BAS V. TINGY
| Decision Date | 01 January 1800 |
| Citation | 4 U. S. 37 |
| Court | U.S. Supreme Court |
FOR THE DISTRICT OF PENNSYLVANIA
One-half of the whole value of an American vessel and cargo recaptured by a vessel of war of the United States after she had been captured by a French privateer on 31 March, 1799, allowed as salvage.
On the return of the record it appeared by a case stated that the defendant in error had filed a libel in the district court, as commander of the public armed ship the Ganges, for himself and others against the ship Eliza, John Bas, master, her cargo, &c., in which he set forth that the said ship and cargo belonged to citizens of the United States; that they were taken on the high seas by a French privateer on 31 March, 1799, and that they were retaken by the libellant on 21 April following, after having been above ninety-six hours in possession of the captors. The libel prayed for salvage conformably to the acts of Congress, and the facts being admitted by the answer of the respondents, the district court decreed to the libellants one-half of the whole value of ship and cargo. This decree was affirmed in the circuit court without argument and by consent of the parties in order to expedite a final decision on the present writ of error.
The Judges delivered their opinions seriatim in the following manner:
This case depends on the construction of the act for the regulation of the navy. It is objected, indeed, that the act applies only to future wars, but its provisions are obviously applicable to the present situation of things, and there is nothing to prevent an immediate commencement of its operation.
It is, however, more particularly urged that the word "enemy" cannot be applied to the French, because the section in which it is used, is confined to such a state of war, as would authorize a recapture of property belonging to a nation in amity with the United States, and such a state of war, it is said, does not exist between America and France. A number of books have been cited to furnish a glossary on the word enemy; yet our situation is so extraordinary that I doubt whether a parallel case can be traced in the history of nations. But if words are the representatives of ideas, let me ask by what other word the idea of the relative situation of America and France could be communicated, than by that of hostility, or war? And how can the characters of the parties engaged in hostility or war be otherwise described than by the denomination of enemies? It is for the honor and dignity of both nations, therefore, that they should be called enemies, for it is by that description alone that either could justify or excuse the scene of bloodshed, depredation, and confiscation which has unhappily occurred, and surely Congress could only employ the language of the act of June 13, 1798, towards a nation whom she considered as an enemy.
Nor does it follow that the act of March, 1799, is to have no operation, because all the cases in which it might operate are not in existence at the time of passing it. During the present hostilities it affects the case of recaptured property belonging to our own citizens, and in the event of a future war it might also be applied to the case of recaptured property belonging to a nation in amity with the United States. But it is further to be remarked that all the expressions of the act may be satisfied, even at this very time, for by former laws, the recapture of property, belonging to persons resident within the United States is authorized; those residents may be aliens, and if they are subjects of a nation in amity with the United States, they answer completely the description of the law.
The only remaining objection offered on behalf of the plaintiff in error supposes that because there are no repealing or negative words, the last law must be confined to future cases in order to have a subject for the first law to regulate. But if two laws are inconsistent (as, in my judgment, the laws in question are), the latter is a virtual repeal of the former, without any express declaration on the subject.
On these grounds I am clearly of opinion that the decree of the circuit court ought to be affirmed.
It is admitted on all hands that the defendant in error is entitled to some compensation, but the plaintiff in error contends that the compensation should be regulated by the Act of 28 June 1798, 4 vol. 154, s. 2, which allows only one-eighth for salvage, while the defendant in error refers his claim to the Act of 2 March (ibid. 456, s. 7), which makes an allowance of one-half, upon a recapture from the enemy, after an adverse possession of ninety-six hours.
If the defendant's claim is well founded, it follows that the latter law must virtually have worked a repeal of the former, but this has been denied for a variety of reasons:
1st. Because the former law relates to recaptures from the French, and the latter law relates to recaptures from the enemy, and it is said that "the enemy" is not descriptive of France or of her armed vessels according to the correct and technical understanding of the word.
The decision of this question must depend upon another, which is whether, at the time of passing the Act of Congress of 2 March, 1799, there subsisted a state of war between the two nations? It may, I believe, be safely laid down that every contention by force between two nations in external matters, under the authority of their respective governments, is not only war, but public war. If it be declared in form, it is called solemn and is of the perfect kind; because one whole nation is at war with another whole nation, and all the members of the nation declaring war, are authorized to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war, all the members act under a general authority, and all the rights and consequences of war attach to their condition.
But hostilities may subsist between two nations more confined in its nature and extent, being limited as to places, persons, and things, and this is more properly termed imperfect war; because not solemn, and because those who are authorized to commit hostilities, act under special authority, and can go no further than to the extent of their commission. Still, however, it is public war, because it is an external contention by force between some of the members of the two nations, authorized by the legitimate powers. It is a war between the two nations, though all the
members are not authorized to commit hostilities such as in a solemn war, where the government restrain the general power.
Now if this be the true definition of war, let us see what was the situation of the United States in relation to France. In March, 1799, Congress had raised an army, stopped all intercourse with France, dissolved our treaty, built and equipped ships of war, and commissioned private armed ships, enjoining the former, and authorizing the latter, to defend themselves against the armed ships of France, to attack them on the high seas, to subdue and take them as prize, and to recapture armed vessels found in their possession. Here, then, let me ask what were the technical characters of an American and French armed vessel combating on the high seas with a view the one to subdue the other and to make prize of his property? They certainly were not friends, because there was a contention by force; nor were they private enemies, because the contention was external, and authorized by the legitimate authority of the two governments. If they were not our enemies, I know not what constitutes an enemy.
2d. But secondly it is said that a war of the imperfect kind is more properly called acts of hostility, or reprisal, and that Congress did not mean to consider the hostility subsisting between France and the United States, as constituting a state of war.
In support of this position it has been observed that in no law prior to March, 1799, is France styled our enemy, nor are we said to be at war. This is true, but neither of these things was necessary to be done, because as to France, she was sufficiently described by the title of the French Republic, and as to America, the degree of hostility meant to be carried on was sufficiently described without declaring war or declaring that we were at war. Such a declaration by Congress might have constituted a perfect state of war, which was not intended by the government.
3d. It has likewise been said that the 7th section of the act of March...
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