APPEAL from the Supreme Court of the District of Columbia.
On the night of the 7th of October, 1864, the United States steamer 'Wachusett,' under the command of Commander Collins, captured the rebel steamer 'Florida,' in the port of Bahia, in the empire of Brazil. The 'Florida' had gone there to supply herself with provisions and for the repair of her engine. She was anchored under cover of a Brazilian vessel of war, on the side next to the shore, and Commander Collins was notified that if he attacked her he would be fired upon by a neighboring fort and by the war vessels of the empire then present. The commander, availing himself of the darkness of the night, approached and fired upon the 'Florida,' received her surrender, attached a hawser to her extending from his vessel and towed her out to sea. He was pursued by a Brazilian war vessel, but escaped with his prize by superior speed. The steamers reached the United States at Hampton Roads. There the 'Florida' was sunk by a collision, and lies where she went down. The American consul at Bahia was on board of the 'Wachusett' at the time of the attack and incited it, and participated in the seizure. He returned to the United States with Commander Collins.
The Brazilian government demanded the return of the vessel and other reparation by the United States. The latter disavowed the capture, and the matter was amicably adjusted.
The commander libelled the 'Florida' as prize of war. The court below dismissed the case, and he appealed to this court.
The case was argued by Mr. Benjamin F. Butler and Mr. Frank W. Hackett for the appellant.
The following points are taken from Mr. Hackett's brief:--
The captors are entitled to have the question of prize or no prize judicially determined. Act June 30, 1864, 13 Stat. 306. The adjudication is essential to their protection against her former owner, and, if in their favor, gives them also the right to proceed against the colliding vessel, if through its negligence the prize was sunk. The 'Florida's' hull, guns, &c., are of some determinable value, and the question of ownership therein must be decided.
There is a res in existence. The ship is sunk in a river. The court will not inquire whether it will pay to raise her.
The executive has no right to instruct the judicial branch of the government as to the disposition of this libel, nor should its wishes have any force whatever in a tribunal sitting as a high court of prize.
In The Elsebe (5 Rob. 173), where Sir William Scott decided that the power of the crown to direct the release of property seized as prize, before adjudication and against the will of the captors, was not taken away by any grant of prize conferred in the Order of Council, the Proclamation, or the Prize Act, orders had been given by the Lords of Admiralty to release the ships before the question was raised in the prize court. In the case at bar, no such order was ever given or promised to Brazil.
For the views of Mr. Wheaton on the subserviency of Sir William Scott to the orders of the crown, see Lawrence's Wheaton, 973; Roberts, Adm. & Prize, 480, 519.
In Great Britain, the issue of peace or war is lodged in the crown. The jus persequendi in capture being conveyed only in the Orders in Council, and all claims of the captor subordinated to the right of the crown to make such disposition as it pleases of the captured property, the Queen may control the conduct of a prize suit from the beginning. She has supreme power, with the advice of her council, to relax her belligerent rights, and so far to make law for the prize court. The Phenix, 1 Spink, 306.
The right to capture in the name of the United States comes not from the Executive, but from Congress. Until condemnation, no property vests in the sovereign or the captor. 10 Op. Att.-Gen. 519. Should the government desire immediately to make use of the captured vessel, an appraisement is made, and her value, in case of a subsequent condemnation, represents the prize fund. Act March 3, 1863, sect. 2.
The act of June 30, 1864 (supra), although modelled upon the English prize acts, presents certain features essentially distinct from them. In England, the prize court exercises, in time of war only, a peculiar but extraordinary jurisdiction, specially conferred by Parliament. Roberts, Adm. & Prize, 444. In this country, the prize courts are ever open to prize causes. Their jurisdiction extends not only to cases specially provided for by Congress, but to limits recognized by international law, or the custom and usage of nations. Id. 445. The captors themselves are authorized, under certain circumstances, to commence proceedings, a right unknown to the English prize law.