United States v. Lancaster, 18 U.S. (5 Wheat.) 434 (1820)

be heard on the transcript of the record of the Circuit Court for the District of Pennsylvania, and was argued by counsel. , On consideration whereof, it was adjudged and ordered, that the said cause be remanded to the said Circuit Court, it not appearing from the said transcript that this court has jurisdiction in said cause.

1.— Neither can a cause be brought to this court by writ of error, which has been carried from the District to the Circuit Court by writ of error. The United States v. Barker, ante, Vol. II., p. 395.

Note.— When the death of the Justice of the Su¬ preme Court authorized to hold the Circuit Court in a particular circuit, the district judge may hold a circuit court alone. Pollard v. Dwight, 4 Cranch,

127

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APPENDIX.

3] [NOTE I.]

Speech of the IIonoToble John Marshall, delivered in the House of Representatives of the United States, on the Resolutions of the Honorable Edward Livingston, relative to Thomas Nash, alias Jonathan Robins.

Mr. Marshall said: Believing as he did most seriously, that in a government constituted like that of the United States, much of the public happiness depended, not only on its being rightly administered, but on the measures of administration being rightly understood: on rescuing public opinion from those numerous prejudices with which so many causes might combine to surround it : he could not but have been highly gratified with the very eloquent, and what was still more valuable, the very able, and very correct argument, which had been delivered by the gentleman from Delaware (Mr. Bayard) against the resolutions now under consideration. He had not expected that the effect of this argument would have been uni¬ versal, but he had cherished the hope, and in this he had not been disappointed, that it would be very extensive. He did not flatter himself with being able to shed much new light on the subject; but as IJie argument in opposition to the resolutions had been assailed, with consider¬ able ability, by gentlemen of great talents, he trusted the house would not think the time mis¬ applied which would be devoted to the re¬ establishment of the principles contained in that argument, and to the refutation of those advanced in opposition to it. In endeavoring to do this, he should notice the observations 4:]in support of the resolutions, not in the pre¬ cise order in which they were made, but as they applied to the different points he deemed it necessary to maintain, in order to demonsti’ate that the conduct of the executive of the United States could not justly be charged with the errors imputed to it by the resolutions.

His first proposition, he said, was, that the case of Thomas Nash, as stated to the President, was completely within the twenty-seventh article of the treaty of amity, commerce, and naviga¬ tion, entered into between the United States of America and Great Britain.

He read the article, and then observed : The casus foederis of this article occurs, when a per¬ son, having committed murder or forgery with¬ in the juidsdiction of one of the contracting parties, and having sought an asylum in the country of the other, is charged with the crime, and his delivery demanded, on such proof of his guilt as, according to the laws of the place where he shall be found, would justify his apprehension and commitment for trial, if the offense had there been committed.

The case stated is, that Thomas Nash, having committed a murder on board a British frigate, navigating the high seas under a commission Wheat. 5. U. S., Book 5.

rom His Britannic Majesty, had sought an asylum within the United States,* and on this case his delivery was demanded by the minister of the King of Great Britain.

It is manifest that the case stated, if support¬ ed by proof, is within the letter of the article, provided a murder committed in a British fri¬ gate, on the high seas, be committed within the jurisdiction of that nation.

_ That such a murder is within their jurisdic¬ tion, has been fully shown by the gentleman from Delaware. The principle is, that the jurisdiction of a nation extends to the whole of its territory, and to its own citizens in every part of the world. The laws of a nation are rightfully obligatory on its own citizens in every situation, where those laws are really extended to them. This principle is founded on the nat¬ ure of civil union. It is supported everywhere by public opinion, and is recognized by writers on the law of nations. Rutherford, in his second volume (p. 180), says: “The jurisdic- ‘ ‘ tion which a civil society has *over the [^5 ‘ ‘ persons of its members, affects them immedi - “ately, whether they are within its territories or “not.”

This general principle is especially true, and is particularly recognized with respect to the fleets of a nation on the high seas. To punish offenses committed in its fleet, is the practice of every nation in the universe; and conse¬ quently the opinion of the world is, that a fleet at sea is within the jurisdiction of the nation to which it belongs. Rutherforth (Vol. II., p. 491), says: “ There can be no doubt about the juris- ‘ ‘ diction of a nation over the persons which “ compose its fleets, when they are out at sea, “ whether they are sailing upon it, or arestation- “ ed in any particular part of it.”

The gentleman from Pennsylvania (Mr. Gal¬ latin), though he has not directly controverted this doctrine, has sought to weaken it by ob¬ serving that the jurisdiction of a nation at sea could not be complete even in its own vessels ; and in support of this position, he urged the ad¬ mitted practice of submitting to search for con¬ traband; a practice not tolerated on land, with¬ in the territory of a neutral power. The rule is as stated, but is founded on a principle which does not affect the jurisdiction of a na¬ tion over its citizens or subjects in its ships. The iDrinciple is, that in the sea itself no na¬ tion has any jurisdiction. All may equally ex¬ ercise their rights, and consequently the right of a belligei’eut power to prevent aid being given to his enemy, is not restrained by any 9 129

5

Appendix.

superior right of a neutral in the place. But if this argument possessed any force, it would not apply to national ships of war, since the usage of nations does not permit them to be searched.

According to the practice of the world, then, and the opinions of writers on the law of na¬ tions, the murder committed on board a Brit¬ ish frigate, navigating the high seas, was a murder committed within the jurisdiction of the British nation.

Although such a murder is plainly within the letter of the article, it has been contended not to be within its just construction; because, at sea, all nations have a common jurisdiction, and the article correctly construed, will not embrace a case of concurrent jurisdiction.

It is deemed unnecessary to’controvert this 6] construction, because ihe proposition, that the United States had no jurisdiction over the murder committed by Thomas Nash, is be¬ lieved to be completely demonstrable.

It is not true that all nations have jurisdic¬ tion over all offenses committed at sea. On the contrary, no nation has any jurisdiction at sea, but over its own citizens or vessels, or offenses against itself. This principle is laid down in 2 Ruth. 488, 491.

The American government has, bn a very solemn occasion, avowed the same principle. The first minister of the French republic as¬ serted and exercised powers of so extraordinary a nature a sunavoidably to produce a contro¬ versy with the United States. The situation in which the government then found Itself was such as necessarily to occasion a very serious and mature consideration of the opinions it should adopt. Of consequence, the opinions then declared deserve great respect. In the case alluded to, Mr. Genet had asserted the right of fitting out privateers in the American ports, and of manning them with American citizens, in order to cruise against nations with whom America was at peace. In reasoning against this extravagant claim, the then Secre¬ tary of State, in his letter of the 17lh of June, 1793, says: “For our citizens, then, to commit ‘ ‘ murders and depredations on the members of “ nations at peace with us, or to combine to do “ it, appeared to the executive and to those “ whom they consulted, as much against the “ laws of the land as to murder or rob, or “ combine to murder or rob, its own citizens; “ and as much to require punishment, if done “within their limits, where they have a ter- “ ritorial jurisdiction, or on the high seas, where “ they have a personal jurisdiction, that is to “ say, one which reaches their own citizens “ only; this being an appropriate part of each “ nation, on an element where all have a com- “ mon jurisdiction.”

The well-considered opinion, then, of the American government on this subject is, that the jurisdiction of a nation at sea is “ personal,” reaching its “ own citizens only,” and that this is “the appropriate part of each nation” on that element.

This is precisely the opinion maintained by the opposers of the resolutions. If the jurisdic¬ tion of America at sea be personal, reaching its own citizens only; if this be its appropriate 7] part, then the jurisdiction of the nation cannot extend to a murder committed by a British sailor, on board a British frigate navi-

130

gating the high seas, under a commission from His Britannic Majesty.

As a further illustration of the principle con¬ tended for, suppose a contract made at sea, and a suit instituted for the recovery of money which might be due thereon. By the laws of what nation would the contract be governed? The principle is general, that a personal con¬ tract follows the person, but is governed by the lav/ of the place where it is formed. By what law, then, would such a contract be gov¬ erned? If all nations had jurisdiction over the place, then the laws of all nations would equal¬ ly influence the contract ; but certainly no man will hesitate to admit that such a contract ought to be decided according to the laws of that nation to w’hich the vessel or contracting^ parties might belong.

Suppose a duel attended with death, in the fleet of a foreign nation, or in any vessel which re¬ turned safe to port, could it be pretended that any government on earth, other than that to which the fleet or vessel belonged, had juris¬ diction in the case; or that the offender could be tried by the law’s or tribunals of any other nation w’hatever.

Suppose a private theft by one mariner from another, and the vessel to perform its voyage and return in safety, would it be contended that all nations have equal cognizance of the crime, and are equally authorized to punish it?

If there be this common jurisdiction at sea, why not puni.sh desertion from one belligerent power to another, or correspondence with the enemy, or any other crime which may be per¬ petrated? A common jurisdiction over all of¬ fenses at sea, in whatever vessel committed, would involve the power of punishing the of¬ fenses which have been stated. Yet all gentle¬ men will disclaim this powmr. It follows, then, that no such common jurisdiction exists.

In truth, the right of every nation to punish is limited, in its nature, to offenses against the nation inflictins: the punishment. This principle is believed to be universally true.

It comprehends every possible violation of its laws on its *own territory, and it extends [*8 to violations committed elsewhere by persons it has a right to bind. It extends also to gen¬ eral piracy.

A pirate, under the law of nations, is an ene¬ my of the human race. Being the enemy of all, he is liable to be punished by all. Any act which denotes this universal hostility is an act of piracy. Not only an actual robbery there¬ fore, but cruising on the high seas without comrnission, and with intent to rob, is piracy. This is an offense against all and every nation,, and is therefore alike punishable by all. But an offense which in its nature affects only a particular nation, is only punishable by that nation.

It is by confounding general piracy with piracy by statute, that indistinct ideas have been produced, respecting the power to punish offenses committed on the high seas.

_A statute may make any offense piracy, com¬ mitted within the jurisdiction of the nation passing the statute, and such offense will be punishable by that nation. But piracy under the law of nations, which alone is punishable by all nations, can only consist in an act which is an offense against all. No particular nation

Wheat. 5.

Appendix.

8

can increase or diminish the list of offenses thus punishable.

It had been observed by his colleague (Mr. Nicholas), for the purpose of .showing that the distinction taken on thi.s subject by the gentle¬ man from Delaware (Mr. Bayard) wais inaccu¬ rate, that any vessel robbed on the high seas could be the propeity only of a single nation, and being only an offense against that nation, could be, on the principle taken by the oi)posers of the resolutions, no offense against the law of nations; but in this his colleague had not ac¬ curately considered the principle. As a man, who turns out to rob on the highway, and forces from a stranger his purse with a pistol at his bosom, is not the particular enemy of that stranger ; but alike the enemy of every man who carries a purse, so those who, without a com¬ mission, rob on the high seas, manifest a tem¬ per hostile to all nations, and therefore become the enemies of all. The same inducements wdiich occa.sion the robbery of one vessel, exist to occasion the I'obbery of others, and therefore D] the single offense is an offense against the whole community of nations, manifests a tem¬ per hostile to all, is the commencement of an attack on all, and is consequently, of right, punishable by all.

His colleague had also contended, that all the offenses at sea, punishable by the British statutes, from which the act of Congress was in a great degree copied, were piracies at common law, or by the law of nations, and as murder is among these, consequently murder was an act of piracy by the law of nations, and there¬ fore punishable by every nation. In support of this position, he had cited 1 Hawk., P. C. 267, 271; 3 Inst. 112, and 1 Woodeson, 140.

The amount of these cases is, that no new of- fen.se is made piracy by the statutes; but that a different tribunal is created for their trial, which is guided by a different rule from that which governed previous to those statutes. Therefore, on an indictment for piracy, it is still necessary to prove an offense which was piracy before the statutes. He drew from these authorities a very different conclusion from that which had been drawn by his colleague. To show the correctness of his conclu.sion, it was necessary to observe, that the statute did not. indeed, change the nature of piracy, .since it only transferred the trial of the crime to a different tribunal, where different rules of de¬ cision prevailed; but having done this, other crimes committed on the high seas, which were not piracy, were made punishable by the same tribunal ; but certainly this municipal regula¬ tion could not be considered as proving that those offenses were, before, piracy by the law of nations. Mr. Nicholas insisted that the law was not correctly slated; whereupon Mr. Mar¬ shall called for 3 Inst, and read the statute.

• “All treasons, felonies, robberies, murders, “ and confederacies, committed in or upon the “ seas, &c., shall be inquired, tried, heard, de- “ termined and judged in such shires, &c., in “ like form and condition as if any such offen,se “had been committed on the land, &c.”

“ And such as shall be convicted, &c., shall “have and suffer such pains of death, &c., as “if they had been attainted of any treason, ‘ ‘ felony, robbery, or other the said offenses “ done upon the land.”

Wheat. 5.

*This statute, it is certain, does not [*10 change the nature of piracy; but all treasons, felonies, robberies, murders and confederacies committed in or upon the sea, are not declared to have been, nor are they, piracies. If a man be indicted as a pirate, the offen.se must be shown to have been piracy before the statute; but if he be indicted for treason, felony, rob¬ bery, murder, or confederacy committed at sea, whether such offense was or was not a piracy, he shall be punished in like manner as if he had committed the same offense on land. Thepas.sage cited from 1 Woodeson, 140, is a full authority to this point. Having stated that offmses committed at sea were formerly triable before the Lord High Admiral, accoixling to the course of the Homan civil law, Woodeson says, “but by the statute 27 H. VHI., ch. 4, and “28 H. VIH., ch. 16, all treasons, felonies, pi- “racies, and other crimes committed on the “sea, or where the admiral has juri.sdiction, “ shall be tried in the realm as if done on land. “ But the statutes refeired to affect only the “manner of the trial ,so far as respects piracy. “The nature of the offense is not changed. “Whether a charge amounts to piracy or not, “ must .still depend on the law of nations, ex- “cept where, in the ca.se of British subjects, “ express acts of Parliament have declared that “ the crimes therein .specified shall be adjudged “ piracy, or shall be liable to the same mode of “ trial and degree of punishment.”

This passage proves not only that all offenses at sea are not piracies by the law of nations, but also that all indictments for piracy must depend on the law of nations, “except where, “in the case of British subjects, express acts “ of Parliament” have changed the law. Why do not these “ express acts of Parliament” change the law as toothers than “British subjects?” The words are general; “ all treasons, felonies,” &c. Why are they confined in construction to Brili.sh subjects? The answer is a plain one. The jurisdiction of the nation is confined to its territory and to its subjects.

The gentleman from Pennsylvania (Mr. Gal¬ latin) abandons, and very properly abandons, this untenable ground. He admits that no na¬ tion has a right to punish offenses against an¬ other nation, and that the United States can only punish offenses against *their own [*11 laws, and the law of nations. He admits, too, that if there had only been a mutiny (and con- .sequently if there had only been a murder) on board the Hermoine, that the American courts could have taken no cognizance of the crime. Yet mutiny is punishable as piracy by the law of both nations. That gentleman contends that the act committed by Nash was piracy ac¬ cording to the law of nations. He supports his position by insisting that the offense may be con,stituted by the commission of a single act; that unauthorized robbery on the high seas is this act, and that the crew having seized the vessel, and being out of the protection of any nation, were pirates.

It is true that the offense may be completed by a single act ; but it depends on the nature of that act. If it be such as manifests general hostility against the world — an intention to rob generally — then it is piracy ; but if it be merely a mutiny and murder in a vessel, for the pur¬ pose of delivering it up to the enemy, it seems

131

11

Appendix.

to be an offense against a single nation, and not to be piracy. The sole object of the crew might be to go over to the enemy, or to free them¬ selves from the tyranny experienced on board a ship of war, and not to rob generally.

But should it even be true that running away with the vessel to deliver her up to an enemy was an act of general piracy, punishable by all nations, yet the mutiny and murder was a distinct offense. Had the attempt to seize the vessel failed after the commission of the murder, then, according to the argument of the gentleman from Pennsylvania, the American courts could have taken no cognizance of the crime. Whatever, then, might have been the law respecting the piracy, of the murder there was no jurisdiction. For the murder, not the piracy, Na.sh was delivered up. Murder, and not piracy, is comprehended in the twenty- seventh article of the treaty between the two nations. Had he been tried then,, and acquit¬ ted on an indictment for the piracy, he must still have been delivered up for the murder, of which the court could have no jurisdiction. It is certain that an acquittal of the piracy would not have discharged the murder ; and, therefore, in the so much relied on trials at Trenton, a separate indictment for murder was filed after an indictment for piracy. Since, then, if ac- 12] quitted for piracy, he must have been de- livered to the British government on the charge of murder, the President of the United States might, very properly, without prosecuting for the piracy, direct him to be delivered up on the murder.

All the gentlemen who have spoken in sup¬ port of the resolutions, have contended that the case of Thomas Nash is within the purview of the act of Congress which reiates to this sub¬ ject, and is by that act made punishable in the American courts. This is, that the act of Con¬ gress designed to punish crimes committed on board a British frigate.

Nothing can be more completely demonstra¬ ble than the untruth of this proposition.

It has already been shown that the legisla¬ tive jurisdiction of a nation extends only to its own territory, and to its own citizens, wherever they may be. Any general expression in a legislative act must, necessarily, be restrained to objects within the jurisdiction of the legis¬ lature passing the act. Of consequence, an act of Congress can only be construed to apply to the territory of the United States comprehend¬ ing ever}’’ person within it, and to the citizens of the United States.

But independent of this undeniable truth, the act itself affords complete testimony of its in¬ tention and extent. (See Laws of the U. S., Vol. I., p. 10.)

The title is, “An. act for the punishment of certain crimes ‘against the United States.’ ” Not against Britain, Prance, or the world, but singly “against the United States.”

The first section relates to treason, and its objects are, “any person or persons owing alle¬ giance to the United States.” This description comprehends only the citizens of the United States, and such others as may be on its terri¬ tory or in its service.

The second section relates to misprision of treason, and declares, without limitation, that any person or persons, having knowledge of

132

any treason, and not communicating the same, shalj be guilty of that crime. Here, then, is an instance of that limited description of per¬ sons in one section, and of that general descrip¬ tion in another, which has been relied on to support the construction contended for by the friends of the resolutions. But will it be pre¬ tended that a person can commit misprision of *treason, who cannot commit treason it- [*13 self? That he would be punishable for con¬ cealing a treason, who could not be punished for plotting it? Or can it be supposed that the act designed to punish an Englishman or a Fi'enchman, who, residing in his own country, should have knowledge of treasons against the United States, and should not cross the Atlan¬ tic to reveal them?

The same observations apply to the sixth sec¬ tion, which makes “any person or persons” guil¬ ty of mispri.sion of felony, who, having knowl¬ edge of murder or other offenses enumerated in that .section, should conceal them. It is im¬ possible to apply this to a foreigner, in a for¬ eign land, or to any person not owing allegiance to the United States.

The eighth section, which is supposed to comprehend the case, after declaring, that if any person or persons shall commit murder on the high seas, he shall be punishable with death, proceeds to say, that if any captain or mariner shall piratically run away with a ship or ve.s.sel, or yield her up voluntarily to a pirate, or if any seaman shall lay violent hands on his com mander, to prevent his fighting, or shall rhake a revolt in the ship, every such offender shall be adjudged a pirate and a felon.

The persons who are the objects of this sec¬ tion of the act are all described in general terms, which might embrace the subjects of all nations. But is it to be supposed, that if, in an engage¬ ment between an English and a French ship of war, the crew of the one or the other should lay violent hands on the captain, and force him to strike, that this would be an offense again.st the act of Congress, punishable in the courts of the United States? On this extended construction of the general terms of the section, not only the crew of one of the foreign ves.sels forcing their captain to surrender to another, would incur the penalties of the act, but if, in the late action between the gallant Truxton and a French frigate, the crew of that frigate had compelled the captain to surrender while he was unwilling to do so, they would have been indictable as felons in the courts of the United States. But surely the act of Congress admits of no such extravagant construction.

His colleague, Mr. Marshall said, had cited and particularly relied on the ninth section of the act. That section declares, *that if [*14 a citizen shall commit any of the enumerated piracies, or any act of hostility on the high seas against the United States, under color of a com¬ mission from any foreign prince or state, he shall be adjudged a pirate, felon, and robber, and shall suffer death.

This section is only a positive extension of the act to a case which might otherwise have escaped punishment. It takes away the pro¬ tection of a foreign commission from an Ameri¬ can citizen, who on the high seas robs his countrymen. This is no exception from any preceding part of the law, because there is no

Wheat. 6.

Appendix.

14

part which relates to the conduct of vessels commissioned by a foreign power; it only proves that, in the opinion of the legislature, the penalties of the act could not, without this express provision, have been incurred by a cit¬ izen holding a foreign commission.

It is then most certain that the act of Con¬ gress does not comprehend the case of a murder committed on board a foreign ship of war.

The gentleman from New York has cited 2 Woodeson, 428, to show that the courts of Eng¬ land extend their jurisdiction to piracies com¬ mitted by the subjects of foreign nations.

This has not been doubted. The case from Woodeson is a case of robberies committed on the high seas by a vessel without authority. There are ordinary acts of piracy, which, as has been already stated, being offenses against all nations, are punishable by ajl. The case from 2 Woodeson, and the note cited from the same book, by the gentleman from Dela¬ ware, are strong authorities against the doc¬ trines contended for by the friends of the reso¬ lutions.

It has also been contended, that the question of jurisdiction was decided at Trenton, by re¬ ceiving indictments against persons there ar¬ raigned for the same offense, and by retaining them for trial after the return of the habeas corpus.

Every person in the slightest degree ac¬ quainted with judicial proceedings, knows that an indictment is no evidence of jurisdiction; and that in criminal cases, the question of ju¬ risdiction will seldom be made but by arrest of judgment after conviction.

15] The proceedings after the return of the habeas corpus only prove that the case was not such a case as to induce the judge im¬ mediately to decide against his jurisdiction. The question was not free from doubt, and therefore might very properly be postponed until its decision should become necessary.

It has been argued by the gentleman from New York that the form of the indictment is, itself, evidence of a powdr In the court to try the case. Every word of that indictment, ‘.said the gentleman, gives the lie to a denial of the jurisdiction of the court.

It would be assuming a very extraordinary principle indeed, to say that words inserted in an indictment for the express purpose of as¬ suming the jurisdiction of a court should be admitted to prove that jui'isdiction. The ques¬ tion certainly depended on the nature of the fact, and not on the description of the fact. But as an indictment must necessarily contain formal wmrds in order to be supported, and as forms often denote what a ca.se mu.st substan¬ tially be to authorize a court to take cognizance of it, some words in the indictments, at Tren¬ ton, ought to be noticed. The indictments charge the persons to have been within the peace, and the murder to have been committed against the peace, of the United States, These are necessary averments, and, to give the court jurisdiction, the fact oiii^ht to have accorded with them. But who will say that the crew of a British frigate on the high seas are within the peace of the United States, or a murder committed on board such a frigate against the peace of any other than the British govern¬ ment.

Wheat. 5.

It is then demonstrated, that the murder with which Thomas Nash was charged was not committed within the jurisdiction of the United States, and, consequently, that the case stated was completely within the letter and the spirit of the twenty-seventh article of the treaty between the two nations. If the necessary evi¬ dence was produced, he ought to have been de¬ livered up to justice. It -was an act to which the American nation was bound by a most solemn compact. To have tried him for the murder would have been mere mockery. To hive condemned and executed him, the court having no jurisdiction, would have been mur¬ der; to have acquitted and discharged him, would have been a breach of faith and a viola¬ tion of national duty.

*But it has been contended, that al- [*16 though Thomas Na.sh ought to have been de¬ livered up to the British minister, on the req¬ uisition made by him in the name of his government, yet the interference of the Presi¬ dent was improper.

This, Mr. Marshall said, led to his second proposition, which was.

That the case was a case for executive and not judicial decision. He admitted implicitly the division of powers stated by the gentleman from New York, and that it was the duty of each department to resist the encroachments of the others.

This being established, the inquiry was, to what department was the power in question al¬ lotted?

The gentleman from New York had relied on the second section of the third article of the constitution, which enumerates the cases to which the judicial power of the United States extends, as expressly including that now under consideration. Before he examined that sec¬ tion, it would not be improper to notice a very material misstatement of it made in the resolu¬ tions offered by the gentleman from New York. By the constitution, the judicial power of the United States is extended to all cases in law and equity, ari.sing under the constitution, laws and treaties of the United States ; but the re.solutions declare the judicial power to extend to all questions arising under the constitution, treaties and laws of the United States. The difference between the constitution and the resolutions was fnaterial and apparent. A case in law or equity was a term well understood, and of limited signification. It was a contro¬ versy between parties which had taken a shape for judicial decision. If the judicial power extended to every question under the constitu¬ tion, it would involve almost every .subject proper for legislative discu.ssion and decision ; if to every question under the laws and treaties of the United States, it would involve almost every subject on which the executive could act. The division of power which the gentleman had stated, could exist no longer, and the other departments would be swallowed up by the judiciary. But it was apparent that the reso¬ lutions had essentially misrepresented the con¬ stitution. He did not charge the gentleman from New York with intentional misrepresen¬ tation; he would not attribute to *him [*17 such an artifice in any case, much le.ss in a case where detection was so easy and so certain. Yet this substantial departure from the consti-

133

17

Appendix.

tution, in resolutions affecting sub.stantially to unite it, was riot less worthy of remark for being unintentional. It manifested the cour.se of reasoning by which the gentleman had him¬ self been misled, and his judgment betrayed into the opinions tho.se resolutions expressed.

By extending the judicial power to all cases in law and equity, the constitution had never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for Wensic litigation and judicial de¬ cision. There must be parties to come into court, who can be reached by its process, _ and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.

A case in law or equity proper for judicial decision may arise under a treaty, •where the rights of individuals acquired or secured by a treaty are to be asserted or defended in court. As under the fourth or sixth article of the treaty of peace with Great Britain, or under those articles of our late treaties with France, Prus¬ sia, and other nations, which secure to tlie sub¬ jects of those nations their property within the United States ; or, as would be an article which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the United States. But the judicial power cannot extend to political compacts ; as, the establishment of the boundary line between the American and British dominions; the case of the late guarantee in our treaty with France, or the case of the delivery of a murderer under the twenty-seventh article of our present treaty with Britain.

The gentleman from New York has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign government? Permit me, said Mr. Marshall, but not triumphantly, to retort the question — By what authority can any court render such a judgment? What power does a court possess to seize any individual, and determine that he 18] shall be adjudged by a foreign tribunal? Surely our courts possess no such power, yet they must possess it, if this article of the treaty is to be executed by the courts.

Gentlemen have cited and relied on that clause in the constitution which enables Con¬ gress to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, together with the act of Congress declaring the punishment of those offenses, as transferring the whole subject to the courts. But that clause can never be con¬ strued to make to the government a grant of power, which the people making it did not themselves possess. It has already been shown that the people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a government for themselves, they cannot have passed this juris¬ diction to that government. The law, there¬ fore, cannot act upon the case. But this clause of the comstitution cannot lie considered, and need not be considered, as affecting acts which are piracy under the law of nations. As the judicial power of the United States extends to all cases of admiralty and marine jurisdiction, 134

and piracy under the law of nations is of ad¬ miralty and maritime jurisdiction, punishable by every nation, the judicial power of the United States, of course, extends to it. On this principle the courts of admiralty under the con¬ federation took cognizance of piracy, although there was no express power in Congress to de¬ fine and punish the offense.

But the extension of the judicial power of the United States to all cases of admiralty and maritime jurisdiction must necessarily be un¬ derstood with some limitation. All cases of admiralty and maritime jurisdiction which, from their nature, are triable in the United States, are submitted to the jurisdiction of the courts of the United States. There are cases of piracy by the law of nations, and cases with¬ in the legislative jurisdiction of the nation. The people of America possessed no other power over the subject, and could, con.sequent- ly, transfer no other to their courts; and it has already been proved, that a murder committed on board a foreign ship of war is not compre¬ hended within this description.

The consular convention with France has also been relied *on, as proving the act of [*19 delivering-up an individual to a foreign power, to be in its nature judicial, and not executive.

The ninth article of thatc onvention author¬ izes the consuls and vice-consuls of either nation to cause to be arrested all deserters from their vessels, ‘ ‘ for which purpose the said consuls and vice-consuls shall address themselves to the courts, judges, and offleers competent.”

This article of the convention does not, like the twenty-seventh article of the treaty with Britain, stipulate a national act. to be perform¬ ed on the demand of a nation ; it only author¬ izes a foreign minister to cause an act to be done, and prescribes the course he is to pursue. The contract itself is. that the act shall bo performed by the agency of the foreign consul, through the medium of the courts; but this affords' no evidence that a contract of a very different nat¬ ure is to be performed in the same manner.

It is said that the then President of the United States declared the incompetency of the courts, judges, and officers, to execute this contract, without an act of the legislature. But the then President made no such declaration. He has said that some legislative provision is requisite to carry the stipulations of the convention into full effect. This, however, is by no means de¬ claring the incompetency of a department to per¬ form an act stipulated by treaty, until the legis¬ lative authority shall direct its performance.

It has been contended, that the conduct of the executive on former occasions, similar to this in principle, has been such asto evince an opinion, even in that department, that the case in ques¬ tion is proper for the decision of the courts.

The fact adduced to support this argument, is the determination of the late President on the case of prizes made within the jurisdiction of the United States, or by privateers fitted out in their ports.

The nation was bound to deliver up those prizes, in like manner as the nation is now bound to deliver up an individual demanded under the twenty-seventh article of the treaty with Britain. The duty was the same, and de¬ volved on the same department.

*In quoting the decision of the execu- [*20

Wheat. 5.

Appendix.

20

tive on that case, the gentleman from New York has taken occasion to bestow a high enco¬ mium on the late President, and to consider his conduct as furnishing an example worthy the imitation of his successor.

It must be cause of much delight to the real friends of that great man, to those who support¬ ed his administration while in office from a conviction of its wisdom and its virtue, to hear the unqualified praise which is now bestowed on it by those who had been supposed to pos¬ sess different opinions. If the measure now under consideration shall be found, on exami¬ nation, to be the same in principle with that which has been cited by its opponents as a fit precedent for it, then may the friends of the gentleman now in office indulge the hope, that when he, like his predecessor, shall be no more, his conduct, too, may be quoted as an example for the government of his successors.

The evidence relied on to prove the opinion of the then executive on the case, consists of two letters from the Secretary of State — the one of the 29th of June, 1793, to Mr. Genet, and the other of the 16th of August, 1793, to Mr. Mor¬ ris.

In the letter to Mr. Genet, the Secretary says, that the claimant having tiled his libel against the ship William in the Court of Admiralty, there was no power which could take the vessel out of court until it had decided against its own jurisdiction; that having so decided, the com¬ plaint is lodged with the executive, and he asks for evidence to enable that department to con¬ sider and decide finally on the subject.

It will be difficult to find in this letter an ex ecutive opinion, that the case was not a case for executive decision. The contrary is clearly avowed. It is true, that when an individual claiming the property as his, had asserted that claim in court, the executive acknowledges in itself a want of power to dismiss or decide upon the claim thus pending in court. But this ar¬ gues no opinion of a want of power in itself to decide upon the case, if, instead of being cai- ried before a court as an individual claim, it is brought before the executive as a national de¬ mand. A private suit instituted by an individ¬ ual, asserting his claim to property, can only be controlled by that individual. The executive can give no direction concerning it. But a pub- 21] lie prosecution, carried on in the name of the United States, can without impropriety be dismissed at the will of the government. The opinion, therefore, given in this letter is unques¬ tionably correct ; but it is certainly misunder¬ stood, when it is considered as being an opinion that the question was not in its nature a ques¬ tion for executive decision.

In the letter to Mr. Morris, the secretary as¬ serts the principle, that vessels taken within our jurisdiction ought to be restored, but says it is yet unsettled whether the act of restoration is to be performed by the executive or judicial department.

The principle, then, according to this letter, is not submitted to the courts — whether a vessel captured within a given distance of the Ameri¬ can coast was or was not captui-ed within the jurisdiction of the United States, was a question not to be determined by the courts, but by the executive. The doubt expressed is, not what tribunal shall settle the principle, but what tri- Wheat. 5.

bunal shall settle the fact. In this respect a doubt might exist in the case of prizes, which could not exist in the case of a man. Individu¬ als on each side claimed the property, and there¬ fore their rights could be brought into court, and there contested as a case in law or equity. The demand of a man made by a nation stands on different principles.

Having noticed the particular letters cited by the gentleman from New York, permit me now, said Mr. Marshall, to ask the attention of the house to the whole course of executive conduct on this interesting subject.

It is first mentioned, in a letter from the Sec¬ retary of State to Mr. Genet, of the 26th of June, 1793. In that letter’, the secretary states a consultation between himself and the secreta¬ ries of the treasury and war (the President being absent), in which (so well were they assured of the President’s way of thinking in those cases) it was determined, that the vessels should be de¬ tained in the custody of the consuls in the ports, “ until the government of the United States “ shall be able to inquire into, and decide on the “ fact.”

In his letter of the 12th of July, 1793,- the secretary writes, the President has determined to refer the questions concerning prizes “to per¬ sons learned in the laws.” And he requests that ^certain vessels enumerated in the [*22 letter should not depart ‘ ‘ until his ultimate de- “ termination shall be made known.”

In his letter of the 7th of August, 1793, the secretary informs Mr. Genet, that the President considers the United States as bound “to effec- ‘ ‘ tuate the restoration of, or to make compen- ‘ ‘ sation for, prizes which shall have been made “ of any of the parties at war with France, “ subsequent to the 5tli day of June last, by “ privateers fitted out of our ports.” That it is consequently expected that Mr. Genet will cause restitution of such prizes to be made. And that the United States “ will cause restitution ” to be made “ of all such prizes as shall be hereafter ‘ ‘ brought within their ports by any of the said “ privateers.”

In his letter of the 10th of November, 1793, the secretary informs Mr. Genet, that, for the pur¬ pose of obtaining testimony to ascertain the fact of capture within the jurisdiction of the United States, the governors of the several states were requested, on receiving any such alaim, imme¬ diately to notify thereof the attorneys of their several districts, whose duty it would be to give notice ‘ ‘ to the principal agent of both parties, “ and also to the consuls of the nations interest- “ ed, and to recommend to them to appoint by “ mutual consent arbiters to decide whether the “ capture was made within the jurisdiction of “ the United States, as stated in my letter of “ the 8th instant, according to whose award the ‘ ‘ governor may proceed to deliver the vessel “ to the one or the other party,” “If either “ party refuse to name arbiters, then the attor- “ ney is to take depositions on notice, which he “ is to transmit for the information and decision ‘ ‘ of the President. ” ‘ ‘ This prompt procedure “ is the more to be insisted on, as it will enable “ the President, by an immediate delivery of “ the vessel and cargo to the party having title, “ to prevent the injuries consequent on long “ delay.”

In his letter of the 22d of November, 1793,

135

22

Appendix.

the secretary repeats, in substance, bis letter of the 12th of July and 7tb of August, and says, that the determination to deliver up certain vessels, involved the brig Jane, of Dublin, the brig Lovely Lass, and the brig Prince William Henry. He concludes with saying; “ I have it ‘ ‘ in charge to inquire of you, sir, whether these “three brigs have been given up according to 23] “the determination of the President, “ and if they have not, to repeat the requisition “ that they may be given up to their former “owners.”

Ultimately it was settled that the fact should be investigated in the courts, but the decision was regulated by the principles established by the executive department.

