Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I
Mr. Seward to Mr. Adams.
Sir: I have the honor to give you herewith a copy of the decision of the vice-admiralty court of Nova Scotia, which directs the delivery of the Chesapeake and her cargo to the owners, upon payment of costs.
By direction of the President I have advised that the owners pay the costs Under protest. This government still adheres to the opinion that it was its right, under the circumstances of this case, to have an immediate and unconditional restitution of the Chesapeake and her cargo by executive authority, without waiting for an adjudication; nevertheless, it accepts the restitution so far as it has been ordered, and in the form in which it has been adjudged, and willingly leaves further claim for future consideration, being satisfied that her Majesty’s provincial authorities in Nova Scotia have conducted their proceedings, in this matter, in a spirit at once just and friendly towards the United States; and that the judgment rendered reflects honor upon the enlightened magistrate who presides in the vice-admiralty court.
I am, sir, your obedient servant,
Charles Francis Adams, Esq., &c., &c., &c.
[Untitled]
Judgment was this day given by the Hon. Alex. Stewart, C. B., judge of the vice-admiralty court, in the cause, No. 211, of
The Queen vs. The Steamer Chesapeake and cargo.
The Advocate General for the Crown; J. W. Johnston, J. W. K. Johnston, and Isaac J. Wylde, esquires, advocates and proctors for portions of the cargo; the Hon. S.L. Shannon, advocate, and William Morse, esq., proctor for the vessel and the remainder of the cargo.
On the 6th January last the advocate general exhibited affidavits of himself, made before the registrar, and copies of three affidavits made before the mayor of this city, by James Johnson, George Ames, and Mary V. Burgoyne, and also the affidavits of William Henry, Alexander Henry, John E. Holt, and Patrick Conners, sworn before the registrar; copies of all which affidavits are attached to this judgment. Upon these affidavits he moved for a warrant to arrest the steamer Chesapeake and cargo as having been piratically taken on the high seas from her lawful owners, which I granted. It was issued on the same day, made returnable on the 12th, executed on the 7th, and returned and filed in the registry on the 9th of January. On this last day he moved for a commission of unlivery, which I granted; informing him that he might cause the cargo to be unladen or not, as in his discretion he should think fit.
On the 18th he placed it in the hands of the marshal, who on the 29th returned it executed, with inventory attached to it, unto the registrar.
No appearance on behalf of the captors of the Chesapeake having been filed on the return day of the warrant of arrest, they were, on the petition of the procurator general, in the usual manner pronounced in default.
Claims by British owners for parts of the cargo have been allowed, viz: to Ross & Co., of Quebec, for 109 hogsheads of sugar; to Belony & Lamotte, for 10 hogsheads of tobacco, and 1 box of tinfoil; to Charles Sampson, for 1 cask of augers; and to James McInlay for 5 rolls of sole-leather; and Her Majesty’s advocate general having consented thereto, I decreed writs of restitution.
On the 10th February, Mr. Morse, on behalf of the owners of the vessel, moved for the admission of their claim that the vessel be restored to them, and that the remainder of the cargo, which is unclaimed, and which is owned in part by British subjects and in part by American citizens, should be delivered to them, in order that they might carry the same to the original port of destination, Portland, in the United States, and there deliver it to those who were entitled to receive it. The advocate general has examined this claim, and consented that a writ of restitution thereof be granted without bail to answer prospective, or what are, in this court, designated latent claims, and upon this claim I am now giving judgment; but it is obvious that thus granting this claim and the restoration prayed for will terminate this case. These claimants are citizens of the United States of America; the vessel is an American steamer; and I may mention that, as an additional ground for the delivery of the unclaimed cargo to them, they allege that they have a lien thereon for freights. It is the ordinary practice of this court to direct property taken by pirates to be returned to the owners without delay, and (except where there is a strong necessity for requiring it) without bail for latent claims, taking care to protect the rights of the salvors and the droits of admiralty. At this period it is incumbent on me to state that I adhere to the opinion I expressed on the 9th, and repeated on the 12th of January. I do not at all controvert the legal principles suggested at the bar as worthy of my consideration, but I do not perceive their applicability to the circumstances of the present case; but whether I be in error or not, whoever or whatever they are who seized the vessel, and whatever in their own or in their [Page 198] counsel’s estimation their rights may be, they have not thought fit to vindicate them before this court. They have, as I have just noticed, suffered judgment by default.
