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but only to citizens appointed by commissions or exposed to immediate outrage and violence. So far it is, unquestionably, a partial war; but, nevertheless, it is a public war, on account of the public authority from which it emanates.
See also the case of the ship Amelia, 1 Cranch, 1, 8.
The legislation of Congress referred to was evidently intended to meet, combat and prevent by force the forceable capture of American vessels by French privateers, and to that extent was retaliatory; but no authority was given to prey upon French commerce or to invade French territory. Such acts in their nature not only authorized resistance to search and capture but authorized the capture of French armed vessels by way of retaliation for wrongs committed by the French on American commerce, and to that extent may be termed reprisals; but such reprisals on behalf of the United States were limited in their nature, and hardly amounted to more than was justified by the natural law of self-defense, as was held in the case of Cushing, Administrator, 22 C. Cls., 1, 37; The Maria, 1 C. Rob., 340–374.
But we must keep in mind that the statutes to which we have referred respecting the authority of Congress to authorize American merchant vessels to defend against French depredations did not change the law of nations or impose a new international obligation upon France, as was held in the case of The Ship Rose, supra, p. 291. In that case it was urged that the belligerent in making the attack was not in the exercise of the legal right of search, but that the object and purpose of the assault was the seizure and condemnation without reference to the neutrality of the vessel engaged in peaceful and lawful commerce, in respect to which the court said:
The claimants are treading on very dangerous ground when they urge the higher law of self-preservation. Self-defense is founded on the theory that it is the only remedy, and that, being the only remedy, it presupposes the absence of all law protecting the rights of him who asserts the prerogative of self-defense. If the right of self defense prevailed to the extent of repelling force by force and was incident to the crew of the ship captured, then all other law was silent and war prevailed, which condition would be most disastrous to the case of the claimants.
This court early held that the seizure of American vessels on the ground that they were armed for defensive purposes was not justified. Schooner Industry, 22 C. Cls., 1, 38. But that does not mean that such armed vessels were justified under the rules of international law in resisting search — repelling force by force. The court has proceeded upon ih
the theory in all the awards thus far made that the relation of the United States toward France, during her war with England, was that of a neutral toward a belligerent, thus recognizing the incontestable right of France to visit and search American vessels to guard against and prevent any assistance being given to her enemy contrary to the rules of international law.
In view of the authorities and the legislation of Congress to which we have referred, it is apparent that the thecry adopted by the court was most advantageous to the claimants, as the legislation of Congress authorizing the arming of merchant vessels — coupled with commissions from the President to seize French armed vessels and recapture American vessels was rather the act of an enemy than that of a neutral. And though France, by the legislation referred to, was designated as an enemy, and hostilities were authorized by certain persons in certain cases, the war thus carried on was held limited in its nature, and for that reason and that alone the court has recognized the right of France, a belligerent, to visit and search American vessels — that is to say, the court's ruling in effect has been that the United States did not elect to treat the acts of France in capturing our vessels as acts of war or reprisals, but treated them as acts in the exercise of the belligerent right of visit and search of the vessels of a neutral.
This view — as to the character of the claims — is supported by the act of our jurisdiction, which recognizes claims “ arising out of illegal captures, detentions, seizures, condemnations, and confiscations prior to the ratification ” of the treaty of 1800. Only such claims as grew out of the illegal acts of France prior to that treaty are recognized by the act, so that such claims rest upon international law and treaty rights.
As was said in the case of the Schooner John, 22 C. Cls., 408, 456,
France did not contend that the Jay Treaty abrogated the treaties of 1778: on the contrary, her whole argument, down to the ratification of the treaty of 1800, was based upon the premise that these treaties were of enduring force.
France did not deny at any point of the negotiations which led to the treaty of 1800 her liability for claims known by the generic name of “spoliations,” but claimed in return for payment recognition of treaties, a demand which was not granted, and the contention remained embodied in the second article, which was stricken out. Thus was completed what Madison called the " bargain” by which we released “spoliations” in consideration of release from all obligations founded upon the treaties of 1778.
To term the de. crees of France and the acts of their privateers under them “acts of reprisal” does not alter the facts or the legal position. That position has been defined by the Supreme Court of the United States as limited partial war. We, follow.
ing the path indicated by that tribunal, have defined it as “ limited war in its nature similar to a prolonged series of reprisals.” The result of that partial limited war, the result of the negotiations for settlement, the agreement reached by the two parties which made the government of the United States liable over to its citizens we have heretofore considered so much in detail that we shall not now repeat it, and we need only state briefly the result heretofore reached by us, and in which we, after re-examination, are confirmed, that the acts of France now in question, whether called “reprisals or acts of limited warfare, were contended by the United States to be illegal, were admitted so to be by France; that France stood ready to make the compensation made by England and Spain for similar acts on their part, provided we would admit certain claims of her own; which we declined to do; and finally, by the substitution of the existing second article of the treaty for that agreed upon by the negotiators, these claims were surrendered in consideration of a release from the French demand.
It will thus be seen that the character of these claims, whether considered as reprisals or otherwise, have heretofore been considered by this court and a conclusion reached adverse to the claimants, i. e., that the captures were illegal and so conceded to be by France.