The decision, then, on the case of vessels captured within the American jurisdiction, by privateers fitted out of the American ports, which the gentleman from New York has cited with such merited approbation; and which he has declared to stand on the same principles with those which ought to have governed in the case of Thomas Nash; which deserves the more respect, because the government of the United States was then so circumstanced as to assure us, that no opinion was lightly taken up, and no resolution formed but on mature con¬ sideration. This decision, quoted as a prece¬ dent, and pronounced to be right, is found, on fair and full examination, to be precisely and unequivocally the same with that which Was made in the case under consideration. It is a full authority to show, that, in the opinion al¬ ways held by the American government, a case like tliat of Thomas Nash is a case for execu¬ tive, and not judicial decision.

The clause in the constitution, which de¬ clares, that “the trial of all crimes, except in “ cases of impeachment, shall be by jury,” has also been relied on as operating on the case, and transferring the decision on a demand for the delivery of an individual from the execu¬ tive to the judicial department.

But certainly this clause in the constitution of the United States cannot be thought obliga¬ tory on, and for the benefit of, the whole world. It is not designed to secure the rights of the people of Europe and Asia, or to direct and control proceedings against criminals through¬ out the universe. It can then be designed only to guide the proceedings of our own courts, and to prescribe the mode of punishing of¬ fenses committed against the government of the United States, and to which the jurisdiction of the nation may rightfully extend.

It has already been shown, that the courts of the United States were incapable of trying the crime for which Thomas Nash was delivered up to jmstice; the question to be determined was, not how his crime should be tried and 24] punished, but whether he should be de¬ livered up to a foreign tribunal which was alone capable of trying and punishing him. A provision for the trial of crimes in the courts of the United States, is clearly not a provision for the performance of a national compact for the surrender to a foreign government of an of¬ fender against that government.

The clause of the constitution declaring that the trial of all crimes shall be by jury, has never even been construed to extend to the trial of crimes committed in the land and naval 136

forces of the United States. Had such a con- .struction prevailed, it would most probably have prostrated the constitution itself, with the liberties and the independence of the nation,, before the first disciplined invader who should approach our shores. Necessity would have imperiously demanded the review and amend¬ ment of so unwise a provision. If, then, this clause does not extend to offenses committed in the fleets and armies of the United States, how can it be construed to extend to offenses com¬ mitted in the fleets and armies of Britain or of France, or of the Ottoman or Russiau empires?

The same argument applies to the observa¬ tions on the seventh article of the amendments- to the constitution. That article relates only to trials in the courts of the United States, and. not to the performance of a contract for the delivery of a murder not triable in those courts.

In this part of the argument, the gentleman from New York has presented a dilemma of a very wonderful structure indeed. He says that the offense of Thomas Nash was either a crime or not a crime. If it was a crime, the consti¬ tutional mode of punishment ought to have been observed. If it was not a crime, he ought not have been delivered up to a foreign gov¬ ernment, where his punishment was inevitable.

It had escaped the observation of that, gentle¬ man, that if the murder committed by Thomas Nash was a crime, yet it was not a crime pi'o- vided for by the constitution, or triable in the courts of the United States; and that if it was not a crime, yet it is the precise case in which his surrender -was stipulated by treaty. Of this extraordinary dilemma, then, the gentleman from New York is, himself, perfectly at liberty to retain either form.

*The gentleman is incorrect in every part [*25 of his statement. Murder on board a British frigate is not a crime created by treaty. It would have been a crime of precisely the same magnitude, had the treaty never been formed. It is not punished by sending the offender out of the United States. The experience of this unfortunate criminal, who was hung and gib¬ beted, evinced to him that the punishment of his crime was of a much more serious nature than mere banishment from the United States.

The gentleman from Pennsylvania and the gentleman from Virginia have both contended, that this was a case proper for the decision of the courts, because points of law occurred, and points of law must have been decided in its de¬ termination.

The points of law which must have been de¬ cided are stated by the gentleman from Penn¬ sylvania to be, first, a question whether the offense was committed within the British juris¬ diction; and, secondly, whether the crime charged was comprehended within the treaty.

It is true, sir, these points of law must have occurred, and must have been decided ; but it by no means follows, that they could only have been decided in court. A variety of legal ques¬ tions must present themselves in the perform¬ ance of every part of executive duty, but these questions are not therefore to be decided in court. Whether a patent for land shall issue or not is always a question of law, but not a question which must necessarily be carried into court. The gentleman from Pennsylvania

Wheat. 5

Appendix.

26

seems to have permitted himself to have been misled by the misrepresentation of the consti¬ tution made in the resolutions of the gentleman from New York; and, in consequence of being so misled, his observations have the appear¬ ance of endeavoring to tit tlie constitution to his arguments, instead of adapting his argu¬ ments to the constitution.

When the gentleman has proved that these are questions of law, and that they must have been decided by the President, he has not ad¬ vanced a single step toward proving that they were improper for executive decision. The questions whether vessels captured within three miles of the American coast, or by privateers 26] titted out in the American ports, were legally captured or not, and whether the American government was bound to restore them, if in its power, were questions of law, but they wqre questions of political' law, proper to be decided, and they were decided by the executive, and not by the courts.

The casus foederis of the guaranty was a ques¬ tion of law, but no man would have hazarded the opinion that such a question must be car¬ ried into court, and can only be there decided. So the casus fvderis under the twenty-seventh article of the treaty with Britain is a question of law, but of political law. The question to be decided is, whether the particular case pro¬ posed be one in which the nation has bound itself to act, and this is a question depending on principles never submitted to courts.

If a murder should be committed within the United States, and the murderer should seek an asylum in Britain, the question whether the casus foederis of the twenty-seventh article had occurred, so that his delivery ought to be de¬ manded, would be a question of law, but no man would say it was a question which ought to be decided in the courts.

When, therefore, the gentleman from Penn¬ sylvania has established, that in delivering up Thomas Nash, points of law were decided by the President he has established a position which in no degree whatever aids his argument.

The case was in its nature a national demand made upon the nation. The parties were the two nations. They cannot come into court to litigate "their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance.

The President is the sole organ of the nation in its external relations, and its sole representa¬ tive with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.

He possesses the whole executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.

He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he, and he alone, possesses the means of executing it.

27] The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully execut¬ ed. The means by which it is to be performed — Wheat. 5.

the force of the nation — are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress unquestionably may prescribe the mode; and Congress may devolve on others the whole ex¬ ecution of the contract; but till this be done, it seems the duty of the executive department to execute the contract by any means it possesses.

The gentleman from Pennsylvania contends that, although this should be properly an ex¬ ecutive duty, yet it cannot be performed until Congress shall direct the mode of performance. He says, that although the jurisdiction of the courts is extended by the constitution to all cases of admiralty and maritime jurisdiction, yet if the courts had been created without any express assignment of jurisdiction, they could not have taken cognizance of causes expressly allotted to them by the constitution. The ex¬ ecutive, he says, can, no more than courts, sup¬ ply a legislative omission.

It is not admitted that in the case stated, courts could not have taken jurisdiction. The contrary is believed to be the correct opinion. And although the executive cannot supply a total legislative omission, yet it is not admitted or believed that there is such a total omission in this case.

The treaty, stipulating that a murderer shall be delivered up to justice, is as obligatory as an act of Congress making the same declara¬ tion. If, then, there was an act of Congress in the words of the treaty, declaring that a person who had committed murder within the juris¬ diction of Britain, and sought an asylum with¬ in the territory of the United States, should be delivered up by the United States, on the de¬ mand of His Britannic Majesty, and such evi¬ dence of his criminality as would have justi¬ fied his commitment for trial, had the offense been here committed; could the Prisident, who is bound to execute the laws, have ju.stified a ■^refusal to deliver up the criminal, by [*26 saying that the legislature had totally omitted to provide for the case.

The executive is not only the constitutional department, but seems to be the proper depart¬ ment to which the power in question may most wisely and most safely be confided.

The department which is entrusted with the whole foreign intercourse of the nation, with the negotiation of all its treaties, with the power of demanding a reciprocal performance of the article, which is accountable to the na¬ tion for the violation of its engagments with foreign nations, and for the consequences re¬ sulting from such violation, seems the proper department to be entrusted with the execution of a national contract like that under consider¬ ation.

If at anj' time policy may temper the strict execution of the contract, where may that political discretion be placed so safely as in the department whose duty it is to understand pre¬ cisely the state of the political intercourse and connection between the United States and for¬ eign nations, to understand the manner in which the particular stipulation is explained and performed by foreign nations, and to un¬ derstand completely the state of the Union?

This department, too, independent of judicial aid, which may, perhaps, in some instances be

137

28

Apfkndix.

called in, is furnished with a great law-officer, whose duty it is to understand and to advise when the casus fcederis occurs. And if the President should cause to he arrested under the treaty an individual who was so circumstanced as not to be properly the object of such an arrest, he may perhaps bring the question of the legality of his arrest before a judge by a writ of habeas corpus.

It is then demonstrated, that according to the practice, and according to the principles of the American government, the question whether the nation has or has not bound itself to deliver up any individual, charged with having com¬ mitted murder or forgery within the jurisdic¬ tion of Britain, is a question, the power to de¬ cide which rests alone with the executive de¬ partment.

It remains to inquire, whether in exercising this power, and in performing the duty it en- 29] joins, the President has committed an unauthorized and dangerous interference with judicial decisions.

That Thomas Nash was committed original¬ ly at the instance of the British consul at Charleston, not for trial in the American courts, but for the purpose of being delivered up to justice in conformity with the treaty between the two nations, has been already so ably argued by the gentleman from Delaware, that nothing further can be added to that point. He would, therefore, Mr. Marshall said, con¬ sider the case as if Nash, instead of having been committed for the purposes of the treaty, had been committed for trial. Admitting even this to have been the fact, the conclusions which have been drawn from it were by no means wan’anted.

Gentlemen had considered it as an offense against judicial authority, and a violation of judicial rights, to withdraw from their sentence a criminal against whom a prosecution had been commenced. They had treated the sub¬ ject as if it was the privilege of courts to con- •demn to death the guilty wretch arraigned at their bar, and that to intercept the judgment was to violate the privilege. Nothing can be more incorrect than this view of the case. It is not the privilege, it is the sad duty of courts to administer criminal judgment. It is a duty to be performed at the demand of the nation, and with which the nation has a right to dis¬ pense. If judgment of death is to be pro¬ nounced, it must be at the prosecution of the ■nation, and the nation may at will stop that prosecution. In this respect the President ex¬ presses constitutionally the will of the nation, and may rightfullj', as was done in the case at Trenton, enter a 'nolle prosequi, or direct that the criminal be prosecuted no further. This is no interference with judicial decisions, nor any invasion of the province of a court. It is the exercise of an indubitable and a constitu¬ tional power. Had the President directed the judge at Charleston to decide for or against his own jurisdiction, to condemn or acquit the prisoner, this would have been a dangerous interference with judicial decisions, and ought to have been resisted. But no such direction has been given, nor any such decision been required. If the President determined that Thomas Nash ought to have heen delivered up 138

to the British government *for a murder [*30 committed on board a British frigate, provided evidence of the fact was adduced, it was a question which duty obliged him to determine, and which he determined rightly. If in con¬ sequence of this determination he arrested the proceedings of a couit on a national prosecu¬ tion, he had a fight to arrest and to stop them, and the exercise of this right was a necessary consequence of the determination of the prin¬ cipal question. In conforming to this decision, the court has left open the question of its juris¬ diction. Should another prosecution of the same sort be commenced, which should not be suspended but continued by the executive, the case of Thomas Na.sh would not bind as a pre¬ cedent against the jurisdiction of the court. If it should even prove that in the opinion of the executive, a murder committed on board a for¬ eign fleet was not within the jurisdiction of the court, it would prove nothing more ; and though this opinion might rightfully induce the ex¬ ecutive to exercise its power over the prosecu¬ tion, yet if the prosecution was continued, it would have no influence with the court in de¬ ciding on its jurisdiction.

Taking the fact, then, even to be as the gentle¬ man in support of the resolutions would state it, the fact cannot avail them.

It is to be remembered, too, that in the case stated to the President, the judge himself ap¬ pears to have considered it as proper for ex¬ ecutive decision, and to have wished that decis¬ ion. The President and judge seem to have entertained on this subject the same opinion; and in consequence of the opinion of the judge, the application was made to the President.

It has then been demonstrated:

1st. The case of Thomas Nash, as stated to the President, was completely within the twenty-seventh article of the treaty between the United States of America and Great Britain.

2d. That this question was proper for execu¬ tive and not for judicial decision; and,

3d. That in deciding it, the President is not chargeable with an interference with judicial decisions.

After trespassing so long, Mr. Marshall said, on the patience of the house, in arguing what had appeared to him to be the materiar [*3 1 points growing out of the resolutions, he re¬ gretted the necessity of detaining them still longer for the purpose of noticing an observa¬ tion, which appeared not to be considered by the gentleman who made it as belonging to the argument.

The subject introduced by this observation, however, was so calculated to interest the pub¬ lic feelings, that he must be excused for stating his opinion on it.

The gentleman from Pennsylvania had said, that an impressed American seaman, who should commit homicide for the purpose of liberating himself from the vessel in which he was confined, ought not to be given up as a murderer. In this, Mr. Mfirsbal! said, he con¬ curred entirely with that gentleman, fie be¬ lieved the opinion to be unquestionably correct, as were the reasons that gentleman had given in support of it. He had never heard any American avow a contrary sentiment, nor did he believe a contrary sentiment could find a

Wheat. 5.

Appendix.

31

place in the bosom of any American. He could not pretend, and did not pretend, to know the opinion of the executive on the subject, because he had never heard the opinions of that depart¬ ment ; hut he felt the most perfect conviction, founded on the general conduct of the govern¬ ment, that it could never surrender an impress¬ ed American to the nation, which, in making the impressment, had committed a national injury.

This belief was in no degree shaken by the conduct of the executive in this paiticular case.

In his own mind, it was a sufficient defense of the President from an imputation of this kind, that the fact of Thomas Nash being an impressed American was obviously not contem¬ plated by him in the decision he made on the principles of the case. Consequently, if a new circumstance occurred, which would essentially change the case decided by the President, the judge ought not to have acted under that decis¬ ion, but the new circumstance ought to have been stated. Satisfactory as this defense might appear, he should nqf resort to it, because to some it might seem a subterfuge. He defended the conduct of the President on other and still stronger ground.

The President had decided that a murder committed on board a British frigate on the high seas was within the jurisdiction of that 32] nation, and consequently within the twenty-seventh article of its treaty with the United States. He therefore directed Thomas

Nash to be delivered to the British minister, if satisfactory evidence of the murder should be adduced. The sufficiency of the evidence was submitted entirely to the judge. If Thomas Nash had committed a murder, the decision was, that he should be surrendered to the Brit¬ ish minister; but if he had not committed a murder, he was not to be surrendered.

Had Thomas Nash been an impressed Amer¬ ican, the homicide on board the Hermoiue would, most certainly, not have been a murder.

The act of impressing an American is an act of lawless violence. The continement on board a vessel is a continuation of that violence, and an additional outrage. Death committed with¬ in the United States, in resisting such violence, would not have been murder, and the person giving the wound could not have been treated as a murderer. Thomas Nash was only to have been delivered up to justice on such evidence as, had the fact been committed within the United States, would have been sufficient to have induced his commitment and trial for murder. Of consequence, the decision of the President was so expressed as to exclude the case of an impressed American liberating himself by hom¬ icide.

He concluded with observing, that he had already too long availed himself of the indul¬ gence of the house to venture further on that indulgence, by recapitulating, or reinforcing, the arguments which had already been urged.

[NOTE II.]

ON THE LAWS OF LOUISIANA.

In a note to a former volume of these reports (Vol. III., p. 202, note 1), the editor attempted to give a slight sketch of the sources from which the local laws of Louisiana have been derived. 33] From that statement, the learned reader will perceive, that they mainly spring from the Spanish law, with the following valuable his¬ tory of which, the editor has been favored by Mr. Alexander Porter, Jun., of Attakapas, in the state of Louisiana, by whom it was trans¬ lated and compiled from the original Spanish writers. The editor has taken the liberty of subjoining a few explanatory remarks to those made by Mr. Porter, and intended to illustrate the facts stated in the history.

Histm'y of ifis Spanish Law.

The laws of Spain, in common with all the

kingdoms of modern Europe, seem to have suffered a variety of changes, in the revolutions that took place at different times in her govern¬ ment, and in the gradual advances that the na¬ tion made from barbarism and poverty, to the comparative wealth and civilization, which distinguish her present condition. Spain, while a part of the Roman Empire, was governed, like all the other provinces, by the laws of Rome; and those principles of jurisprudence which now preserve their influence there, from the superiority of their wisdom, and the respect which is due to the immutable dictates of jus¬ tice and truth on which they are founded, once had force and authority, from being promul¬ gated and acted on by the ruling power of the state. ‘

On the conquest of Spain by the Goths, it

great fortune and fame of the Roman people. “ Comme si lesgrandes destines de Rome n’etoient pas encore accomplies : Elle r^gne dans^ toute la terre par sa raison, apr^s avoir cesse d’y regner par son autorite. On diroit en effet que la justice n’ait <i6voile pleinement ses myst^res qu’aux Juriscon- sultes Remains. Legislateurs encore plus que Ju- risconsultes, de simples particuliers dans rohscurite d’une vie nrivee ont merit6 par la superiorite de ieurs lumieres de donner des lolx d toute la poste-

Wheat. 5.

rite. Lois aussi entendues que durables toutes les nations les interrogent encore d prfesentytchacune en rejoit des reponses d’une elernelle verite. (Vest peu pour eux d’avoir interprete la loi de ^douze tables et I'edlt du Preteui', its sent les plus surs In- terpretes de nos lois memos ; ils pretent, pour ainsi dire, leur esprit d nos usages, leur raison a nos cou- tumes, et par les principes qu’ils nous donnent, ils nous servent de guides lors meme que nous mar- chous dans une route qui leur 6toit inconnue.” (Ruvres de d’Aguesseau, tome 1, p. 157, ed. 178’5'.

139

33

Appendix.

may be readily supposed, that a barbarous peo- j)le, such as we know them to have been, were badly calculated to relish or adopt laws befitting 34] the condition of a rich and polished peo¬ ple. Hence we find on the establishment of these invaders in that country, the Imperial or Roman jurisprudence fell immediately into dis¬ use; and for a considerable period after the conquest, the usages and customs of the Goths were the only rule of action. A settled resi¬ dence, however,in the country, producing a state of society widely different from the migrating and ever changing condition to which they had formerly been accustomed, created the necessi¬ ty of something better calculated to meet the wants of their new situation ; and laws and de¬ crees of various kinds began to be passed at their national councils. At these meetings the clergy assisted ; and it may readily be conceived, from their education and ability, that they were the sole persons in those ages capable of putting them in a shape by which they could be transmitted to posterity.

From these decisions of their national coun¬ cils, and from various edicts of the Gothic kings, a work was promulgated in the 693d year of the Christian era, which bears the name of “Fuero .Juzgo.”' This first code of the nation was divided into twelve books, and subdivided into various titles. The first books treated of the elections of kings, ^ and of legis- 35] lators, and the mode of passing laws.® The second, of judges, civil judgments, and the manner of prosecuting actions. The third, of marriages, successions, &c. The fourth and fifth, of the alienation of property belonging to the church, donations, contracts. The three following books are occupied with criminal law; the form of accusations, and the penalties attached to various crimes. The ninth con¬ tains the rules respecting fugitive slaves, de¬ serters, &c. The tenth treats of partitions of lands, prescriptions. The eleventh, of the

violation of sepulchres, of the sick, of physi¬ cians, of merchants. In the twelfth and last, of equity, of heretics, and of injuries.

This code, say the Siianish w'riters, though excellent in many of its parts, was better cal¬ culated for an elective monarchy than for that which now exists in Spain ; and more conform¬ able to the necessities of a warlike people, among whom, arts, agriculture, and commerce, had made little progress, than to a nation which (according to them) has made such eminent progress in them all.

*This code, however defective it may_[*3^ have been, formed the political constitution of the kingdom, until the invasion of the Moors in the year 714 nearly annihilated the Spanish Monarchy. The Goths who saved themselves from the storm were obliged to retire to the mountains of Asturias. Cooped up in this narrow part of the kingdom, and engaged in continual wars waged with their invaders to preserve their existencsf or extend their do¬ minions, it is not to be presumed that the im¬ provement of their laws could occupy much of their attention, or any great progress be made in a science which owes a great part of its per¬ fection in every country to the quiet and bless¬ ings of peace. Accordingly, we find that dur¬ ing the time the monarchy remained in that situation, their government and their laws par¬ took in a great measure of that feudal system which about this period began to obtain so much force in all the countries of Europe, act¬ ing in some with more, and in others with less vigor, according as the circumstances of the particular country were in a greater or less de¬ gree favorable to its progress. The king, it appears, dm-ing this period, on making con¬ quests from the Moors, distributed the lands among the nobles who assisted him in person and with their vassnis during the wars. To the large cities and towns, various privileges were extended from time to time, as they w^ere

1.— This is among the earliest, though not the first code, published by those nations who, alter de¬ stroying the Roman Empire, settled themselves In the south of Europe. The most ancient is the Salic law, thought to derive its appellation from the Sallans, who inhabited the country from the Leser to the Carbonian wood, on the confines of Brabant and Hainault. It was written in the Latin language, about the beginning of the fifth century, by Wisogastus, Bordogastus, Sologastus, and Widowgastus, chiefs of the nation. The Burgun¬ dian and Rlpuarian codes are nearly of as great antiquity. That of the Lombards, the m ost famous of all the systems of laws published by those bar¬ barians, was written in Teutonic Latin, in the 6t3d year of the Christian era, about half a century be¬ fore the “ Fuero Juzgo.” This first effort of Spain in jurisprudence is totally overlooked, or rather seems to have been unknown to Butler, the learned author of the Horm Juridicce. Gibbon observes of this code, that it had been treated by the President Montesquieu (Kuprit des Loit, 1. 28, c. 1) with ex¬ cessive severity. But he (Gibbon) says of it: “I dislike the style; I detest the superstition ; but I shall presume to think, that the civil jurisprudence displays a more civilized and enlightened state of society than that of the Burgundians, or even of the Lombards.” Gibbon’s Decline and Fall of the Roman Empire, Vol. VI., c. 38, note 125.

2.— In Castile, the people, or rather the nobility, as¬ serted the right of trying and deposing their kings ; in Castile and Arragon, the kings were long elective: and in all the Gothic monarchies of Spain, the power of the crown was extremely limited. Robertson, Hist, of Charles V., Vol. I., sec. 3, notes 31, 32, 33.

140

archy was long vested jointly in the King and the Cortes, the latter consisting of the nobillt.y, the dignified clergy, and the deputies or prociwadores of the cities and towns. Even after the Cortes ceased to be regularly assembled, and the govern¬ ment assumed the form of an absolute monarch.y, it continued to be the usage to convene the Cortes in the life-time of the reigning king, in order that they might take an oath of fidelity to his eldest son as heir-apparent of the crown. This ceremony was performed during the reigm of the late King, Charles IV., in 1788, when the Cortes were as¬ sembled for the sole purpose of swearing fidelity to his son, Ferdinand VII., the present monarch. Under the ancient constitution, no duties or taxes could be exacted from the cities and towns except what were freely granted in Cortes by the deputies of these communities. The law establishing this privilege was enacted in 1328, not many .vears after the celebrated English statute de taUaylo non oimcedendo, securing the same right to the English people. “ It is a curious fact, that this law, though violated in practice, was still retained in the Span¬ ish Recopilacion till the reign of Charles IV., when it was expunged in the Insolence of despotism,, within a few years of that revolution which pre¬ cipitated the degraded monarch from his throne, and restored to his people, not that only, but all the ancient rights of their fathers.” The constitu¬ tion which was established in consequence of this revolution, was abolished by Ferdinand VII. on his return to Spain in 1814 ; but has again been re¬ stored by another revolution, the accounts of which have just reached us ; and which, it is to be hoped, may establish the liberties of the Spanish people on a permanent basis.

Wheat. 5.

Appbitoix.

36

conquered and annexed to the Spanish Mon¬ archy. ’

This change of situation in the condition of the people, the increase of power given to the nobles hy the division of conquered lands, and the privileges extended to the cities, created a necessity for new regulations.. Accordingly, in the year 992, a code was published entitled Pmro Viejo. This work was divided into five books, each comprehending various titles. The first contained the laws by which the extent of the relative duties flowing from the king to the people, and from the people to the king, were ascertained; the obligation of vassals to their lords, and the extent of protection which the latter owed to the former; rules for the 37*J government of judicial ^combats; the prohibition of the use of armed force by in¬ dividuals ; of vassals attached to the soil ; of the inhabitants of free towns and their laws ; and concludes with a title of the penalties inflicted on the powerful {Los Poderosos) who vexed or oppressed their vassals in towns by unjustly seizing their provisions from them. In the second book, were included the penal laws against various classes of crimes. In the third, titles directing the formalities which parties should observe who present their plaints in justice ; of the various kinds of proofs and sentences ; and this book concludes with titles which treat of debts and suretyship. In the fourth are given the laws which govern con¬ tracts; the manner of acquiring the dominion of things; of public works, and the construc¬ tion of mills. In the fifth and last are found dispositions relative to the portion settled by the husband on his wife {"'Lees Arras”), in¬ heritances, partition of lands which were given to rent ; and it concludes with the titles apper¬ taining to tutors, disinheritances, legitimate and illegitimate children, with an appendix to the whole.

In this work, say the modern Spanish writers, were found the same defects as in the “ Puero Juzgo.” There is the same want of good and wholesome regulations for the pro¬ tection of agriculture, arts and commerce ; and the various titles which speak of judicial com¬ bats, the use of armed force by private indi¬ viduals, with various regulations of a similar nature, plainly show, that the king at this period had not sufficient power to curb the haughty and licentious nobles, and restrain their actions within limits compatible with pri¬ vate security and public order.

A knowledge, however, of this code is even now considered as highly necessary in that country to those who aspire to the exalted ranks of their profession ; it being regarded as eminently useful to the perfect understanding of many modern laws which treat of vassalage — the dominion of things considered as ap¬ pendages to landed estate — the prerogatives of nobles, grandees, &c.

However justly this code of laws, as well as that of the " Fuero Juzgo,” may be entitled to

note 34. Municipal corporations are of greater an¬ tiquity in Spain than in any other European coun¬ try, except Italy. It was the prerogative of the crown to erect them ; but the right was often delegated to the clergy and nobility. Their im¬ munities were very extensive.

Wheat. 6.

the censure of the Spanish writers of the present day, and although provisions compat¬ ible with such a state of society as then existed would be found ^totally inconsistent [*38 with the well being of any of the kingdoms of modern Europe, yet it may be questioned if any other of the nations at present existing in that portion of the globe can boast of codes of equal antiquity and value; and from the date of the promulgaiion of them it would appear that while England and the other nations of Europe were yet in the darkest stages of con¬ fusion and ignorance, Spain, by reducing her laws to a permanent form, was making no in¬ considerable progress toward civilization.

Between the date of the promulgation of the Fuero Viejo in the year 992 and the year 1255, at which period was promulgated the “ Fuero Real,” two circumstances occurred which occa¬ sioned a material change, not only in the laws of Spain, but indeed of all the nations of Eu¬ rope. The one was the discovery at Amalfi of the Code and Pandects of Justinian, a work which astonished Europe, just emerging from barbarism, and which, as it contained the col¬ lected wisdom of the Roman jurists, became at once an object of study and admiration to all men whose education placed it within their reach. The other was the collection of the de¬ cretals of the church, privately executed by a monk called Gratian, in the year 1151, and sub¬ sequently enlarged and improved by a compila¬ tion of authorities made in the year 1236, in virtue of an order to that effect made by Pope Gregory IX.

During the period of time that intervened be¬ tween the discovery of the Pandects in 1137, and the publication of the ‘ ‘ Fuero Real ” in 1255, it is rather difficult tp ascertain what au¬ thority the former code obtained in Spain. The modern Spanish writers state (perhaps from a laudable feeling of national pride), that the Roman jurisprudence has never been consider¬ ed as the law of the land on the peninsula; and it is not at this time binding as an authority. However true this may be when applied to the present state of jurisprudence in that country, matured and improved as it has been, by the experience of a long succession of ages; and enriched as it must be by the incorporation of all that is most valuable in the Roman law ; yet it may be fairly questioned if it had not during the interval we speak of nearly superseded the use of the old Spanish *codes. This con- [*39 clu.sion may be safely drawn, first, from its acknowledged superiority over the ill digested and barbarous laws of Spain, and indsed of every other nation then existing; a superiority so striking as to be recognized even by the rud¬ est and most uncivilized people to whom it was known. Second, from the influence of the clergy in that age ; their well-known attach¬ ment to this system of laws; the zeal with which they labored for its introduction in every country of Europe, and their almost invariable success.^ Lastly, from the very laws of the

2.— These observations on the authority which the Roman law had in Spain, are not translated from the Spanish writers, hut are my own ideas on the subject, introduced in the text, instead of a note, as better keeping- up a connected view of the whole subject. The conclusions which I have drawn as to the influence of the civil law, are quite

141

39

Appendix,

Spanish kings themselves, the codes published by their directions, viz., the " Fnero Real" in the year 1255, and the Partidas” in 1260. Nearly all that is excellent in each of these compilations, seems to have been borrowed from the Roman law, and hence the presump¬ tion strongly arises, that the sovereigns of that country, finding the use of the latter becoming general, it was thought more politic to sanction it by the authority of the state ; accomplishing at once two useful objects by this measure — soothing national pride, and rejecting all those laws which were inconsistent with the then state of society in Spain.

Of the collection of Decretals (or decrees of the pope before mentioned), viz., those made by the monk Gratian in his private capacity, and tho.se made by Rayamundo De Penafort in pur¬ suance of an order of Pope Gregory IX., the latter only are received as authority in Spain.

In the work executed by De Penafort, the method of the Roman Pandects is very closely pursued. It is divided into five books, each of which are again subdivided into various ti¬ tles. In the first, after various preliminaries 40] connected with a canonical col- lection, it treats of the dignities of persons, of Ecclesiastical judgments; which latter form also the subject-matter of the second book. In the third, after treating again of the persons of Ecclesiastics and their beneficies and preben¬ daries, some titles are subjoined upon the rules applicable to the construction of various con¬ tracts — how those ought to be interpreted which have for their object church property, or which appertain to its jurisdiction by reason of the personal privilege of the party defend¬ ant. The remainder of this book is occupied with the immunity of churches, of the regular clergy, and other matters of this nature. The fourth book is entirely occupied with the laws of the church respecting marriage, its antece¬ dents, and consequences. And the fifth and last treats of criminal jurisprudence, and of the pen¬ alties affixed to Ecclesiastical crimes, such as simony and other offenses committed by per¬ sons belonging to the church. It also contains provisions respecting church censures, and con¬ cludes, in imitation of the Pandects, with the titles, the signification of words, and maxims of law. (lUglas del Derecho.) As the sixth, and other later collections, pursue the same method with that above mentioned, a particular account of them is deemed unnecessai'y.

In this state of the civil, criminal and canon¬ ical jurisprudence of Spain, the Holy King Fer¬ dinand the III., about the middle of the 13th century, gave much more force, extension and solidity to the Spanish Monarchy than it pos¬ sessed in former periods; as well by the glorious conquest of the kingdoms of Cordova and Se¬ ville, as by the prudence and sagacity with which he governed the countries he inherited and subdued. This prince, and his son Alonzo (surnamed the Wise), feeling that the multitude of particular jurisdictions, and the exorbitant privileges conceded to the nobility and gentry,

in opposition to the declarations of many Spani.sh authors ; but the.v appear to me, for the reasons above stated, fair and natural. The immense influ¬ ence of the clergy, in Europe, during the middle ages, is well known. They had at one time nearly

142

divided and weakened the kingdom, determined, for the purpose of avoiding its entire desolation, to form a general body of laws, or code, which by its operation might unite all classes of soci¬ ety, and at the same time preserve a regular graduation of rank — prevent or destroy the dangerous and horrible effects of feudal anar¬ chy — confine the powerful nobles wdthin the limits due to the prince — terminate the factions- and discords between the families *of the [*4 1 great and their respective vassals — and finally establish good order by a judicious and correct administration of justice.

The death of Ferdinand III., which took place a short period after the conquest of Seville in 1252, prevented him from carrying into effect his salutary and necessary projects. His .son, however (Alonzo the Wise), who inherited his kingdoms, and as it appears, all his father’s views on this subject, carried his predecessor’s intentions into complete operation by the for¬ mation of two codes, the first called the “Puero- Real” and the second the Pariidas; the former was executed in the year 1255, and was designed as a precursor to the great work of the Par- tidas. ,

The ‘ ‘ Fuero Real ” is divided into four books, each composed of different titles. The first commences with the laws which direct the observance of the Chri.stian faith — -the preser¬ vation of the king and his children — presenting all the obligations of a Christian and a subject as forming the basis of sound morals and cor¬ rect conduct in private life. Afterwards follow the titles respecting the alienation of church property; and it concludes with those respect¬ ing public officers; V. G. alcades, lawyers, notaries public, &c., &c.

The second book is altogether taken up with rules respecting judicial proceedings — of the competent tribunals — of the commencement of suits — the “Litis Contestation or joining is¬ sue — the modes of proof, and exceptions there¬ to ; and concludes with the mode of regulating final judgments. The third book is princi¬ pally occupied with the regulations respect¬ ing matrimony, jointures {“Las Arras”), ac¬ quests and gains, and the division of lands which are rented out (se dan a Plazos); after¬ wards of legacies, and estates in trust, inherit¬ ances, tutorships, and other points incident to these matters. From the tenth to the twentieth and last title of this book, ai-e to be found the laws concerning various classes of contracts. The fourth and last book treats principally of Apostles, Jews, Saracens and their slaves.

These regulations are followed by an enumer¬ ation of various penalties affixed to different crimes; and it concludes with the law respect¬ ing adoptions, emancipations, pilgrims, and ships.

*Fi’om this analysis it will be seen, that [*43 the “ Fu.ero Real” is, a code enacted for the correct administration of civil and criminal jurisprudence among the different classes of the people, and the various provinces of the king¬ dom. In a word, it may be compared, as to its nature and object, to the institutes of Justi-

succeeded in supplanting the common law in Eng¬ land, and contributed essentially to the establish¬ ment of the civil law all over the continent, either as the only municipal code, or as supplementary to it in ali cases where it was silent or defective.

Wheat. 5.

Appendix.

42

nian, the primary object of which is the rights of persons and ihinga {“ Dericho particular'’), in which point of view its excellence has been long admired. But as the public law makes no part of its object, it has not touched on it; or, if mentioned at all, merely as incident to, or connected with, the subjects of which the said code professedly treats.

The Partidan, which was concluded and published by the direction, and under the auspices, of Don Alonzo the Wise, in 1260, is a complete body of law {El citerpo completo) which combines the public with the private law, all digested and prepared, says the author (from which the account of this code is taken), in a most scientific, just, solid, Christian, and equitable manner; and which has not, perhaps, its equal in all Europe. The first Partidas is an e.xact compendium of the canon law as it existed at that epoch. The second is a refined summary of the ancient laws and customs of the nation, comprising in itself, and combin¬ ing the greatest political wisdom with a perfect legal history. The third, fifth, and sixth Par¬ tidas, contain an abridgment of all that is most valuable in the Roman law, respecting judg¬ ments, contracts, and last wdlls and testaments, each of w’hich are well accommodated to the state of the monarchy at that time; and to the deciding and settling doubtful points of the civil law.*

The fourth is a compendium of the civil and canon laws appertaining to espousals, matri- 43] mony, and their material incidents; and the seventh and last is, that which treats of crimes and their penal ties, concluding in the man¬ ner of the pandects and decretals, with titles of the signification of words and rules of law.

