Opinion · Supreme Court of the United States
Bas v. Tingy
4 U.S. 37
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1800-08-15
- Topic
- litigation
relying on Blackstone and other commentators to distinguish between perfect and imperfect wars | relying on Blackstone and other commentators to distinguish between perfect and imperfect wars | "Besides, it may be asked, why should the rate of salvage be different in such a war as the present, from the salvage in a war more solemn [i.e. a declared war] or general?" | “Besides, it may be asked, why should the rate of salvage be different in such a war as the present, from the salvage in a war more solemn [ie. a declared war] or general?” | “Congress is empowered to declare a general war, or Congress may wage a limited war; limited in place, in objects, and in time.” | It is a fundamental canon of statutory construction that words chosen by Congress in drafting a statute should generally be interpreted according to their "ordinary, contemporary, common meaning." Id. | "[T]he argument turned, principally, upon two inquiries: 1st. Whether the Act of March 1799, applied only to the event of a future general war? 2d. Whether France was an enemy of the United States, within the meaning of the law?" | “[T]he argument turned, principally, upon two inquiries: 1st. Whether the Act of March 1799, applied only to the event of a future general war? 2d. Whether France was an enemy of the United States, within the meaning of the law?”
Citator
- Cited by
- 38 opinions
BAS v. TINGY,4 U.S. 37(1800)
Bas, Plaintiff in Error,versusTingy, Defendant in Error.
AUGUST TERM, 1800.
The controversy involved a consideration of the following sections in two acts of congress: By an act of the 28th ofJune1798, (4vol. p. 154,s. 2.) it is declared, "That whenever any vessel the property of, or employed by, any citizen of theUnited States, or person resident therein, or any goods or effects belonging to any such citizen, or resident, shall be re-captured by any public armed vessel of theUnited States, the same shall be restored to the former owner, or owners, upon due proof, he or they paying and allowing, as and for salvage to the re-captors, one-eighth part of the value of such vessel, goods and effects, free from all deduction and expenses."
By an act of the 2d ofMarch, 1799 (4vol. p. 472) it is declared, "That for the ships or goods belonging to the citizens of theUnited States, or to the citizens, or subjects, of any nation in amity with theUnited States, if re-taken fromtheenemywithin twenty-four hours, the owners are to allow one-eighth part of the whole value for salvage, c. and if above ninety-six hours one-half, all of which is to be paid without any deduction whatsoever, c. And, by the 9th section of the same act it is declared, "That all the money accruing,or which hasalready accrued from the sale of prizes, shall be and remain forever a fund for the payment of the half-pay to the officers and seamen, who may be entitled to receive the same."
It is, however, more particularly urged, that the word "enemy" cannot be applied to theFrench;because the section in which it is used, is confined to such a state of war, as would authorise a re-capture of property belonging to a nationinamitywith theUnited States, and such a state of war, it is said, does not exist betweenAmericaandFrance. A number of books have been cited to furnish a glossary on the wordenemy;yet, our situation is so extraordinary, that I doubt whether a parallel case can be traced in the history of nations. But, if words are the representatives of ideas, let me ask, by what other word the idea of the relative situation ofAmericaandFrancecould be communicated, than by that ofhostility, orwar?And how can the characters of the parties engaged in hostility or war, be otherwise described than by the denomination ofenemies?It is for the honour and dignity of both nations, therefore, that they should be calledenemies;for, it is by that description alone, that either could justify or excuse, the scene of bloodshed, depredation and confiscation, which has unhappily occurred; and, surely, congress could only employ the language of the act ofJune13, 1798, towards a nation whom she considered as an enemy.
Nor does it follow, that the act ofMarch1799, is to have no operation, because all the cases in which it might operate, are not in existence at the time of passing it. During the present hostilities, it affects the case of re-captured property belonging to our own citizens, and in the event of a future war it might also be applied to the case of re-captured property belonging to a nation in amity with theUnited States. But it is further to be remarked, that all the expressions of the act may be satisfied, even at this very time: for by former laws the re-capture of property, belonging to persons resident within theUnited Statesis authorised; those residents may be aliens; and, if they are subjects of a nation in amity with theUnitedStates, they answer completely the description of the law.Page 40
The only remaining objection, offered on behalf of the plaintiff in error, supposes, that, because there are no repealing or negative words, the last law must be confined to future cases, in order to have a subject for the first law to regulate. But if two laws are inconsistent, (as, in my judgment, the laws in question are) the latter is a virtual repeal of the former, without any express declaration on the subject.
On these grounds, I am clearly of opinion, that the decree of the Circuit Court ought to be affirmed.
If the defendant's claim is well founded, it follows, that the latter law must virtually have worked a repeal of the former; but this has been denied, for a variety of reasons:
1st. Because the former law relates to re-captures fromtheFrench, and the latter law relates to re-captures fromtheenemy;and, it is said, that "the enemy" is not descriptive ofFrance, or of her armed vessels, according to the correct and technical understanding of the word.