If the captures from 1796 to 1800 be treated as reprisals justifying resistance, the United States did not elect to regard such captures as acts of war unless the acts of Congress referred to be so considered, and if they be so considered then war prevailed and the captures became lawful prizes of war. But Congress, in whom the power resides, did not see fit to declare war, and the actual hostilities carried on were not only limited but were of a defensive character; so that the court must adhere to its former rulings respecting the liability of France for the illegal capture of American vessels.
That is to say, the liability of France under the act of our jurisdiction must be determined upon the basis of her illegal acts, the United States in their capacity as a neutral recognizing the belligerent right of France to visit and search American vessels; and that such right can not be transformed into a wrong by means of resistance thereto, whether such resistance be successful or otherwise. Hence, resistance to search renders a vessel liable to confiscation, the degrees of which the court can not differentiate without invading the right of the bellig. erent to protect itself against the possible unlawful acts of a neutral, as was held in the case of the Schooner Jane, 37 C. Cls., 24, 30.
The convention of September 30, 1800, 8 Stat. L., 178, was based on the desire to terminate not war but “the differences which have arisen between the two states.” France recognized her liability for the illegal acts of her privateers, and was willing to release her claim against
the United States in consideration of the release by the United States of the liability of France to American citizens. Upon this theory the act of our jurisdiction, 23 Stat. L., 283, was passed. Congress did not thereby recognize them as claims originating in war. On the contrary, section one of the act provides :
That such citizens of the United States, or their legal representatives, as had valid claims to indemnify upon the French government arising out of illegal captures, detentions, seizures, condemnations, and confiscations prior to the rati. fication of the convention between the United States and the French Republic concluded on the thirtieth day of September, eighteen hundred, the ratifications of which were exchanged on the thirty-first day of July following, may apply by petition to the Court of Claims, within two years from the passage of this act, as hereinafter provided.
Therefore, in the consideration of these French spoliation claims the court has followed the executive and political departments of the government in treating them as claims arising out of the illegal acts of France and not as claims originating in war.
Now, to apply what we have said: On Oct. 11, 1799, while sailing under convoy from Demarara by the way of Martinico, St. Kitts, and Tortola, and after leaving the latter place and after parting from the convoy, the schooner Endeavor, whose master bore a letter of marque, was fired upon by a French privateer, La Victor, Mace, master, under French national colors, after which the master of the Endeavor “put himself in the best order of defense and commenced firing his stern chaser; that upon his firing the second gun the privateer struck national and hoisted the bloody flag.” The master of the Endeavor “then struck his colors, hoisted out his boat, and went on board the privateer with his papers,” and a prize master and crew were placed on board the Endeavor. The master of the Endeavor and his crew were then transferred to the privateer and the prize master was ordered to conduct the Endeavor to Porto Rico, and while on the way thither the Endeavor was retaken by an English frigate, who took out a salvage of one-eighth of the estimated value of the cargo in coffee and then turned her over to her mate. On November 15, 1799, the Endeavor was again taken by a French privateer, The Alliance, who put five men on board and ordered her to Porto Rico, where she arrived three days later. Upon the arrival of the vessel at Porto Rico the mate who had succeeded to the duties of the master, Brig George, 1 Sumner R., 151, 156, was im
priscned without money or friends and on December 24, 1799, at St. Thomas, after being released, he entered a protest, and from thence he returned to his home in Norfolk, Va.
The Endeavor and her cargo were then subsequently condemned as good prize for the benefit of the owners and crew of the Alliance by decree of the tribunal of commerce and prizes sitting at Basseterre, in the Island of Guadeloupe, in the month of January, 1800, and thereby became a total loss to the owners. One of the grounds of condemnation recited in the decree was that the vessel did not have on board a rôle d'équipage in due form as required by the treaty of 1778, and, further, the condition of vessels as regards their character as neutral or enemy shall be determined by their cargoes, and if found at sea and loaded in whole or in part with merchandise the product of England or her colonies will be declared good prize no matter who may be the owners of said goods or merchandise.
Now, while we reach the conclusion that the resistance of the master at the time of the first capture would have justified the captor in taking the vessel in for adjudication, such capture did not per se operate, as between enemies, to divest the title of the captured property; and that until legally condemned, the possession of the property by the government of the captor was in trust, The Flad Oyen, 1 C. Rob., 135; 3 C. Rob., 97; The Henrick and Maria, 4 C. Rob., 43, 53.
True, the resistance to search was at the time of the first capture, and it was not made a ground of condemnation at the time of the second capture, doubtless for the reason that the capture being made by a different privateer it was unknown to the second captor at the time. But it was a defense which would have been available to France and is, therefore, under the rulings of this court, now available as a defense by the United States. Ship Joanna, 24 C. Cls., 198, 203. In that case a vessel carrying contraband had been condemned on another ground, and the United States interposed the defense of contraband, which would have been available to France at the time, in respect to which the court said:
So in this court, under this peculiar jurisdiction, the defendants are at liberty to show that, while the specific reason set up by the prize court was not valid, as perhaps based upon a statute in derogation of the law of nations, still other facts appeared which, while not pressed in the prize tribunal, constituted a good defense to a diplomatic claim. The United States here is entitled to the defense which would have belonged to France at the time these claims were assumed.