This work, for the praise of which it has been a subject of regret to the Spanish writers, that their language is inadequate, comprehends so many rules of religion and justice, and of pure and Christian policy, that a volume would be necessary to state (according to them) even the principal ones. For in truth, they add, what regulations can be conceived better adapted to national happiness than that which points out the mode of succession to the king¬ dom? What more convenient and honorable than that which prescribes that the king ought to honor all classes of useful subjects, includ¬ ing even laborers and artizans, by reason of their utility to the state? Where can anything be found more conformable to true religion, and the spirit of the evangelist, than that which directs that he who is recently converted to the Holy Catholic Church should be honored and respected; what more honorable and equitable, than that which confines the punishment of crimes to the true delinquents, abolishing at¬ tainders and corruption of blood? and what more congenial to population than that which promotes matrimony by the most cogent and persuasive reasons?

Notwithstanding its various and superlative merits, on account of the jealousy of the nobles, and of the fatal wound they found it would in-

1.— An historical commentary upon the Partidas was published, at Madrid, in 1808, hy Marina, the celebrated historian of Spain, in which valuable work he gives an account of the institutions of Leon and Castille ; relates the efforts of Ferdinand III. and Alonzo the Wise, in municipal legislation ;

Wheat. 6.

flict on their privileges, and from other causes which began to operate after its formation, this code was not published until the year 1348, in the celebrated cortes held in the {Alcala de Ile- mas), under the reign of Alonzo XI. And even then it is probable the death of this mon¬ arch, which took place in the year 1350, im¬ peded, in a considerable degree, the effect it would otherwise have had. Its complete and beneficial operation may be dated from the year 1505, under the reigns of the celebrated Don Fernando and Donna Juana, in the famous cortes held in the city of Toro.

During the time that intervened from the formation of the Partidas, to its first publica¬ tion in the cortes of Alcala, were *promul- [*44 gated in the year 1310, Las Leyes De Estilo, which amount in number to 252, without any division into books or other parts. The greater part of these treat of judgments, civil as well as criminal ; then follows a description of the persons who may appear in court, and the proofs necessary to adduce them. Others again treat of contracts and last wills.

As there are forms or mode of proceedings before the judges and tribunals, in the order in which the judgements are obtained, it is a nat¬ ural consequence, that the said laws should include all that was practiced at that time in liti¬ gating causes in the courts of justice — follow¬ ing as a rule of action, that which was con¬ tained in the laws or Fuero, and even in some particular cases against the provisions of the latter; as a special custom, legitimately intro¬ duced, derogates from the general laws. Finally these laws of Estilo are taken notice of in our subsequent laws, and observed whenever it appears that they have been generally prac¬ ticed on.

From this statement of the various codes, it will be seen that until the middle of the four¬ teenth century the jurisprudence of Spain con¬ sisted in the general and ancient usages and customs of the nation ; reduced to codes wdiich were called the Pueros, and that which be¬ longed to the practice of the courts formed the Leyes De Estilo. For although the Partidas were then composed, which included a com siderable number of civil and canonical decis¬ ions corresponding to all the branches of private and public law, yet as they were not published until the year 1348, in the cortes of Alcavala, there could not consequently be any authority attached to them on contracts or in courts of justice.

From this epoch, and particularly from the period of the cortes, held at Toro, in the year 1505, the aspect of the national law gradually changed ; Ist. Because the Partidas being then published, they applied to all cases where there was not a particular statute {fuero) on the sub¬ ject. 2d. Because the professors of the law in these ages, being passionately inclined, as well to the study of the canon as of the civil law, a great many of the principles of the former sys¬ tem were introduced, and remain in force, with certain modifications, to this day.

and analyses the Partidas, showing- in what respects that celebrated code deviates from the ancient common law of Spain, and in what manner it was corrupted (according to him), from its primitive simplicity by an absurd imitation of the canon and civil law.

148

45

Appendix.

46] Some changes were made in these, and several new laws or ordinances were published, under the name of “Pragmaticas,” from time to time, as necessity or the situation of the state required them. When they amounted to a considerable number, they were collected into one or more volumes by virtue of a royal ordi¬ nance, and acquired legislative force. Of this class was the first code of the ordinance of Al- cavala, made and authorized in the year 1348. It is divided into 32 titles, each composed of different laws, relative to the manner of con¬ ducting suits, regulations on the subject of contracts and testaments, and penalties affixed to the commission of certain crimes.

The second is that which comprehends the 83 laws which were made and published in the celebrated cortes, held at Toro, in the year 1505, providing for the solemnities of testaments — the right of succeeding, ah intestato, and by will. The legacies of the third and fifth, given by the testator to one heir in preference to another — the order of succession for the nobles of Spain — the support or aliment which fathers owe to their natural children — the penalties of adultery, and other incidental titles, which are inserted in the correspondent titles of the Recopilacion.'

Before and after the cortes of Toro, there were made several collections of ■ ordinances, proclamations, and other royal determinations ; which were published, from time to time, as the circumstances of the monarchy required it. The first of which is known by the name of the “ Ordenamiento Real,” authorized and pub¬ lished by the Catholic King and Queen, Ferdi¬ nand and Isabella, in the year 1496, distributed into eight books, and then into different titles, in which were contained the entire or partial repeals that had been made of the Fueros, or ancient laws; also a few of the new provisions 40J introduced. But as these are all inserted in the Recopilacion, with corresponding titles, a further explanation is unnecessary under this head.^

The Recopilacion was first published in the year 1567, in virtue of an order made by Phillip ll. It includes the laws which are not repealed by the Ordenamiento Real, and the Ordena¬ miento del Alcala ; all those of Toro and others, which had been published in the interim. From the year 1567 to 1777, there have been published various editions of this work with some short additions. But under the latter denomination we do not include the “Autos accordados,” or res¬ olutions or decrees of the council authorized and published by the king, who by a royal or¬ der united them in one volume, divided them into books and titles corresponding to those of the Recopilacion, and published them for the first time in the year 1745. They now form the

Recopilacion, but they are introduced into the lat¬ ter work as new laws. Thus, in the Spanish law- writers, we frequently find references made to them in this way, law 20 of Toro, which is law of the Re¬ copilacion, &c.

a work or collection of the same kind with the or¬ dinance of Alcavala, viz., collections of the royal ordinances or Pragmaticas. The latter collection comprised those up to the year 1348— the former, from that time up to the year 1496. The laws of Toro seem to have originated in the cortes or na¬ tional assemblies, or, at least, to have been first promulgated there.

144

third and last volume of this work, and are al¬ ways printed with the original collection.

This work is divided into nine books, and composed of divers titles. The method used in it is well calculated to attain the object which the very name it bears would seem to imply; and, without any great labor, it is easy to find in it those edicts or laws which we have at any time occasion to examine.

The first book treats exclusively of the Cath¬ olic religion and ecclesiastical matters, and con¬ tains thirteen titles.

The second book, in its commencement, treats of laws in general ; after which follow many titles prescribing the duties of the presidents of audiences, chancellors, judges, and inferior officers of courts. The most instructive title in this book, is that which speaks of the king’s council (“el cortcejo del Rey”).

The third begins with laying down rules and regulations that ought to be observed in the various tribunals; it afterwards treats of the affairs of justice in cities and provinces *(Los Corregidores), contains a variety of [*47 dispositions, with respect to the Alcades, or officers charged with the authority of permit¬ ting exports, &c. — the president and council of Bilboa — the council charged with that branch of rural economy connected with the manage¬ ment of cattle,® and concludes with regulations for the examination and reception of physicians, surgeons, apothecaries, fan-iers, &c.

In the first title of the fourth book, are found necessary rules and regulations for the proper maintenance of the royal jurisdiction. From thence, to the twenty-second title, is occupied with the law of the different species of judg¬ ments ; some decisions of the ancient law on the subject ; the mode of carrying on suits, and the time given for their termination ; rules with regard to pleas, answers, the taking of testimony, the practice to be pursued in the courts of the first and_ second instance; proceeding against persons in contempt, &c. From the twenty- third to the thirty-third title is found the law defining the duties of sheriff, jailer, and the fees allowed them by law.

The fifth book is principally occupied with three_ subjects, and their incidents, viz: First, marriage; second, inheritances or succes.sions ; and, third and last, of contracts, concluding with the titles relative to banks and their offi¬ cers, goldsmiths, &c., and the regulations estab¬ lished with respect to bakers, &c. In this book, say the Spanish writers, the most worthy of at¬ tention is the fourth title, which speaks of com¬ missioners appointed to make wills; a singular authority, and not of any' antiquity in their ju¬ risprudence. The sixth, which treats of an heir who receives a legacy of the third or fifth

posed of the richest and most extensive owners of cattle, sheep, &c. A member of the council pre¬ sides at their deliberations, and they meet once every year. This meeting: is called ‘‘el hnnnrado concejo de las mestas,” an expression which does not admit of a literal translation. The Recopilacion contains a variety of provisions establishing- the au¬ thority of this council, defining- its limits. It may be gathered from the existence of this tribunal, and from the anxiety displayed by the Spanish govern¬ ment, from time to time, by its laws on this sub,iect, what vast importance was attached to the inestim¬ able tiocks of merinos, of which they were for ages the sole owners.

Wheat. 5.

Appendix.

48

48] of the property of the testator. The sev¬ enth, which provides for the succession of no¬ bles, it being the first in any of the collections of the laws of Spain, where we find a distinct title appropriated to this subject. The fifteenth title prescribes the formalities 'which ought to be observed with regard to taxes, respecting which there had been, anciently, various dis¬ putes. •

The provisions, or titles, of the sixth book, are more conformable than those of any other in the Recopilacion to the ancient codesof Spain, los fneros antiguos, and those which are con¬ tained in the second Partidtis. They treat of knights and of gentlemen, of towns, of vassals, of cattle, and fortresses — of the cortes — of am¬ bassadors, inspections, tributes, ports — of those exempted from taxes and not subject to the pro¬ hibition 'ft'hich prevents certain' articles from being exported. And the book concludes with the titles respecting the hunter, gamekeeper, and fowler, of the king. One of these titles is respecting the young of horses of a noble race.

The seventh begins with the matters that ■conduce to the good government of corpora¬ tions; of the rents and property of councils; of the privileges of cities : of taxes ; of public limits and commons. Then follow various titles which have no connection either with each other, or with the antecedent ones; as, the tenth speaks of ships; the eleventh, which speaks of artisans; the twelfth, which contains regula¬ tions with respect to dress. From the thirteenth to the seventeenth, is taken uii with rules re¬ specting the cloth manufactories, and concludes with those of chandlers and manufacturers of tallow, and the tanners and braziers of the kingdom.

The eighth book maintains a more perfect connection between its title and the mattei's con¬ tained therein. It begins with the preparatory steps for the ascertaining of offenses, and then proceeds to the twenty-third title, with the pen¬ alties affixed to each crime, according to its grade; among which, .say the Spanish authors, is ■worthy of note, the eighth, which imposes the pain of death {“ultimo mj)plicio”), with other penalties, against any person who sends a challenge or accepts one.

In this provision, they .say. is seen the differ- 49] ence between theancient and present state of the monarchy.' The authority of the laws was not then .sufficient to puni.sh the individuals attached to, or connected with, families of vast opulence and power, who might commit viola¬ tions of good order; duels were, therefore, per¬ mitted; regulations fixed for carrying them publicly into effect, and the strongest vengeance of the law, as well as the more dreadful punish¬ ment of public contempt, awaited those who, either injured or injuring, failed to resort to this mode to obtain satisfaction, or give redre.ss.

The nobles, at la.st, as the light of knowledge began to dawn, perceived the superior advan¬ tages of recurring to the laws instead of re-sort¬ ing to the.se public and solemn combats. A change, correspondent to the alteration in the general opinion, took place, and duels are now placed on the same footing in Spain, as in every other well-regulated country in Europe, con¬ demned by the 14ws of God and man, forbid¬ den by the maxims of religion; yet still prac¬ ticed by the obedience of all men to a false code of honor, which is unequal in its principles, and almost always cruel in its operations.'

The ninth, and last book, is occupied with details in all its branches of the royal treasury; the office of treasurer and auditor of the public exchequer; of those who compose the treasury council. Then follow the judicial regulations for the recovery of taxes, of the royal rents, &c. In continuation, are *found, the tariff of [*50 duties levied by the king on each article sold within the kingdom, the confiscation of contra¬ band, &c., &c.

A more extensive analysis has been given of this work than of any other, because, as it is last in time, it is first in authority.

The author, from whom this account is principally taken, observes, that in the work entitled, “Autos Accor dcodos, " XhevQ are want¬ ing many titles, which are to be found in the Recopilacion.

Since the publication of the Recopilacion, there have been issued by the kings of Spain, a vast number of proclamations, decrees, instructions for governors of Spanish America, ‘ ‘ Royal cedules,” which have not as yet been compiled, although there was an order of the king in council to that effect. The want of a general collection of these laws, is very frequently and seriously deplored by the S.panish lawyers.

From this short statement of the rise and pro¬ gress of the Spanish law, it will be seen, that the ancient codes of Spain have been, like that of almost every other country in Europe, near¬ ly supplanted by modern changes and improve¬ ments; yet an acquaintance with them is neces- saiy to him who wishes to understand the laws of his country, and aspires to rise to the higher honors of his profession. This knowledge, in¬ deed, has become indispensable, since the order of council, pas.sed the 4th of December, 1713, in reference to many laws anterior to the “ Fuero Juzgo,” unA vfhich found in that work, the Partidas, the Ordenaniientos, the first law of Toro, the new Recopilacion, &c. It provides, that in the conducting and deciding of cause.s, the courts of ju.stice shall be gov¬ erned by the Recopilacion, the ordinances and decrees, the laws of the Partidas, and the other codes (“Los otros fueros”), notwithstanding it is said they have become obsolete ;-and in case nothing can be found on the subject, in any of

by battle, was universally established in Europe by the barbarous nations who established themselves on the ruins of the Roman Empire; (Montesquieu. Esprit des Lolx, 1. 38, c. 14, 18 ; Gibbon, Decline and Fall, &c., 'V'ol. vt., c. 38, note. 84 ; Robertson, Hist, of Charles V., Vol. i,, sec. i., note, 323), and was even transported by their posterity into the king-doms founded by them in the East, during the crusades, as appears by that venerable monument of feudal jurisprudence, the Assise of Jerusalem. (Gibbon, Decline and Fall, &c., Vol. xi., c. 58). “It has been

Wheat. 5. U. S., Book 5.

slowly abolished by the laws and manners of Eu¬ rope,’’ and had a legal existence even in England, (though not practically used), so recentl.v as the year 1818, when it was formally suppressed b.v act of Parliament, in con, sequence of the attempt to re¬ sort to it in the appeal of murder prosecuted in the case of Ashford v. Thornton, which will be found reported in 1 Barnwell & Alderson’s Reports, 40,5, and in which the ingenuity of the learned judges was perplexed to contrive the means of evading this species of trial, which was demanded by the accused.

10 145

50

Appendix.

these codes or laws, then that recurrence shall be had to the sovereign authority to decide on them. This decree was confirmed by Philip V., June 12th, 1714; directing the ancient laws which had not been repealed to be observed, although they might have been generally con- sidei’ed as void by non-user.

Between all these codes, and the laws of the 51] Indies, there exists a CTeat connection. In the American provinces of Spain, the study of the civil law is a part of their education at the universities ; and by the laws for the govern¬ ment of these provinces, it is expressly provided, that where the Recopilacion de las Indias is wanting in provisions for any case that may arise, recourse shall be had to the laws of Cas¬ tile or Spain.

' The ‘ ‘ Recopilacion de las Indias, the collec¬ tion of laws of the Spanish provinces, is very similar to the ‘ ‘ Recopilacion,” of which so much has been said, both in its order and materials.

In the first book are inserted all the definitions concerning points of ecclesiastical law. In the second, after speaking of laws in general, it prescribes the order of government for the council of the Indies, and the other superior and inferior tribunals thereon. The third begins with the subject of the royal domain, and pro¬ vides for its officers ; then treats of viceroys, presidents, and governors, and of military af¬ fairs ; and concludes with the title concerning ceremonies, post-offices, and Indian couriers. The fourth- book commences with the laws rela¬ tive to discoveries by sea and land ; treats after¬ ward of cities, their population, and of their

rights and contributions: of gold and silver mines, and incidental matters; and concludes with regulations for the pearl fishery, and the manufactory of cloth. The fifth book treats, principally, of the boundaries and divisions of the different governments ; after which follow many miscellaneous matters, v. g. that of the Holy Brotherhood ; of the assembly for the po¬ lice of cattle; ®f physicians and apothecaries ; of the order of judicial proceedings, and con¬ cludes with a title respecting the domicile of in¬ dividuals. The sixth book is occupied nearly throughout with the laws respecting Indians, the commandants placed over them, Ac. The seventh is taken up with criminal jurisprudence. The eighth, with the laws respecting the royal treasury ; and the ninth with regulations respect¬ ing the armada, or fleets, by means of which the commerce of Spain was formerly carried on with the colonies. But these regulations are now obsolete.

This work, it may be seen from the analj^sis of it, is of a *very limited nature, and [*52 seems almost entirely confined to regulations respecting the functionaries of the government in those countries; leaving the subject of con¬ tracts, the rights of persons and things, &c.. &c., to be regulated by those la-w's which are in force in old Spain respecting them. The order in which those laws govern, may be seen by reference to this short history, applying to them this concise, but universal maxim, that those which are last in date are first in authority.

The ordinance of Bilboa is a commercial code of great value.

[NOTE III.]

ON THE subject OF PRIZE LAW.

In order to complete the information con¬ tained in the former notes to these reports, on the subject of prize law, the editor has thought proper to subjoin to tlie present volume the text of the chapters of the Gonsolato del Mare, on that subject, as translated by Dr. Robinson, and of the principal ordinances regulating the practice of the tribunals on the European con¬ tinent, in matters of prize, which are found scattered in different books, not always acces¬ sible to the general reader. The prize code of Spain is, in general, copied from that of France; but wherever any considerable differences occur, the editor has noted them in the margin. The prize codes of the new states, which have re¬ cently arisen in Spanish America, and which are now engaged in war with the parent coun¬ try, are also modeled upon those of France and Spain, as will be seen by a reference to the prize ordinance of Buenos Ayres, annexed to the 4th volume of these reports. These pieces

146

will show, that, except the severe rule con¬ demning the goods of a friend found on board the ship of an enemy, and the more relaxed principle of free ships free goods, both of which have occasionally been adopted by cer¬ tain powers, together with some other less im- *porlant anomalies, the leading princi- [*53 pies of prize law, as now administered, have been established and acted upon by the princi¬ pal maritime states of the world from a very early period.

As a further apology for inserting them in this place, the editor begs leave to refer the learned reader to the following observations of Sir William Grant, in a question arising upon a warranty of neutrality in a policy of insur¬ ance, alleged to be falsified by a sentence of a French court of admiraltv grounded on the ordinances of France: ‘'These ordinances,”' says that accomplished judge, “have been mis¬ understood ; sometimes by the French courts of

Wheat. 5.

Appendix.

53

admiralty themselves, and .sometimes by the courts in this country. Those in France con¬ sidered these ordinances as making the law, and as binding on neutrals, and have, therefore, sometimes declared, in the same breath, that the property was neutral, and yet that it was liable to condemnation; whereas, all that was meant by those ordinances was, to lay down rules of decision conformable to what the law¬ yers and statesmen of the country understood to be the just principles of maratime law. When Louis XIV. published his famous ordi¬ nance of 1681, nobody thought that he was un¬ dertaking to legislate for Europe, merely be¬ cause he collected together, and reduced into the shape of an ordinance, the principles of the marine law as then understood and received in Prance. I say, as understoyd in France, for although the law of nations ought to be the same in every country, yet, as the tribunals which administer that law are wholly inde¬ pendent of each other, it is impossible that some differences should not take place in the manner of interpreting and administering it in the different countries which acknowledge its authority. Whatever may have been since at¬ tempted, it was not, at the period now referred to, supposed that one state could make or alter the law of nations; but it was judged conven¬ ient to declare certain principles of decision, partly for the purpose of giving a uniform rule to their own courts, and partly for the purpose of apprising neutrals what that rule was. And it was truly observed at the bar, in the course of the argument, that it has been matter of complaint against us (how justly is another 54] consideration), that we have no code by which neutrals may learn how they may pro¬ tect themselves against capture and condemna¬ tion. Xow, this court, in this case, seems to us to have well and properly understood the effect of their own ordinances. They have not taken them as positive laws binding upon neu¬ trals but they refer to them as establishing legitimate presumptions, from which they are warranted to draw the conclusion which it is necessary for them to arrive at, before they are entitled to pronounce a sentence of condemna¬ tion.” (Marshall on Ins., 426.)

EXTRACT FROM THE CONSOLATO DED MARE.

Chap, cclxxiii. — Of Merchant Vessels capt¬ ured by an armed ship.

Section 1. — If an armed .ship, or cruiser, meets with a merchant ve.s.sel belonging to an enemy, and carrying a cargo the property of an enemy, common sense will sutiiciently point out what is to be done; it is, therefore, un¬ necessary to lay down any rules for such a case.

and the cargo the property of enemies, the cap- tor may compel the merchant vessel to carry the enemy’s cargo to a place of safety, where the prize may be secure from all danger of re¬ capture, paying to the vessel the whole freight, which she would have earned al her delivering port ; and this freight shall be ascertained by the ship’s papers, or in default of necessary documents, the oath of the master shall he re¬ ceived as to the amount of the freight.

Wheat. 5.

safety, where he may be secure of his prize, yet is desirous to have the cargo carried to some other port, the neutral vessel is bound to carry it thither; but for this service, there ought to be a compensation agreed upon be¬ tween them; or, in default of any special agree¬ ment, the merchant vessel shall receive for that service the ordinary freight that any other ves¬ sel would have earned for such a voyage, or even more; and this is to be understood *of a ship that has arrived in the place [*55 where the captor may secure his prize ; that is to say, in the port of a friend ; and going on an ulterior voyage to that port, to which the cap- tor wi,shes her to carry the cargo which he ha.s taken.

captured vessel, or any of the crew, shall claim any part of the cargo as their own, they ought not to be believed on their simple word; but the ship’s papers or invoice shall be inspected ; and in defect of such papers, the master and his mariners shall be put to their oaths; and if, on their oaths, they claim the propeify as their own, the captor shall restore it to them ; regard being paid, at the same time, to the credit of those who swear and make the claim.

refuse to carry the cargo, being enemy’s prop¬ erty, to some such place of safety, at the com¬ mand of the captor, the captor may sink the vessel if he thinks tit, without control from any power or authority whatever, taking care to preserve the lives of those who are in her. This mu.st be understood, however, of a case where the whole cargo, or at least the greater part, is enemy’s property.

the cargo being either in the whole, or in part, neutral property ; some reasonable agreement should be entered into, on account of the ship now become lawful prize, between the captor and the merchants owning the cargo.

an agreement, the captor may send the vessel home to the country whose commission he bears; and in that case the merchants shall pay the freight, which they were to have paid at the delivering port; and if any damage is oc- ca.sioned by this proceeding, the captor is not bound to make compensation, because the mer¬ chants had refused to treat respecting the ship, after it had become lawful prize; and for this further reason, also, that the ship is frequently of more value than the cargo she carries.

willing to come to a reasonable agreement, and the cantor, from arrogance, or other wrong motives, refuses to agree, and forcibly sends the *cargo away, the merchants are not [*56 bound to pay the whole, nor any part of the freight; and, besides, the captor shall make compensation for a,ny damage he may occasion to them.

where the merchants have it not in their power to make good their agreement, but are, never¬ theless, men of repute, and worthy to be trust¬ ed, the captor shall not send away the vessel without being liable to the damage; but if the merchants are not men of known credit, and cannot make good their stipulated payment, he may then act as it is above directed.

147

56

Appendix.

Chap, cclxxxvii, — Of cases of recapture.

Section 1. — If a ship is taken by the enemy, and afterwards another ship of a friend comes np, and effects a recapture, the vessel, and all that is in her, shall be restored to the former proprietors, on payment of a reasonable salvage for the expense, and trouble, and danger, that have been incurred; but this is to be understood of recaptures effected within the seigniory or territorial seas of the country, to which the captured vessel belongs, or before the enemy had secured the vessel to himself in a place of safety.

the enemy’s territories, or in a place where the enemy ivas in entire possession of his prize, that is, in a place of security, the proprietors .shall not recover, nor shall the recaptors claim any salvage ; for they are entitled to the whole benefit of the recapture, without opposition from any rights of seigniory, or the claims of any person whatever.

vessel, quits his prize on appearance of another vessel, either from fear, or from any doubt that he may entertain of her, and the vessel, on whose account the captured ship was aban¬ doned, takes pos,ses.sion of the vessel that has been relinquished, and brings her into port, she shall be restored to the proprietor, or his heirs, without opposition, on payment of a 57] reasonable salvage, to be fixed, by agree¬ ment between the parties, or if the parties can¬ not agree, by the arbitration of creditable per¬ sons.

his vessel through fear of his enemy, and any friendly vessel falls in with the ship that has been deserted, and brings her into a place of security, that is to say, in a case where the find¬ ing vessel has not retaken the ship from the enemy, and where the enemy had not carried her into a place of security, and had not taken her from the owner, the finders shall have no claim to the vessel, nor to the cargo on board, but, by the use and custom of the sea, they may demand a reasonable salvage, to be settled either by agreement, or by reference to the ar¬ bitration of creditable persons; for it is not fit that anyone should endeavor to take undue ad¬ vantage of the misfortunes of another, since he cannot fore.see what may happen to himself; and because, every one should be ready to sub¬ mit his disputes, especially in cases like the present, to the arbitration of two unexception¬ able persons.

has been said, that everything shall be done without fraud ; for no man can tell what may be his own ca.se ; and it .sometimes happens that the deceit and injury which a person attempts to practice on others, light upon himself ; there¬ fore, if any persons, knoM'ing that a ship is go¬ ing on a voyage, where she must be exposed to danger or alarm from the enemy, fit out a ves¬ sel with a view, and for the purpose of doing injury to that ship or any other, in making sal¬ vage at their expense; or with a design of get¬ ting posse.ssion of the ship and cargo ; if it can be proved against them, that they went out with any such intention, such persons shall not be entitled to any salvage on the ship or cargo, 148

although the owner may have abandoned her ; nor even, although she may have been taken by the enemy.

establish, in proof, that they did not arm with any of the before-mentioned intentions ; or if it should be proved against them, that they armed for the purpose of doing injury to anyone, or generally to all, whom they might meet, in the form and manner of enemies; in such a case, whether they bring in a vessel, with or without *a cargo — whether it shall be retaken [*58 from the enemy, or merely found by them, they shall take no benefit from it, but the whole shall be restored to the former proprietors ; and moreover, such persons, so arming, shall be de¬ livered over to justice, to be treated as robbers and pirates, if the fact can be established in proof.

tention, having either retaken or found a ves¬ sel in any of the situations above mentioned, they shall be entitled to their full right and benefit, according to the preceding regulations. But if the matter shall remain in doubt, or if it shall rest with them to disjirove the charge, neither they, nor any that were with them, nor any that are interested in the event, shall be re¬ ceived to give evidence in their favor; nor shall any person of a covetous disposition, nor any¬ one who may be suspected of being biassed by money, be a witness for them.

a vessel or cargo, and shall afterwards abandon it, voluntarily, and not from any fear or ap¬ prehension of any vessel coming upon him ; and if any persons shall find the vessel or cargo that has been voluntarily abandoned, and bring it to a place of security, the property shall not be acquired to them, if any owner can be found ; but they shall receive a reasonable .sal¬ vage, to be fixed, at the discretion of reputable persona of the place, to which the ship or goods shall be carried.

time, no owner comes forward, the finders shall receive for their salvage one-half of the pro¬ ceeds, and the other half shall be applied in the manner that has been expressed and declared in a preceding chapter.'

*10. If the enemy, being in possession [*59 of any ship or cargo, shall not have deserted it voluntarily, but shall have been obliged to abandon it by storm or tempest, or on account of any ship or vessel by whom he may have been alarmed, the same rule shall be observed as if the enemy had quitted the same voluntari¬ ly, and of his own accord.

any place where he takes a ransom for his prize, if the proprietors wish to have their ves¬ sel or cargo again, he or they, who have ran-*

1.— In chapter 249, the same proportion of a moie¬ ty is given to the finder of goods found floating in port, &c., after the expiration of a j'ear and a day if no owner appears to claim. The other moiety was to be divided into two parts, of which the Lord of the Jurisdiction was to retain one ; and to apply the other to pious purposes, tor the soul of the pro¬ prietor. “ All hora la ginstitia debba dare a quello che trovata rhaveril, la raetd pur suo beveraggio, et della nieta che rimanera, debba fare la giustitia due parti ; et pu6 pigliarne lui una parte, et I’altra che rimane, debbela dare per amor di Dio, dove a lui piace, perl’ anima di quello, di chi sard stata.

Wheat. 5.

Appendix.

59

sonied her, are hound to deliver her up to the original owners, on payment of the debt and charges, and some further allowance besides, if they choose to accept it.

cargo, shall make a gift of it; such a donation or gift shall not be valid on any account; ex¬ cept that if a gift is made of the ship or cargo, to those to whom it belonged, such donation shall be valid. But if the captor bargains with the master in these words: “We are willing to give you your ship for nothing, but must have a ransom for the cargo,” such a donation shall not be good ; because, in the case of which we are now speaking, the enemy had not car¬ ried it to a place of security, so as to say, that he might not lose it; notwithstanding that he might so far have obtained power over his prize, as to be able to burn or sink it; though, in such case, it would be totally lost both to him and to the owner: it is to be understood, therefore, that if the cargo is ransomed, the master to whom his ship has been so given, is bound to contribute to the ransom paid for the cargo according to the value of the ship ; and the same rule shall be observed, e contra also, and applied equally to the ransom of the ship or cargo.

to a place of security; that is, if it shall have i been carried out of the seas of the enemjq where a recapture might be effected ; if when the captor shall have it in safe possession, and in his own power, he shall make a donation, or sale of the ship or cargo, such a donation or sale shall be valid, without exception, from any quarter; unless he, to whom the donation was made, should have accepted it with an in- 00] tention of doing a kindness to the own- er, and for his benefit ; in that case, he may re¬ store it if he pleases; but otherwise, he is not compellable by any person, nor on any ac¬ count.

belonged, can show that there has been any fraud in the business, the donation shall not, on any account, avail; but he, to whom it was made, ought to be seized by the lord of the country, and punished in goods, and in per¬ son, according to the circumstanees of the ease; and the ship or cargo shall be restored to the former owner.

by the enemy to anyone, the sale shall be valid, provided that he, who has purchased, can show that the sale was made to him by the enemy in a place of security ; that is, where the enemy held the goods in question, in mo dom- inio; and in case anyone, who pretends to have acquired the ship or cargo by a just title, cannot prove the asserted sale, it shall not be valid; and if the former owner appears, and can make proof of his property, it shall be restored to him. The evidence of these disputed claims shall be discussed before two reputable persons of the country where the dispute arises, and without fraud ; and if any fraud is discovered, the party against whom the fraud is proved, shall be bound to pay to the other party, costs, damages, and interests; and besides, the party consenting to the fraud shall be delivered over to the justice of the country.

16. If the master, or person acting for him.

Wheat. 5.

recovers the ship or cargo by any means, he is bound to make restitution to the proprietors, according to their several proportions, on pay¬ ment of the expenses pro rata.

the cargo, or make any agreement with the consent of the major part of his copartners, by which he shall regain the .ship or cargo, he may^ compel them to contribute, by course of justice, because they are as much under an ob¬ ligation to him as if they had agreed to take' part in building or purchasing a new ship.

without the consent of his partners, or the major part of them, they are not *bound [*6 1 to anything, unless they like it ; nor is the ma.s- ter answerable to them for the rights and in¬ terests which they had in the ship at the time of capture ; saving for any previous accounts which might be still remaining unsettled, re¬ specting their shares in the ship or cargo at the time it was taken by the enemy.

resume their shares, and the master makes any opposition, the justice of the country may com¬ pel him to acquiesce; for there can be no ground of reasonable resistance on his part, if they are willing to pay their proportion of the expense; and it would be manifestly unjust that anyone should dispossess the rest of their property.

redeems his ship or cargo, after the enemy has gained a just title in it, and those who were part owners refuse to pay, as before specified, the master, or his agent, ought to repeat his demand upon them several times, and call upon them to pay their share; and if they still refuse, it shall be put up to auction, with per¬ mission of the government, and be disposed of to the best bidder.

more, after such refusal, than the ransom paid, the surplus shall be paid to the owners, accord¬ ing to their shares, if the master chooses it ; otherwise, he is not obliged. And the master shall have the privilege of retaining the goods in question at the price that others are willing to give for them.

as the ransom ; if the master made the ransom without the consent of his partners, they are not bound for the deficiency, unless they choose it ; and therefore it is reasonable that the master, or his agent, should have the privilege of retaining, at the price that any other person would give, as the deficiency would fall upon him; saving, however, that if any of the part¬ ners are inclined to resume their shares, they are bound to make good the deficiency to him pro rata. All the reasonings, and cases, and conditions above mentioned, shall be taken under the supposition that the enemy had car¬ ried the prize into a place of security ; *and that the ransom or sale had been [*62 made fairly, and without fraud.

Postscript. — It may not be improper to add as an observation pointing out the chasm between the regulations of this ancient code, and the prize ordinances of particular coun¬ tries, and the provisions made in public trea¬ ties, in later times, on the subject of prize, that

149

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Appendix.

neither the laws of Oleron, nor the ordinances of Wishuy, nor the quidon, nor the ordinances of the Hanse Towns, contain any regulations respecting the general law of prize ; scarcely men¬ tioning the subject, except incidentally, amongst the accidents to which merchant vessels are liable. There are, in the black hook of the Admiralty, a few, and but a few, articles re¬ specting it. In the ordinances of Barcelona, of 1340, there are also a few articles, but relating rather to the division of interest hetw'een the captors, than to the general subject.

EXTRACTS FROM THE CODE DES PRISES.

Articles relatifs aux Prises, Extraits de L’ Onion- nance de Charles VI. sur le faict de V A- miraxhU. Du 7 decemhre I4.OO.

Article III. — Si aucun de quelque estat qu’il soit, mettoit sus aucun Nauire & ses pro- pres despens pour porter guerre El nos ennemis, ce sera par le conge et consentement de nostre dit amiral ou son lieutenant, lequel a ou aura au droict de son dit othce la cognoissance, iuri- diction, correction et punition de tons les faicts de la dite mer et des dependances, criminelle- ment et ciuillement, &c.

Art. IV. — De toutes les prinses qui d’ores- nauant se feront sur la mer, par quelques gens que ce soyent, tenant nostre partie, ou souz ombre et couleur de nos guerres, leurs prison- niers en seront amenez ou apportez ^ terre de- uers nostre amiral, ou son lieutenant, lequel tantost ou incontinent les examinera auant que nulle chose se descende, pour scjauoir le pays dont ils sont, et ^ qui appartiennent les hiens s’aucuns biens y auoit, pour garder iustice, et faire restituer ceux qui sans cause auroyent este dommagez, si le cas estoit trouue tel.