I have been much embarrassed in dealing with this case. To grant this application will be entirely within the rules applicable to it, for, on the facts sworn to, the taking was undoubtedly a piratical taking. But in its origin, in its position before the court, in the mode of the recapture—in short, in all the concomitant circumstances, the case is very peculiar. I was therefore, in the absence of decided cases, obliged to recur to and rely on, for my guidance, those principles which lie at the basis of all law. And I do not think I shall be acting unbecomingly in referring for a few moments to those principles.
The right of self-defence is one of the fundamental attributes of an independent State, and the principles which regulate its conduct towards other States have their foundation in a higher philosophy than that which underlies the municipal or positive law. The latter implies a ruler to prescribe and a subject to obey. An independent state recognizes no superior, acknowledges no authority paramount to its own. Underneath international law lies the ultima ratio regum. Every independent state determines for itself, as exigencies arise, what shall be the penalty for infractions of the law which it prescribes. The sovereign whose territorial rights are violated by the subjects or citizens of a friendly state is not bound to appeal for reparation to (what might be) the tardy justice to be conceded by that state. If those subjects or citizens are within its territory, it will inflict on them its own penalty, in its own mode. An independent state is not circumscribed by the limits which are essential to the administration of municipal law, since by it the agents of the community protect from the aggression of the wrong-doer the individuals of which it is composed. Then if one of the Queen’s subjects had violated the municipal law as flagrantly as the captors of the Chesapeake have outraged the international law, and such violation would have (as it unquestionably would) justly subjected the offending vessel to forfeiture, shall those who have violated the higher law be subjected to a less penalty? Assuredly not.
Then as to the right disposal of the forfeited vessel. It were derogatory to the royal dignity to add the proceeds of property which had belonged to the citizens of a friendly nation to the privy purse of the Queen, and it would as little become the honor of the British nation to make profit out of their misfortune.
What more appropriate mode of dealing with this vessel and cargo than to restore them to their original owners?—not as a favor to them, but as an act of justice to the offended dignity of the crown; not as recognizing any right of the government of the United States to require such restoration, but as a fit punishment of the offenders, and a warning to others. The law which the Queen and Parliament have prescribed to enforce the observance of her neutrality is to be found in her Majesty’s proclamation, and in the statute under the authority of which it was issued. Is the offence which I have suggested against the municipal law? or can any offence be more serious than that by which the British nation might be drawn into the sad contest which has desolated and is still desolating one of the fairest portions of the earth?
By the affidavits on which I granted the warrant, it is certain that the Chesapeake, if a prize at all, is an uncondemned prize. For a belligerent to bring an uncondemned prize into a neutral port, to avoid recapture, is an offence so grave against the neutral state, that it ipso facto subjects that prize to forfeiture. For a neutral state to afford such protection would be an act justly offensive to the other belligerent state.
The Chesapeake was brought, not into one port only, but into several of the ports of this province; not openly, but covertly; not in her proper name, but in a false name. Still further, they who thus invaded the Queen’s territory [Page 199] surreptitiously landed and sold therein a considerable portion of her cargo, making no distinction between those parts of it which were owned by the subjects of her Majesty and those belonging to the citizens of the United States; and instead of vindicating the rights which it was asserted for them at the bar they possessed, they (after landing on the shores of this province, and thus being under the protection of British law) have long since fled from and are still fugitives from it.
These are the facts on which I deemed it right to recommend at once that the vessel should not be unladen or removed from the custody of the provincial government, in order that she might be restored intact to her owners. I then thought—I still think, that it would not consist with the dignity of her Majesty, though the capture had been a lawful one, to hold valid a plea on behalf of these persons. The facts I have just mentioned must have been admitted, for they are in their nature incontrovertible.
