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equipments for hostility, may be breaches of neutrality laws; while, if it is not a war they do not come into that category, but into the category of piracy, or of crimes by municipal law.
“Now, all private citizens of a foreign state, and all its executive officers, and judicial magistrates, look to the political department of their government to prescribe the rules of their conduct, in all their possible relations with the parties to the contest. This rule is prescribed in the best and most intelligible manner for all possible contingencies by the simple declaration that the contest is, or is not, to be treated as war. If the state of things requires the decision, it must be made by the political department of the government. It is not fit that cases should be left to be decided as they may arise, by private citizens, or naval or judicial officers, at home or abroad, by sea or land. It is, therefore, the custom of nations for the political department of a foreign state to make the decision. It owes it to its own citizens, to the contending parties, and to the peace of the world, to make that decision seasonably. If it issues a formal declaration of belligerent rights prematurely, or in a contest with which it has no complexity, it is a gratuitous and unfriendly act. If the parent government complains of it, the complaint must be upon one of these grounds. To decide whether the recognition was uncalled for and premature, requires something more than a consideration of proximate facts, and the overt and formal acts, of the contending parties. The foreign state is bound and entitled to consider the preceding history of the parties; the magnitude and completeness of the political and military organization and preparations on each side; the probable extent of the conflict by sea and land; the probable extent and rapidity of its development; and, above all, the probability that its own merchant-vessels, naval officers, and consuls may be precipitated into sudden and difficult complications abroad. The best that can be said is, that the foreign state may protect itself by a seasonable decision, either upon a test case that arises, or by a general prospective decision ; while, on the other hand, if it makes the recognition prematurely, it is liable to the suspicion of an unfriendly purpose to the parent state. The recognition of belligerent rights is not solely to the advantage of the insurgents. They gain the great advantage of a recognized status, and the opportunity to employ commissioned cruisers at sea, and to exert all the powers known to maritime warfare, with the sanction of foreign nations. They can obtain abroad loans, military, and naval materials, and enlist men, as against everything but neutrality laws; their flag and commissions are acknowledged, their revenue laws are respected, and they acquire a quasi political recognition. On the other hand, the parent government is relieved from responsibility for acts done in the insurgent territory; its blockade of its own ports is respected; and it acquires a right to exert, against neutral commerce, all the powers of a party to a maritime war.”
U. S. DISTRICT COURT FOR MassaCHUSETTS, 1862.
(2 Sprague's Decisions, 177.)
The Lilla was condemned by a Prize Court of the Confederate States, and subsequently sailed under the British flag. Held, that the Federal courts would not acknowledge the validity of the decisions of the prize courts of the Confederacy, although they had recognized the belligerence of that government.
This was a Maine brig called the Betsy Ames, captured by a Confederate privateer commanded by H. S. Libby, carried into Charleston, S. C., and there condemned and sold, the purchasers being John Fraser & Co. of that city. Her name was changed to the Mary Wright, and, loaded with cotton, under the command of Libby, she ran the blockade, arrived at Liverpool on the 2d of April, 1862, and disposed of her cargo. April 24th she was registered as a British vessel, called the Lilla, and in the name of R. G. B., as sole owner. A fortnight later she sailed for Nassau, N. P., under the command of A., according to her papers, but really still under command of Libby. There is evidence going to show that it was arranged that Fraser & Co. should have a steamer of theirs follow to Nassau, there take on the Lilla's cargo and proceed to Charleston.
Parts of the cargo were falsely documented in the name of R. G. B. for the purpose of deceiving the United States cruisers.
The vessel was seized by the United States gunboat Quaker City, brought in, and claimed by her original owners.
SPRAGUE, J., decided that R. G. B. lost whatever he possessed in the cargo by reason of his falsely documenting other goods as his own to deceive belligerent cruisers and that the vessel should be restored upon the authority of the Act of 1800, Chap. 14, secs. 1, 2. U.S. Stats. at Large, 16, which provides that when a merchant vessel, belonging to any person under the protection of the United States, shall have been taken by a public enemy, and shall be recaptured by a public armed vessel of the United States, such vessel not having been condemned by competent authority before the recapture, the same shall be restored to the former owners upon payment of one. eighth part of the true value, for and in lieu of salvage. The court
also says :
“ The second objection to this claim is also fatal. There is no doubt that this vessel was the property of Maxwell and others, until her capture by a Confederate privateer. But it is contended that she has since been condemned and sold by a Prize Court in Charleston, S. C., and the purchasers conveyed her to the claimant Bushby. If this were so, of which there is no sufficient proof, still, such proceedings would not divest the title of the original owner. In the case of The Amy Warwick, this Court held, that treating the Confederates in some respects as belligerents was not an abandonment of sovereign rights, and by no means precluded us from treating them in other respects as rebels. Most assuredly I shall not recognize the Southern Confederates as a nation, or as having a government competent to establish Prize Courts. No proceedings of any such supposed tribunals can have any validity here, and a sale under them would convey no title to the purchaser, nor would it confer upon him any right to give a title to others. But it is argued that, under the Queen's proclamation, recognizing the Confederates as belligerents, a British court would hold a sale to be valid. What the decision of a British Court might be upon that question, we do not know, it never having been there litigated. But such a decision, if made, would be no more binding upon our courts than the political views of the British government would be upon the President or the Congress.”