63] Art. VI. — Que d’oresnauant, s’au- cune telle prinse se fait, le dit amiral ou son lieutenant s’informera deuement et le plus veri- tablement que faire se pourra, aux preneurs et a chacun S, part de la maniSre de la prinse, du pays ou coste oh elle aura este faite; verra et fera veoir les marchandises et les nefs par les gens cognoissans h ce. Et par bonne et meure deliberation regardera par la conscience ou con¬ tention, les depositions d’iceux preneurs ainsi faite en secret, ou par la veu6 des dites prinses, s’il y a vraye apparence qu’elles fuissent de nos ennemis, auquel cas icelles seront deliurees aux preneurs, en prenant leurs noms pour en auoir recouure sur eux, s’aucune poursuite en estoit faite, auec inuentaire des biens. Et s’il y a mieux et plus euidente presomption par aucuns des moyens des susdits, qu’il y eust quelque faute, et que les dites prinses fussent des con- trees de nostre royaume, ou des pays de nos alliez, icelles prinses en ce cas seront par nostre dit amiral mises en seure garde, aux despens de la chose, ou des dits preneurs, si le cas le re- quiert, jusques eI temps competent, dedans le¬ quel sera fait diligence d’en s(,-auoir la verite. Et si les dits preneurs estoient gens soluables, et qu’auec ce ils baillassent bonne et seure cau¬ tion des dites prinses, icelles deuement appre- ciees et inuentoriees, se pourront bailler ti iceux preneurs, s’il n’y a trop grande suspection.

Art. VII. — Et si aucuns des dites preneurs en leur voyage en especial auoient commis faute 150

telle qu’ils fussent atteints d’auoir enfronde aucuns Nauires, ou noyez les corps des prison- niers ou iceux prisonniers descendus a terre en aucune loingtaine coste, pour celer le larrecin et meffaict, voulons que sans quelque delEiy, faueur ou deport, nostre dit amiral en face faire punition et iustice selon le cas.

Art. VIII. — Les dits preneurs empeschans aucuns marchands, Nauire ou marchandise sans cause raisonnable, ou qu’ils ne soyent nos ad- uersaires, nostre dit amiral fera deuGment res¬ tituer le dommage, et ne permettra plus I’usage qu’ont h ce centre raison tenue, iceux preneurs, en quoy ils out faict et donne de grands dom- mages a aucuns de nos alliez par feinte, ou fausse couleur qu’ils mettoient de non cognoistre s’ils estoyent *nos aduersaires, ou non, [*64 qui est chose bien damnable, centre raison et iustice, que homme soubs telle couleur deust porter dommage, ou destourbier.

Art. IX. — Pour ce qu’il est voixet publique renommee, que quand aucune prinse est main- tenant faicte sur nos ennemis, les preneurs' sont si accoutumez de faire et vser de leurs volontez et h leur profit, qu’ils ne garden! en rien I’vsage que Ton dit anciennement en ce estre ordonne, mais sans traite de justice, souvent inobediens, pillent et rompent coffres, et prennent ce qu’ils peuvent. En quoi nostre dit amiral et les gens d’autre estat qui ont mis sus les Nauires a grands despens, sont excessiuement fraudez, et si ad- uient par faute de iustice souuent de grandes questions, noyses entre les preneurs, qui sans craincte, et par cy-deuant chacun de sa volonte sans en estre punis et en ont ainsi vse.

Art. X. — Et quand aucune prinse estoit trouuee appartenir eI nos subiects et estoit par justice restituee, on ne pouuoit trouuer les biens, ne SQauoir qui les auoit euz, nous auons ordon¬ ne que d’oresnauant I’vsage ancien sera en ceste partie estroittement garde sans enfraindre ; e’est h SQEiuoir, que s’il y a aucun qui rompe coffre, balle ou pippe, ou autre marchandise que nostre dit amiral ne soit present en sa personne pour luy, il forfera sa part du butin et si sera par iceluy amiral puny selon le meffaict.

Art. XI. — Si nostre dit amiral, ou aucuns de ses lieutenans, n’estoient en personne aux entreprises qui se feront sur la dite mer pour tenir ordre h iustice entre ceux de la dite entre- prise, les maistres, chefs, capitaines, ou patrons, auant leur partement, feront serment, ainsi que dessus est dit, qu’h leur pouuoir ils deffendront nos subiects sans leur porter dommage. Et toutes les prinses qu’ils feront, les am&neront ei terre, et en donneront cognoissance certaine au dit amiral et lui deliureront ceux qui pour le voyage auront commis quelque meffaict centre nos dites ordonnances, ou autrement.

Art. XII. — De toutes les prinses qui se feront par la dite mer, les vendus butins et departemens en seront faicts deuant nostre dit amiral, ou son lieutenant, qui feraretenir par devers *luy, [*65 d’iceux biens, ject et compte, pour y auoir re- cours, pour ceux qui en auront besoin, et pou¬ uoir cognoistre le fait et estat d’icelles prinses.

Art. XVIII.— a ce que le dit amiral dit auoir droict sur les prisonniers prins sur la mer, et par la dite mer, lesquels droicts leur aduien dront souuent, qu’en demeurera la part moin- dre, ceux qqi les auront prins; d’oresnauant nostre dit amiral ne se pourra ayder de chose qui en ait este vse, mais declarons que sur les

Wheat. 5.

Appendix.

65

dils prisonniers il ne ponrra demander que son Dixiesme, auec le droict de son sauf-conduict, ny auoir la garde d’icenx, sinon en tant que monteroit le faict et portion de son Dixiesme, s’il n’estoit prisonnier de si grand prix et les preneurs de si petites essence, qu’il ne fust pas bon les laisser en leurs mains. Excepte que si aucun, sans conge ou consentement du dit ami- ral ou personne de par luy, mettoit quelques prisonniers it finance, il (par priuilege de son oflice) pourra prendre les dits prisonniers en sa main, en payant la dite finance; et sur le prix rabatu son droit de Dixieme.

Articles Ertniits, de I’Edit. concernant la Juris¬ diction de V Amir ante de Erance. ' Du mois de mars ISSJ

Article XXIV. — Si une Nef estrangSre veut entrer en un port ou havre de nostre dit Royaume, faire ne le pent, sans I’auctorite et conge de nostre dit Amiral ou de ses Commis, si par fortune ou tourmente de mer n’y estoit entree par force ; et qu’aucun Pilote ne I’ameine, et la puisse guider ne conduire au dit liavre sans demander conge tT nostre dit Amiral. Et li’avantage incontinent ils seront tenus venir vers nostre dit Amiral, ou son dit Lieutenant au dit lieu, pour faire entendre le lieu dont ils viennent. Et aussi a ce que nostre dit Amiral ou son dit Lieutenant les puisse interroger de ce qii’ils auroyent veu en leur voyage, pour nous en avertir si besoing estoit.

Art. XXXIII. — De toutes les prinses qui se feront en mer, soit par nos subjets, ou autres tenans notre party, et tant soubs ombre et cou- leur de la guerre qu’autrement. Les prisonniers €6] ou pour le moins deux ou trois des plus apparents d’iceux seront amenez 4 terre, devers nostre dit Amiral ou son Vice- Amiral, ou Lieu¬ tenant, pour, au plustost que faire se pourra, estre par lui examinez et ouys, avant qu’aucune chose des dites Prises soit descendue; afln de savoir le pays dela ou ils seront, a qui appar- tiennent les navires et biens d’iceux, pour, si la prinse se trouve avoir este bien faite, telle la declarer, sinon, et ou elle se’trouveroit mal faite la restituer iI qui elle appartiendra ; en enjoi- gnant par ces dites presentes au dit Amiral, Vice-Amiral, ou Lieutenant ainsi le faire. Et sur ce administrer bonne et brief ue justice et expedition.

Art. XXXY. — Si aucuns se trouvent avoir commis faute en leur voyage, soit d’ avoir mis a fonds aucuns Navires, ou robbe des biens d’i¬ ceux, ou noye les corps des Marchands, Mais- tres, Conductcurs, et autres Personnes des dits navires, ou iceiix descendus & teiTe en aucune loingtaine coste, pour celer le larcin et malfait, ou bien quand il adviendroit comme il a fait quelquefois, qu’aucuns d’eux se trouvans les plus forts, viendront H ranQonner a argent les navires de nos sujets, ou d’aucuns nos Amis et Alliez; Voulons que sans quelque delay, faveur ou deport, le dit Amiral en face ou face faire justice et punition, telle que ce soit exemples S. toils autres, deues informations des cas prealla- blement faites, et selon qu’il sera cy-aprSs or- donne.

Art. XXXVII. — Et pour ce que souventes fois quand une Prise estoit faite sur nos Enne- mis, les Preneurs estoyent si coutumiers de user de leur volontez pour leur profit, qu'ils ne gar- doyent I’usage toujours et de toute anciennete

Wheat. 5.

sur ce ordonne et observe, mais sans crainte de Justice, comme innobediens et pilleurs, eux es- tans encore sur mer rompent les coHres, balles, boujettes, malles, tonneaux et autres vaisseaiix, pour prendre et piller ce qu’ils peuvent des biens de la prise, en quoy ceux qui ont equippe et mis sur les navires a gros despens sont gran- dement foullez, dont advient souvent de gran- des noises, debats et contentions. Nous prohi- bons et deffendons 3, tons Cliefs, Maistres, Contre-Maistres, Patrons, Quarteniers, Soldats, et Compagnons, de ne faire aucune ouverture des coffres. balles, &c. , ny autres vaisseaux de quelques Prises qu’ils facent, ny aucunes choses des dites Prises receler, transporter, vendre, ny *eschanger, ou autrement alliener. ains [*67 ayent a representer le tout des dites Prises, en¬ semble les personnes conduisans le navire au dit Amiral, ou Vice-Amiral, le plustost que faire se pourra, pour en estre fait et dispose selon qu’il appartiendra, et comme contiennent nos presentes ordonnances, et ce sur peine de con¬ fiscation de corps et des biens.

Art. XXXVIII. — Quand une Prinse faite et amenee S, terre, est trouvee appartenir 4 nos sub¬ jets, Amis et Alliez, et il est ordonne qu’elle sera restituee. Ton ne pent trouver les biens, ny sa¬ voir qui les a euz, de sorte que les pauvres Marchands, a qui elle est adjugee ne SQavent a qui avoir recours. Nous avons ordonne, que d’oresnavant si aucun rompt coflrres, balles, pippes, et autres inarchandises, que nostre dit Amiral n’y soit present, ou personne pour lui et par son commandement, il perdra sa part.du butin, et sera puni par nostre dit Amiral ou son Lieutenant, corporellement selon le meffait, en sorte que tous les autres y prendront exemple.

Art. XXXIX. — Pour ce aussi que plusieurs Bourgeois, Proprietaires et AvictMailleurs des Navires, nos subjets, nous y ont cy-devant fait remonstrer, que jagoit ce qu’ils facent faire les dits navires, et icelles equipent, et fournissent d’artillerie et autres munitions de guerre et de vivres, pour grever et oflencer nos Ennemis et Adversaires, le tout & grands frais et despens, neantmoins ne leur est bailie que la Huictiesme pour leurs portions de butins qui sont gaignez sur nos dits Ennemis et Adversaires, qui n’est chose suffisante, eu esgard aux grands frais, mises et despences qui leur convient faire, a faire faire les dits navires, et icelles equipper, munir et avictuailler, qui est cause que les dits Bourgeois, Proprietaires et Avictuailleurs, ne peuvent mettre sus, et nous servir de grands et puissans navires, ainsi qu’ils pourroyent faire; si des dits butins raisonnable et competente por¬ tion leur estoit distribuee. Nous ce que d’o¬ resnavant ils ayent plus grande occasion et vouloir de faire faire et entretenir bons, grands, forts, et puissans vaisseaux, dont puissions estre servis et secourus en nos guerres centre nos dits Ennemis et Adversaires, et iceux amplement equiper, munir, et garnir de toute chose requise pour la guerre, Avons ordonne et ordon- [*68 nons qu’iceux Bourgeois et autres ausquels ap- partiendront aucuns navires, apr5s le dixiesme de nostre dit Amiral pris et deduit sur la totalite de la Prise et butin, que feront les dits Navires, auront et prendront la quarte partie du surplus d’icelles Prises et butin, soit de > inarchandises, prisonniers, rangons, et quelques soient les dites Prises et butin, sans aucune chose en reserver ny excepter ; et de trois quarts restans, les Avic-

161

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Appendix.

tuailleurs en auront quart et demi, et les Mari- niers et autres Compagnons de guerre autre quart et demi, pour le repartir entre eux en la maniSre accoutuniee.

Art. XLIII. — Pour obvier S, tout desordre et confuision, et a ce qu’a chacun son droit soit garde, voulons et ordonnons, que les maistres, contre-maistres, Gouverneurs, et autres ayans charge des navires, ameinnent les personnes, navires, vaisseaux, mai’cliandises, et autres biens qu’ils prendront a lour voyage, au mesme port et havre dont ils seront partis pour faire le dit voyage, ou au lieu de leur reste, sur peine de perdre tout le droit qu’ils auront en la dite Prise et butin, et d’amende arbitraire; le tout 3, appliquer au dit Amiral, & la charge et juris¬ diction duquel sera le dit port dont ils seront partis, et outre de punition corporelle sinon que par force d’ennemis, ou par tempeste ils feussent contraiuts eux sauver en autre port: esquels cas seront tenus estans arrives esdits autres ports et havres, avertir les dits offlciers de la dite Amiraute, pour estre presens it I’inventaire des dites marchandises, avant qu’en decharger au- cune sur les dites peines, et en rapporter certi- ficat des dits ofBciers esdits havres dont ils se¬ ront partis, pour estre delivre ausdits Marchans, Proprietaires et Victuailleurs; ce qui aura en semblable lieu, pour les navires qui font voyage hors ce Royaume en marchandise ou autre- ment.

Art. XLV. — Et pour ce que plusieurs gens de guerre des dits navires voudroyent dire plu¬ sieurs biens tenir nature de pillage, pour par ce moyen les appliquer a leur profit, au prejudice de ceux qui equipent et arment les dits navires, nops avons dit et declare, disons et declarons suivant nos anciennes Ordonnances, que nulle chose pourra estre dit pillage, qui exc^de la valeur de dix escus.

69] Art. XL VIII. — Avons defendu et de- fendons sur peine de prison et confiscation de biens, a tons marchands de quelqueestat.qualite ou condition qu’ils soient, d’acheter, esclianger, permuter ou prendre par don, ou autre couleur ou condition que ce soit, ne de celer ou occulter par eux ou autres, directement ou indirecte- ment, les marchandises et biens depredez, et amenez de la mer, avant que le dit Amiral ou son dit Lieutenant, ait declare les prises estre justes et de bon et licite gain.

Art. LXI. — Si aucun navire de nos sub jets pris par nos ennemis, a este entre leurs mains jusques a vingt-quatre heures, et apres il soit recous et repris par aucuns de nos navires de guerre^ ou autres de nos subjets, la prise sera declaree bonne; mais si la dite i-epri.se est faite auparavant les vingt-quatre heures, il sera res- titue avec tout ce qui etoit dedans, et aura tou- tefois le navire de guerre, qui I’aura reoousse et reprise, le tiers.

Art. LXII. — Et pour autant que en faisant prinse en mer par nos navires et autres de nos subjets, plusieurs se presentent souvent pour y avoir part, sous ombre qu’ils veulent alleguer avoir veu prendre la dite prise, et oy I’artillerie durant le combat, encore qu’ils n’ayent este I’occasion que I’enuemi se soit rendu par crainte d’iceux ; et afin d’eviter et obvier aux differents qui se peurrent mouvoir sur cedes injustes de- mandes, il ne sera loisible a aucun navire, a qui qu’il soit appartenant, de demander aucune part et portion aux prises qui se feront, si ce 152

n’est qu’ils ayent combattu ou fait tel effort, que pour son devoir I’ennemi ait amene se.s. voiles, ou bien qu’il en ait este en quelque par- tie cause ; dont les prisonniers seront creuz par serment; si ce n’est qu’il y ait eust promes.se entre les uns et les autres, de departir les prises faites en presence ou absence.

Art. LXIV. — LS, ou aucuns navires 3. la .se- monce qui leur sera faite par les navires de guerre de nous et de nos subjets, am^neront liberalement sans aucune resistance leurs voiles et montreront leurs chartesparties et recognois- sance aux dits navires de guerre, il ne leur sera fait aucun tort, Mais si le capitaine du navire de guerre ou ceux de son equipage lui robbent *aucune chose, ils seront tenus ensemble- [*70 ment, et I’un seul et pour le tout, a la restitu¬ tion entiSre, et avec ce condamnez reaument et de fait et executez a la niort et supplice de la roue, nonobstant I’appel, pourvu que au dit jugement y a.s.sistent six Avocats ou Xotables personnes de Conseil, qui orront de bouche les prisonniers, et seront tenus signer le dictum.

Art. LXV. — Pour ce qu’il est 3, considerer que ayant par nous ou autres de nos subjets, arme un, deux, ou plusieurs navires en guerre pour chercher I’aventure de profiter sur I’enne- mi. Ton ne pent moins faire que discouvrant navire a veue, ou plus prez, que de courir aprfis pour sqavoir s’il est ami ou ennemi, au moyen de ce que la plus grande part des navires des amis et alliez sont de m@me construction que ceux des dits ennemis, aussi que bien souvent dedans les dits navires d’amis et alliez, les mar¬ chandises qui y sont appartiennent aux dits. ennemis, ou bien il y a marchandises prohibez : Nous afin d’e.sclarcir nos gens et subjets, de ce qu’ils auront affaire en ce que dessus, pour n’y faire faute et erreur dont ils puissent estre re- prins, avons permis et permettons, voulons et nous plaist, _que tous navires de guerre de nous et de nos dits subjets, descouvrans il veue ou plus prfis, autres navires, soyent d'arnis; alliez, ou d’autres, pourront courir apres et les seiuon- dre d’amener les voile, s, et e.stans rcfu.sans de ce faire apiAs cette .semouce leur tenir artillerie jusques 3. les contraindre par force, en quoy faisant venant au combat, par la temerite ou oppinia.strete de ceux qui seront dans les dibs, navires, et lil de.ssus estans prins, nous voulons et entendons la dite prise estre dite et declaree bonne.

Art. LXIX. — Et pour ce que par cy-devaut soubs couleur des pratiques et intelligences, que out aucuns de nos allies et confederes avec nos ennemis, lorsqu’il y avait aucune prise faite .sur mer par nos subjets, plusieurs proces se susci- toyent, par nos dits alliez. voulant dire que les. biens, prins en guerre, leur appartiennent, .soubs ombre de quelque part et portion qu’ils avoient avec nos dits ennemis, dont .se .sont ensuivie.s grosses condamnations a I’encontre de nos dit.s subjets; au moyen de quoi, iceux nos .subjets ont depuis craint esquipper navires *en [*7 1 guerre, pour nous faire fermer et endommager nos ennemis: Nous pour remedier a telles frau- des, et afin qiie nos dits .subjets reprennent leur courage, et ayent meilleur dusir et occasion d esquipper navires en guerre par mer, avons voulu et ordonne, voulons et ordonnons, que .si les navires de nos dits subjets sont, en temps de guerre, prises par mer d’aucuns navires appar- tenans a autres nos subjets ou tl nos alliez, con-

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federez ou amis, esquels y aieut biens, max- chandises ou gens de nos ennemis, ou bien aussi navires de nos dits ennemis, esquels y aient personnes, marchandises, ou autres biens de nos dits subjets, confederez et alliez (in ord. 1543, ou esquels nos dits sujets ou alliez fussent personniers en quelques imrtions), que le tout soit declare de bonne prise — et dSs il present comme pour lors, avoirs ainsi declare et decla- rons par ces presentes, comme si le tout appar- tenait a nos dits ennemis. Mais pourront nos dits alliez et confederez, faire leur traffic pal¬ mer, dedans navires (jui soyent de leur obeis- sance et subjection, et par leurs gens et subjets, sans y accueillir nos ennemis et advensaires ; les quels biens et marchandises ainsi charges, ils pourront mener et conduire oft bon leur sem- blera, pourvu que ce ne soyent munitions de guerre, dont ils voulussent fortifier nos dits en¬ nemis. Auquel cas, nous avous permis et per- mettons a nos dits subjets, les prendre, et ame- ner en nos ports et havres, et les dites munitions retenir, selon I’estimation raisonnable, qui en sera faite par notre dit Amiral, ou son dit Lieu¬ tenant.

Art. LXX. — Et pour ce qu’il pourroit adve- nir, qu’aucuns de nos dits alliez et confederez, voudroyent porter plus grande faveur ilnos dits ennemis et adversaires, que & nous, et ^ nos dits sub jets, et a ceste cause, voudroyent dire et soustenir centre verite, que les navires prins en mer par nos dits subjets leur appartiendroyent. ensemble la marchandise, pour en frauder nos dits subjets: voulons et ordonnons, qu’inconti- nent apr^s la prise et abordement de navire, nos dits s'ujets fassent diligence de recouvrer la charte partie, et autres lettres concernant la charge du navire ; et incontinent ^ leur arrive- ment terre, les mettre par devers le Lieutenant de notre dit Amiral, afin de cognoistre a qui le navire et marchandises appartiennent ; et oft ne 72^] *seroit trouvee charte partie dedans les dits navires, ou que le maistre et compagnons I’eussent jettee en la mer, pour en celer la verite, voulons que les dits navires ainsi prins, avec les dits biens et marchandises estans dedans, soyent declarez de bonne prise.

Sur la Navigation — Ordonnance du lloi de Suede, 19 Fev. 1715.

“1. Le Roi voulant bien permettre, non seu- lement s^ propres sujets, mais aussi ceux des puissances etrangeres, d’aller en course sur tous ceux qui contreviendront 3, ce- reglement; un chacun qui souhaitera d’avoir une commis¬ sion d’armateur, I’obtiendra de Sa Majeste ou de ses Amiraux: mais ceux qui ne seront pas munis d’une telle commission, n’auront point la permi.s.sion d’aller en course.

“2. Lorsqu’un armateur fera un signal, ou donnera la chasse 4 un vaisseau, le maltre sera oblige de lui obeir et de le respecter ; de venir

son bord avec ses documents, ou de les envo- yer par quelqu’autre. En cas que I’armateur trouve que le vaisseau ou sa charge, ou tous les deux ensemble, soient confiscables, il gardera les documents, apr^s les avoir fait sceller par le proprietaire, et fera aussi sceller les ecoutilles du vaisseau avec son cachet et celui du maitre.

“3. Si I’armateur trouve par les documents que le vaisseau et sa charge ne soient pas de bonne prise, il pourra encore envoyer quelqu’un a bord du vaisseau, pour examiner si les docu-

Wheat. 5.

ments ne sont point defectueux ; et en cas qu’il, s soient trouves conformes ft la verite, il laissera aller le vaisseau sans lui causer aucun dom- mage.

“4. Si le vaisseau, a qui on aura fait le si¬ gnal, titche de se soustraire, et s’il est ensuite prls par force, le maltre sera oblige de donner satisfaction a I’armateur.

“5. Un vaisseau qui fera la moindre resis¬ tance a un armateur, perdra par la sa liberte, et sera de bonne prise, qiioiqu’il ne I’efit pas ete sans cela.

“6. L’Armateur ayant fait une prise, devra I’annoncer au Juge du lieu ou il I’aura conduite. et lui produira le protocole *et les docu- [*73 ments scelles; 11 sera permis, a la requisition de I’armateur, de faire debarquer le maitre et son equipage ; mais le vaisseau et sa charge res- teront a la garde du dit armateur, qui sera obli¬ ge de restituer le tout, en cas que I’un et I’autre soient declares fibres.

‘ ‘ 7. Tous les vaisseaux qui seront amenez il Kareiskroon, ou dans les ports 4 cote de Sund, seront jugez par des personnes etablies pour cet effet, et ensuite par des Con.seillers de I’Ami- raute de Kareiskroon ; Ceux qui seront conduits a Gottenbourg ou aux environs, seront jugez par I’Amiraute de Gottenbourg; et ceux qui seront amenez a Stralsund ou dans quelques ports d’Allemagne, seront jugez par I’Ami- raute de Stralsund. Ces jugemens devront se faire sans aucun retardement, et il ne sera pas seulement permis aux maitres des vaisseaux, d’envoier chercher ailleurs de nou- velles preuves pour leur justification. Mais en cas que I’affaire soit si embrouillee, qu’on ait besoin de plus grands eclaircissemens, on' dechargera les effets jusqu’a ce terns la.

‘ ‘ 8. Tous les vaisseaux appartenant aux enne¬ mis ou a leurs Sujets, seront confiscables, sans avoir egard aux fieux d’ou ils viennent et ou ils vont.

“9. De m6me que tous les vaisseaux neutres qui negocient dans les places de la Mer Baltique, enlevees au Roi, y compris les Isles et Havres sur les Cotes de Finlande, Ingermelande, Oest- lande, Llvonie, et Courlande.

“10. Comme aussi les vaisseaux construits ou achetez dans des places ennemies, et qui n’ont pas encore ete dans des endroits fibres.

“11. Les documens indispensables dont les maitres de vaisseaux doivent etre munis, sont le contract de la construction du vaisseau, le contract d’achat ou de transport; et I’Acte de Jaugeage du vaisseau, par oil Ton puisse voir si sa capacite \OU grandeur, y mentionnee, se rapporte aux contracts de construction et d’achat, comme aussi a la Icttre de Mer ou attestation de I’Amiraute, par laquelle on puisse voir le lieu a qui le vaisseau appartient, le nom du capitaine, si les Freteurs ne sont pas ennemis, et oh le vais.seau est destine: le toutdevant Gtre atteste *par serment, tant des capitaines [*74 que des Freteuros. 'Toute la charge'devra au.ssi Gtre specifiee dans le mSme pas.seport, avec le nom du proprietaire, et le seing du magistral du lieu ; et les attestations que les officiers de la Douane pourroient donner a cet egard, ne seront point valables, quand inGme les magistrai.s seroient absens.

“12. Tous les vaisseaux qui auront des docu¬ mens doubles ou contradictoires, en sorte que selon quelques uns ils soient confiscables, et

15S

74

Appendix.

selon quelques autres libres,- seront neanmoins declarez de bonne prise.

“ 13. Tons les effets appartenans a des sujets enneinis, on envoyez pour leur compte, seront confiscables, dans quelque vaisseau quo ce soit qu’ils soient trouvez.

“14. Comme aussi les effets des sujets neu- tres, qui se trouveront dans des vaisseaux enne- mis.

“15. De mgme que tons les effets qui vont ou viennent des Havres mentionnez dans I’article IX.

“16. Tons les effets, de quelque valeur qu’ils soient, seront pareillement confiscables, lorsqu’on ne trouvera pas a bord les preuves necessaires ; savoir, un certiflcat atteste des Freteurs par serment, et signe par le Magistral du lieu, specifiant en general la charge, 5, qui elle appartient, et oii elle est destinee; comme aussi les counoissemens, contenant en particu- lier et par division la dite charge, et pour le compte et risque de qui elle est. Le cajiitaine sera aussi tenu d’etre muni de pareils certificats et documens, pour la portion qu’il pourroit avoir dans la charge, avec la Liste et les marques des dits effets, qui doivent se rapporter avec les Counoissemens. Tons les Coimois.se- mens qui ne seront pas entierement remplis, sont tenement defendus qu’ils rendront le vaisseau confiscable comme aussi divers Con- noissemens d'une mgme sorte des marchandise, ou doubles Counoissemens. Et quoiqu’il soit specific dans I’article IX., quels documens on doit produire pour la franchise du vaisseau et de sa charge; on pourra neanmoins e exiger encore d’autres, comme la chartepartie, Comptesde Facture,Lettres de Correspondence, Listes des Douanes, et autres pareils; aprSs quoi on jugera si le vaisseau est franc ou non.

75] “17. Les effets qui auront des docu¬

mens doubles ou contradictoires, seront con¬ fiscables comme les vaisseaux. Article XII.

“18. De meme que toutes les marchandises de conlrebande, qui peuvent etre employees pour la Guerre.

“ 19. Tous les vaisseaux qui viennent ou vont 4 line place des ennemis, avec leurs charges, seront tenus pour confiscables.

“ 20. Les vaisseaux qui s’eloigneront de leur route, seront aussi confiscables, lorsqu’ils ne pourront pas justifier qu’ils y out ete contraints par tempGte ou mauvais terns.

“21. Comme il doit y avoir sur chaque vaisseau un rolle de tout I’equipage, signe par le Magistrat du lieu 4 qui il appartient, avec le nom du lieu de la naissance de chaque Matelot,

1.— In 1793, the Danish government issued the fol¬ lowing proclamation respecting the trade of Danish subjects, in the war which was then just broke out :

“ VVe, by the grace of God, Christian VII., &c.

“ It is only by strictly observing the rules and provisions stipulated for by our treaties with for¬ eign powers, that the merchants of our kingdoms can enjoy the security which our neutrality has procured for the Danish flag during the present calamities of the war. We therefore order,

“Art. 3. As the princli)le8 of neutrality do not permit any neutral vessel to enter a port block¬ aded by any of the belligerent powers, or to have articles on board, considered as contraband, and destined for states at war, or their subjects, or, finally, such as already belong to them ; the magis¬ trates must inform the parties concerned of these principles, and be careful that the required oath contains also the engagement to receive nothing on board which may be comprised in the under¬ mentioned denominations.

154

et 4 qui il appartient : Sa Majeste veut qu’il n’y ait sur cliaque vais.seau, qu’un quart de Mate- lots nez dans les Pai's ennemis; sou.s peine d’etre confisque de m@me que les vaisseaux qui n’auront pas de Holies ou Listes.

“22. En cas qu’une partie du vaisseau ne soit pas fibre, el que I’autre le soit, toutes les parties du dit vaisseau seront confiscables.

“ 23. Tout ce qui sera declare de bonne prise, appartiendra entierement 4 1’Armateur et a ceux qui auront fait I’Armement, sans qu’on en retienne la moindre cliose pour le Roi, ou pour le public.”

Ordinance of Ms Majesty the King of Denmark, Norway, the Vandals, and Goths, &c., tfcc. Dated 23d Sept. , 1659. '

We, Frederick the Third, by the grace of God, King of Denmark, Norway, &c. , &c., do hereby make known to all persons; Whereas, *in our most gracious declarations, re- [*7 G specting those who trade by sea, bearing date the 30th August last, it is set forth — concerning the certificates for ships (the sea-briefs), as well as the certificates for the goods and cargo, on board ships which are destined to Sweden, or to other territories and towns belonging to the crown of Sweden, or now in possession of the Swedes, as long as this w^ar shall continue, viz. , in what form they shall be composed and made out so as to be deemed sufficient by the Court of Admiralty, and to avail and benefit those persons, that shall produce them in court. Now, to the end that every person may know it, and in a right manner and form furnish ships and goods with certificates; therefore we have most graciously ordered and consented, and do also hereby order and consent, that all and every certificate made, taken out, or granted, for free ships and goods in neutral places, and by neutral persons, ship-masters and owners, as long as this war continues, must, in their let¬ ter and true meaning, manner and form, be of the tenor as here follows :

*1. The certificate for the ships (which [*77 must be made upon oath, and with fingers erect, by every ship-owner, or ship-master, be¬ fore the magistrates of his own town or place), must, in its letter and true meaning, be of the tenor as hereunder; and the said certificate must likewise be signed and sealed by the usual sworn secretary or notary; and besides them, as further ordered on this subject, in our afore¬ said most gracious declaration.

We, N. N. and N. N., conjunctively, ship¬ master, and owner, of the ship N. N., of the

“ Art. 4. By contraband is understood, fire-arms and other species of arms, horses, harness, and in general every article necessary for the construc¬ tion and reimirof vessels, with the exception, how¬ ever, of unwrought iron, beams, boards and planks of deal and fir.

“ Art. 6. In the treaty of commerce and alliance of 1670, with England, it is stipulated that amongst the ship’s papers there should be, in time of war, a certificate to prove that the cargo belongs to a neu¬ tral power. In order, therefore, to prevent all cause of dissatisfaction on either side, we have or¬ dered the magistrates in our ports to deliver the certificates required on this subject, and also our consuls in foreign ports ; and the former as well as the latter are enjoined to affix their signature to them.

“ Art. 14. The certificates respecting the neutral¬ ity of the vessel, as well as the cargo, must be granted under the forms prescribed by the Coun¬ cil of Commerce.”

Wheat. 5.

Appendix.

77

burthen of N. lasts, now commanded by cap¬ tain N. N., do hereby certify, tliat the afore¬ said ship belongs to no other person, but solely to us, in true right of property, and that no enemy or other person besides ourselves, afore¬ said, has any share or interest therein; also, that neither with our conjunctive knowledge and will, or with the knowledge and will of either of us, shall any goods belonging to ene¬ mies be laden therein. So help us God, and His holy Word!

to be taken upon oath, and with fingers erect, for every ship’s cargo, and goods, and merchan¬ dise on board, by every merchant, or freighter, before the magistrates of his own town or place, must likewise be signed in the manner afore¬ said, and must in its letter and true meaning be of the following tenor;

I, N. N., inhabitant and burgher in N. N., do hereby and by virtue of these presents certi¬ fy, that all such goods as shall be laden in the ship N. N., whereof N. N. is master, destined to N. N., and which shall be specified in this certificate, with their denominations and marks, do belong to no other person whatever, in this world, besides myself solely and only, and were purchased with my own property or means. Also, that they do solely go for my own account and risk; and this not in appearance only, or for color sake, so that by means of some clan¬ destine agreement with enemies, I am collu- sively to cover the said goods by this declara¬ tion, as if they were for my own account and risk, until they are brought in safety, and that then they shall belong to, and be sold for ac- 78 J count of, enemies; but that they diohona Jide belong to mj'self, solely, wfithout fraud. So help me God, and His holy Word.

And in this certificate there must be inserted a true specification of all the goods, belonging to each certificant, which he has thus caused to be laden, and marked with his proper mark. Inasmuch as such certificates that are of a dif¬ ferent tenor, or affirmed to in a manner ditfer- ent from the above-mentioned, shall be consid¬ ered of no value, before our Court of Admi¬ ralty, whosoever the claimant may be, or wherever he may be found with such upon the seas; but they shall be, and remain of no value, even as those certificates are held and consider¬ ed, which, in a judicial manner, or otherwi.se, are proved to be false; inasmuch as by and with the advice of our beloved counselors of state, we have by these presents so enacted it, and have before issued orders concerning the same, in our most gracious declaration.

cious declaration, as well as in all the passports granted by us, it is prohibited to caiTy, or bring any sorts of contraband goods to and from Sweden, and the countries and places belonging thereto, or at present possessed by them. Now, that every person may know what sort of goods it is which are considered and deemed as con¬ traband, we have on that subject made and given this specification and declaration to wit ;

contraband, viz. : All sorts of ammunition, arms, gunpowder, matches, and saltpetre; also, sad¬ dles, horse-harness, and horses; further, oak ships’ timber, and all sorts of ship’s materials and apparel, such as sail-cloth, tackling, cordage, Wheat. 5.

and whatever else is considered necessary and useful for carrying on war, beseiging, blockad¬ ing, or other military operations, by land and by sea.

ed as contraband and prohibited goods, to wit : All sorts of provisions for food and beverage, as well as all sorts of course and fine salt, with¬ out any distinction whatever, none excepted; save, solely, all sorts of wines, brandy, and spices (or groceryware), and also such quanti¬ ty of herrings and salt, as are destined to Narva, or *Reval, from which places traffic is [*71) carried on with the Russian towns and coun¬ tries ; to the end that the trade of Russia may be carried on unmolested; which articles we have graciously, out of a special consideration, consented to have excepted, and to allow that they may be freely conveyed to Narva afore¬ said, and the before-named Livonian cities.

as contraband, viz. : Calamine, cotton, and whatever else serves for the furtherance of all sorts of manufactures, made, woven, or other¬ wise put together in Sweden, and the countries and towns under its dominion. Also, such ar¬ ticles as are cast, smith’s work, or wire drawn, whether they be of copper, brass, iron, lead, or other materials, or what is made either of metal, linen, or wool, wheresoever they are met with, on board of free, or unfree ships, belonging to Swedish subjects. Under this description are to be understood, all sorts of ordinance and can¬ non, mortars of brass or iron, small or great, all sorts of arms, armour, arms for the use of cavalry or infantry, anchors and anchor-stocks, nails, spikes, and bolts; also all sorts of ready¬ made house furniture and cooper’s articles; to- ■gether with copper and all other coins, being the property of Swedish subjects, and exported from the dominions of Sweden, although they should be found on board of ships belonging to free, or neutral places, and persons, as afore¬ said; nevertheless that, on that account, free ships and goods belonging to neutral persons, shall not be subject to confiscation, if with such legal and proper certificates, as above described, they can judicially be proved to be such.

manner, are satisfactorily proved to belong to free places and neutral persons, and by them are exported from Sweden in ships of their own, whether it be iron in bars, osmund (moonworth), refined copper (original Gaar-copper), brass wire, and copper in plates ; further, all sorts of grain, and greasy articles (or fatmongeiy) ; also, hides and skins, and all other Swedish goods, being raw materials, or not made up or manu¬ factured in Sweden, or other countries and cities belonging to Sweden; also, flax, *hemp, [*80 wax, fir building timber, deals, laths, Gottland lime and lime-stones, all sorts of fiags and other stones, together with masts, spars, tar, pitch, pot and wood ashes, clap-boards, pipe-staves, peltry, and other Russia leather, and Russian goods, are not herewith understood or pro¬ hibited to be exported {i. e., out of Sweden), but are hereby permitted and allowed, so that for the sake of maintaining commerce they may be freely exported by neutral towns and persons, in their ships, by their factors, in the manner aforesaid ; and that, on the other hand, they may also freely import into Sweden all

155

80

Appendix.

sorts of silk articles, cloths, and such like fine shop ware, and current goods, which are not, properly and directly necessary and useful for any purpose of war; but all such free goods as are found or met with, or overtaken in ships that are not free, shall and must after all (with¬ out any exception) be subject to confiscation as good prize. According to which our admiralty council board, and servants thereof, and all and every our officers, cruisers, and commanders of ships, having commissions, as well as all others, whether they be our friends, neighbors, or enemies, who are carrying on any commerce and traffic by sea, and are minded to continue the same, during the present war, have to con¬ form themselves, and to beware of losses. Given in our palace at Copenhagen, the 23d of September, in the year 1659, under our seal.