This court has no prize jurisdiction, no authority to adjudicate between the United States and the Confederate States, or the citizens of either of those States. Yet, if a claim to the vessel and cargo could have been sustained, all further jurisdiction on my part over them must have ceased, and they must have been further disposed of by competent authority, and it would have in that case been my duty to have examined into the question of prize. As the case at present stands, I am rightfully exercising jurisdiction, for the facts disclosed by the affidavits as to the actual taking of the vessel from the master and crew beyond all doubt constitute a piratical taking. The effect of upholding the plea of these captors might possibly be, that, notwithstanding their gross misconduct, the vessel and cargo might be left to them. For, as his honor the administrator of the provincial government had directed the vessel and cargo to be brought into this court for adjudication, he could hardly then have resumed possession for any purpose. Impressed, then, by these strong convictions, as such a condition is dispensed with by the advocate general, I will not myself volunteer to impose (as a condition precedent to the restoration of the property) that their owners shall give bail to answer prospective claims; for, if I am rightfully informed, the amount to be required would be at the least eighty thousand dollars, and to insist on such bail might be equivalent to a refusal to restore the property.
Unlading the vessels, and the incident expenses, have rendered their rateable adjustment a matter of great difficulty; a difficulty, to be sure, which might be overcome by my decreeing a particular appraisement and valuation of the vessel and cargo to be made by the marshal, and a subsequent reference to the registrar and merchants. After a careful consideration, however, of this part of the case, I think it not unjust to order that the costs and expenses (except only the costs of these claimants whose property is to be delivered to them here, which, as well as those of the advocate general appertaining thereto, they are to pay) be paid by the owners of the vessel, leaving to them to adjust and seek repayment thereof from the shippers, insurers, and other persons chargeable therewith. If this were an ordinary case of recapture from pirates, the prescribed salvage would have been one-eighth of the value of the property, and this, on the value of the vessel alone, (which, I am informed, is more than sixty thousand dollars,) would have been seven thousand dollars, and the owners of both vessel and cargo have been fortunate that they were not destroyed at sea, and so wholly lost to them. It is unnecessary to recur to the circumstances of the recapture. It suffices to remark that the taking was not an ordinary piratical capture. It is even possible not to have been a case of piracy at all. This court would stultify itself were it to effect ignorance of what is patent to everybody, namely, that those who wrested the Chesapeake from the master and crew are at the present moment in the adjoining province of New Brunswick asserting that they made the capture as citizens of and parties duly authorized by the government of the Confederate States, and that they have produced [Page 200] documents and proofs thereof before magistrates there, duly invested with the right to determine the validity of their claim, so far at least as affects their alleged piratical character. I allow this claim, and will decree a writ of restitution when moved, to be given to the claimants upon payment of the costs and expenses, as I have before specified.
The registrar will estimate as accurately as he can the amount which will certainly cover the whole costs and expenses to be paid, as I have directed, by the vessel, and upon that amount being paid into the Bank of British North America, the bank of deposits of this court, he will issue the writ of restitution to the owners of the vessel. And he will, by orders on the said bank, pay to the several parties entitled to receive the same such sums as he may have taxed and allowed, and the remainder, if any, he shall return to the said owners. In like manner he is to tax and allow and cause to be paid by the claimants of that part of the cargo which has been, is, or is to be delivered here, all their costs and the costs of the advocate general appertaining to their claims. The registrar will cause this judgment to be inserted in one of the city newspapers, and he will also cause to be printed, in the same manner as the affidavits in this cause are printed, this judgment, and also my remarks thereon of the 13th of January and 10th instant, and attach copies thereof to this judgment, and also copies of the said affidavits. And the registrar will include in his bill the charge for the printing done and to be performed in this cause against the vessel, and pay the same to Alpin Grant, esq., the printer of this court, out of the sum to be deposited, as aforesaid, in the Bank of British North America.