The decision of this question must depend upon another; which is, whether, at the time of passing the act of congress of the 2d ofMarch1799, there subsisted a state of war between the two nations? It may, I believe, be safely laid down, that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war. If it be declared in form, it is calledsolemn, and is of the perfect kind; because one whole nation is at war with another whole nation; andallthe members of the nation declaring war, are authorised to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition.
But hostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termedimperfect war;because not solemn, and because those who are authorised to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, it ispublic war, because it is an external contention by force, between some of the members of the two nations, authorised by the legitimate powers. It is a war between the two nations, though all thePage 41members are not authorised to commit hostilities such as in a solemn war, where the government restrain the general power.
Now, if this be the true definition of war, let us see what was the situation of theUnited Statesin relation toFrance. InMarch1799, congress had raised an army; stopped all intercourse withFrance; dissolved our treaty; built and equipt ships of war; and commissioned private armed ships; enjoining the former, and authorising the latter, to defend themselves against the armed ships ofFrance, to attack them on the high seas, to subdue and take them as prize, and to re-capture armed vessels found in their possession. Here, then, let me ask, what were the technical characters of anAmericanandFrencharmed vessel, combating on the high seas, with a view the one to subdue the other, and to make prize of his property? They certainly were not friends, because there was a contention by force; nor were they private enemies, because the contention was external, and authorised by the legitimate authority of the two governments. If they were not our enemies, I know not what constitutes an enemy.
2d. But, secondly, it is said, that a war of the imperfect kind, is more properly called acts of hostility, or reprizal, and that congress did not mean to consider the hostility subsisting betweenFranceand theUnited States, as constituting a state of war.
In support of this position, it has been observed, that in no law prior toMarch1799, isFrancestyled our enemy, nor are we said to be at war. This is true; but neither of these things were necessary to be done: because as toFrance, she was sufficiently described by the title of theFrenchrepublic; and as toAmerica, the degree of hostility meant to be carried on, was sufficiently described without declaring war, or declaring that we were at war. Such a declaration by congress, might have constituted a perfect state of war, which was not intended by the government.
3d. It has, likewise, been said, that the 7th section of the act ofMarch1799, embraces cases which, according to pre-existing laws, could not then take place, because no authority had been given to re-capture friendly vessels from theFrench; and this argument was strongly and forcibly pressed.
But, because every case provided for by this law was not then existing, it does not follow, that the law should not operate upon such as did exist, and upon the rest whenever they should arise. It is a permanent law, embracing a variety of subjects, not made in relation to the present war withFranceonly, but in relation to any future war with her, or with any other nation. It might then very properly allow salvage for re-capturing ofAmericanvessels fromFrance, which had previously been authorised by law, though it could not immediately apply to the vessels of friends: and whenever such a war should exist between theUnited StatesandFrance, or any other nation, as according to the law of nations,Page 42or special authority, would justify the re-capture of friendly vessels, it might on that event, with similar propriety, apply to them; which furnishes, I think, the true construction of the act.
The opinion which I delivered atNew-York, inTalbotv.Seaman, was, that although anAmericanvessel could not justify the re-taking of a neutral vessel from theFrench, because neither the sort of war that subsisted, nor the special commission under which theAmericanacted, authorised the proceeding; yet, that the 7th sect. of the act of 1799, applied to re-captures fromFrance as an enemy, in all cases authorised by congress. And on both points, my opinion remains unshaken; or rather has been confirmed by the very able discussion which the subject has lately undergone in this Court, on the appeal from my decree. Another reason has been assigned by the defendant's counsel, why the former law is not to be regarded as repealed by the latter, to wit: that a subsequent affirmative general law cannot repeal a former affirmative special law, if both may stand together. This ground is not taken, because such an effect involves an indecent censure upon the legislature for passing contradictory laws, since the censure only applies where the contradiction appears in the same law; and it does not follow, that a provision which is proper at one time may not be improper at another, when circumstances are changed: but the ground of argument is, that a change ought not to be presumed. Yet, if there is sufficient evidence of such a change in the legislative will, and the two laws are in collision, we are forced to presume it.
What then is the evidence of legislative will? In fact and in law we are at war: anAmericanvessel fighting with aFrenchvessel, to subdue and make her prize, is fighting with an enemy accurately and technically speaking: and if this be not sufficient evidence of the legislative mind, it is explained in the same law. The sixth and the ninth sections of the act speak ofprizes, which can only be of property taken at sea fromanenemy, jure belli;and the 9th section speaks of prizes as taken froman enemy, in so many words, alluding to prizes which had been previously taken: but no prize could have been then taken exceptfrom France: prizes taken fromFrancewere, therefore, taken fromthe enemy. This then is a legislative interpretation of the word enemy; and if the enemy as to prizes, surely they preserve the same character as to re-captures. Besides, it may be fairly asked, why should the rate of salvage be different in such a war as the present, from the salvage in a war more solemn or general? And it must be recollected, that the occasion of making the law ofMarch1799, was not only to raise the salvage, but to apportion it to the hazard in which the property re-taken was placed; a circumstance for which the former salvage law had not provided.