[l. s.] Friederich.

PROM THE FRENCH ORDINANCE OP 1681.

DIVRE III. — TITRB IX.

Sec. 2. Des Prises.

Art. 3. Defendons 9, tous nos sujets, de pren¬ dre commissions d’aucuns rois, princes ou etate etrangers, pour armer des vaisseaux en guerre, et courir la mer sous leur banniSre, si ce n’est par notre permission, a peine d’etre traites com- me pirates.

81*] *4. Seront de bonne prise tous vais¬

seaux appartenants 9 nos ennemis, ou com- mandes par des pirates, forbans ou autres gens courant la mer sans commission d’aucun prince ni etat souverain.

ion que celui de I’etat dont il a commission, ou ayant commission de deux diflerens princes ou etats, sera aussi de bonne prise; et s’il est arme en guerre, les capitaines et officiers seront punis comme pirates.

avec leur chargemeut, dans lesquels il ne sera trouve chartes-parties, connaissemens ni facT tures. Faisons defenses 9 tous capitaines, offi¬ ciers et equipages des vaisseaux preneurs, de les soustraire, 9 peine de punition corporelle.

d’eflets appartenants 9 nas ennemis, et les mar- chandises de nos sujets ou allies qui se trouve ront dans un navire ennemi, seront pareillement de bonne prise.

sur nos ennemis, apr9s qu’il aura demeure entre leui’s mains pendant 24 heures, la prise en sera bonne ; et si elle est faite avant les 24 heures, il sera restitue au proprietaire, avec tout ce qui etoit dedans, a la reserve du tiers qui sera donne au navire qui aura fait la recousse.

donne par les ennemis, ou si, par tempgte ou autre cas fortuit, il revient en la possession de nos sujets, avant qu’il ait ete conduit dans aucun port ennemi, il sera rendu au proprie¬ taire qui le reclamera, dans I’an et jour, quoi- qu’il ait ete plus de 24 heures entre les mains des ennemis.

' 10. Les navires et effets de nos sujets ou al¬ lies, repris sur les pirates, et reclames dans I’an et jour de la declaration qui en aura ete faite en I’amiraute, seront rendus aux pro]irietaires en

156

payant le tiers de la valeur du vaisseau et des marchandises, pour frais de recousse.

munitions de guerre, m@me les chevaux et equipages qui seront transportes *pour le [*83 service de nos ennemis, seront confisques, en quelque vaisseau qu’ils soient trouvfe, et a quelque personne qu’ils appartiennent, soit de nos sujets ou allies.

voiles, apres la semonce qui lui en aura ete faite par nos vaisseaux ou ceux de nos sujets armes en guerre, pourra y @tre contraint par artillerie ou autrement ; et en cas de resistance et de com¬ bat il sera de bonne prise.

armes en guerre, d’arrSter ceux de nos sujets, amis ou allies, qui auront amene leurs voiles et represente leur charte-partie ou police de charge- ment, et d’y prendre ou soufirir @tre pris aucune chose, 9 peine de la vie.

ayant commission etrang&re, ne pourront de- meurer plus de vingt-quatre heures dans nos ports et havres, s’ils n’y sont retenus par la tempSte, ou si la prise n’a ete faite sur nos en¬ nemis.

par les navires de guerre armes sous commis¬ sion etrangSre, il se trouve des marchandises qui soient 9 nos sujets ou allies, cedes de nos sujets leur seront rendues, et les autres ne pour¬ ront Stre mises en magasin, ni achetees par aucune personne, sous quelque pretexte que ce puisse @tre.

armes en guerre, se seront rendus maitres de quelques navires, ils se saisiront des conges, passe-ports, lettres de mer, chartes-parties, con¬ naissemens, et de tous autres papiers concer- nant la charge et destination du vaisseau, en¬ semble des cles des coffres, armoires et chamlires, et feront fermer les ecoutilles et autres lieux ou il y aura des marchandises.

fait quelque prise, de I’amener ou envoyer, avec les prisonniers, au port ou ils auront arme, a peine de perte de leur droit, et d’amende arbi- traire, si ce n’est qu’ils fussent forces par la tempgfe ou par les ennemis, de relficher en quelque autre port ; auquel cas ils seront tenus d’en donner incessamment avis aux interesses a Tarmement.

*18. Faisons defenses, 9 peine de la vie, [*83 9 tous chefs, soldats et matelots, de couler 9 fond les vaisseaux pris, et de descendre les prisonniers en des lies ou cotes eloignfes, pour celer la prise.

du vaisseau pris, ni de I’equipage, enlSveraient seulement les marchandises, ou rel9cheraient le tout par composition, ils seront tenus de se sai- sir des papiers, et d’amener, au moins, les deux principaux officiers du vaisseau pris, 9 peine d’etre prives de ce qui leur pourrait appartenir en la prise, m@me de punition corporelle, s’il y echet. •

coffres, ballots, sacs, pipes, barriques, tonneaux’ et armoires; de transporter ni vendre aucunes marchandises de la prise, et 9 toutes personnes d’en acheter ou recSler, jusqu’9 ce que la prise ait ete jugee, ou qu’il soit ordonne par justice^

Wheat. 5.

Appendix .

;l peine de restitution du quadruple et de puni- tion corporelle.

en quelques rades ou ports de notre royaume, le capitaine qui I’aura faite, s’il y est en per- sonne, sinon celui qu’il en aura charge, sera te- nu de faire son rapport aux offlciers de I’ami- raute, de leur representer et mettre entre les mains les papiers et prisonniers, et de leur de¬ clarer le jour et I’lieure que le vaisseau aura ete pris, en quel lieu ou a quelle hauteur ; si le ca¬ pitaine a fait refus d’amener les voiles ou de faire voir sa commission ou son conge, s’il a attaque ou s’il s’ est defendu, quel pavilion il portait, et les autres circonstances de la prise et de son voyage.

<le I’amiraute se transporteront incessamment sur le vaisseau pris, soit qu’il ait mouilleenrade, ou qu’il soit entre dans le port, dresseront pro- c^s-verbal de la quantite et qualite des mar- chandises, et de I’etat auquel ils trouveront les chambres, armoires, ecoutilles, et fond de cale du vaisseau, qu’ils feront ensuite fermer et scel- ler du sceau de I’amiraute ; et ils y etahliront des gardes pour veiller il la conservation du scelle et pour emp@cher le divertissement des effets.

84*] *23. Le proc^s-verbal des offlciers de

I’amiraute sera fait en presence du capitaine ou maitre du vaisseau pris; et s’il est absent, en la presence de deux principaux offlciers ou mate- lots de son equipage ; ensemble du capitaine ou autre offlcier du vaisseau preneur, et m@me des reclamateurs s’il s’en presente.

le fait de la prise, le maitre ou commandant du vaisseau pris, et les principaux de son equipage, meme quelques offlciers et matelots du preneur, s’il e.st besoin.

chartes-parties, ni connais.semens, les offlciers. soldats et equipage de celui qui I’aura pris, se- ront separement examines sur les circonstances de la prise, et pourquoi le havire a ete amene sans prisonniers; et .seront le vaisseau et les marchandises visitees par experts, pour con- naltre, s’il se peut, sur qui la prise aura ete faite.

visite du vaisseau et des marchandises, on ne peut decouvrir sur qui la prise aura ete faite, le tout sera inventorie, apprecie, et mis sous bonne et sdre garde, pour gtre restitue 4 qui il appar- tiendra, s’il est reclame dans I’an et jour, sinon partage comme epave de mer, egalement entre nous, I’arairal et les armateurs.

la prise, de tirer les marchandises du vaisseau, pour en emp6cher le deperissement, il en sera fait inventaire en presence de notre procureur et des parties interessees, qui le signeront, si elles peuvent signer, poiir ensuite 6tre mises sous la garde d’une personne solvable, ou dans des magasins fermant ft trois cles diiferentes, dont I’une sera delivree aux armateurs, I’autre au receveur de I’amiral, et la troisiSme. aux re¬ clamateurs, si aucun se presente, sinon ft notre procureur.

conservees, seront vendues sur la requisition des parties interessees, et adjugees au plus of- frant, en presence de notre procureur, ft Tissue

Wheat. 5.

m

do Taudience, aprfts trois remises d’enchSres, de trois jours en trois jours, les proclamations pre- alablcment faites, et affiches mises en la maniSre accoutumeee.

procMer incessamment *ft Texecution des [*85 arrOts et jugements qui interviendront sur le fait des^ prises, et de faire faire incontinent et sans delai, la delivrance des vaisseaux, mar¬ chandises et effets dont la main levee sera or- donnee, ft peine d’interdiction, de cinq cents livres d’amende, et de tons depens, dommages et interets.

laquelle se trouveront monter les frais du de- chargement et de la garde du vaisseau et des marchandises, suivant Tetat qui en sera arrgte par le lieutenant de Tamiraute, en prefence de notre procureur et des interesses.

Rtglernent du 17 fevrier 169Ji., concernant les passepoi'ts accordes aux vaisseaux ennemis par les puissances neutres.

Art. 1. On n’aura aucun egard aux passeports des princes neutres, auxquels ceux qui les au- ront obtenus se trouveront avoir contrevenu, et ces vaisseaux seront consideres comme etant sans aveu.

pour un seul voyage.

nuls, quand il y aura preuve que le navire pour lequel ils sont expedies n’etait alors dans aucun des ports du prince qui Ta accorde.

mie, ou qui aura eu originairement un proprie- taire ennemi, ne pourra @tre cense neutre, s’il n’en a ete fait une vente pardevant les offlciers publics qui doivent passer cette sorte d’actes, et si cette vente ne se trouve ft bord, et n’est sou- tenue d’un pouvoir authentique, donne par le premier proprietaire lorsqu’il ne vend pas lui- m6me.

signes, seront nuls et regardes comme des actes informes.

*Ord(mnanc6 du 12 mai 1696, touchantla [*86

maniere dejuger les vaisseaux qui eclwuent ou, qwi sont portes aux c6tes de France par tempete ou autrement.

Sa Majeste etant informee qu’il est survenu quelques contestations ft Toccasion du jugement des vaisseaux echoues, soit ft Tegard de ceux qui, etant de fabrique ennemie, ne sont pas trouves munis d’aucun contrat, soit par rapport aux marchandises, sans connaissements, sous pretexts que le rftglement du 17 fevrier 1694 pa- ralt n’avoir ete fait que pour les vaisseaux pris, et que Tarticle de Tordonnance de 1684, qui conti.sque les marchandises sans connaissement, est insere dans le titre des prises; ft quoi Sa Majeste desirant pourvoir, en sorte que les vais¬ seaux marques, et les marcliandises veritable- ment ennemies, mais souvent reclamees par des sujets des princes neutres, ne puissent 6tre sous- traits, en aucuns cas, ft la juste confiscation etablie par les lois de la guerre, et par les ordon- nances anciennes et nouvelles ; Sa Majeste a or- donne et ordonne que les vaisseaux qui echoue- ront sur les cotes, et qui seront portes par la tempftte ou autrement, seront juges suivant les articles de ‘Tordonnance de 1681, inseres dans le

157

86

Appendix.

titre des prises, et le rfeglement du 17 fevrier 1694; ce faisant, que tout vaisseau echoue qui sera de fabrique ennemie, ou qui aura eu origi- nairement uu proprietaire ennemi, ne pourra gtre cense neutre, inais sera confisque en entier au profit de Sa Majeste, s’il n’en a ete fait une vente pardevant les otficiers publics qui doivent passer ces sortes d’actes, et -si cette vente ne se trouve a, bord et n’est accompagnee d’un pou- voir autlienlique, donne par le premier proprie¬ taire lorsqu’il ne vend pas lui-m6me. Ordonne pareillement Sa Majeste, que les marcliandises chargees sur les vaisseaux echoues, dont il ne se trouvera a bord aucun connaissement, seront et demeureront entierement confisquees a son pro¬ fit ; n’entend neanmoins Sa Majeste comprendre dans la presente ordonnance, les vaisseaux eclioufe, dont les papiers se seraient perdus a I’occasion de la tempgte et par le inalheur du naufrage, en cas que le capitaine ou le comman¬ dant en fasse d’abord sa declaration, et que 87] I’etat du vaisseau, et les circonstances de recliouement, le faire presumer ainsi; auquel cas, Sa Majeste ordonne que les reclamateurs seront seulement tenus de rapporter une nou- velle expedition du contrat d’achat, et le dou¬ ble des connaissements.

3x.tr ait du Reglement du 21 octobi'e 17 con- cernant les prises faites sur mer, et la na¬ vigation des vaissseaux neutres pen¬ dant la guerre.

Art. 1. Fait Sa Majeste defense aux arma- teurs Frangais, d’arrgter en mer, et d’amener dans les ports de son royaume, les navires ap- partenant aux sujets des princes neutres, sortis d’un des ports de leur domination, et charges pour le compte des sujets des dits princes neu¬ tres, de marchandises du crvl ou fabrique de leur .pays, pour les porter en droiture en quel- qu’etat que ce soit, m@me eh ceux avec qui Sa Majeste est en guerre, pourvu neanmoins qu’il n’y ait sur les dits navires aucunes marchandises de contrebande.

les navires appartenant aux sujets des princes neutres, sortis de quelqu’autre etat que ce soit, m@me de ceux avec lesquels Sa Majeste est en guerre, et charges pour le compte des dits sujets des princes neutres, de marchandises qu’ils au- ront prises dans le pays ou etat d’ou ils seront partis, pour s’en retourner en droiture dans un des ports de la domination de leur souverain.

les navires appartenant aux sujets des princes neutres, partis des ports d’un etat neutre ou allie de Sa Majeste, pourvu qu’ils ne soient charges de marchandises du cril ou fabrique de ses en- nemis, auquel cas les marchandises seront de bonne prise et les navires relhches.

armateurs, d’arr6ter les navires appartenant aux sujets des dits princes neutres, sortis des ports d’un etat allie de Sa Majeste, ou neutre, pour aller dans un port d’un etat ennemi de Sa IVIa- jeste, pourvu qu’il u’y ait sur les dits navires aucunes marchandises de conti-ebande, ni du crfi ou fabrique de Sa Majeste, dans lequel 88] cas les dites marchandises seront de bon¬ ne prise, et les navires seront rehtches,

3, 3, et 4 de ce reglement, il se trouvait sur les dits navires neutres, de quelque nation qu’ils

158

fussent, des marchandises ou effets appartenant aux ennemis de Sa Majeste, les marchandises ou effets seront de bonne prise, quand m6me elles ne seraient pas de fablrique du pays enne¬ mi, et neanmoins les navires relaches.

signes, seront nuls et regardes comme actes in¬ formes.

Reglement du 26juilLet 1778, concernant la na¬ vigation des bdtiments neutres en temps de guerre.

Art. 1. Fait defenses, Sa Majeste, & tons ar¬ mateurs, d’arr@ter et de conduire dans les ports du royaume les navires des puissances neutres, quand m6me ils sortiraient des ports ennemis, ou qu’ils y seraient destines, h I’exception tou- tefois de ceux qui porteraient des secours h des places bloquees, inve.sties ou assiegees. A re¬ gard des navires des etats neutres. qui seraient charges de marchandises de contrebande desti- nees h I’ennemi, ils pourront 6tre arr6tes, et les dites marchandises seront saisies et confifsquees ; mais les bhtiments et le surplus de leur cargai- son seront relSches, h moins que les dites mar¬ chandises de contrebande ne composent les trois quarts de la valeur du chargement; auquel cas les navires et la cargaison seront confisqueete en entier. Se reservant au surplus, Sa Majeste, de revoquer la liberte portee au present article, si les puissances ennemies n’accordent pas le reciproque dans le delai de six mois, a compter du jour de la publication du present r&glement. '

tenus de justifler sur mer de leur propriete rieu- tre par les passeports, connaissements, factures et autres pieces de bord, I’une desquelles au moins constatera la propriete neutre, ou en contiendra une *enonciation precise; et [*8^> quant aux chartes-parties et autres pieces qui ne seraient pas signees, veut Sa Majeste qu’elles soient regardees comme nulles et de mil effet.

qu’ils soient, neutres ou allies, desquels il sera constate qu’il y a eu des papiers jetes a la mer, ou autrement supprimes ou distraits, seront de¬ clares de bonne prise avec leurs cargaisons, sur la seule preuve des papiers jetes a la mer, et sans qu’il soit besoin d’examiner quels etaient ces papiers, par qui ils ont ete jetes, et s’il en est reste suffisamment h bord pour justifier que le navire et son chargement appartiennent h des amis ou allies.

que pour un seul voyage, et sera repute mil, s’il est prouve que le bhtiment pour lequel il aurait ete expedie n’etait, au moment de I’expe- dition, dans aucun des ports du prince qui I’a accorde.

puissances neutres, lorsque ceux qui les auront obtenus se trouvoront y avoir contrevenu, ou lorsque les passeports exprimeront un nom de batiment different de I’enonciation qui en sera faite dans les autres pieces de bord, i\ moins que les preuves du changement de nom avec I’iden- tite du bfitiment, ne fassent partie de ces mSmes pieces, et qu’elles aient ete regues par des ofli-

been granted by Great Britain, this priviiege -svas revoke<i by France, on the Uth of January, 1779, in ref-pect to the United Provinces, except the city of Amsterdam. See 1 Code des Prises, 345.

Wheat. 5.

Appendix.

89

ciers publics du lieu du depart, et enregistrees par devant le principal officier public du lieu.

ports accordes par les puissances neutres, ou alliees, tant aux proprietaires qu’aux maitres des batiments, sujets des etats ennemis de Sa Majeste, s’ils n’ont ete naturalises ou s’ils n’ont transfere leur domicile dans les etats des dites puissances, trois mois avant le premier septem- bre de la presente annee ; et ne pourront les dits proprietaires et maitres de batiments, sujets des etats ennemis, qui auront obtenu les dites lettres de neutralite, jouir de leur effet, si depuis qu’el- les ont ete obtenues, ils sont retournes dans les etats ennemis de Sa Majeste pour y continuer leur commerce.

auraient eu un proprietaire ennemi, ne pourront 90] ^tre reputes neutres ou alli&, s’il n’est trouve a bord quelques pieces autlientiques, passees devant des officiers publics, qui puissent en assurer la date, et qui justifient que la vente ou cession en a ete faite it quelqu’un des sujets des puissances alliees ou neutres, avant le com¬ mencement des bostilites, et si le dit acte tran- satlantif de proprietede i’ennemi, au sujetneu- 1 tre ou allie, n’a ete dument enregistre pardevant le principal officier du lieu du depart, et signe du proprietaire ou du porteur de ses pouvoirs.

mie qui auront ete pris par les vaisseaux de Sa Majeste, cCux de ses allies ou de ses sujets, pendant la guerre, et qui auront ensuite ete vendus aux sujets des etats allies ou neutres, ils ne pourront @tre reputes de bonne prise s’il ne se trouve a bord des actes en bonne forme, passes pardevant les officiers publics ce preposes, ju.stiflcatifs tant de la prise que de la vente ou adjudication qui eu aurait ete faite en, suite aux sujets des dits etats allies ou neutres, soit en France, soit dans les ports des etats allies; faute desquelles pieces justiflcatives tant de la prise que de la vente, les dits batiments seront de bonne prise.

gers sur lesquels il y aura un subrecargue mar- cliand, commis ou officier major d’un pays ennemi de Sa Majeste, ou dont I’equipage sera compose au-del3, du tiers de raatelots sujets des

. etats ennemis de Sa Majeste, ou qui n’auront pas a bord le role dequipage arrete par lesoffl- ciers publics des lieux neutres d’ou les batimens •seront partis.

les dispositions du precedent article, les navires dont les capitaines ou les maitres justifieront, par les actes trouves it bord, qu’ils ont ete obli¬ ges de prendre les officiers majors on matelots, dans les ports ou ils auront relache, pour rem- placer ceux du pays neutre qui seront morts dans le cours du voyage.

les pieces qui pourraient Stre rapportees apres

. la prise des batiments, puissent faire aucune foi, ni atre d’aucune utilite, tant aux proprie¬ taires des dits biltiments qu’a ceux desmarclian- 91] discs qui pourraient y avoir ete chargees; voulant Sa Majeste qu’en toutes occasions, I’on n’ait egard qu’aux seules pieces trouvees il bord.

tis des ports du royaume, qui n’auront a bord d’autres denrees et marchandises que cedes qui y auront ete chargees, et qui se trouveront mu-

Wheat. 0.

nis de conges de I’amiral de France, ne pour¬ ront etre arretes par les armateurs Frangais, ni ramenes par eux dans les ports du royaume sous quelque pretexte que ce puisse Stre.

armateurs Frangais aux dispositions du present reglement, il sera fait main levee des biltiments et des marchandises qui composent leur char- gement, autres toutefois que cedes sujettos il confiscation, et les dits armateurs seront con- damnes en tels dommages et intei'Sts qu’il ap- partiendra.

du present rtsglement auront lieu pour les na¬ vires qui auraient echoue sur les cotes depen¬ dant de ses possessions

positions du titre des prises de I’ordonnance de la marine, drr mois d’Aout 1681, soient execu- tees selon leur forme et teneur, en tout ce 3, quoi il n’aura pas ete deroge par le present reglement.

DANISH PRIZE INSTRUCTIONS OP 1810.

We, Frederick the Sixth, ly the grace of God,

King of Denmark and Norioay, the Wends

and Goths, Duke of Sleswick, Holstein, Stor-

niarn, Ditmarsk, and Oldenburg, make known:

That whereas we find it corresponding with circumstances to renew the acts for privateering from our dominions, which for some time had been stopped, and to establish new regulations, according to which prize cases are to be acted and decided upon, we hereby do publish such rules,, recalling our former will of 24th of September,, 1807, concerning privateering and the lawful decision of prizes.

Sec, 1. No person or persons within our do¬ minions are pennitted *to act as privateer [*92 without being furnished with a lawful commis¬ sion for this purpose.

Such commissions are henceforth to be issued out from the Royal Board of Admiralty, and are to be furnished with the seal of the said court. Such commissions to be granted to none but such persons as either by birth or naturalization have acquired the privileges of Danish citizens, or to other ships or vessels but such as carry guns, or the crew of which at least are furnished with weapons.

on privateering, is to be commanded by a per¬ son who is skillful in navigation, and who, be¬ fore he is entrusted with Ids commis.sion, has signed his name upon oath to these regulations, and promised to obey them, as well as any other orders communicated to him, through our Royal Board of Admiralty.

to the following purport;

“ According to His Majesty’s mo, st gracious orders, it is hereby made known to all persons concerned, that — — . owner of the .ship or ves- ,sel - , burden - lasts according to the roy¬

al bill, dated the 28, th of March, 1810_, has ob¬ tained permission to fit out the said ship or ves¬ sel commanded by - in order to cruise

against our enemies (being furnished with guns' or other weapons), for the purpose of capturing, or if necessary, de,stroying all ships or vessels belonging to the crown of Great Britain or its

159

92

Appendix.

subjects, or of stopping and carrying in, in or¬ der to be lawfully examined, such ships as are suspected to belong to the said power, or to be connected with it, in a manner incompatible with the laws of neutrality. The owner has deposited the security ordered, and the com¬ mander has declared upon his sacred oath to obey the royal orders issued out for privateer¬ ing, as well as such others as may be given from the Royal Board of Admiralty for this purpose.

The Royal Board of Admiralty, Copenhagen.

ISigned and sealed.

f)3] teering are to be sent in to the magistrate of that place whence the ship or vessel destin¬ ed for privateering is to be fitted out.

He who obtains such a commission ought, as security for such damage as might be occa¬ sioned by an illicit use macle of the commission, to find bail to the magistrate for a certain sum from 1,000 to 15,000 rix dollars. The magis¬ trate in fixing this sum is to take reference to the number of the crew of the ship, so that security, at all events, be given to the amount of 1,000 rix dollars, but as to the rest, that the sum of 100 rix dollars is computed for each man on board.

Further are the owners as well as the com¬ mander (the former with the vessel, the latter with his person and property), responsible for all such damage that may be done to the ship captured.

sions have been granted, are allow'ed to carry the royal Danish pendant and ensign, with our royal cipher in the middle of it, referring our¬ selves as to the rest, to the regulations ordered in the bill of the 11th of January, 1748.

his power, to take and carry in for condemna¬ tion all such ships and vessels as belong to and are proved to be the property of the subjects of the crown of Great Britain.

He is also permitted to bring in for examina¬ tion every other ship or vessel, the neutrality of which, according to the 10th section of these regulations, is not lawfully proved, or against which grounded suspicions may be formed upon any of the reasons mentioned in the 12th section.

Further, he is authorized to carry in all such ships as may have passed the Sound or the Belt, without paying the duty ordered, and wdiich consequently have no certificate; the penalty (being the double of the duty ordered) to be forfeited to him.

ment of losing his commission, or any other punishment according to circumstances) to stoD any shij) or make any use of his commission within the territories of a friendly or neutral power, which generally are supposed to reach one league from shore.

94] With regard to privateering at Ore- sound, it is to be observed, that the privateers must avoid approaching the Swedish batteries or shore so near that thej' might be reached by their guns.

that free siiips constitute free goods, we hereby most positively forbid every cruiser furnished with commission as privateer, to capture any

160

ship belonging to powers that are neutral or in friendly relation with us (whomsoever the car¬ go may belong to), provided the papers regard¬ ing the ship or the expedition are in proper or¬ der, and the ship has no contraband of war on board, bound to any country belonging to His Britannic Majesty, nor be under any of those predicaments mentioned in the sixth section as subject to condemnation.

on the other hand, hostile ship constitutes hos¬ tile cargo.

the eighth section, ought to be in proper order, are the following:

The sea passport issued out by the govern¬ ment of that countrj" whereof the ship’s own¬ er is a subject, or by a magistrate authorized by such government. Instead of this docu¬ ment, however, any otber legal document, prov¬ ing tliat the commander, by that government whose real subject he is, mediate or immediate, is authorized to use that neutral flag he sails under on his present voyage, shall be accepted of and credited.

The bill of sale or purchase of the ship, in case he that had the ship built disposed of her to another, then both documents (as well that of her building as that of the purchase) are requisite, provided both circumstances be not mentioned in one and the same document. In case the ship formerly had been captured as prize, as such condemned, then the act of con¬ demnation serves in lieu as well of the docu¬ ment stating w’here the ship was built as of the bill of purchase ; this is, however, upon a condi¬ tion that a proper document of the auction held over the ship, or any other proper docu¬ ment proving the lawful disposal of her, is an¬ nexed to the act of condemnation.

To ships which, after having been formerly condemned in a foreign state, and to those bought by neutral citizens, proceeding thence *only with ballast home, the act of con- [*95 demnation, with the document of this auction, or any other document, of her being trans¬ ferred to another person, ought to be a full substitute in lieu of the other papers ordered, the ship’s journal excepted.

Bill of gauge, which mu.st be issued out by the officer appointed to measure ships at the place where the ship is stated to belong to; it must agree with the passport, or, which is in¬ stead of it.

The list or roll of the cre-w properly certified by the respective officers ; a full and clear ac¬ count of all the persons found on board, and not stated in the roll, is also requisite. This list also must prove, that neither the captain, mate, supercargo, factor, commissioner, nor more than one-third part of the crew, are British sub¬ jects.

The receipt for having paid the duty or cu,s- tom; this document is also to state where the cargo was shipped, and whither it was bound;

The charter-party or bill of lading, or if no charter-party was written, then only the bill of lading, which ought to state whither the ship was bound; and, finally.

The ship’s journal of the whole voyage men¬ tioned in the passport, with an exception of such ships which only sail from one port in the Bal¬ tic to another.

Wheat. 5.

Appendix.

95

sidered;

All such ships as evidently belong to the crown of Great Britain, or to subjects of Ilis Britannic Majesty, in whatever part of the world they may reside.

Such siiips as carry on a smuggling trade to cr from Great Britain, or the countries which are under the dominions of the said power, by feigned and forged papers of clearance, as well outward as homeward bound, sail to the above- mentioned countries from such places wherein no clearance is allowed, or from these countries to a place where no admittance from thence is allowed.

Such ships as either entirely or partly are loaded with contrabands of war, and which are proved to be bound to harbors in Great Britain, or which have on board officers or privates that 90] are engaged, or are to be engaged, in the service of the enemy, as well as such ships that might approach a squadron which blockades a Danish city or harbor, or province, in order to trade with the enemy for provisions or refresh¬ ments.

Such ships, the crew of which with force op¬ pose the examination of the privateer. In like manner those ships that, notwithstanding their flag is considered neutral, as well with regard to Great Britain as the powers in war with the same nation, stilt either in the Atlantic or Bal¬ tic, have made use of English convoy.

Such Danish, Norwegian, or, relative to Great Bi'itain, hostile ship, which, after having been captured by the enemy, is recaptured, a third part of the value of the ship and cargo thus re¬ captured, is due to the captor, whether such ship be taken before or after the expiration of the space of twenty-four hours, the two-thirds to be returned to the owner. If such ships, on the contrary, are recaptured, which as well with regard to ns as to the enemy, are neutral, the recaptor is to be paid an equivalent for his ■danger and trouble according to the decision of the court of justice.

nmiuation may be brought in:

Such ships as are not furnished with the doc¬ uments mentioned in the tenth .section.

Such ships as have double papers or docu¬ ments, which according to appearance are false.

Such ships, from which papers . have been thrown overboard, or by other means de.stroy- cd. particularly if this has taken place after the privateer was within sight.

Those ships, the commanders of which have refused to comply with the privateer’s request to open such rece.sses, wherein contraband of war, or documents relating to the expedition of the ship, are suspected to be concealed.

Ships under the above-named predicaments are to be treated according to the preceding sec¬ tions, provided the suspicion again.st them be not removed by authentic proofs of their neu¬ trality and lawful destination.

97*] *18. As contraband of war (as mention¬

ed in the 11th section), are to be considered: guns, mortars, and all kinds of weapons, pis¬ tols, bombs, grenadoes, balls, firelocks, flint- stones, matciies, gunpowder, .saltpetre, sul¬ phur, hreast plates, swords, bandoliers, cartou¬ ches, saddles, and bridles; .such articles as the Wheat. 5. U. S., Book 5.

above-mentioned, however, excepted, asarenec- es.sary to the defense of the ship and crew.

When the i)rivateer meets a ship that sails under a friendly or neutral flag, he is to hail the commander in order to make liim come on board with bis ship’s documents.

If these are in proper order, he is directly to suffer the ship to proceed on her voyage, with¬ out demanding anything of whatever nature.

If, on the contrary, he finds ground to sus¬ pect unfair dealing, he is allowed to go on board the vessel to examine her more thoroughly.

venture to break open any drawers, chests, trunks, barrels, casks, or anything else, where¬ in the cargo may be put np, nor in any wrong¬ ful manner investigate into such part of the cargo that may lay scattered about in the ship; but when he has a suspicion of contraband of war or suspicious papers being concealed any¬ where, he is to order the commander to open such rece.sses which are supposed to contain them, and afterwards again to lock them.

That privateer who acts contrary to the.se or¬ ders, is to pay the damage, forfeit his commis¬ sion, and besides be punished according to the circumstances.

bid, under the same penalty as mentioned in the 14th section, to unload, sell, change, or in any other way to dispose of, or part with, any part of the cargo, but he ought, in concert with the captain, purser, or mite of the ship captured, as far as possible, to seal and lock np the whole of the cargo unopened (as far as the preservation of the cargo does not require the contrary), un¬ til his arrival at any of those places that are mentioned afterwards.

take victuals and *ammnnition out of the [*98 ship captured, but he is to give the master of her a list of it, signed by himself.

If the ship carried in afterwards be condemn¬ ed in his favor, what has been thus taken away is to be deducted from his share; but in case the ship be not condemned, he is to refund in mon¬ ey what has been taken out of the ship.

the privateer, after having perused them, shall lie obliged to put np and seal, to which the m ister of the ship adds his. They reniiin in the possession of the privateer unopened until they ra;iy be delivered up to the magistrale of the'place where the ship is brought in.

harbor within our dominions; the prizes he may happen to make during the expedition, are to be carried to such a toll-place in Denmark, Nor¬ way, Sleswick, or Holstein, as he may find most convenient, or to the nearest place where he may be protected liy military force, but to no foi-eign places, at the risk of losing his commis¬ sion and the sum deposited as .security, unless he is forced to do so by stre.ss of weather, for want of provisions, or by being pursued by the enemv; and if this be the case, he shall be bouuil (without meanwhile breaking the bulk) to proceed with the first favorable wind to a custom-place within our dominions.

which, according to their nature, easily are spoil¬ ed. or the ship throngh average cannot proceed on her voyage, he is permitted to apply to the

11 161

98

Appendix.

magistrate of the place where he enters, in case it be within our dominions, and in foreign countries, to the nearest Danish consul, who are to take such measures as are the most proper for the preservation of the ship and cargo._

harbor within our dominions with a prize, he is directly to apply to the judge of the place, who immediately, and at farthest within 24 hours, is to undertake and finish the examination, as well of the privateer and her crew, as of the master of the ship captured, together with the crew and passengers ; he is minutely to exam¬ ine and cross-examine them about the ship’s course according to the journal and other cir¬ cumstances ; he is to investigate into the authen- 99] ticity of the ship’s documents mention¬ ed in the 10th section, the passports of the pas¬ sengers, their situation on board, voyage and errand, as well as the place where the ship was seized, the conduct of the privateer before, un¬ der and after the capture, and, in short, he is to examine into everything necessary to the illustration of the case.

judge in general to consider the interest of both parties in the most careful manner, and before the final decision, summon as well the privateer as in particular the master of the ship captured, to declare whether they wish for any farther illustrations, or have anything farther to observe, upon which he is to re¬ ceive and to reflect upon the claims of both parties.

