1. In proceedings in prize and under principles of international
law, mortgages on vessels captured
jure belli, are to be
treated only as liens, subject to being overridden by the capture,
not as
jura in re, capable of an enforcement superior to
the claims of the captors.
2. Neither the Act of July 13, 1861, providing (§ 5) that
all goods &c., coming from a state declared to be in
insurrection "into the other parts of the United States" by land or
water shall, together with the vessel conveying the same, be
forfeited to the United States, but providing also (§ 8) that
the forfeiture may be remitted by the Secretary of the Treasury
&c., nor the Act of March 3, 1883, "to protect the liens upon
vessels in certain cases," &c., refers to captures
jure
belli, and neither modifies the law of prize in any
respect.
An Act of Congress of July 13, 1861, [
Footnote 1] passed during the late rebellion, enacted
that goods, chattels, wares, and merchandise coming from or going
to a state or section in insurrection by land or water, along with
the vessel in which they were, should be forfeited, but gave the
Secretary of the Treasury a right to remit. And another, passed
March 3, 1863, [
Footnote 2]
"That in all cases now or
hereafter pending wherein any
ship, vessel, or other property shall be condemned in any
proceeding, by virtue of the
acts above mentioned or of
any other laws on that subject, the court rendering judgment shall
first provide for the payment of
bona fide claims of loyal
citizens."
In January, 1863, the schooner
Hampton and her cargo
were captured by the United States steamer
Currituck in
Dividing Creek, Virginia, and having been libeled in the Supreme
Court for the District of Columbia, were condemned as prize of war.
The master of the vessel was her owner, but interposed no claim;
nor did anyone claim the cargo. One Brinkley, however, appeared and
claimed the vessel as mortgagee. The
bona fides of his
mortgage was not disputed, nor that he was a loyal citizen. But it
was set up that neither by the laws of war nor under the acts
of
Page 72 U. S. 373
Congress, could the claim be allowed. After a hearing, the claim
was dismissed by the court, the question involved, however, being
certified by it to this Court as one of difficulty and proper for
appeal. The matter was accordingly now here on appeal, taken by
Brinkley, from the order dismissing his claim.
Page 72 U. S. 374
MR. JUSTICE MILLER delivered the opinion of the Court.
The decree of condemnation of vessel and cargo stand unaffected,
and the only question presented for our decision is whether
appellant is entitled to have the amount of his mortgage paid to
him out of the proceeds of the sale of the vessel.
1. The first ground on which appellant relies is, that the
mortgage being a
jus in re, held by an innocent party, is
something more than a mere lien, and is protected by the law of
nations.
The mortgagee was not in possession in this case, and the real
owner who was in possession admits that his vessel was
in
delicto by failing to set up any claim for her. It would
require pretty strong authority to induce us to import into the
prize courts the strict common law doctrine, which is sometimes
applied to the relation of a mortgagee to the property mortgaged.
It is certainly much more in accordance with the liberal principles
which govern admiralty courts to treat mortgages as the equity
courts treat them -- as mere securities for the debt for which they
are given, and therefore no more than a lien on the property
conveyed.
But it is unnecessary to examine this question minutely, because
an obvious principle of necessity must forbid a prize court from
recognizing the doctrine here contended for. If it were once
admitted in these courts, there would be an end of all prize
condemnation. As soon as a war was threatened, the owners of
vessels and cargoes which might be so situated as to be subject to
capture would only have to raise a sufficient sum of money on them,
by
bona fide mortgages, to indemnify them in case of such
capture. If the vessel or cargo was seized, the owner need not
appear, because he would be indifferent, having the value of his
property in his
Page 72 U. S. 375
hands already. The mortgagee, having an honest mortgage which he
could establish in a court of prize, would either have the property
restored to him or get the amount of his mortgage out of the
proceeds of the sale. The only risk run by enemy vessels or cargoes
on the high seas, or by neutrals engaged in an effort to break a
blockade, would be the costs and expenses of capture and
condemnation, a risk too unimportant to be of any value to a
belligerent in reducing his opponent to terms.
A principle which thus abolishes the entire value of prize
capture on the high seas and deprives blockades of all dangers to
parties disposed to break them cannot be recognized as a rule of
prize courts.
2. The second ground on which appellant relies is based upon the
fact that the vessel was liable to confiscation under the Act of
Congress of July 13, 1861, and that the Act of March 3, 1863,
protects his rights in the premises.
This latter statute provides
"That in all cases now or hereafter pending wherein any ship,
vessel, or other property shall be condemned in any proceeding, by
virtue of the acts above mentioned or of any other law on that
subject, the court rendering the judgment"
shall first provide for
bona fide claims of loyal
citizens. Although there is nothing in this act or in its title to
show what the acts above mentioned were, it may be conceded that
the Act of July 13, 1861, was one of them. But as the vessel in the
case before us was not condemned in any proceeding by virtue of
that act or of any law on that subject, but was condemned under the
international laws of war by which she became lawful prize, it is
difficult to perceive how the act of 1863 can have any application
to the case. It is certainly not covered by its terms, and we think
still less by its provisions.
Congress had, by several statutes, of which the Act of July 13th
was one, defined certain acts or conditions growing out of the
rebellion which would render property liable to confiscation to the
United States. It became evident that in many of these cases, loyal
citizens might have rights and interests in such property which
justice required to be protected.
Page 72 U. S. 376
Hence the passage of the Act of March, 1863, and the eighth
section of the Act of July 13, 1861, the latter of which gives to
the Secretary of the Treasure the power of remitting forfeitures
and penalties incurred by virtue of that act.
We are quite satisfied that in neither of these provisions did
Congress have reference to cases of condemnation as prize
jure
belli.
It is further said that because the vessel in this case was
liable to condemnation under the Act of July, 1861, although
actually condemned under a principle of international law, the
court is bound to apply the statute as though she had been
condemned in a proceeding under it. We do not see the force of the
argument. Both laws are in force. The vessel was liable under both.
The government chose to proceed against her under that law which
prescribed the harder penalty. Its right to do so seems to us
undeniable. The argument to the contrary would enable a person
found guilty of a murder committed by burning down the house of his
victim to plead that he should only be sentenced to the
penitentiary, instead of being hung, because he was guilty of arson
in addition to murder. The case of
The Sally [
Footnote 3] is a direct decision of
this Court that a statute creating a municipal forfeiture does not
override or displace the law of prize.
We do not deny the full control of Congress over the law of
prize as it may be administered in the courts of the United States
whenever they choose to exercise it. But in the statutes relied on
by appellant in this case we see no evidence of any intention to
modify that law in any respect.
There seems to be no reason to doubt the loyalty of appellant or
the fairness of his debt, and we regret our inability to provide
for his claim. But until international treaties or an act of
Congress shall mark another stage in the meliorations of the rigors
of war, we are not at liberty to interpolate a principle which
would tend so materially to destroy the right of prize capture in
time of war.
Decree affirmed.
[
Footnote 1]
12 Stat. at Large 256.
[
Footnote 2]
Ibid., 762.
[
Footnote 3]
12 U. S. 8 Cranch
382.