(6) Succession to the Rights of Belligerent Communities.
UNITED STATES OF AMERICA V. PRIOLEAU.
(25 Law Journal, Chancery, N. S., 7.)
Upon the suppression of the Rebellion in 1865, the title to the public property of the Confederate government became immediately vested in the government of the United States.
Toward the end of the civil war in the United States (1861– 1865), the Confederate government having got possession of 1,365 bales of cotton in Texas, had it shipped from Galveston to Havana, where it was consigned to an agent of Fraser & Co. On the 10th of June, 1865, the cotton was shipped from Havana to Liverpool, consigned to the defendants Fraser, Trenholm & Co. (Prioleau being the English member of the firm), and was of the value of 40,0001. Fraser, Trenholm & Co. had made a contract with one M’Rae, general European agent of the Confederate government, to build eight steamships to be employed in transporting cotton and other produce from the Confederate States. They were to receive all consignments of said merchandise and sell the same according to the instructions they should receive for that purpose. The company were to advance the expenses of transportation, and were then to recoup themselves out of the proceeds of the consignments. They had already expended 20,0001 for sailing expenses, to say nothing of the cost of the ships.
When this consignment of cotton arrived in Liverpool, the Confederate government had been dissolved, and the Confederate States had submitted to the authority of the United States government; and the latter government filed a bill praying to have the cotton delivered up to them, and for an injunction and receiver.
Judgment.— WOOD, V. C.: “ There are one or two points which, I think, are tolerably clear in this case. The first point is with reference to the right of the United States of America, at this moment, to the cotton, subject to the agreement. I treat it first in that way. It has scarcely been disputed on the present argument, and could hardly be disputed at any further stage of the inquiry, that the right is clear and distinct, because the cotton in question is the admitted result of funds raised by a de facto government, exercising authority in what were called the Confederate States of America ; that is to say, several of those states which, in union, formerly constituted the United States, and which now, in fact, constitute them; and that de facto government, exercising its powers over a considererable number of states (more than one would be quite enough), raises money-be it by voluntary contribution, or be it by taxation, is not of much importance. The defendant Prioleau, in cross-examination, admits that they exercised considerable power of taxation; and with those means, and claiming to exercise that authority, they obtained from several of the States of America funds by which they purchased this cotton for the use of the de facto government. That being so, and that de facto government being displaced, I apprehend it is quite clear that the United States of America (that is to say, the government which has been successful in displacing the de facto government, and whose authority was usurped or displaced, or whatever term you may choose to apply to it), the authority being restored, stand, in reference to this cotton, in the position of those who have acquired, on behalf of the citizens of the United States, a public property; because otherwise, as has been well said, there would be no body who could sue in respect of, or deal with, property that has been raised, not by contribution of any one sovereign state (which might raise a question, owing to the peculiar constitution of the Union, if it had been raised in Virginia or Texas, or in any given State), but the cotton is the product of levies, voluntary or otherwise, on the members of the several states which have united themselves into the Confederate States of America, and which are now under the control of the present plaintiffs, and are represented, for all purposes, by the present plaintiffs. That being so, the right of the present plaintiffs to this cotton, subject to this agreement is, I think, clear, because the agreement is an agreement purporting to be made on behalf of the then de facto existing government, and not of any other persons. That case of The King of the Two Sicilies and the case of The King of Spain, and other cases of the same kind, which it is not necessary to go through, show that whenever a government de facto has obtained the possession of property, as a government, and for the purposes of the government de facto, the government which displaces it succeeds to all the rights of the former government, and, among other things, succeeds to the property they have so acquired.
“Now I come to the second head of the question, and I confess at this moment, as at present advised, I do not feel much doubt on the subject, namely, the question whether or not, taking this property, they must or must not take it subject to the agreement. It appears to me, at present, they must take it subject to the agreement. It is an agreement entered into by a de facto government, treating with persons who have a perfect right to deal with them. I apprehend if they had been American subjects they might do so. One of them. Prioleau, is not an American subject; he is a naturalized British subject; he would have a perfect right to deal with a de facto government; and it cannot be compared with any one of those cases Mr. Gifford put, of persons taking the property of another with knowledge of the rights of that other. That is a species of argument that cannot be applied to international cases of this description, and for a very good reason; if so, there would be no possibility during the existence of a government de facto of any person dealing with that government in any part of the world. The courts of every country recognize a government de facto to this extent, for the purpose of saying—you are established de facto, if you are carrying on the course of government, if you are allowed by those whom you affect to govern to levy taxes on them, and they pay