The utmost attention and zeal in this respect are hereby inculcated on all judges, the more so, as, in order to promote the quick ex¬ pedition and discharge of justice, so necessary in legal proceedings (and in particular for the ship captured that may expect a release), we have suffered the parties to meet by proxies before the High Court of Admiralty.

residing at the place, duly sworn, is to take down a true inventory, and it is to be observed, that this is to be taken of the cargo according to the contents of the ship’s documents, and no unloading to take place unless the privateer in¬ sists upon it, or the judge has grounded sus¬ picions of unfair dealing which might be discovered by the unshipping, or other circum¬ stances might render, it necessary for the preser¬ vation of the cargo.

respective judges discussed, so far that sen¬ tence at the prize court may be pronounced, the proceedings of the court ought to be taken by the secretary, and to be sent by a speedy messenger to the said court, together with the inventory and the rest of the documents. The judge then informs both parties that the case will be decided upon by the prize court as soon as possible, and that no further summons be¬ fore that court will take place.

stance, we have appointed :

100] A prize court for the islands of Zea¬ land, Lolland, Falster, Moen, and neighboring islands (the Island of Samsoe excepted). It is held at Copenhagen ; '

One for the northern parts of Jutland, and the dioceses of Fyon and Samsoe, this is held at Aarhus.

162

One for the dukedoms of Sleswick and Hol¬ stein, held at Flensburgh.

One for each of our provinces of our king¬ dom of Norway, held in the capital of the respective province.

One for the islands of Bornholm and Christ- iansoe held at Bonne.

Each of these courts to be constituted of a justitiarius (president) and two assessors, among whom an officer of our navy.

A secretary is appiointed at each of these courts.

trations necessary in a case, the court ought to- charge the judge who has held the examina¬ tion, to procure such as may be wanted.

circumstance ought most minutely to be con¬ sidered; no other letters or proofs, however, ought to be taken into consideration, but such as were found on board the ship when she was captured, as it is only left to the High Court of Admiralty to decide how far any of the parties maj'^ be allowed to produce farther evidence or proofs.

The final issue of the sentence of the prize court, is to be published in the official journal of the province, by the secretary of the court; the sentence itself, upon the demand of the- parties, is immediately to be copied and de¬ livered to them for their further use.

the sentence of the prize court, he ought to de¬ clare such intention, within twenty-four hours after the annunciation of the sentence, to his opponent, and afterwards within the space of eight weeks procure summons from the High Court of Admiralty, which is held in our royal residence, Copenhagen, and give proper warn¬ ing to the judge and his opponent, agreeably to- the bill of April 30th, 1806, containing the in¬ structions for the High Court of Admiralty.

*The summons of appeal in Zealand [*101 are applied for in the High Clourt of Admiralty. Out of Zealand, the chief magistrates, and at Bornholm, and at Christiansoe, the governors are authorized to issue out such summons in behalf of the High Court of Admiralty.

When the case is decided by the said court, no further appeal is granted.

other causes than those authorized in this our royal bill, he is not only to defray all the ex¬ penses of the case, but moreover to repay all the damage suffered by the ship on account of this seizure.

If, on the contrary, the capture is upon prob¬ able cause, the privateer is without any respon¬ sibility, though the ship, upon the ground of certain circumstances, is released ; in this case, the expenses arising from the. case and capture are to be defrayed out of the ship.

If any of the parties, without any sufficient ground, appeal from the sentence pronounced, he may expect (if his opponent insists upon it) to be sentenced to pay the loss he thereby may have suffered, beside the expenses of the law¬ suit.

in favor of the captor, he is not allowed to dis¬ pose of the ship and cargo according to pleas¬ ure, but both parts are to be sold generally at the place where the ship is brought in. Out of

Wheat. 5..

Appendix.

101

the amount of the sale, beside the usual salary, one per centum is to he paid to the hospital of invalid sailors at Copenhagen, which sum it is the duty of the judge to receive and transmit to the direction of the said institution, receiving their acquittance.

the usual duty; no clearance of duty is conse¬ quently requisite at their setting out ; at their return they need only to announce their arrival at the custom-house, in order that it may be ascertained they import no goods. Out of the goods, on the contrary, which are carried in and condemned, all duties of every denomina¬ tion are to be paid, similar to other goods im¬ ported.

cases we have fixed in a particular bill for this 102 ] purpose ; in the like manner we have ordered the sum to be paid for commissions of privateering.

suspected, is to provide for the victualing the crew, from the time of the capture till the sen¬ tence of the prize court is pronounced; the ex¬ penses to be defrayed out of the .ship, when the case is closed.

In the like manner, and upon the same con¬ dition, the victualing of the crew of the ship captured, while the case is pending before the High Court of Admiralty, is to be furnished by the captor, provided the sentence of the prize court be appealed from by the captor. The captor, on the contrary, if he has gained the case before the prize court, and appeal is made by the captured, is not bound to feed the crew, unless the master of the ship gives full security for the expenses paid on this account.

and deliver up to the nearest fort, such of the crew of a ship captured and condemned, as are subjects of the British crown, where they are con¬ sidered as prisoners of war ; as far as they prove to be subjects of neutral or friendly powers, they are to be delivered up to their respective consuls.

other officers to whom we have entrusted the execution of these our orders, or who are em¬ ployed in the proceedings or decision of prize cases, to partake in any expedition of priva¬ teering. Nor must any auctioneer, who is com¬ missioned to sell any ship or cargo condemned, buy them on his own account.

tions for privateers to be on board of every privateer. •

The.se are our will and orders, according to which everyone is to conform.

Given at our royal residence of Copenhagen, 10th March, 1810.

Under our royal hand and seal. (n. s.)

Kaas, Bulow.

Cold, Monrad.

Knudsen,

103] ORDINANCES OP CONGRESS.

Nov. 25. 1775.

frigates, sloops, cutters, and armed vessels, as

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are, or .shall be, employed in the present cruel and unjust war against the United Colonies, and shall fall into the hands of, or be taken by, the inhabitants thereof, be seized and forfeited to and for the purposes hereinafter mentioned.

same service, having on board any troops, arms, ammunition, clothing, provisions, or military or naval stores, of what kind soever, and all vessels to whom.soever belonging, that shall be employed in carrying provisions, or other necessaries, to the British army or armies, or navy, that now are, or shall hereafter be, with¬ in any of the United Colonies, or any goods, wares, or merchandise, for the use of such fleet or army, shall be liable to seizure, and, with their cargoes, shall be confiscated.

vessel shall be entitled to cruise for, or make prize of, any vessel or cargo, before he shall have obtained a commission from the Congress, or from such person or persons as shall be for that purpose appointed in some one of the United Colonies.

the several legislatures in the United Colonies, as soon as possible, to erect courts of justice, or give jurisdiction to the courts now in being, for the purpose of determining concerning the captures to be made as aforesaid, and to pro¬ vide, that all trials, in such case, be had by a jury, under such qualifications as to the re¬ spective legislatures shall seem expedient.

in the court of that colony in which the capt¬ ures shall be made; but if no such court be at that time erected in the said colony, or if the capture be made on open sea, then the prosecution shall be in the court of such colony as the captor shall find most con venient ; *provided, that nothing contained in [*104- this resolution shall be construed so as to enable the captor to remove his prize from any colony competent to detennine concerning the seizure, after he shall have carried the vessel so seized within any harbor of the same.

to the Congress, or such person or persons as they shall appoint for the trial of appeals; pro¬ vided the appeal be demanded within five days after definitive sentence, and such appeal l)e lodged with the Secretary of Congress within forty days afterwards; and provided the party appealing shall give security to prosecute the said appeal to effect; and in case of the death of the secretary during the recess of Congress, then the said appeal to be lodged in Congress within twenty days after the meeting thereof.

fitted out at the expense of any private person or persons, then the captures made shall be to the use of the owner or owners of the said vessel or vessels; that where the ve.ssels employed in the capture shall be fitted out at the expen.se of any of the United Colonies, then one-third of the prize taken shall be to the use of the cap- tors, and the remaining two-thirds to the use of the said colony; and where the vessels so em¬ ployed shall be fitted out at the continental charge, then one-third shall go to the captors, and the remaining two-thirds to the use of the United Colonies; provided, nevertheless, that if the capture be a vessel of war, then the cap-

103

104

Appendix.

tors shall be entitled to one-half of the value, and the remainder shall go to the colony or continent, as the case may he, the necessary charges of condemnation of all prizes being deducted before distribution made.

Dec. 5, 1775.

Resolved, That in cases of recaptures, the recaptors have, and retain, in lieu of salvage, one-eighth part of the true value of the vessel and cargo, or either of them, if the same hath, or have, been in posse.ssion of the enemy twenty- 105] four hours; one-fifth part, if more than twenty-four and less than forty-eight hours; one-third part, if more than forty-eight and less than ninety -six hours; and one-half, if more than ninety-six hours, unless the vessel shall, after the capture, have been legally con¬ demned as a prize by some court of admiralty, in which case the recaptors to have the whole; in all which cases, the share detained, or prize, to be divided between the owners of the ship making the recapture, the colony or the con¬ tinent, as the case may be, and the captors, agreeably to a former resolution.

Jan. 6, 1776.

The committee to whom it was referred to ■consider how the share of prizes allotted to the captors, ought to be divided between the officers and men,, brought in their report, which, being taken into consideration, was agreed to as follows:

Resolved, That the commander-in-chief have one twentieth part of the said allotted prize money, taken by any ship or ships, armed vessel or vessels, under his orders and command.

That the captain of any single ship or armed vessel have two-twentieth parts for his share, but if more ships or armed vessels be in com¬ pany when a prize is taken, then the two- twentieth parts to be divided amongst all the captains.

That the captains of marines, lieutenants of the ships or armed vessels, and masters thereof, share together, and have three-twentieth parts divided among them, equally, of all prizes taken when they are in company.

That the lieutenants of marines, surgeons, chaplains, pursers, boatswains, gunners, car¬ penters, the master’s mates, and the secretary of the fleet, .share together, and have two-twenti¬ eth parts and one-half of a twentieth part, divided among them equally, of all prizes, when they are in conqiany.

That the following petty warrant, and petty otficer.s, viz., (allowing for each ship, six mid¬ shipmen; for each brig, four midshipmen; for each sloop, two midshipmen, one captain’s clerk, one surgeon’s mate, one steward, one .sailmaker, 106 ] one cooper, one armorer, two boat¬ swain’s mates, two gunner’s mates, two car¬ penter’s mates, one cook, one cockswain, two sergeants of marines, and one sergeant for each brig and sloop), have three twentieth parts divided among tliem, equally; and when a prize is taken by any ship or vessel, on board, or in company of which the commander- in-chief is, then the commander-in-chief’s cook or cockswain to be added to this allot¬ ment, and have their shares with those last mentioned.

That the remaining eight-twentieth parts,

164

and one-half of the twentieth part, be divided among the rest of the ship or ships companies, as it may happen, share and sliare alike.

That no officer or man have any share, but such as are actually on board their several vessels when any prize or prizes are taken, excepting only such as may have been ordered on board any other prizes before taken, or sent away by his or their commanding officers.

March 23, 1776.

Resolved, That the inhabitants of these colonies be permitted to fit out armed vessels to cruise on the enemies of these United Colonies.

April 2, 1776.

The committee appointed to prepare the form of a commission and instructions to commanders of private ships of war, brought in the same, which were read.

The commission being agreed to, is as follows :

The delegates of the united colonies of New Hampshire, &c.,to all whom these presents shall eome, greeting: Know ye, that we have granted, and by these presents do grant, license

and authority to - , mariner, commander

of the - , called the — - , of the burthen

of - tons, or thereabouts, belonging to

mounting - carriage guns, and navigat¬ ed by - men, to tit out and set forth

the said - , in a warlike manner, and by

and with the said - and crew [ 10 '7

thereof, by foree to attack, seize, and take the ships, and other vessels, belonging to the in- habitantsof Great Britain, or any of them, with their tackle, apparel, furniture, and lading, on the high seas, or between high and low water¬ marks, and to bring the same to some conven¬ ient ports in the said colonies, in order that the courts, which are or shall be there appointed to hear and determine causes civil and mari¬ time, may proceed in due form to condemn the said captures, if they be adjudged lawful ))rize: the said - having given bond, with suffi¬

cient sureties, that nothing be done by the said

pany thereof, contrary to, or inconsistent with, the usages and custom of nations, and the in¬ structions, a copy of which is herewith deliv¬ ered to him. And we will, and re(|uire, all our officers whatsoever, to give succor and

assistance to the said - in the premises.

This commission shall continue in force until the Congress shall issue orders to the contrary.

By order of Congress.

Attest, — - , - , President.

April 3, 1776.

Resolved, That blank commissions, for pri¬ vate ships of war, and letters of marque and reprisal, signed by the President, be sent to the general a.ssemblies,. conventions, and councils or committees of safety, of the united colonies, to be by them tilled and delivered up to the persons intending to tit out such private ships of war, for making captures of British vessels and cargoes, who shall apply for the same, and execute the bonds which shall be sent with the said commissions, which bonds shall be returned to the Congress.

Resolved, That every person intending to set foi’th and fit out a private ship or vessi 1 of war.

Wheat. 5.

Appendix.

107

and applying for a commission, or letter of marque and reprisal for that purpose, shall pro¬ duce a writing subscribed by him, containing the name and tonnage, or burthen of the ship or vessel, the number of her guns, with their weight of metal, the name and place of resi- 108] deuce of the owner or owners, the name of the commander and other oflicei's, the num¬ ber of the crew, and the quantity of provisions and warlike stores; which writing shall be de¬ livered to the Secretary of Congress, or to the clerk of the House of Representatives, conven¬ tion, or council, or committee of safety, of the colonjr iu which the ship or vessel shall be, to be transmitted to the said secretary, and shall be registered by him, and that the commander of the ship or vessel, before the commission or letters of marque and reprisal shall be granted, shall, together with sureties, seal and deliver a bond, in the penalty of five thousand dollars, if the ve.ssel be of one hundred tons or under, or ten thousand dollars, if of greater burthen, payable to the President of the Congress, in trust, for the use of the united colonies, with conditions of the words following, to wit : ‘ ‘ The condition of this obligation is such, that if the

above bounden - , who is commander of

the - called - , belonging to - ,

of - , in the colony of - — , mounting

men, and who hath applied for a commission, and letters of marque and reprisal, to arm, equip, and set forth the said - , as a pri¬

vate ship of war, and to make captures of British vessels and cargoes, shall not exceed or transgress the powers and authorities which shall be contained in the said commission, but sliall, in all things, observe and conduct him¬ self, and govern Ids crew, by and according to the same, and certain instructions therewith to be delivered, and such other instructions as may hereafter be given to him; and shall make reparation for all damages sustained by any misconduct or unwarrantable proceedings of

himself, or the officers or crew of the said - ,

then this obligation shall be void, or else remain in force;” which bond shall be lodged with the said Secretaiy of Congre.ss.

November 15, 1776.

Congress took into consideration the report of the committee relative to the navy, where¬ upon,

109*] ^Resolved, That a bounty of $20 be paid to the commanders, officers, and men, of such continental ships or vessels of war as shall make prize of any British ships or vessels of war, for every cannon mounted on board each prize at the time of such capture, and eight dollars per head for every man then on board, and belonging to such prize.

Tuesday, May 2, 1780.

The board of admiralty having reported the form of a commission for private vessels of war, and of the bond to be given by the master and commander of the said private armed ves¬ sels, and instructions to the said masters ; the same were taken into consideration and agreed to, as follows:

The form of a Commission.

The Congress of the United States of Amer- Wheat. 5.

i-j.^ g -j ica, to all to whom these pre.sents shall come, send gi-eeting:

Know ye. That we have granted, and by these presents do grant, license and authority to

— — , mariner, commander of the - , called

the — , of the burthen of - , tons, or there¬ abouts, belonging to - , mounting - car¬ riage guns, and navigated by - men, to lit

out and set forth the said - in a warlike

manner, and by and with the said - , and the

officers and crew thereof, by force of arms, to attack, subdue, seize, and take all ships and other vessels, goods, wares, and merchandises, belonging to the crown of Great Britain, or any of the subjects thereof, except the ships or vessels, together with their cargoes, belonging to any inhabitant or inhabitants of Bermuda, and such other ships or vessels bringing persons with intent to settle within any of the said United States, which ships or vessels shall lie suffered to pa.ss unmolested, thema.sters thereof permitting a peaceable search, and giving satis¬ factory information of their lading and their destination; or any other ships orve.ssels, goods, wares, or merchandises, to whomsoever belong¬ ing, which are or shall be declared to be sub¬ jects of capture *by any resolutions of [*110 Congress or ■which are so deemed by the law of nations; and the said ships and vessels, goods, wares, and merchandises, sp apprehended as aforesaid, and as prize taken,’ to bring into port, in order that proceedings may be had concern¬ ing such capture in due form of law, and as to right and justice appertaineth ; and we request all kings, princes, states and potentates, being in friendship or alliance with the said United States, and others to whom it shall appertain,

to give the said - all aid, assistance, and

succor, in their ports, with his said vessel, com¬ pany and prizes, we, in the name and on behalf of the good people of the said United States, engaging to do the like to all the subjects of such kings, princes, states and potentates, who shall come into any ports within the .said United States. And we will and require all our officers whatsoever, to give to the said - all neces¬

sary aid, succor, and assistance in the premises. This commission shall continue in force during the pleasure of the Congress, and no longer.

In testimony whereof, we have caused the seal of the Admiralty of the United States to be

affixed hereunto. Witness his Excellency - ,

Esquire, President of the Congre.ss of the United

States of America, at - , this - day of

— — , in the year of our Lord one thousand

seven hundred and - , and in the - year

of our Independence.

Passed the Admiralty Office.

Attest - , Secretary of the Board of Ad¬

miralty.

The form of the Bond.

Know all men by these presents, that we,

quire, Treasurer of the United States of Amer¬ ica, in the penalty of twenty thousand Spanish milled dollars,, or other money equivalent there¬ to, to be ])aid to the said A. B., treasurer as afore.said, of to his , .successors in that office. To which payment, well and truly to be made and done, we bind ourselves, our heirs, execu¬ tors, and administrators, jointly and severally, firmly by these presents. Sealed -with our seals,

1(>5

110

Appendix.

and dated the - day of - , in the year of

1 1 1] our Lord - , and in the - year of

the Independence of the United States.

The condition of this obligation is such, that

whereas tlie above bounden - , master and

commander of the - , called the - , be¬ longing to - , mounting - carriage guns,

and navigated by — - men, and who hath ap¬ plied for and received a commission, bearing date with these presents, licensing and authoriz¬ ing him to fit out and set forth the said - in

a warlike manner; and by and with the said

of arms, to attack, subdue, seize, and fake ships and other vessels, goods, wares, and mer¬ chandise, belonging to the crown of Great Britain, or any of the subjects thereof (ex¬ cepting the ships or vessels, together with their cargoes, belonging to any inhabitant or inhab¬ itants of Bermuda, and such other ships or vessels bringing persons with intent to settle within the said United States); and any other ships or vessels, goods, wares and merchan¬ dise, to whomsoever belonging, which are or shall be declared to be subjects of capture by any resolutions of Congress, or which are so deemed by the law of nations. If therefore,

the said - shall not exceed or transgress the

powers and authorities given and granted to him in and by the said commission, or which are or shall be given and granted to him by any resolutions, acts, or instructions of Congress, but shall, in all things, govern and conduct himself as master and commander of the said

the same, by and according to the said com¬ mission, resolutions, acts, and instructions, and any treaties subsisting, or which may subsist between the United States of America and any prince, power, or potentate whatever, and shall not violate the law of nations or the rights of neutral powers, or of any of their subjects, and shall make reparation for all damages sustained by any misconduct or unwarrantable proceed¬ ings of himself or the officers or crew of the said — — , then this obligation to be void, other¬ wise to remain in full force.

Signed, sealed, and delivered, } in the presence of us, [

112] Instructions to the captains and com- manders of private armed vessels, which shall have commissions or letters of marque and reprisal.

due, and take all ships and other vessels be¬ longing to the crown of Great Britain, or any of the subjects thereof, on the high seas, or between high water and low water-marks (except the ships or vessels, together with their cargoes, belonging to any inhabitant or inhabitants of Bermuda, and such other ships and vessels bringing persons with intent to settle and reside within the United States, which you shall suffer to pass unmolested, the com¬ manders thereof permitting a peaceable search and giving .satisfactory information of the con¬ tents of the lading, and destination of the voyages). And you may also annoy the enemy hy all the means in your power, by land as well as by water, taking care not to infringe or violate the laws of nations or the laws of neutralitv.

1(56

rights of neutral powers, and the usage and custom of civilized nations, and on no pretense whatever presume to take or seize any ships or vessels belonging to the subjects of princes or powers in alliance with these United States, except they are employed in carrying contra¬ band goods or soldiers to our enemies; and in such case you are to conform to the stipulations contained in the treaties subsisting between such princes or powers and these states ; and you are uot to capture, seize, or plunder any ships or vessels of our enemies, being under the protec¬ tion of neutral coasts, nations, or princes, under the pains and penalties expressed in a procla¬ mation issued by Congi’ess the 9th day of May, Anno Domini 1778.

you shall take, with their guns, rigging, tackle, apparel, furniture and lading, to some con¬ venient port or ports, that proceedings may thereupon be had in due foim of law concern¬ ing such captures.

one or more principal *person or persons [*113 of the company of every ship or vessel by you taken in such ship or vessel, as soon after the capture as may be, to be by the judge or judges of such court as aforesaid examined upon oath, and make answers to such interrogatories as may be propounded touching the interest or property of the ship, or vessels, and her lading; and, at the same time, you shall deliver, or cause to be delivered, to the judge or judges, all passes, sea-briefs, charter-parties, bills of lading, cockets, letters, and other documents and writings found on board, proving the said papers by the affidavit of yourself, or of some other person present at the capture, to be pro¬ duced as they were received, without fraud, addition, subduction or embezzlement.

vessel, and cargo, by you taken, until they shall, by sentence of a court properly author¬ ized, be adjudged lawful prize, or acquitted, not selling, spoiling, wasting, or diminishing the same or breaking the bulk thereof, nor suffering any such thing to be done.

shall, in cold blood, kill or maim, or by torture or otherwise, cruelly, inhumanly, and'eontrary to common usage, and the practice of civilized nations in war, treat any person or persons surprised in the ship or vessel you shall take, the offender shall be severely punished.

send to the board of admiralty, written ac¬ counts of the captures you shall make, with the number and names of the captives, and in¬ telligence of what may occur, or be discovered concerning the designs of the enemy, and the destinations, motions, and operations of their fleets and armies.

pany, shall be landsmen.

prisoners or captives, but you are to take the utmost care to bring them into port; and if, from any necessity, you shall be obliged to dismiss any prisoners at sea, you shall, on your return from your cruise, make report thereof on oath to the judge of the admiralty of the state to which you belong, or in which you arrive.

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Appendix.

114

1 14]within twenly days after your arrival, with your reasons for such dismission. And you Jire to deliver, at your expense, or the expense •of your owners, the prisoners you shall bring into port, to a commissary of prisonei’S nearest the place of their landing, or into the nearest •county iail.

structions as Congress shall hereafter give in the premises, when you shall have notice thereof.

these instructions, or to others hereafter to be given, or willingly suffer such thing to be done, you shall not only forfeit your commission, and be liable to an action for breach of the con¬ dition of your bond, but be responsible to the party grieved for damages sustained by such malversation.

Resolved, That the board of admiralty be ■empowered, and directed to cause to be printed, so many copies of said forms as they shall judge necessary.

Resolved, That the President transmit to the governors or presidents of the respective states, ■so many copies of the said forms as the board ■of admiralty shall advise, and at the same time inform them, that it is the intention of Con¬ gress, that all commissions and instructions now in force, be cancelled as soon as possible, and commissions, bonds, and instructions of the new form be substituted in place thereof.

The motion of Mr. Madison was again taken into consideration, and thereupon the following ■ordinance was passed :

An Oi'dinayice relative to tlie capture and con- deinrMtion of Prizes.

The United States in Congress assembled, taking into consideration the implacable war waged against them by the King of Great Britain, and judging it inconsistent with their •dignity, as a free and independent nation,' any longer to continue indulgencies and exemptions to any of the subjects of their enemy, who is obstinately bent upon their destruction or sub¬ jugation, have thought it proper to ordain and order, and it is hereby ordained and ordered, that henceforward general reprisals be granted 1 15] against the ships, goods, and subjects of the King of Great Britain ; so that, as well the fleets and ships of these United States, as also ■all other ships and vessels commissioned by letters of marque or general reprisals, or other¬ wise, by the authority of the United States in Congre.ss as.sembled, shall, and may lawfully seize all ships, vessels, and goods, belonging to the King or crown of Great Britain, or to his subjects, or others inhabiting within any of the territories or possessions of the aforesaid King of Great Britain, and bring them to judgment in any of the courts of admiralty that now are, ■or hereafter may be, established in any of these United States, by the authority of the United States in Congress assembled; and the .said ■courts of admiralty are hereby authorized and required, to take cognizance of, and judicially to proceed upon, all, and all manner of capt¬ ures, seizures, prizes, and reprisals of all ships and goods that are, or shall be taken, and to hear and determine the same, and, according

Wheat. 5.

to the course of admiralty, and the laws of na¬ tions, to adjudge and condemn all such ships, ve.ssels, and goods, as shali belong to the King of Great Britain, or to his subjects, or to any others inhabiting within any of the countries, territories, or dominions, or posse, s,sions, of the aforesaid King of Great Britain.

And that the board of admiralty, or secre¬ tary of marine, forthwith prepare, and lay be¬ fore the United States in Congress assembled, a draught of instructions, for such ships or ves¬ sels as shall be commissionated for the purposes above mentioned.

And it is hereby further ordained, that the destruction of papers, or the posses.sion of double papers, by any captured vessel .shall be deemed and taken as just cause for the con¬ demnation of such captured vessel; and that, when any prize, having been taken and pos¬ sessed by the enemy twenty-four hours, shall be retaken from them, the whole of such re¬ captured prize shall be condemned for the use of the recaptors; but in cases where the prize shall have continued in the posses¬ sion of the enemy less than twenty-four hours, it shall be restored to the original owner or owners, except one-third part of the *true value thereof, which shall be al- [*116 lowed as salvage to the recaptors.

And it is hereby further ordained, that the citizens and inhabitants of these United States be, and they hereby are, strictiy enjoined and required to abstain from all intercourse, corre,spondence, or dealings whatsoever, with the subjects of the said King of Great Britain, while at open war with these United States, as they will answer the same at their peril; and the executives of the several states are hereby called upon to take the most vigilant and effectual measures for detecting and sup¬ pressing such intercourse, correspondence, or dealings, and bringing the authors thereof, or those concerned therein, to condign punish¬ ment.

And in order the more effectually to remove every colorable pretense for continuing such intercourse, it is hereby ordained, that from and after the first day of November next, no benefit shall be claimed from, nor countenance or regard paid to, any letters of passport or safe conduct, heretofore granted by the Congress of the United States, to any of the citizens or in¬ habitants thereof, or to any person or persons whatever, for the removal of their property or effects from places within the dominions or pos¬ sessions of the said King of Great Britain.

Provided always, that this ordinance shall not extend to authorize the capture or condem¬ nation of any vessel belonging to any inhabit¬ ant of Bermudas, which, being loaded with salt only, may arrive in any of these United States, on or before the first day of May next.

And it is hereby ordained, that all former acts or resolutions of Congress, contrary to the tenor, true intent, and meaning of this ordi¬ nance, be, and they are hereby repealed.

Saturday, April 7th, 1781.

On a report of a committee, consisting of ' Mr. Varnuni, Mr. Bee, and Mr. Van Dyke, to

167

117

Appendix.

1 1 7] wliom was referred the draught of in- structions to the captains of private armed vessels, reported by, the hoard of admiralty d

Be it ordained, and it is hereby ordained, by the United States in Congress assembled, that the following instructions be observed by the captains or commanders of private armed ves¬ sels, commissioned by letters of marque or gen¬ eral reju isals, or otherwise, by the authority of the United States in Congress assembled.

First. You may by force of arms, attack, subdue, and seize all ships, vessels, and goods, belonging to the King or crown of Great Britain, or to his subjects, or others inhabiting within any of t he territories or possessions of the afore¬ said King of Great Britain, on the high seas, or between high water and low water marks. And you may also annoy the enemy by all means in your power, by land as well as by water, taking care not to infringe or violate the laws of nations, or laws of neutrality.

Second. You are to pay a sacred regard to the rights of neutral powers, and the usage and customs of civilized nations; and on no pretense whatever, presume to take or seize any ships or vessels belonging to the subjects of princes or powers in alliance with these United States; except they are employed in carrying contraband goods or soldiers to our enemies; and in such case you are to conform to the stipulations contained in the treaties subsisting between such princes or powei’s and these states; and you are not to capture, seize, or plunder any ships or vessels of our enemies, being under (he protection of neutral coasts, nations, or princes, under the pains and penal¬ ties expressed in a proclamation issued by the Congress of the United States, the ninth day of May, in the year of our Lord one thousand seven hundred and seventy-eight.’

Third. You shall permit all neutral vessels 1 1 8] freely to navigate 'on the high seas, or coasts of America, except such as are employed in carrying contraband goods or soldiers to the enemies of these United States.

Foui’th. You shall not seize or capture any effects belonging to the subjects of the belliger¬ ent powers on board neutral vessels, excepting contraband goods; and you are carefully to observe, that the term contraband, is confined to those articles which are expressly declared to be such in the treaty of amity and com¬ merce, of the sixth day of February, one thousand seven hundred and seventy-eight, between the.se United States and his most Christian Majesty, namely, arms, great guns, bombs, with "their fuses, and other things be¬ longing to them, cannon-balls, gunpowder, matches, pikes, sword.s, lances, .spears, halberts, mortars, petards, grenadoes, saltpetre, mu.skets, musket -balls, bu(‘klers, helmets, brea,stplates, coats of mail, and the like kind of arms proper for arming soldiers, musket-rests, belts, horses, with their furniture, and all other warlike in¬ struments whatever.

Fifth. You shall bring all such ships and

1.— This ordinance was pa^ed by Congress In consequence of the temporary recognition, by the United States and Fi ance, of the principles of the , armed neulrality, as laid down in the declaration of Her Ma,iesty, the Empress of Kussia, of Febru¬ ary 26th, 1780. 2 Dali. 18. See, also, Darby, et al. v. The Brig Estern, lb. 34.

168

vessels as you shall seize or capture, with their guns, rigging, tackle, apparel, and furniture, and ladings, to judgment, in any of the courts- of admiralty that now are, or hereafter may be, e.stablished in any of these United States, in any court authorized by his mo.st Chri.stian Majesty, or any other power in alliance with these United States, to take cognizance of capt¬ ures and seizures made by the pirivate armed vessels of the.se states, and to judicially hear and determine thereon.

Sixth. You shall send the master or pilot, and one or more principal person of the com¬ pany, of every ship or vessel by you taken, in such ship or vessel, as soon after the capture a,s may be, to be by the judge or judges of .such court as aforesaid, examined upon oath, and make answer to such interrogatories as maj' be pronounced, touching the interest or property of the ship or ve.ssel and her lading; and at the same time you shall deliver, or cause to be de¬ livered, to the judge or judges, all passes, .sea- briefs, charter-parties, bills of lading, cockets, letters, and other documents and writings found on board, proving the said papers by [] the affidavit of youi'self, of some other person present at the capture, to be produced as they were received, without fraud, addition, snb- duction, or embezzlement.

Seventh. You shall keep and preserve every ship or vessel, and cargo by you taken, until they shall, by sentence of a court properly au¬ thorized, be adjudged lawful prize, or acquit¬ ted; not selling, .spoiling, wasting or diminish¬ ing the same, or breaking the bulk thereof, nor suffering any such thing to be done.

Eighth. If any of your officers or crew shall, in cold blood, kill or maim, or by torture, or otherwise, cruelly, inhumanly, and contrary to common usage, and the practice of civilized nations in war, treat any person or persons surprised in the ship or vessel you shall take, the offender shall be severely punished.

Ninth. You shall, by all convenient oppor¬ tunities, .send to the board of admiralty, or sec¬ retary of marine, written accounts of the capt¬ ures you shall make, with the numbers and names of the captives, and intelligence of what may occur, or be discovered, concerning the designs of the enemy, and the de.stinations, motions, and operations of their fleets and ar¬ mies.

Tenth. One-third at least of your whole com¬ pany shall be landsmen.

Eleventh. Y"ou shall not ransom or discharge any prisoners or captives, but 3'ou are to take the utmost care to bring them into port; and if, from necessity, jmu shall be obliged to dismi.ss any prisoners at sea, you shall, on your return from your cruise, make report thereof, on oath, to the judge of the admiralty of the state to which you belong, or in which you arrive, within t-wenty days after your arrival, with your reasons for such dismission ; and you are to deliver at j'our expense, or at the expense of jmur owners, the prisoners you shall bring into port, to a commissary of prisoners nearest the place of their landing, or into the nearest coun¬ ty jail.

Twelfth. You shall observe all such further instructions as *shall hereafter be given [*120 by the United States in Congress assembled, when you shall have notice thereof.

Wheat. .7.

Appendix.

130

Thirteenth. If you shall do anything contrary to these instructions, or to others hereafter to be given, or willingly suffer such thing to be done, you shall not only forfeit your commission, and be liable to an action for breach of the condition of your bond, but be responsible to the party grieved, for damages sustained by such mal¬ versation.

Ordered, that the Board of Admiralty report, as soon as may be, proper regulations for the conducting and governing the vessels of war

An Ordinance, ascertaining what captures on water shall be lawful.

of the United States, and other armed vessels.

In pursuance of the powers delegated by the confederation in ca.ses of capture on water;

Be it ordained, by the United States in Con¬ gress assembled, that from and after the first day of February next, all resolutions and ordi¬ nances of Congress relating to captures or re¬ captures on water, and coming within the pur¬ view of this ordinance, except as is hereinafter excepted, shall be null and void; but questions of this nature arising before, or which shall be undetermined at that day, shall be determined at any time during the war with Great Britain, according to them, in the same manner as if this ordinance had never been made.

It shall be lawful to capture, and to obtain condemnation of the property liereinafter enu¬ merated, if found below high water-mark; that is to say.

All ships and other vessels, of whatsoever size or denomination, belonging to an enemy of the United States, with their rigging, tackle, apparel, and furniture.

All goods, w'ares, and merchandises belonging to an enemy, and found on board of a ship or other vessel of such enemy.

All contraband goods, wares, and merchan¬ dises, to w'hatever nation belonging, although found in a neutral bottom, if destined for the use of an enemy; but the goods, wares and 121*] merchandises ^belonging to an enemy, contraband goods, and goods destined to a blockaded, invested, or beseiged port, being always excepted, found in a vessel belonging to a foreign nation, other than an enemy, shall, in no case, be subject to condemnation.

Provided, nevertheless, that from and after the first day of March, in the year one thousand seven hundred and eighty-two, all goods, wares, and merchandises, of the growth, pro¬ duce, or manufacture of Great Britain, or of any territory depending tliereon, if found with¬ in three leagues of the coasts, and destined to any port or place of the United States, in any ship or vessel belonging to the citizens of the said states, or the subjects of any neutral pow¬ er, shall be liable to capture and condemnation, unless the same shall have been previously captured from the enemy and condemned, or in consequence of capture, may be proceeding to some port or place not in the power of the said enemy, for trial and condemnation.

All ships or other vessels, goods, wares, and merchandises, belonging to any power, or the subjects of any power against which letters of marque or reprisal shall have issued.

