far as material to be stated, were as follows: At a special term of the district court, held in June, 1813, a claim was interposed by the French consul on behalf of the French owners, alleging the special facts above mentioned, and claiming restitution of the ship and cargo, on payment of salvage. A special claim was also interposed by Mark L. Hill, and Thomas M'Cobb, citizens of the United States, and owners of the ship Mount Hope, alleging, among other things, that the said ship, having on board a cargo on freight, belonging to citizens of the United States, and bound on a voyage from Charleston, S. C. to Cadiz, was, on the high seas, in the latter part of March, 1813, in violation of the law of nations, and of treaties, captured by L'Invincible, before her capture by La Mutine, and carried to places unknown to the claimants, whereby the said ship Mount Hope, and cargo, became wholly lost to the owners, and thereupon praying, among other things, that after payment of salvage, the residue of said ship L'Invincible, and cargo, might be condemned and sold for the payment of the damages sustained by the claimants. At the same term, by consent, an interlocutory decree of condemnation to the captors passed against said ship L'Invincible, and she was ordered to be sold, and one moiety of the proceeds, after deducting expenses, was ordered to be paid to the captors, as salvage, and the other moiety to be brought into court, to abide the final decision of the respective claims of the French consul and Messrs. Hill & M'Cobb. The cause was then continued for a further hearing unto September term, 1813, when Messrs. Maisonarra & Devouet, of Bayonne, owners of L'Invincible, appeared under protest, and in answer to the libel and claim of Messrs. Hill & M'Cobb alleged, among other things, that the ship Mount Hope was lawfully captured by L'Invincible, on account of having a British license on board, and of other suspicious circumstances, inducing a belief of British interests, and ordered to Bayonne for adjudication; that (as the protestants believed) on the voyage to Bayonne the Mount Hope was recaptured, by a British cruiser, sent into some port of Great Britain, and there finally restored by the court of admiralty to the owners, after which she pursued her voyage, and safely arrived, with her cargo, at Cadiz, and the protestants thereupon prayed that the claim of Messrs. Hill & M'Cobb might be dismissed. The replication of Messrs. Hill and M'Cobb denied the legality of the capture, and the having a British license on board the Mount Hope, and alleged embezzlement and spoliation by the crew of L'Invincible, upon the capture; admitted the recapture by a British cruiser, and the restitution by the admiralty upon payment of expenses, and prayed that the protestants might be directed to appear absolutely and without protest. Upon these allegations the district court overruled the objections to the jurisdiction of the court, and compelled the owners of L'Invincible to appear absolutely, and without protest, and thereupon the owners appeared absolutely, and alleged the same matters in defence which were stated in their answer under protest, and prayed the court to assign Messrs. Hill & M'Cobb to answer interrogatories touching the premises, which was ordered by the court. Accordingly, Messrs. Hill & M'Cobb made answer to the interrogatories proposed, except an interrogatory which required a disclosure of the fact, whether there was a British license on board, which M'Cobb (who was master of the Mount Hope at the time of the capture) declined answering, upon the ground that he was not compelled to answer any question, the answer to which would subject him to a penalty, forfeiture, or punishment; and this refusal, the district court, on application, allowed. Hill, in answer to the same interrogatory, denied any knowledge of the existence of a British license. The cause was, thereupon, heard on the allegations and evidence of the parties, and the district court decreed that Messrs. Hill & M'Cobb should recover against the owners of L'Invincible the sum of 9,000 dollars damages, and the costs of suit. From this decree the owners appealed to the circuit court, and in that court their plea to the jurisdiction was sustained, and the claim of Messrs. Hill & M'Cobb dismissed, with costs. An appeal was, thereupon, entered by them to this court.
Dexter, for the appellants. The sole question is, whether the district court of Maine had jurisdiction. It is a case where a citizen, against whose property a tort has been committed on the high seas, appears in his own natural forum, and the res, which was the instrument of the wrong done, is within the territorial jurisdiction of his own country, and in possession of the court for other (lawful) purposes when he applies for justice. 1. An injury of this nature is either to be redressed by a process in rem or in personam, and in either case, application must be made where the thing, or person, is found. The action is transitory in both cases; where the party proceeds in rem, the possession of the thing gives jurisdiction to the tribunal having that possession. It is said, that in prize proceedings, the forum of the captor is the only one having jurisdiction. But what is the extent of the principle, and what are the exceptions to the rule? The rule is not of a nature peculiar to prize proceedings, but is rather a corollary from the general principles of admiralty jurisdiction. The locality of the question of prize or no prize must have been originally determined by the fact of the property being carried infra proesidia of the captor's country, and in possession of its courts. I agree that the possession of the thing does not give jurisdiction to a neutral country, and the reason is, because the county is neutral. But this has only been recently settled; and in the reign of Charles II. the question was referred to the crown lawyers in England, (then neutral,) whether the property of English subjects, unjustly taken by foreign cruisers, should not be restored to them by the English court.
It is, however, now determined, that unless there has been a breech of neutrality in the capture, the courts of a neutral state cannot restore, much less condemn. But this concession does not shake the position, that local jurisdiction is founded upon the possession of the res, which in this case having escaped from the former captor, the action becomes transitory, and follows the thing. There are several decisions of this court, all confirming, either directly or by analogy, the position now taken. In the famous report of Sir George Lee, & co., on the memorial of the king of Prussia's minister, relative to the non-payment of the Silesian loan, which was intended to maintain the strongest maritime pretensions of Great Britian, the only passage that even glances at the doctrine of the exclusive jurisdiction of the courts of the captor's country is, that all captors are bound to submit their seizures to adjudication, and that the regular and proper court is that of their own country. But this principle is sustained rather by the authority of usage and treaties, than by elementary writers; and yet, all the other incidental questions are illustrated by multifarious citations of elementary books, equally respected in Prussia as in England. The reporters do not fairly meet the menace of the Prussian monarch, to set up courts of prize in his own dominions; but content themselves with asserting that it would be irregular, absurd, and impracticable. Ibid 133, The Mary Ford. Had it been at that time settled by European jurists of authority, the question would not have been made; or if made, would have been satisfactorily answered. The general principle has been rather assumed, than proved: And the practice of one nation, at least, contradicts it; for the ordinance of Louis XIV. restores the property of French subjects brought into the ports of France.a 2. Suppose the
aOrdonnance de la Marine, liv. 3. tit. 9., Des Prises, art. 15. The same provision is contained in the 16th article of the Spanish ordinance of 1718; and Valin considers the restitution of the effects as a just recompense for the benefit rendered to the captor, in granting him an asylum in the ports of the neutral country to whose subjects those effects belong. But, Azuni contests this opinion, and maintains that the obligation to restore in this case is founded on the universal law of nations. Part 2, c. 4. art. 3. s. 18. And it must be confessed, that the reasons on which Valin rests his opinion are by no means satisfactory; so that the French and Spanish ordinances are evidently mere municipal regulations, which have not been incorporated into the code of public law, and cannot be justified upon sound principles. It is an observation, somewhere made by M. Portalis, that such regulations are not, properly speaking, to be considered laws, but are essentially variable in their nature, pro temporibus et causis, and are to be tempered and modified by judicial wisdom and equity. These ordinances are indeed supported by the practice of the Italian states, and the theory of certain Italian writers. Among the latter are...
To continue reading
Request your trial