JECKER et al. v. MONTGOMERY.

(Supreme Court of the United States, 1851. 13 How. 498, 14 L. Ed. 240.) Mr. Chief Justice TANEY delivered the opinion of the court. This case arises upon the capture of the ship Admittance during the late war with Mexico, by the United States sloop of war Portsmouth, commanded by Captain Montgomery.

The Admittance was an American vessel, and after war was declared, sailed from New Orleans with a valuable cargo, shipped at that place. She cleared out for Honolulu, in the Sandwich Islands; and was found by the Portsmouth at Saint Jose, on the coast of California, trading, as it is alleged, with the enemy.

Before this capture was made a prize court had been established at Monterey, in California, by the military officer, exercising the functions of governor of that province, which had been taken possession of by the American forces. A chaplain, belonging to one of the ships of war on that station, was appointed Alcalde of Monterey, and authorized to exercise admiralty jurisdiction in cases of capture. The court was established at the request of Commodore Biddle, the naval commander on that station, and sanctioned by the President of the United States, upon the ground that prize crews could not be spared from the squadron to bring captured vessels into a port of the United States. And the officers of the squadron were ordered to carry their prizes to Monterey, and libel them for condemnation in the court above mentioned, instead of sending them to the United States.

In pursuance of this order the Admittance was carried to Monterey, and condemned by the court as lawful prize; and the vessel and cargo sold under this sentence. The seizure at Saint Jose was made on the 7th of April, 1847, and the ship and cargo condemned on the 1st of June, in the same year.

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In relation to the proceedings in the court at Monterey, which is the subject of the first demurrer, the decision of the Circuit Court is

correct.

All captures jure belli are for the benefit of the sovereign under whose authority they are made; and the validity of the seizure and the question of prize or no prize can be determined in his own courts only, upon which he has conferred jurisdiction to try the question. And under the Constitution of the United States the judicial power of the general government is vested in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish. Every court of the United States, therefore, must derive its jurisdiction and judicial authority from the Constitution or the laws of the United States. And neither the President nor any military officer can establish a court

12 Only that portion of the opinion dealing with the validity of the court constituted under such circumstances to entertain and to decide the question of prize, is here printed.

in a conquered country, and authorize it to decide upon the rights of the United States, or of individuals in prize cases, nor to administer the laws of nations.

The courts, established or sanctioned in Mexico during the war by the commanders of the American forces, were nothing more than the agents of the military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize. And the sentence of condemnation in the court at Monterey is a nullity, and can have no effect upon the rights of any party.

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SECTION 3.-EFFECT OF PRIZE DECISIONS

HUGHES and CORNELIUS.

(King's Bench, 1682. Skinner, 59.)

The case between Hughes and Cornelius was, a ship was Dutch built, and after made an English ship, the master was Dutch, some of the seamen English, and two Dutch: there being war between France and Holland, the French seise the ship, as a Dutch ship, and condemn her as a Dutch ship in the Court of Admiralty in France; she is there sold, and after coming into England, the first owner seises her, and the other brings trover, and a special verdict was found; but the Court would not suffer it to be argued, but ordered judgment to be entered for the plaintiff; for they said, that sentences in Courts of Admiralty ought to bind generally according to jus gentium; and that if we did not observe the sentences given abroad, they would not observe ours, which would be a general inconvenience; and if the merchant in this case had received wrong, he ought to apply to the Admiralty and council, this being a matter of government; and that the King if he saw cause would send to his Ambassador Leiger in France, who would take care that right should be done; and that if right be not done, then the King would grant letters of marque and reprisal; and in this case they remembered Cottington's case.

THE FLAD OYEN.

(High Court of Admiralty, 1799. 1 C. Rob. 135.)

This was a case of an English prize ship carried into a neutral country, and there sold, under a sentence of condemnation by the French consul, and taken, the 12th of January, 1798, on a voyage from Bergen to St. Martins. The claim was given on behalf of the purchaser, a Danish merchant.

The King's Advocate having opened the general circumstances of the

case,

THE COURT said: This is a case in which I must call on the counsel for the claimant to begin.

Arnold and Sewell. The title to this vessel can scarcely be called in question on any doubts respecting the property, or the actual transfer. There are all the usual proofs of property on board, and the transfer is described to have been made in the most open manner, by public auction. The only ground on which it can be disputed, therefore, must be on the legality of such a sale; and, for that purpose, it is contended that a sentence of condemnation is essential to the transfer of prize ships, and that a legal condemnation did not pass on this occasion. But it nowhere appears what are the forms and circumstances necessary to make this a legal act. A condemnation took place, and under the person delegated by the French nation to exercise this function. There is no reason to contend that the name and process of an Admiralty Court are necessary, as long as the proceedings are held under the public authority of the belligerent country, and are conformable to the law of nations.