All ships or other vessels, with their rigging, tackle, apparel, and furniture, and with their car¬ goes, to whatsoever nation belonging, destined I Wheat. 5.

to any port or place, invested, be.seigcd, orbloek- aded, by a suHicient force belonging to, in the service of, or co-operating with Uie United States, .so etfectually as that one cannot attempt to enter into such port or place without evident danger.

All .ships or other ve.ssels, with their rigging, tackle, a])parel, and furniture, and with their cargoes, found in the posses.sion of pirates.

The goods, wares, and merchandises, to be adjudged contraband, are the following, that is to say; Cannons, mortars, tire-arms, pistols, bombs, grenadoes, bullets, balls, fuses, flints, matches, jiowder, saltpetre, sulphur, carca,sses, pikes, swords, belts, pouches, cartoucli-boxes, saddles and bridles, in any quantity beyond what may be necessary for the ship’s provision, and may properly appertain to, and be ad¬ judged necessary *for, every man of the [*122 ship’s crew, or for each passenger. If it shall manifestly appear, that of any entire thing of which division cannot be made without injury to its value, a subject of the enemy, and a citi¬ zen or a subject of a foreign power, not being an enemy, are joint holders, the whole shall be condemned and sold for gold or silver, the proper proportion of the net proceeds of which shall be deposited in the treasury of the state in which the sale shall be, to be paid to the order of such citizen, or the subject of such foreign power.

If 'such division can be accomplished, but neither the citizen, nor the subject of a foreign power, nor his agent, shall require specific res¬ titution of his property, there shall be a sale in the same manner as if the property were indi¬ visible. But if, in .such case, a requisition be made to this effect, the due proportion shall be specifically re, stored.

Where property shall have been originally captured on land from a state, or a citizen of the United States, and .shall be recaptured below high water-mark by another citizen thereof, restitution shall be made to the former owner, upon the payment of a reasonable salvage, not exceeding one-fourth part of the value; no re¬ gard being had to the time of possession by the enemy.

In all cases of recapture by an armed vessel, fitted out at the expense of the United States, of a vessel, or other effects, belonging to a citi¬ zen, the court shall adjudge the proportion which would be due to the United States, to be remitted to such citizen, no regard being had to the time of possession by the enem3n

On the recapture by a citizen, of any negro, mulatto, Indian, or other person, from whom labor or service is lawfully claimed by a state, or a citizen of a state, specific restitution shall be adjudged to the claimant, whether the orig¬ inal capture shall have been made on land or water, and without regard to the time of pos- .session by the enemj’, a reasonable .salvage be¬ ing paid by the claimant to tne recaplor, not exceeding one-fourth of the value of such labor or service, to be estimated *according [*123 to the laws of the state under which the claim shall be made.

But if the service of such negro, mulatto, In¬ dian, or other person captured below high water-mark, shall not be legally claimed within a year and a day from the sentence of the court, he shall be set at liberty.

169

Appendix.

1^2:5

In all other cases of recapture, restitution shall be made to the owner, upon payment of one-third part of the true value for salvage, if the property shall have been retaken in less than twenty-four hours after the capture. But if it shall not have been retaken until the expira¬ tion of twenty-four hours after the capture, restitution shall not be made of any part.

Besides those who are duly authorized to make captures by special commission, captures of the property of an enemy shall be adjudged lawful when made :

1st. By a private vessel not having such com¬ mission, satisfactory proof being produced that they were made in pursuing the course of her voyage, and repelling a previous attack from an enemy.

2d. By any body or detachment of regular soldiers.

8d. By inhabitants of the country, if made within cannonshot of the shore.

4th. By an armed vessel sailing under a com¬ mission of his most Christian Majesty.

oth, By the crews of British vessels, while captures of this sort are licensed by the British.

Recaptures shall be made by no other per¬ sons than those authorized to make captures, except the crews of vessels retaken.

The destruction of papers, or the possession of double papers by any captured vessel, shall be considered as evidence for condemnation, unless good cause be shown to the contrary.

From and after the first day of February, which shall be in the year of our Lord one thousand seven hundred and eighty-two, any letters of passport or safe conduct, granted be¬ fore the 27th of March last, under the authority 1 24:*] of Congress, to any ^person whatsoever, for removal of property from a place beyond sea within the dominions or possessions of the British king, shall be void.

Upon the capture of a vessel commissioned as a man of war or privateer, by any of the ves¬ sels of war of the United States of America, the whole of the property condemned shall be ad¬ judged to the captors, to be divided in the fol¬ lowing manner (saving to all persons who shall lose a limb in any engagement, or shall be otherwise disabled in the service of the United States, every benefit accruing to them under the resolutions of Congress of the 28th day of November, one thousand seven hundred and seventy-five), that is to say :

To the coramander-in-chief of the navy of the United States, shall be allotted one twenti¬ eth part of all prizes taken by an armed vessel or vessels under his orders and command ; when there shall be no such commander-in-chief, the one-twentieth part allotted to him shall be paid into the treasury of the United States.

To the captain of any single armed vessel, two-twentieth parts; but if more ships or ves¬ sels be in company when a prize is taken, then tlie two-twentieth parts shall be divided equal¬ ly among all the captains.

To the captains of marines, lieutenants, and masters, three-twentieth parts of all prizes taken when they are in company, to be divided equally among them.

To the lieutenants of marines, surgeons, chaplains, pursers, boatswains, gunners, car¬ penters, master’s mates, and the secretary of the fleet, two-twentieth parts, and one-half of one-

170

twentieth part, to be divided equally among them.

To the following petty warrant officers, viz. ; midshipmen (allowing for each ship six, for each brig four, and for each sloop two), cap¬ tain’s clerks, surgeon’s mates, stewards, sail makers, cooper’s, armorers (allowing for each vessel one of each only), boatswain’s mates, gunner’s mates, carpenter’s mates (allowing for each vessel two of each), cooks, cockswains (allowing for each vessel one of each), serjeants of marines (allowing two for each ship, and one for each brig and *sloop), three- [*125 twentieth parts, to be divided equally among them ; and when a prize is taken by any vessel, on board, or in company of which the com- mander-in-chief is, then the commander-in- chief’s cook, or cockswain, shall be added to the petty warrant officers, and share equally with them.

The remaining eight-twentieth parts, and half of the one-twentieth part, shall be divided among the rest of the vessels’ company or com¬ panies, as it may happen, share and share alike.

No officer nor man shall have any share but such as are actually on board their several ves¬ sels when any prize or prizes shall be taken, excepting only such as may have been ordered on board any other prizes, .before taken, or sent away by his or their commanding offi¬ cers.

Upon the capture of any vessel, if made by a vessel of war belonging to the United States, one-half of the property condemned shall be decreed to the United States, and the other half to the captors, to be divided as aforesaid ; if by a private vessel not having a commission, the whole shall be decreed to the captors; if by any body, or detachment of regular or other troops in the service of the United States, the whole shall be adjudged to the captors, to be divided in proportion to the pay in the line of the army ; if by inhabitants of the country, be¬ ing in arms, the whole shall be adjudged to the captors, to be divided equally among them; provided, that if any such inhabitant shall be wmunded in making the capture, he shall be entitled to two shares, and if killed, his legal representatives shall be entitled to four shares; if by the crews of British vessels, the whole shall be adjudged to the captors, to be divided at the discretion of the court.

On recapture by an armed vessel belonging to the United States, of a vessel under the pro¬ tection of a vessel belonging to the enemy, commissioned as a man-of-war or privateer, or where the vessel retaken is equipped in a war¬ like manner, the proportion to be withdrawn from the original owmer shall be divided, as in the case of a capture of an enemy’s vessel com¬ missioned as a man-of-war or privateer.

*On recapture, by an armed vessel [*126 belonging to the United States, of a vessel under the protection of a hostile vessel not com¬ missioned as a man-of-war or privateer; and where the vessel retaken is not equipped in a warlike manner, the proportion to be with¬ drawn from the original owner shall be divided, as in the case of a hostile vessel not commis¬ sioned as a man-of-war or privateer.

The rules of decision in the several courts shall be the resolutions and ordinances of the

Wheat. 5.

Appendix.

United States in Congress assembled, public treaties, when declared to be so by an act of Congress, and the law of nations, according to the general usages of Europe. Public treaties shall have the pre-eminence in all trials.

This ordinance shall commence in force on the tirst day of February, which will be in the year of our Lord one thousand seven hundred and eighty-two.

Done by the United States in Congress as¬ sembled. &c., &c.

Tuesday, January 8th, 1782.

The ordinance for amending the ordinance, ascertaining what captures on water shall be lawful, was read a third time and passed, as follows:

An Ordinance for amending the Ordinance, as¬ certaining lohat captures on icater shall be lawf ul.

Whereas, there hath been great variance in the decisions of several maritime courts within the United States, concerning the pretensions of vessels claiming a share of prizes, as being in sight at the time of capture; some having ad¬ judged that the mere circumstance of being in sight was a sufficient foundation of title, while others have required proof of a more active in¬ fluence; and whereas, this inconvenience hath arisen from the want of an uniform rule of de¬ termination in such cases.

Be it therefore ordained, by the United States in Congress assembled, that no share of any 127] prize shall be adjudged to a vessel be¬ ing in sight at the time of -capture, unless the said vessel shall have been able at the time when the captured vessel struck, to throw a shot as far as the space between herself and the capt¬ ured vessel ; and that every vessel coming in aid of the captors, which shall have been able at the time when the captured vessel struck, to throw a shot as aforesaid, and shall have been duly authorized to make captures, shall be en¬ titled to share according to the number of her men and the weight of her metal; provided, that nothing herein contained sliall be construed to affect any agreement which shall have pre¬ viously been made between vessels cruising in concert.

And be it further ordained by the authority aforesaid, that whensoever an armed vessel be¬ longing to, and commissioned by the enemy, shall be captured by any armed ves.sel belong¬ ing to the United States, and duly authorized to make captures, the net proceeds of the sales of the captured vessel, and of her rigging, tackle, apparel, and furniture, shall be adjudged to the captors; and where a cargo shall be on board of such captured vessel, one moiety of the net proceeds of such cargo shall be adjudged to the United States, and the other moiety to the cap- tors.

And be it further ordained by the authority aforesaid, that upon -the capture of any vessel belonging to the enemy, and laden with masts or spars, by an armed vessel belonging to the United States, and duly authorized to make captures, the net proceeds of the sales of such captured vessel, and her cargo, shall be ad¬ judged to the captors.

This ordinance shall take effect, and be in Wheat. 5.

126

force, from and after the last day of February next.

Done by the United States in Congress as¬ sembled, &c., &c.

Tuesday, February 26th, 1782

The following ordinance being read a third time, was agreed to:

*An Ordinance for further amending [*128

the Ordinance, ascertaining what cevptures on waiter shall he lawful.

Whereas, divers ships or vessels belonging to the citizens of several of these United States, may have sailed on voyages to Europe, before the publication of the ordinance, entitled, “An ordinance ascertaining what captures on water shall be lawful,” where they, as well as vessels belonging to the subjects of neutral powers, may have laden and taken on board, in promiscuous cargoes, goods, wares, and merchandises, of the growth, product, or manu¬ facture of Great Britain, or of some cf the do¬ minions or teiTitories thereon depending, with- ' out any knowledge of the said ordinance, and may not be able to arrive in any of the ports of these states, on or before the first day of March next, whereby the said goods may become liable to capture and condemnation:

For remedy whereof, it is hereby ordained by the United States in Congress assembled, that no ship or other vessel, which shall have sailed from any port or place in Europe, not belonging to the King of Great Britain, on or before the tenth day of April next, for any port or place within the United States, not in possession of the enemy, shall be liable to capt¬ ure or molestation, merely for having on board goods, wares, or other merchandises, of the growth, product, or manufacture of Great Britain, or of any territory depending thereon.

And it is hereby further ordained, that where vessels, their cargoes, or any part thereof, be¬ longing to any citizen of these United States, sailing, or being within the body of a county, or within any river or arm of the sea, or within cannonshot of the shore of any of these states, and laden with the produce of the countiy, and destined for a port or place within these states, not in possession of the enemy, shall be capt¬ ured by the enemy, and shall be recaptured be¬ low high water-mark by another citizen there¬ of, restitut ion shall be made to the -former own¬ er, upon the payment of a reasonable salvage, not exceeding one-fourth *part of the [*129 value, no regard being had to the time of pos¬ session of the enemy.

And be it further ordained, that so much of the aforesaid ordinance as comes within the purview of this, be, and hereby is repealed.

Done by the United States in Congress as¬ sembled, &c., &c.

An Ordinance for the better distribution of prizes in certain cases.

Be it ordained by the United States in Con¬ gress assembled, that so much of the ordinance, entitled, “An ordinance ascertaining what captures on water shall be lawful,” as ordains that upon the capture of a vessel commissioned as a man-of-war, or a privateer, by any of the vessels of war of the United States of America, the whole of the property condemned shall be

171

129

Appendix.

adjudged to the captors, he, and the same is hereby repealed; and that, in all such cases of capture, tlie whole of the property condemned shall be adjudged to the use of the captor.s, if the vessel taken shall be of equal or superior force to the vessel making the capture; if other¬ wise, one-half only shall be adjudged to the captors, aud the other half to the use of the United States, and shall, after condemnation, be so appropriated, unless the United States in Congress assembled, in reward of distinguished valor and exertion, shall otherwise speciall}" di¬ rect.

And be it further ordained by the authoiuty aforesaid, that the resolution of the 15th day of November, 1776, giving to the commanders, officers, and men of the ships or vessels of war, a bounty for every cannon, and for every man belonging to British ships or vessels of war captured by them, be, and the same is hereby repealed.

Done by the United States in Congress as¬ sembled, &c. , &c.

BRITISH STATUTES AND PRIZE INSTRUCTIONS.

With regard to the issuing of letters of marque, the Lord High Admiral of Great Britain, or the commissioners appointed for 130] ^executing that office, or any three of such commissioners, or any persons by them empowered or appointed, shall, at the request of any duly-qualified owner or owners of any ship or vessel duly registered, according to the directions of the acts passed in the 26th and 34th years of Geo. III. (provided such owner or owners give the bail or security hereafter speci¬ fied), cause to be issued in the usual manner, one or more commissions, or letters of marque and reprisal, to any person or persons nomina¬ ted by such owner to be commander, or (in case of death, successively) commanders, of such ship or vessel ; for the attacking, surpris¬ ing, seizing, and taking, by and with such vessel, or with the crew thereof, any place or fortress upon the land, or any ship or vessel, arms, ammunition, stores of war, goods or merchandise, belonging to, or possessed by, any of His Majesty’s enemies, in any sea. creek, haven, or river. ^

All persons applying for such commissions, or letters of marque, must make their applica¬ tion in writing, subscribed with their hands, to the high admiral, or other persons thus em¬ powered, or to the lieutenant or judge of the High Court of Admiralty, or to his surrogate, and such application must be set forth “a par¬ ticular, true, and exact description of the ship

“1.— 36 aeo. in., ch.'eo.'; 24 G. Ill.t^c. 68.

43 G. III., c. 160, sect. 7.

trading vessels) are allowed to man their ships with foreign seamen, provided they do not exceed three- fourths of the ship’s company. This statute also confers all the «rivileg-es of British subjects upon such seaitien after two years service during- war; excepting that no one can be a member of the privy council, or of parliament, hold any office or place of trust, or have any grant of land, tenements, or hereditaments from the crown, either to himself, or any person or persons in trust for him. The dura¬ tion of this act is unlimited ; though several tempo-

172

or vessel for wliicb such commission, or letter of marque and reprisal, is requested, specifying the name and btirthen of such ship or vessel, what sort of built, she is, and the number and nature of the guns, and what other warlike furniture and ammunition are on board the same, to what place the ship belongs, and the name or names of the principal owner or own¬ ers of such ship or vessel, and the number of men intended to be put on board the same® (all which particulars must be in.serted [*131 in every commission, or letters of marque), for what time they are victualed;” and “also the names of the commanders and officers.”'

Farther, every commander of a private ship or vessel of war, for which such commission or letters of marque shall be granted, must pro¬ duce the same to the collector, customer, or searcher, for the time being, of His Majesty’s customs, residing at, or belonging to the port, whence such ship shall be first fitted out, or to their lawful deputias. And such collector, customer, &c., shall, without fee or reward, and as early as may be, inspect and examine the said vessel, in order to ascertain her built aud burthen, the number of men, together with the number and nature of the guns on board. If, after examination, such ves.sel appear to be of such built and burthen, and to be manned and armed according to the tenor of the descrip¬ tion inserted in the commission or letter of marque ; or if she be of greater force or burthen than is therein specified; in such case, the col¬ lector, &c. , or his or their deputies, shall, imme¬ diately, upon the request of the commander of such ship or vessel, give him, gratis, a certificate thereof in writing, -under his or their hand or hands; and such certificate shall be deemed a necessary clearance before the vessel or letter of marque, thus commissioned, shall be permitted to .sail from that port.® The same statute like¬ wise declares, that in case any commander pro¬ ceed out of port upon a cruise, without such certificate of clearance, or with a force inferior to that specified in the commission or letter of marque, the latter shall be absolutely null and void; the commander thus offending shall be subject to the penalty of £1 , 000 recoverable 'vitli full costs of suit by any person, and shall also be *imprisoned for such space of time [*132 as the court shall direct, not exceeding one year for any one offense.®

Previously, however, to obtaining letters of marque, bail must be given with sureties, be¬ fore the lieutenant and judge of the High Court of Admiralty, or his surrogate, in the sum of three thousand pounds sterling, if the ship car¬ ry more than one hundred and fifty men; and if she carry a less number, in the sum of fifteen

/

rary statutes (38 Geo. II., c. 16; 19 Geo. III., c. 14;33 Geo. III., c. 26) have subseuueutly allowed the same privileges during war. A late statute, however, requires three years’ service.

4. -33 Geo. III., c. 66 ; s. 15 ; 43 Geo. III., c. 160, s. 13.

Instructions for letters of marque, &c., against the goods of the French and Batavian Republics. Art

owners of all the vessels, for which such letters shall be granted, must nominate and register in the coui-t a proctor, exercent in the Court of Appeal, in case any appeal should be instituted from the decisions of the court below. 41 Geo. III., c. 96, s. 10.

5. -33 Geo. III., c. 66, s. 15 ; 43 Geo. III., c. 160, s. 13.

Wheat. 5.

Appendix.

132

hundred pounds sterling. ' Farther, such sure¬ ties must, prior to their being bound, severally make oath before the judge of the said Court of Admiralty of England, or judge of any other court of admiralty in any other of Ilis Majesty’s dominions, or his or their surrogates, that they are respectively worth more than the sum for which the}^ are to be bound, over and above all their just debts. And in order to prevent frauds, the marshal of the Admiralty Court is enjoined to make diligent inquiry into the suffi¬ ciency of such bail and security ; and to make his report accordingly to the judge or his sur¬ rogate, before any commission or letter of marque can be granted.^

No judge of any vice-admiralty court, estab¬ lished in the West Indian or American colonies, can, either directly or indirectly, have any share or interest whatever, in any privateer or letter of marque.® Nor can any judge, advo¬ cate, marshal, proctor, or any other officer of any admiralty or vice-admiralty court, either in England, or in the colonies, possess any such interest, on pain of forfeiting his employment, and also the sum of five hundred pounds to the use of His Majesty; being convicted of every such offense in any court of record in Great Britain, or at any general session of the peace in any of the American colonies. And all ad¬ vocates or proctors, thus offending, are for¬ ever disqualitied and incapacitated from prac¬ ticing their profession.

Letters of marque are revocable, either by 133*] violating the ^revenue laws, or by the Lord High Admiral. In the former case, if the owner or owmers, commander, master, or other persons having the command of the letter of marque, or privateer, be guilty of any offense contrary to any acts now in force, or wdiich may hereafter be enacted, for the protection of the customs or excise, or for the prevention of smuggling, such persons shall forfeit their com¬ mission, independently of the other penalties or forfeitures incurred by reason of such offense.^

Where, however, the Lord High Admiral, or any three or more of the commissioners for ex¬ ecuting that office, may deem it expedient to revoke any letters of marque, by any order or orders in widting, under his or their hand or hands, the secretary of the admiralty is requir¬ ed to transmit, as early as possible after such revocation, a notice in wu'iting to the owner or owners of the vessel named or described in such order, or to his or their agent or agents, surety or sureties, or some or one of them. In case the ship be in the Channel, the order of revocation .shall be effectual to supersede and annul the commission or letter of marque, at the expiiation of twenty days after such notice has been given, or sooner if the notice be act¬ ually given in writing by the secretary of the admiralty to the captain' or commander of such ve.ssel. If she be in the North Seas, the commission becomes void at the end of thirty days. Six weeks are allowed before the order takes effect, in ca.se the ship be to the .south of

Cape Finisterre, or in the Mediterranean; three months, if she be in North America or the West Indies; and if in the East Indies, six months, after such notice is given. Complaint of such revocation may be made to His Majesty in council by any commander, owner, agent, or .surety, within thirty days after notice of revo¬ cation has been given by the secretary of the admiralty. His MaJesty’.S determination in council, respecting such complaint, is final; but in case the order of revocation be supersed¬ ed, the commission or letter of marque shall be deemed to have continued in force; and all prizes taken by virtue thereof shall belong to the owners and ^cajitors, in the same [*134 manner as if no such order of revocation had been made. But no person is liable (before he shall have received personal notice of such or¬ der) to be punished for doing any lawful mat¬ ter or thing, which he might have done under the authority of bis commission or letter of marque, in case such order of revocation had not been made.®

If any person or persons counterfeit, erase, alter, or falsify any commission for war, or let¬ ter of marque, or any warrant for making out the same, or any certificate required by law to be obtained, or shall publish or make use of any such commission, warrant, or certificate, knowing the same to be counterfeited, erased, altered, or falsified, such person or persons in¬ cur a forfeiture of five hundred pounds, recov¬ erable with full costs of suit, in any court of record in Great Britain.® And if any of these offenses be committed out of this realm, they maj^ be alleged to be committed, and may be laid, inquired of, tried, and determined in any county in England, in the same manner, to all intents and purposes, as if such offenses had been done or committed within the body of such county.’

No commander of any ship or vessel, having letters of marque, is allowed, at his peril, to wear any jack, pennant, or other ensign or colors, usually borne by king’s ships; but, be¬ side the colors in general hoisted by merchant’s .ships, he must wear a red jack, with the union jack described in the canton, at the upper cor¬ ner thereof, near the staff.®

The commanders of privateers, or merchant .ships, having letters of marque and repri.sals, are authorized to set upon by force of arms, subdue, and take, the men-of war, ships, and vessels, goods, wares, and merchandises, be¬ longing to the enemy, or to any subjects of, or persons inhabiting within his territories but in such a manner, that no hostilities be com¬ mitted, nor prize attacked, seized, or taken, within the harbors *of princes and [*135 states in amity with us, or in their rivers or roads within .shot of their cannon, unless by permission of such princes or states, or of their cammanders or governors-in-chief in such places.

If any ship or vessel be taken as prize, none of the officers, mariners, or other persons on

1. — “Instructions for letters of marque,” &c. Art.

IS.

2. -43 Geo. III., c. 160. 8. 12.

3. -41 Geo. III., C.96, s. 17.

5. -33 Geo. III., c. 66, s. 20 ; 43 Geo. III., c. 160, s. iv!

Wheat. 5.

6. — Ibid. 8. 48 : 43 Geo. III., c. 160, s. 48.

7. — Ibid. B. 49; 43 Geo. III., c. 160, s. 49.

8. —“ Instructions for letters of marque,” &c..

Art. 8.

173

135

Appendix.

board her. shall be stripped of their clothes, or in any sort pillaged, beaten, or evil-intreated, on pam of the offender’s being liable to such punishment as a court-martial shall think proper to inflict. '

No commanders of privateers, or letters of marque, are allowed to ransom or agree to ransom, quit or set at liberty, any ship or vessel, or their 'cargoes, which shall be seized and taken, on pain of forfeiting their commission, unless in cases of extreme necessity, to be allowed by the Court of Admiralty, and incurring such penalties of fine and imprisonment, as the court shall adjudge.'^ Nor are they permitted, on any pretense whatever, to ransom any prisoner; but they must transmit an account of, and de¬ liver over, such prisoners as they may take on board of any prizes, to the commis¬ sioners appointed for exchanging prisoners of war. or to the persons appointed in sea¬ port towns to take charge of prisoners; and such prisoners are subject only to the orders, regulations, and directions of the said commis¬ sioners.® Farther, it is unlawful for any of His Majesty’s subjects to ransom, or to enter into any contract for ransoming any ship belonging to British subjects, or any goods on boai'd the same, which shall be captured by the subjects of any state at war with His Majesty, or by any persons committing hostilities against his sub¬ jects. And if any contracts be entered into, or any bills, notes, or other securities be given for that purpose, they are absolutely null and void; beside which, the party thus offending incurs a forfeiture of £500, which may be sued 136] for by any person.® If any ship or vessel, or any goods or merchandises, be taken or retaken and restored, by any privateer, through consent or clandestinely, or by .collu¬ sion or connivance, without being brought to adjudication, such ship or vessel, together with the goods and merchandises, and also the ship’s tackle, apparel, furniture, arms, and ammuni¬ tion. shall, on proof thereof, to be made in any court of admiralty, be declared and adjudged a good prize to His Majesty. One moiety of the prize is to go to His Majesty’s use, and the other moiety to the person who may sue for the same; beside which, the bond given by the captain of such privateer is foi’feited to His Majesty. Further, if such collusive capture, or recapture and restoration, be made by any captain or commander of any king’s ships, the vessel thus taken, or retaken and restored, is not only to be condemned as a prize to His Majesty, but also the offenders are disqualified and incapacitated from serving him for seven years, and incur a forfeiture of £1,000, recover-

the ninth article of war.

3.—“ Instructions,” Art. 9.

3. — Ibid. Art. 10; 33 Geo. III., c. 66, s. 36; 43 Geo.

III., c. 160, 8. 35.

43 Geo. III., 8, c. 166. s. 36.

5. — 31 and 33 Geo. III., c. 54 (for Ireland) ; 33 Geo.

III., c. 35, ss. 3, 3; 33 Geo. III., c. 69,88. 38,39; 43 Geo. III., c. 160. 88. 37. 38.

6. — 13 Geo. II., c. 4, 8. 19 ; 43 Geo. III., c. 160, s. 43.

7. — Instructions, Art. 3.

s. 8, otherwise called the 8th article of war.

43 Geo. III., c. 160, s; 45.

17i

able by any person who may sue for the same ; and who is entitled to one-half of the penalty, while the other moiety goes to the use of His Majesty.®

All prizes must be conducted either into an English port, or into' some other port of the British dominions, as may be most convenient, in order that they may be legally adjudged in the High Court of Admiralty in England, or be¬ fore the judges of any other admiralty court in the British dominions.’ All the effects found on board, of whatever description must be preserved, without any part of them being taken out, spoiled, wasted, embezzled, or di¬ minished, and without breaking bulk (unless it shall be necessary for the better securing there¬ of, or for the necessary use and service of any of His Majesty’s ships of war), until judgment has been given in the High Court of Admiralty, or in some other lawfully-authorized court of admiralty, that the ship, goods and merchandis¬ es are lawful prize.® Persons offending in these respects, not only forfeit *the [*137 whole of their respective shares of the captures to the use of the Royal Hospital at Greenwich, but also incur a fine treble the value of the article or articles so embezzled, one-third part of which goes to the same noble institution, and the remainder to any person that may sue for the same;® and if the offender be on board one of His Majesty’s ships of war, he is liable to suffer such further punishment as a court-mar¬ tial or the Court of Admiralty shall impo.se.'®

In order to prevent any of these abuses, the commissioners for taking examinations in prize causes are, by their regulations, required first to make an entry of the time of the captured ves¬ sel’s arrival in port; after which they must give directions to the collector of the customs or naval officer at such port, or any other proper person, to see that the prize be duly and safely moored in sufficient depth of water, or on. soft ground, so that the ship may receive no dam¬ age. The person attending to this business, receives the sum of one guinea from the captor, who must also pay all lights and port charges incurred on account of the prize.” Two of these commissioners, accompanied by the col¬ lector of the customs or naval officer of the port, then proceed on board the ship, to ex¬ amine whether bulk has been broken, in which case they are enjoined to certify the same to the judge of the High Court of Admiralty ; next, they seal the hatches and chests of merchandise, which are on no account to be opened or un loaded by any persons whomsoever, unless by- special order under seal of the court, excepting only in cases of fire and tempest, and of abs(> lute necessity.'®

10. — 33 Geo. II., c. ;13, stat. 3, s. 8.

Commissioners,” in Sir James Marriott’s ” Formu- lai'e Instrumentorum,” p. 380, &c., Art. 1 and 3.

13.— ” Regulations,” &c.. Art. 3. By an order of the Court of Admii-alty, dated January 6, 1783, only two commissionera are allowed to be employed for taking the examinations for one ship with one actuary, and so on by rotation. And with regard to interpreters, in cases of neutral vessels, if the master of the captured neutral ship object that the interpreter does not understand the language, in such case the proper persons are directed to be sent up to London, in order that they may be ex¬ amined b.v the officer In Doctors’ Commons, at the request of the master. Marriott’s “ Formulare,” pp. 15, 16.

Wheat. 5.

Appendix.

138

138] After the captor lias conducted his prize into port, he or one of the chief officers, or some other person present at the capture, must bring or send as early as possible, three or four of the principal of the company (of whom the mas¬ ter and mate or supercargo, must always he two) of every such prize, before the judge of the High Court of Admiralty, or his surrogate, or before the judge of any other lawfully-author¬ ized admiralty court within the British domin¬ ions, or such persons as shall be legally com- mi.ssioned in that behalf, in order that they may be sworn and examined upon such inter¬ rogatories’ as shall tend to the discovery of the truth, concerning the interest or property of such ship or ships, vessel or vessels, and of the goods, merchandises, or other effects found therein. Farther, the captor is obliged, at the time he produces the company to be examin¬ ed.- and before any monition shall be issued, to bring and deliver into the hands of the said judge of the High Court of Admiralty of Eng¬ land, his surrogates, or the judge of such other admiralty court, lawfully authorized within the 139] British dominions, or other persons for that purpose commissioned, all such papers, passes, sea briefs, charter-parties, bills of lading, cockets, letters, and other documents and writ¬ ings, as shall be delivered up or found on board any ship. The captor, chief officer, or some other person who was present at the taking of the prize, and saw such papers and writings delivered up, or found on board at the time of capture, must also make oath that they are brought and delivered in, as they were received and taken, without any fraud, addition, sub- duction,’’ or embezzlement, or otherwise to ac¬ count for the same, upon oath, to the satisfac¬ tion of the court. ^

On receipt of such books, papers, and writ¬ ings, the commi.ssioners must transmit the same w'ithout delay, and under seal (together with copies of the examinations), to the office of the registry of the court of admiralty, wherein such ship may be proceeded against in order to con¬ demnation ; but only such books, papers, and writings, shall be made use of and translated, as shall be agreed or insisted upon by the proc¬ tors of the several parties, captors or claimants, or (in case no claim be presented by the captor, or his proctor, agent, or register) as shall be

necessary for ascertaining the property of such ship or ves.sel, and her cargo,®

If any ship, vessel, or boat, or any goods therein, which may have been taken as prize, shall appear and be proved, in any court of ad¬ miralty, to have belonged to any of His Majesty’s subjects, of Great Britain or Ireland, or of aii}^ other of His Majesty’s- dominions; and which ships, vessels, or boats were before taken or surprised by any of His Majesty’s enemies, and afterwards again surprised and retaken by any ship of war, *privateer, or other .ship, [*14-0 vessel, or boat, under His Majesty’s protection or obedience; in such case the recaptured ships or boats, and goods, and every part thereof, formerlj^ belonging to His Maje,sty’s subjects, shall by a decree of the .said Court of Ad¬ miralty, be re.stored to the former owners or proprietors, who shall pay the following rates in lieu of salvage, viz. ; If the recapture be ef¬ fected by any of His Maje.sty’s ships, one-eighth part of the .ships, vessels, boats, and goods, res¬ pectively, to be restored, shall be paid to the flag-officers, captains, officers, seamen, marines, and soldiers on board such ships of war; and such salvage is to be divided among them in the manner and proportion for that purpose di¬ rected. But if such recapture be made by any privateer, or other ship, vessel, or boat, one- sixth part of the true value of the said ships, vessels, boats, and goods, shall, without any de¬ duction, be paid to, and divided among, the owner or owners, officers and .seamen, in such manner and proportion as they shall have mutally agreed upon.®

Where, however, a recapture has been made by the joint operation of one or more of His Majesty’s ships, and one or more privateer or privateers, the judge of the Admiralty Court shall order the owner or owners of such recapt¬ ured vessel or goods to pay such a salvage as under the circumstances of the case shall to him appear reasonable, to the agent of the re¬ captors, and in such proportion as the court shall adjudge.’ But if the ship or vessel, thus retaken, shall have been fitted out by the enemy for war, .she shall not be restored to the former owners or proprietors; but whether recaptured by a ship belonging to His Majesty, or b.y a privateer, shall be adjudged a lawful prize for the benefit of the captors.®

1.— In the examination of witnes.ses, only, two coniinissioners and one actuary are (as observed In the preceding note) allowed to attend: and the examination of every witness is required to be commenced, continued, and linlshed on the same day, and not at different times. “Regu¬ lations,” &e., art. 8. p. 386, of Sir .J. Marriott’s “ FormuUire. ” For the same purpose the com¬ mi.ssioners are permitted to use only the standing interrogatories, unless the court direct special in¬ terrogatories to be proposed, though they may ex¬ plain any of them to a witness, where it is necessary. If, however, witnesses answer, that “ they cannot say,” it is the duty of the commissioners to admon¬ ish them, that, ‘as they have .sworn to speak the truth, the whole truth, and nothing but the truth, they must answer to the best of their knowledge; or, where they do not know absolutely, that they must in such case answer to the best of their belief, concerning any fact or matter. “Formulare.” p. 38.5.

3.— If the prize-master neglect to produce wit¬ nesses before, the commissioners, within forty-eight hours after the arrival of the prize, they must ad¬ monish him to bring them forward; and if he re¬ fuse or delay, or if the witnesse s refuse to be ex-

Wlicat 5.

amined, being also admonished of the consequence of their contumacy (viz.,imprisonment of their per¬ sons for contempt, and confiscation of the ship and cargo), in such case the commissioners are at the expiration of forty-eight hours, to certif.vthe.same to the judge of the Hig'h Court of Admlralt.v. “Regulations,” &c., art. 1.

ships of war, taking a prize, neglect to jireserve, or to transmit the “very originals,” entirely and without fraud to the Court of Admiralty, or .some other court of commissioners, the offender forfeits his share of the capture, and is liable to such farther punishment as the nature of his offen.se may de¬ serve, and a court-martial impose. 32 Geo. II., c. % stat. 3, s.7, or these\’enth article of war.

4. — “Instructions,” Ai't. 3.

. 5.- .33 Geo. HI., c. 66, s. 26 ; 43 Geo. III., c. 160, s. “Regulations,” &c., art. 5, in “Formulare Instru- mentorurn,” p. 384.

Geo.IIT., c. 160, s. 41.

7. -33. Geo. ni.,c. 66, s. 42 : 43 Geo. III., c. 160, s.41.

8. — Ibid.

175

140

Appendix.

If a sliip lie retaken before she has been car¬ ried into an enemy’s port, it shall be lawful for her, w’ith the recaptors’ consent, to prosecute her voyage; nor is it necessary that they should proceed to adjudication till six months, or tili the return of the ship to the port whence she 141] sailed. Farther, by tlie recaptors’ con¬ sent, the cargo may be unladen and disposed of before adjudication ; and if such vessel does not return directly to the port whence she sailed, or if the recaptors have had no opportunity of proceeding regularly to adjudication within six months, on account of the absence of the vessel, the Court of Admiralty shall, at the instance of the recaptors, decree restitution to the former owners, pajdng salvage, upon such evidence as shall appear reasonable; the expense of such proceeding not to exceed the sum of fourteen pounds,'

The captors of small armed .ships and vessels belonging to the enemy, may include in one adjudication any number of such ships having a commission or letter of marque from the enemy ; provided they do not exceed six, and are under fifty tons burthen, having been taken within three months before the application to the admiralty for such adjudication."

For the more .speedy condemnation of prizes, the judge of the High Court of Admiralty of England, or of any other court of admiralt}' thereto authorized, or such person as shall by them be commissioned for that purpose, shall within five days after request made, finish the usual preparatory examination of the persons commonly examined in such ca.ses, in order to inquire and prove wdiether the capture is a law- fid prize or not. The proper monition usual in such cases, shall be i.ssued by the proper of¬ ficer. and be duly executed by the proper per¬ sons, witldn three days after request made for that purpo.se; and in case no claim of such captured ship, vessel, or goods, be entered and made in the usual form, twenty days’ notice 142] being given after such monition, or if such claim be put in, and the claimant or claimants shall not, witldn five days after, give bond in the sum of sixty pounds sterling, to pay costs to the captor or captors, in case the ship, vessel, or goods, shall be adjudged lawful prize, the judge of such admiralty court shall

then, on production of the examinations, to¬ gether with all papers and writings found on board the prize, or upon oath that no such pa¬ pers or writings were found, proceed to dis¬ charge or acquit such capture, or to condemn the same, as shall appear expedient to him, on perusal of the .said preparatory examinations, papers, and writings. If, however, such claim be duly entered, and proper security be given, and no other examination appear to be requisite, the judge shall in such case proceed, within ten days, if possible, to give sentence respecting such capture. But where, on entering such claim, and the attestation thereupon, or pro¬ ducing the said papers and waitings regarding the captured ship, ve.ssel, or goods, and upon the said preparatory examination, it shall appear doubtful to the judge, whether such capture be lawful prize or not, and he shall deem it necessary, for determining such doubt, to have an examination of witnesses on pleadings given in by the parties, and admitted by the judge, the ijudge shall, in such case, cause the capture to be forthwith appraised by skillful persons, nominated by the parties, and ajiproved and appointed by the court, and who .shall be sworn duly to apprai.se the same according to the best of their skill and knowdedge. And for this purpose the judge shall cause the goods found on board tobe unladen and(an inventory, if neces¬ sary, being previously taken by the marshal or deputy-marshal of the admiralty) order them to he deposited in proper warehouses, with separate locks, of the collector and comptrol¬ ler of the customs, or (if there be no comptrol¬ ler or collector) of the naval officer, and of the agents of both captors and claimants, at the charge of the party requesting the same. After such appraisement, and within fourteen days after claim made, the judge shall take good and sufficient security from the claimants to pay the captors the full value thereof,' accord¬ ing to such appraisement, in *ca,se the [*143 same shall be adjudged a lawTul prize.® He is also enjoined to take sufficient security from the captors to pay such costs as the court shall think proper, in case the ship, vessel or goods, shall not be condemned as lawful prize; and after such securities have been duly given, he shall make an interlocutory order for re-

33 Geo. III., :c. 66, s. 44; 43 Geo. III., c. 160.

8. •

2.— as Geo. III., c. 66, s. 11; 43 Geo. III., c. 160, s. 9. ■Order of the Court of Admiralty, April 11, 1760, in Marriott’s “ Forinulure,” i). 4, 5. It is neee-sary here to remark, that the owners of all privateers are obliaod to nominate and register a proctor in the coui't, whence they obtain their commission or letter of marque ; that ser\ ice on him is binding; on the commander, owners, and sureties (41 Geo. Iir.,c. '96, 8. 10), and that such owners and sureties are liable to decrees immediately after stmtence. Ib. s. 12. In ciise any privateer proceed to adjudication in any •other court than that whence tlie letters of marque ha ve Is, sued, they must pursue the same conduct before t’le usual moniti tn is granted, and in case of appeal, the service of the process of tlieCourtof Appeal on him will in like manner be effectual.

*3.— No claimants are allowed to take cargo on bail, previously to hearing, without the consent of all the itarties. 3 Kob. Adm. Rep. 178 Hut where all the tiarties interested are liable to sustain loss or damage from the ca|)tured cargoes either being perishing, or of a perishatilc nature, the Court of Admiralty lias ordered, that in all cases, b.v consent of captor and claimant, or upoti attestation exhi-

IJO

bited on the part of the claimant only, without the captor’s consent, the cargo, or the perishing or perishable part thereof, shall be delivered to him, on his specifying- the quantity and quality of the cargo, and giving bail to answer ihe value thereof, if condemned, and also that he will abide the event of the suit. Such bail must be approved by the captor,or otherwise the persons giving the security must swear that they are truly and severally worth the sum for which they give security; but if theiiartles cannot agree respecting (he value of the cargo, a decree of appraisement may issue from the court in order to ascertain the real value. Wh(‘re, however, no claim is made,the captor may, on exhibiting an affidavit, specifying the quantity and quality of the perishable cargo, have a decree of appraisement and sale of such cargo, and bring the proceeds into court in view of any claim,event- uall.v to abide any future orders. Order of the Court of Admiralt.v, April 11, 1780, in !Sir J. Mar¬ riott’s “ Formulare,” pp. 5, 6. Where a commission of appraisement and sale is granted by the judge of the Vice- .-Admiralty Court, (lefore final sentence, the proceeds of such sale shall not remain in the hands of the captors or their agents, but shall be depo.sited in the registry of the court till final sen¬ tence be pronounced. 41 Geo. 3, c. 96, s. 7.

Wheat. 5.

Appendix.

143

leasing or delivering the same to such claimant or claimants, or to his or their agents. *

In case, however, any claimant or claimants refuse to give the security required, the judge, on sufficient security being given by the cap- tors, that they will pay the full value to the claimants according to the appraisement there¬ of, if the capture should not be condemned, shall proceed to make an interlocutory order for releasing and delivering the same to such cap- tor or captors, or to their agents.^ But as great 144] injury is often sustained by the sale of captured property in remote parts of the Brit¬ ish dominions, the colonial vice-admiralty courts are empowered, where farther proof is ordered, and the clairriants of the property de¬ cline to take it on bail, to direct such property to be sent to England (with the captors’ and claimants’ consent), there to be sold by con¬ signees nominated by both parties, and the pro¬ ceeds of sale to be forthwith deposited in the Bank of England, in the name of such con¬ signees, subject to the final adjudication, ex¬ penses of freight, insurance, and other charges, attending the sale and transportation of the property. If, however, it shall appear to the court that the captors unreasonably withhold their consent, they shall (in case of restitution) pay the difference in value of the property, at the time of such restitution, and of the produce thereof, in case such property had been sent for sale to England ; the said difference to be ascertained in such manner as shall appear satisfactory to the court for that purpose.

Thus far the regulations relate equally to ships of war and to privateers; but in all pro¬ ceedings had upon captures made by any priva¬ teer in the vice-admiralty courts in the West Indies or America, the owners are to be deemed and considered as parties to every part of such proceedings; and such owners as well as the sureties, are jointly and severally liable to all orders and decrees made therein immediately after final sentence, without any farther personal service on the commander, or putting him in contempt by process of contumacy.

In case, however, any captors or claimants shall not rest satisfied with the sentence, or in¬ terlocutory decree having the force of a defin¬ itive sentence, pronounced in the High Court of Admiralty of England, or in any colonial vice-admiralty court, the parties aggrieved may appeal to the commissioners appointed for de¬ termining appeals in prize causes, in like man¬ ner as such appeals have usually been inter¬ posed;^ provided the appellants give sufficient security that they will effectually prosecute 145] such appeal, answer the condemnation, and pay all costs, if the sentence of the respect¬ ive courts be affirmed; But the execution of such sentence is not to be suspended by the appeal (excepting in the cases hereafter mention¬ ed), if the parties appellate give sufficient se-

Geo. III., c. 160, 8. 30. Where a ship and carffo, or either of them, are condemned, with a g'eneral res¬ ervation of the question to whom, no copy of the Interiocutory order is allowed to be delivered to either party, until a final condemnation take place. Order of the Court of Admiralty, dated August 1, 1793, in “Formulare,” p. 33, 34.

3.-33 Geo. III., c. 66, a. 34 ; 43 Geo. III., c. 160, 8. 31.

Wheat. 5. U. S., Book 5.

curity, to be approved of by the court where such .sentence was given, that they will restore the property in litigation, or the value thereof, to the appellants, in case the sentence or the interlocutory decree appealed from, shall be revOTsed."* And in cases of appeal from a co¬ lonial vice-admiralty court, the property in liti¬ gation may, at the appellant’s request, be sent by the court to England for sale, and the pro¬ ceeds be deposited in the bank, in the manner already specified or if the property shall have been converted bjr sale, the proceeds'thence aris¬ ing shall be consigned to England and deposit¬ ed in a similar manner. Should any question or difficulty arise respecting; any property or proceeds thus sent to England, either before or after any such appeal, at any time after their arrival in England, or respecting the sale oi' proceeds thereof, the captors or claimants may, on giving notice to the adverse parties, apply by their proctors to the High Court of Admir¬ alty (if before the prosecution of the appeal), or (afterwards) lords commissioners of appeal, for their directions concerning the sale or management of such property or proceeds.®

If any person, not being a party in the first instance, appeal from a definitive sentence, or interlocutory decree having the force of such sentence, such person, or his or her agent or agents, must at the same time enter his, her, or their claim or claims, as their appeal will other¬ wise be null and void.’

In all prize causes, whether tried in the Eng¬ lish admk-alty, or in a colonial vice -admiralty court, all persons interested, whether they be or be not parties in the first instance, may take out an inhibition, and prosecute an appeal within twelve calendar *months, to ^e [*146 computed from the day of the date of the sen¬ tence, or decree appealed from. But if no in¬ hibition be taken out before the twelve months elapse, no appeal will be allowed to be pros¬ ecuted, nor will any inhibition be granted, but the said sentence, or interlocutory decree, is to stand confirmed as to such person.®

In certain special prize causes, however, to be mentioned in His Majesty’s order or orders in council. His Majesty may authorize the per¬ sons interested (whether parties or not in the- first instance, and in whatever court the decree or sentence appealed from may have been pro¬ nounced) to take out inhibitions for prosecut¬ ing appeals after the expiration of twelvt' months; and the lords commissioners of appeals may, if distribution has not taken place, per¬ mit an appeal to be prosecuted after that period has elapsed, where, on special cause shown, they shall deem it reasonable to grant such per¬ mission but if it shall appear to the satisfac¬ tion of the lords commissions of appeals in prize causes, that distribution has been made of the proceeds of the prizes, at or after the time or times when the right of appealing would have

days after prominelatlon of the decree, which is the time allowed by the present practice of the Ad¬ miralty Court.

4.-33 Goo. III., c. 66, 8. 38 : 43 Geo. III., o. IW, s. 37. .5.— Supra, p. 144.

6. -41 Geo. III., c. 96, s. 9.

7. -33 Geo. III., c. 66, s. 39 ; 43 Geo. III., c. 160, s. 38.

8. -38 Geo. III., c. 38, s. 3 ; 43 Geo. III., o. 160, s. 39.

12 177

146

Appendix.

been barred, if no such order had been made, and before notice of such order duly given to the captors, the said captors are not liable to make compensation to the claimants, provided they duly comply with the following regula¬ tion, ’ viz. : Where His Majesty shall author¬ ize such appeals, the captors shall, within a reasonable time, at the requisition of the claim¬ ants, deliver a true copy of the account of sales, and of all proceedings had under the authority of the sentence or decree, pronounced in the court below, to His Majesty’s Procurator-Gen¬ eral, who is authorized and required to defend all such appeals, and in such manner as His Majesty’s Advocate-General shall direct. But if the captors shall neglect to comply with these regulations, or to obey such further or¬ ders as the lords commissioners may deem nec¬ essary, they forfeit all claim to any benefit or discharge under the act above detailed, and are 147] liable to be proceeded against in the same manner as if the appeal had been duly entered within the period of twelve months, allowed for appeals from the decisions of the courts below. ^

In cases of appeal, interposed in the manner already specified, the judge of the Court of Admiralty may, at the request and expense either of the captors or claimants (or of the claimant only, where the privilege is reserved in favor of the claimant by any treaty or treat¬ ies subsisting between His Majesty and foreign powers), order such capture to be appraised (unless the parties shall otherwise agree upon the value thereof), and direct an inventory to be made. Next, the judge is required to take security for the full value thereof, and he may order the capture to be delivered to the party giving such security, notwithstanding such appeal ; but if any difficulty shall arise, or there be any sufficient objection to the giving or taking of security, the judge shall, at the re¬ quest of either of the parties, order the capt¬ ured goods and effects to be entered, landed, and sold by auction, under the care of the proper officers of the customs, and under the inspection of persons to be appointed by the claimants and captors. The money, arising by such sale, shall be brought into court, and by the register, or his deputy or deputies, be de¬ posited in the Bank of England ; or if the cap- tors and claimants agree, such money may be vested in some public securities at interest, in the names of the register, and of such trustees as the captors and claimants shall appoint, and

1. — 38 Geo. III., c. 38, s. 3.

2. -38 Geo. III., c. 28, s. 4.

3. -33 Geo. III., c. 66, s. 31 ; 43 Geo. III., c. 160, s. 30.

178

the court shall approve. And if such security be given by the claimants, the judge shall give the captured vessel a pass under his seal, to prevent her from being again taken by His Majesty’s subjects in her destined voyage.® Where the sentence, or interlocutory decree, having the force of a definitive sentence, shall be finally reversed, after the sale of any ship or goods, the net proceeds of such sale (after payment of all expenses attending the same) shall be deemed to be the full value of such [*148 ship and goods; nor shall the parties appellate, and their securities, be ans-werable for the value beyond the amount of such net proceeds, un¬ less such sale appear to have been made fraud¬ ulently, or without due care.

With regard to the practice of the Court of Appeals, as many inconveniences formerly arose from delays in serving the processes of that court, it is now provided, that in all cases of captures by His Majesty’s ships, a service upon His Majesty’s proctor shall be deemed an effect¬ ual service upon the commander of the ship making such capture. Farther, on taking out letters of marque, the owners of all the ships or vessels, for which such letters shall be granted, must nominate and register in the court granting such letter of marque, a proctor, exercent in the Court of Appeal in prize causes, with power of revocation and substitution ; and service of process on such proctor shall be deemed effectual service upon the commander, owners, and sm'eties of privateers, in all cases where an appeal has been declared in the court below, within fourteen days after sentence. But neither His Majesty’s proctor, nor any nom¬ inated proctor, is answerable for any damages arising to their parents respectively, 'from non- appearance in their behalf in the Court of Ap¬ peal, unless such proctor shall have accepted the said nomination by a writing under his hand; and, also, unless the said parties shall have sufficiently instructed him to appear and defend the appeal.® Where, however, no ap¬ peal has been entered in the manner, and with¬ in the time above specified, it shall be deemed sutficient service upon the parties, if the pro¬ cess be served either upon the commander of the king’s ship, or upon his registered agent in this kingdom', or upon His Majesty’s law-officer in the court below ; or in cases of captures by privateers, if such process be served upon the commander of the privateer, or upon any or either of the sureties to the letters of marque. ®

4.-33 G eo. Ill,, o. 66, s. 32 ; 43 Geo. III., c. 160, s. 31.

6.-41 Geo. III., c. 96, s. 10.

6.-Ibid. s. 11.

Wheat. 5.

«

Appendix.

149

149*]

*[NOTE IV.]

The act of the 3d of March, 1819, comment¬ ed on in the cases of the United States v. Smith, in the text, and in the other cases of piracy be¬ fore the court at the present term, was contin¬ ued in force, amended, and enlarged, by the following act, passed at the last session of Con¬ gress ;

An Act to continue in force “An Act to protect the commerce of the United States, and punish the crime of piracy,” and also to make further provision for punishing the crime of piracy.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the first, second, third, and fourth sections of an act entitled, “An Act to protect the commerce of the Unit¬ ed States, and punish the crime of piracy,” passed on the tliird day of March, one thousand eight hundred and nineteen, be, and the same are hereby continued in force, from the pass¬ ing of this act, for the term of two years, and from thence to the end of the next session of Congress, and no longer.

Sec. 2. And he it further enacted, that the fifth section of the said act be, and the same is hereby continued in force, as to all crimes made punishable by the same, and heretofore com¬ mitted, in all respects, as fully as if the duration of the said section had been without limitation.

Sec. 3. And be it further enacted, that if any person shall, upon the high seas, or in any open roadstead, or in any haven, basin, or bay, or in any river, where the sea ebbs and flows, commit the crime of robbery, in or upon any ship or vessel, or upon any of the ship’s com¬ pany of any ship or vessel, or the lading there¬ of such person shall be adjudged to be a pi¬ rate; and being thereof convicted before the Circuit Court of the United States, for the district into which he shall be brought, or in which he shall be found, shall suffer death. And if any person engaged in any piratical 150 ] cruise or enterprise, or being of the crew or ship’s company, of any piratical ship or vessel, shall land from such ship or vessel, and on shore shall commit robbery, such person shall be adjudged a pirate, and on conviction thereof before the Circuit Court of the United States for the district into which he shall be brought, or in which he shall be found, shall suffer death: Provided, that nothing in this section contained shall be con¬ strued to deprive any particular state of its jurisdiction over such offenses, when commit¬ ted within the body of a county, or authorize the courts of the United States to try any such offenders, after conviction or acquittance, for the same offense in a state court.

Wheat. 6.

Sec. 4. And be it further enacted, that if any citizen of the United States, being of the crew or ship’s company of any foreign ship or vessel engaged in tlie slave trade, or any person whatever, being of the crew or ship’s company of any ship or vessel owned in whole or in part, or navigated for, or in behalf of, any citizen or citizens of the United States, shall land from any such ship or vessel, and, on any foreign shore, seize any negi’o or mulatto, not held to service or labor by the laws of either of the states or territories of the United States, with intent to make such negro or mulatto a slave, or shall decoy, or forcibly bring or carry, or shall receive, such a negro or mulatto on board any such ship or vessel, with intent, as aforesaid, such citizen, or person, shall be ad¬ judged a pirate, and on conviction thereof be¬ fore the Circuit Court of the United States, for the district wherein he may be brought or found, shall suffer death.

Sec. 5. And be it further enacted, that if any citizen of the United States, being of the crew or ship’s company of any foreign ship or vessel engaged in the slave trade, or any person what¬ ever, being of the crew or ship’s company of any ship or vessel owned wholly or in part, or navigated for, or in behalf of, any citizen or citizens of the United States, shall forcibly con¬ fine, or detain, or aid and abet in forcibly con¬ fining, or detaining, on board such ship or ves¬ sel, any negro or mulatto, not held to service by the laws of either of the states or territories of the United States, with intent to make such negro or *mulatto a slave, or shall, on [*151 board any such ship or vessel, offer or attempt to sell, as a slave, any negro or mulatto, not held to service as aforesaid, or shall, on the high seas, or anywhere on tide water, transfer, or deliver over, to any other ship or vessel, any negro or mulatto, not held to service as afore¬ said, with intent to make such negro or mulatto a slave, or shall land or deliver on shore, from on hoard any such ship or vessel, any such negro or mulatto, with intent to make sale of, or having previously sold, such negro or mulatto, as a slave, such citizen or person shall be adjudged a pirate, and on conviction thereof before the Circuit Court of the United States, for the dis¬ trict wherein he shall be brought or found, shall suffer death.

H. Clay,

Speaker of the House of Representatives.

John Gaillard,

President of the Senate pro tempore.

Washington, May 15th, 1820. Approved:

James Monroh.

179

151

Appendix.

[NOTE V.]

Additional Documents on the Subject of the Neutrality of the United States in the present War between Spain and b^r Colonies. Vide, ante, Vol. IV. Appendix, note II.

[translation.]

General Don Francisco Dionisio Vives to THE Secretary of State.

Sir: — In conformity with the orders of my government, which were communicated to Mr. 152] Forsyth on the 16th of December ]ast, by his Exellency the Duke of San Fernando and Quiroga, and with the earnest desire of the king, iny master, to see a speedy adjustment of the existing . difficulties which obstruct the es¬ tablishment, on a permanent basis, of the good understanding so obviously required by the in¬ terests of both powers, I have the honor to ad¬ dress you, and frankly to state to you, that my august sovereign, after a mature and deliberate examination, in full council, of the treaty of 22d February, of the last year, saw, with great regret, that, in its tenor, it was very far from embracing all the measures indepensably requi¬ site to that degree of stability which, from his sense of justice, he was anxious to see estab¬ lished in the settlement of the existing diifer- ences between the two nations.

The system of hostility which appears to be pursued in so many parts of the Union against the Spanish dominions, as well as against the property of all their inhabitants, is so public and notorious, that, to enter into detail, would only serve to increase the causes of dissatisfac¬ tion ; I may be allowed, however, to remark, that they have been justly denounced to the public of the United States, even by some of their own fellow-citizens.

Such a state of things, therefore, in which individuals may be considered as being at war, while their governments are at peace with each other,is diametrically opposed to the mutual and sincere friendship, and to the good understand¬ ing which it was the object of the treaty (though the attempt has failed) to establish, and of the immense sacrifices consented to by His Majesty to promote.

These alone were motives of sufficient weight imperiously to dictate the propriety of suspend¬ ing the ratification of the treaty, even although the American envoy had not at first announced, in the name of his government, and subsequent¬ ly required, of that of Spain, a declaration which tended directly to annul one of its most clear, precise, and conclusive articles, even af¬ ter the signature and ratification of the treaty.

The king, my master, influenced by consid¬ erations so powerful as to carry with them the 153] fullest evidence, has, therefore,judged it necessary and indispensable, in the exercise of his duties as a sovereign, to request certain explanations of your government; and he has, in consequence, given me his commands to propose to it the following points; in the dis¬ cussion and final arrangement of which, it 180

seems proper that the relative state of the two nations should be taken into full consideration.

That the United States, taking into due con¬ sideration the scandalous system of piracy es¬ tablished in, and carried on from, several of their ports, will adopt measures satisfactory and effectual, to repress the barbarous excess¬ es, and unexampled depredations, daily com¬ mitted upon Spain, her possessions, and prop¬ erties ; so as to satisfy what is due to interna¬ tional rights, and is equally claimed by the honor of the American people.

That, in order to put a total stop to any future armaments, and to prevent all aid what¬ soever being afforded from any part of the Union, which may be intended to be directed against, and employed in the invasion of. His Catholic Majesty’s possessions in North Ameri¬ ca, the United States will agree to offer a pledge {a dar una seguiradad) that their integrity shall be respected.

And, finally, that they will form no relations with the pretended governments of the revolt¬ ed provinces of Spain situate beyond sea, and will conform to the course of proceeding adopt¬ ed, in this respect, by other powers in amity with Spain.

Extract of a Letter from General Vives to the

Secretary of State, dated April 2jth, 1820.

It is evident that the scandalous proceedings of a number of American citizens, the decisions of several of the courts of the Union, and the criminal expedition set on foot within it for the invasion of His Majesty’s possessions in North America, at the very period when the ratifica¬ tion was still pending, were diametrically op¬ posite to the most sacred principles of amity, and to the nature and essence of the treaty it¬ self. These hostile proceedings were, notwith¬ standing, tolerated by the *federal gov- [154 ernment, and thus the evil was daily aggravat¬ ed ; so that the belief generally prevailed throughout Europe, that the ratification of the treaty by Spain, and the acknowledgment of the independence of the rebellious transatlantic colonies by the United States, would be simul¬ taneous acts.

Extract of a Letter from the Secretary of State

to General Vives, dated May 3d, 1820.

I am now instructed to repeat the assurance which has already been given you, that the representations which appear to have been made to your government of a system of hostility, in various parts of the Union, against the Spanish dominions, and the property of Spanish sub¬ jects ; of decisions marked with such hostility by any of the courts of the United States, and of the toleration in any case of it by this gov¬ ernment, are unfounded. In the existing un-

Wheat. 5.

Appendix.

154

fortunate civil war between Spain and the South American provinces, the United States have constantly avowed, and faithfully main¬ tained, an impartial neutrality. No violation of that neutrality by any citizen of the United States has ever received sanction or counte¬ nance from this goverment. Whenever the laws, previously enacted for the preservation of neu¬ trality, have been found, by experience, in any manner defective, they have been strengthened by new provisions and severe penalties. Span¬ ish property, illegally captured, has been con¬ stantly restored by the decisions of the tri¬ bunals of the United States, nor has the life itself been spared of individuals guilty of piracy, committed upon Spanish pi’operty on the high seas.

Should the treaty be ratified by Spain, and the ratification be accepted by and with the ad¬ vice and consent of the senate, the lionndary line recognized by it will be respected by the United States, and due care will be taken to prevent any transgression of it. No new law or engagement will be necessary for that pur¬ pose. The existing laws are adequate to the suppression of such disorders, and they will be, as they have been, faithfullj^ carried into effect. The miserable disorderly movement of 155 ] a number not exceeding seventy law¬ less individual stragglers, who never assembled within the jurisdiction of the United States, into a territory to which His Catholic Majesty has no acknowledged right, other than the yet unratified treaty, was so far from receiving countenance or support from the government of the United States, that every measure neces¬ sary for its suppression was promptly taken under their authority; and from the misrepre¬ sentations which have been made of this very insignificant transaction to the Spanish govern¬ ment, there is reason to believe that the pre¬ tended expedition itself, as well as the gross exaggerations which have been used to swell its importance, proceed from the same sources, equally unfriendly to the United States and to Spain.

As a necessary consequence of the neutrality between Spain and the South American prov¬ inces, the United States can contract no en¬ gagement not to form any relations with those provinces. This has explicitly and repeatedly been avowed and made known to your govern¬ ment, both at Madrid and at this place. The demand was resisted, both in conference and written correspondence, between Mr. ErVing and Mr. Pizarro.

Mr. Onis had long and constantly been in¬ formed, that a persistance in it would put an end to the possible conclusion of any treaty whatever. Your sovereign will perceive, that as such an engagement cannot be contracted by the United States consistently with their obli¬ gations of neutrality, it cannot justly be re¬ quired of them, nor have any of the European nations ever bound themselves to Spain by such an engagement.

MMract of a Letter from General Vires to the

Secretary of State, dated May 5th, 1820.

[translation.]

Sir : — In answer to your note of the 3d in¬ stant, and in pursuance of what I expressed to Wheat. 5.

you in' both our late conferences, I have to state to you, that I am satisfied upon the first point of the proposals contained in my note of the 14th ultimo, and am *per8uaded, that [*156 if the existing laws enacted for the suppression of piracy, should prove inadequate, more ef¬ fectual measures will be adopted by your gov¬ ernment for the attainment of that important object.

I also admit as satisfactory, the answer given to the second point; but I cannot assent to your assertion that the laws of this country have always been competent to the prevention of the excesses complained of; it being quite notorious that the expedition alluded to has not been the only one set on foot for the inva¬ sion of His Majesty’s dominions; and it is, therefore, not surprising, that the king, my lord, should give credit to the information re¬ ceived in relation to that expedition, or that he should now require of your government a pledge, that the integrity of the Spanish pos¬ sessions in North America shall be respected.

I mentioned to you in conference, and I now repeat it, that the answer to the third point was not such as I could, agreeably to the nat¬ ure of my instructions, accept, as being satis¬ factory; and that, although His Majesty might not have required of any of the European gov¬ ernments the declaration which he has required of yours, yet that ought not to be considered as unreasonable, it being well known to the king, my master, tliat those governments, so far from being disposed to wish to recognize the insurgent governments of the Spanish colonies, had declined the invitation, intimated to them some time past, by yours, to acknowl¬ edge the pretended republic of Buenos Ayres.

Extract of a Letter from the Secretary of State

to General Vires, dated May 8th, 1820.

The assurances which you had given me in the first personal conference between us, of your own entire satisfaction with the explana¬ tions given you upon all the points on which you had been instructed to ask them, would naturally have led to the expectation, that the promise which you was authorized to give would at least not be withheld. From your letter of the 5th *instant, however, it [*157 appears that no discretion has been left to you, to pledge even His Majesty’s promise of ratifica¬ tion, in the event of your being yourself satis¬ fied with the explanations upon all the points desired ; that the only promise you can give is conditional, and the condition a point upon which your government, when they prescribed it, could not but know it was impossible that the United States should comply; a condition incompatible with their independence, their neutrality, their justice, and their honor.

It was also a condition which His Catholic Majesty had not the shadow of a right to pre¬ scribe. The treaty had been signed by Mr. Onis with a full knowledge that no such en¬ gagement as that contemplated by it would ever be acceded to by the American govern¬ ment, and after long and unwearied efforts to obtain it. The differences between the United States and Spain had no connection with the war between Spain and South America. The object of the treaty was to settle the bounda¬ ries, and adjust and provide for the claims be-

181

167

Appendix.

tween your nation and ours ; and Spain at no time could have a right to require that any stipulation concerning the contest between her and her colonies should be connected with it. As His Catholic Majesty could not ju.stly require it, during the negotiation of that treaty, still less could it afford a justification for withhold¬ ing his promised ratification after it was con¬ cluded.

The proposal which, at a prior period, had been made by the government of the United States, to some of the principal powers of Eu¬ rope, for a recognition, in concert, of the inde¬ pendence of Buenos Ayres, was founded, as I have ob.served to you, upon an opinion then and still entertained, that this recognition must, and would, at no very remote period, be made by Spain herself ; that the joint acknowledg¬ ment by several of the principal powers of the world at the same time, might probably induce Spain the sooner to accede to that necessity, in which she must ultimately acquiesce, and would thereby hasten an event propitious to her own interests, by terminating a struggle in which 182

she is wasting her strength and resources, without a possibility of success; an event ardently to be desired by every friend [lo8 of humanity, afflicted by the continual horrors of a war, cruel and sanguinary almost beyond example; an event not only desirable to the unhappy people who are suffering the compli¬ cated distresses and calamities of this war, but to all the nations having relations of amity and commerce with them. This proposal, founded upon such motives, far from giving to Spain the right to claim of the United States an en¬ gagement not to recognize the South American governments, ought to have been considered by Spain as a proof at once of the moderation and discretion of the United States; as evidence of their disposition to discard all selfish or exclu¬ sive views in the adoption of a measure which they deemed wise and just in itself, but most likely to prove efficacious, by a common adop¬ tion of it, in a spirit entirely pacific, in concert with other nations, rather than by a precipitate resort to it, on the part of the United States alone.

Wheat. 5.

NOTES

ON THE

UNITED STATES KEPORTS.

V WHEATON.

5 Wheat. 1-76, 5 L. 19, HOUSTON v. MOOBB.

Militia. — Congress has power to designate the time at which State militia called out by the president change their character from State to national militia. In the absence of such designation the national service begins upon reaching place of rendezvous, pp. 16-20.

Cited to this point without specific application of the principle in Antrim’s Case, 1 Fed. Cas. 1064, and McCall’s Case, 15 Fed. Cas.

Militia. — So long as acting under the military jurisdiction of the State to which they belong. State and Federal governments have concurrent power over, p. 16.

Militia. — Congress may provide for organizing, arming and dis¬ ciplining them, p. 16.

Courts. — Congress cannot confer jurisdiction upon any courts except those existing under Constitution and laws of United States, p. 27.

Cited to this point in dissenting opinion of Barbour, Kendall v. United States, 12 Pet. 645, 9 L. 1229, majority holding Circuit Court had authority to compel postmaster-general, by mandamus, to per¬ form a ministerial duty; Stearns v. United States, 2 Paine, 308, F. C. 13,341, holding congress cannot compel State courts to entertain jurisdiction; In re Sheazle, 1 Wood. & M. 70, F. C. 12,734, holding State court may surrender persons believed guilty of piracy under act of parliament; United States v. Mackenzie, 30 Fed. Cas. 1165, 1166, holding jurisdiction of court-martial is exclusive and final as to matters submitted to such courts by congress; Morgan v. Dudley,

U. S. Notes 5 Wheat. 5 L. Ed. 182—46 p.

5 Wheat. 1-76

United States v. Lancaster, 18 U.S. (5 Wheat.) 434 (1820)

421.

1. — No one can contemplate without emotion the

3. — The legislative authority in the Spanish mon¬

1. — Robertson, Hist, of Charles V., Vol. I., sec. 3,

1. — These laws of “ Toro ” are all included in the

2. — The “Ordenamiento Real,” seems to have been

3. — Tilts is a curious title. The assembly is com¬

1. — The institution of .iudicial combats, or trial

3. Moreover, if the captor is in a place of

4. If it shall happen that the master of the

5. If the master of the captured vessel shall

6. If the ship should belong to the enemy,

7. If the merchants refuse to enter into such

8. If, on the other hand, the merchants are

9. If the capture should be made in a place

2. If the I'ecapture has been effected within

3. If an enemy, having made a capture of a

4. If it should happen that anyone abandons

5. It is besides to be understood, in all that

6. If those who fitted out the vessel cannot

7. If they are not convicted of such an in¬

8. if an enemy shall have made a capture of

9. If, after the expiration of a reasonable

11. If the enemy, after a capture, comes to

12. If an enemy, on capture of a ship or

13. If the captor .shall have taken the prize

14. If, however, he to whom the property

15. If the ship or cargo shall have been sold

17. If the master shall redeem any part of

18. But if the master makes any agreement,

19. If the original proprietors are disposed to

20. But if the master, or anyone for him,

21. If the ship or cargo shall be sold for

22. If the sale shall not produce so much

2. And that the certificate, which is required

3. And whereas in our aforesaid most gra¬

1. The following goods will be regarded as

2. The following shall likewise be consider¬

3. The following goods shall also be reckoned

4. But such goods as, in the before-mentioned

6. Tout vaisseau combattant sous autre pavil¬

6. Seront encore de bonne prise les vaisseaux

7. Tous navires qui se trouveront charges

8. Si aucun navire de nos sujets est repris

9. Si le navire, sans @tre recous, est aban-

11. Les armes, poudres, boulets. et autres

12. Tout vaisseau qui refusera d’amener ses

13. Defendons a tous capitaines de vaisseaux

14. Aucuns vaisseaux pris par capitaines

15. Si dans les prises amenees dans nos ports

16. AussitSt que les capitaines des vaisseaux

17. Enjoignons aux capitaines qui auront

19. Et ou les preneurs ne pouvant se charger

20. Defendons de faire ancune ouverture des

21. Aussitot que la prise aura ete amenee

22. Apr^s la declaration regue, les offlciers

24. Les offlciers de I’amiraute entendront sur

25. Si le vaisseau est amene sans prisonniers,

26. Si, par la deposition de I’equipage et la

27. S’il est necessaire, avant le jugement de

28. Les marchandises qui ne pourront @tro

30. Enjoignons aux offlciers de Tamiraute de

31. Sera prise, avant partage, la somme a

2. Un m6me passeport ne pourra servir que

3. Les passeports seront consideres comme

4. Tout vaisseau qui sera de fabrique enne-

5. Les connai.ssemens trouves a bord, non

3. Leur fait pareillement defenses d’arrSter

3. Comnie aussi leur fait defenses d’arr@ter

4. Defend pareillement Sa Majeste, aux dits

5. Si dans les cas expliques par les articles 1,

6. Tons connaissements trouves il boi’d, non

3. Les maitres des bhtiments neutres seront

3. Tons vaisseaux pris, de quelque nation

4. Un passeport ou conge ne pourra servir

5. On n’aura aucun egard aux passeports des

1. — The same freedom of commerce not having-

6. On n’anra pareillement egard aux pa.sse-

7. Les bMimens de fabrique ennemie, ou qui