The practice of our own country, also, has in many instances proceeded on this principle. English captors have taken their prizes into Lisbon and Leghorn, and condemnations have passed upon them lying there. In the last war, they carried them to Nice; and there was an instance of a ship, the Favorite, carried into this very port of Bergen, and condemned. On these grounds, it is submitted, this practice cannot be impeached as illegal, and the claim to the property in question, transferred under it, must therefore be admitted.

Sir W. SCOTT.14 This is the case of a ship taken by a French privateer, and carried into the port of Bergen in Norway, where it appears she underwent a sort of process, which terminated in a sentence of condemnation, pronounced by the French consul; and under that sentence, she is asserted to have been transferred to the present neutral proprietor.

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But another question has arisen in this case, upon which a great deal of argument has been employed; namely, whether the sentence

14 Parts of the opinion are omitted.

of condemnation which was pronounced by the French consul, is of such legal authority as to transfer the vessel, supposing the purchase to have been bona fide made? I directed the counsel for the claimants to begin; because, the sentence being of a species altogether new, it lay upon them to prove that it was nevertheless a legal one.

It has frequently been said, that it is the peculiar doctrine of the law of England to require a sentence of condemnation, as necessary to transfer the property of prize; and that according to the practice of some nations twenty-four hours, and according to the practice of others bringing infra presidia, is authority enough to convert the prize. I take that to be not quite correct; for I apprehend, that by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary,15 and that a neutral purchaser in Europe, during war, does look to the legal sentence of condemnation as one of the title deeds of the ship, if he buys a prize vessel. I believe there is no instance in which a man having purchased a prize vessel of a belligerent, has thought himself quite secure in making that purchase, merely because the ship had been in the enemy's possession twenty-four hours, or carried infra presidia; the contrary has been more generally held, and the instrument of condemnation is amongst those documents which are most universally produced by a neutral purchaser; that if she has been taken as prize, it should appear also that she has been, in a proper judicial form, subjected to adjudication. Now, in what form have these adjudications constantly appeared? They are the sentences of courts acting and exercising their functions in the belligerent country; and it is for the very first time in the world, that in the year 1799, an attempt is made to impose upon the court a sentence of a tribunal not existing in the belligerent country, but of a person pretending to be authorized within the dominions of a neutral country; in my opinion, if it could be shown, that, regarding mere speculative general principles, such a condemnation ought to be deemed sufficient, that would not be enough; more must be proved; it must be shown that it is conformable to the usage and practice of nations.

A great part of the law of nations stands on no other foundation; it is introduced, indeed, by general principles, but it travels with those general principles only to a certain extent; and, if it stops there, you are not at liberty to go farther, and to say, that mere general speculations would bear you out in a further progress. Thus, for instance, on mere general principles it is lawful to destroy your enemy, and mere general principles make no great difference as to the manner by which this is to be effected; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and al

181 Kent, Comm. 103; The Santa Cruz, 1 C. Rob. 50 (1798); La Nereyda, 8 Wheat. 108, 5 L. Ed. 574 (1823); The Ceylon, 1 Dod. 119 (1811).

lows some, and prohibits other modes of destruction; and a belligerent is bound to confine himself to those modes which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes.16

Now, it having been the constant usage, that the tribunals of the law of nations in these matters shall exercise their functions within the belligerent country; if it was proved to me in the clearest manner, that on mere general theory such a tribunal might act in the neutral country, I must take my stand on the ancient and universal practice of mankind, and say that as far as that practice has gone, I am willing to go, and where it has thought proper to stop, there I must stop likewise.

It is my duty not to admit, that because one nation has thought proper to depart from the common usage of the world, and to meet the notice of mankind in a new and unprecedented manner, that I am on that account under the necessity of acknowledging the efficacy of such a novel institution, merely because general theory might give it a degree of countenance, independent of all practice from the earliest history of mankind. The institution must conform to the text law, and likewise to the constant usage of the matter; and when I am told, that before the present war, no sentence of this kind has ever been produced in the annals of mankind, and that it is produced by one nation only in this war, I require nothing more to satisfy me, that it is the duty of this court to reject such a sentence as inadmissible.

Having thus declared that there must be an antecedent usage upon the subject, I should think myself justified in dismissing this matter without entering into any farther discussion. But even if we look farther, I see no sufficient ground to say, that on mere general principles such a sentence could be sustained; proceedings upon prize are proceedings in rem, and it is presumed, that the body and substance of the thing is in the country which has to exercise the jurisdiction. I have not heard any instances quoted to the contrary, excepting in a very few cases which have been urged, argumentatively, in the way which is technically called ad hominem, being cases of condemnations of British prizes carried into the ports of Lisbon and Leghorn; but in those the condemnations were pronounced by the High Court of Admiralty in England. The only cases are of two ships carried into foreign ports, and condemned in England by this court; the very infrequency of such a practice shows the irregularity of it. Upon cases in the practice of other nations antecedent to the present war, the advocates have been silent.

Now, as to these condemnations of prizes carried to Lisbon and Leghorn, it has been said, that if the courts of Great Britain venture

16 See 1 Kent, Comm. 2, 3.