The two laws, upon the whole, cannot be rendered consistent, unless the Court could wink so hard as not to see and know, thatPage 43in fact, in the view of congress, and to every intent and purpose, the possession by aFrencharmed vessel of anAmericanvessel, was the possession of anenemy:and, therefore, in my opinion, the decree of the Circuit Court ought to be affirmed.
AnAmericanpublic vessel of war re-captures anAmericanmerchant vessel from aFrenchprivateer, after 96 hours possession, and the question is stated, what salvage ought to be allowed? There are two laws on the subject: by the first of which, only one-eighth of the value of the re-captured property is allowed; but by the second, the re-captor is entitled to a moiety. The re-capture happened after the passing of the latter law: and the whole controversy turns on the single question, whetherFrancewas at that timean enemy?IfFrancewas an enemy, then the law obliges us to decree one half of the value of ship and cargo for salvage: but ifFrancewas not an enemy, then no more than one-eighth can be allowed.
The decree of the Circuit Court (in which I presided) passed by consent; but although I never gave an opinion, I have never entertained a doubt on the subject. Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time. If a general war is declared, its extent and operations are only restricted and regulated by thejus belli, forming a part of the law of nations; but if a partial war is waged, its extent and operation depend on our municipal laws.
What, then, is the nature of the contest subsisting betweenAmericaandFrance?In my judgment, it is a limited, partial, war. Congress has not declared war in general terms; but congress has authorised hostilities on the high seas by certain persons in certain cases. There is no authority given to commit hostilities on land; to capture unarmedFrenchvessels, nor even to captureFrencharmed vessels lying in aFrenchport; and the authority is not given, indiscriminately, to every citizen ofAmerica, against every citizen ofFrance; 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.
There are four acts, authorised by our government, that are demonstrative a of state of war. A belligerent power has a right, by the law of nations, to search a neutral vessel; and, uponPage 44suspicion of a violation of her neutral obligations, to seize and carry her into port for further examination. But by the acts of congress, anAmericanvessel it authorised: 1st. To resist the search of aFrenchpublic vessel: 2d. To capture any vessel that should attempt, by force, to compel submission to a search: 3d. To re-capture anyAmericanvessel seized by aFrenchvessel; and 4th. To capture anyFrencharmed vessel wherever found on the high seas. This suspension of the law of nations, this right of capture and re-capture, can only be authorised by an act of the government, which is, in itself, an act of hostility. But still it is a restrained, or limited, hostility; and there are, undoubtedly, many rights attached to a general war, which do not attach to this modification of the powers of defence and aggression. Hence, whether such shall be the denomination of the relative situation ofAmericaandFrance, has occasioned great controversy at the bar; and, it appears, that SirWilliam Scott, also, was embarrassed in describing it, when he observed, that "in the presentstate of hostility(ifso it may be called) betweenAmericaandFrance," it is the practice of theEnglishCourt of Admiralty to restore, re-capturedAmericanproperty, on payment of a salvage.Rob.Rep. 54.The Santa Cruz. But, for my part, I cannot perceive the difficulty of the case. As there may be a public general war, and a public qualified war; so there may, upon correspondent principles, be a general enemy, and a partial enemy. The designation of "enemy" extends to a case of perfect war; but as a general designation, it surely includes the less, as well as the greater, species of warfare. If congress had chosen to declare a general war,Francewould have been a general enemy; having chosen to wage a partial war,Francewas, at the time of the capture, only a partial enemy; but still she was an enemy.
It has been urged, however, that congress did not intend the provisions of the act ofMarch1799, for the case of our subsisting qualified hostility withFrance, but for the case of a future state of general war with any nation: I think, however, that the contrary appears from the terms of the law itself, and from the subsequent repeal. In the 9th section it is said, that all the money accruing, "or which has already accrued from thesale of prizes," shall constitute a fund for the half-pay of officers and seamen. Now, at the time of making this appropriation, noprizes, (whichex vi terminiimplies a capture in a state of war) had been taken from any nation butFrance, those which had been taken, were not taken fromFranceas a friend: they must consequently have been taken from her as an enemy; and the retrospective provision of the law can only operate on such prizes. Besides, when the 13th section regulates "the bounty given by theUnited Stateson any national ship of war,taken from the enemy, and brought into port," it is obvious, that even if the bounty has no relation to previous captures, it must operate from the moment of passing thePage 45act, and embraces the case of a national ship of war taken fromFranceas an enemy, according to the existing qualified state of hostilities. But the repealing act, passed on the 3d ofMarch1800, (subsequent to the re-capture in the present case) ought to silence all doubt, as to the intention of the legislature: for, if the act ofMarch1799, did not apply to theFrenchrepublic, as an enemy, there could be no reason for altering, or repealing, that part of it, which regulates the rate of salvage on re-captures.
The acts of congress have been analysed to show, that a war is not openly denounced againstFrance, and thatFranceis no where expressly called the enemy ofAmerica: but this only proves the circumspection and prudence of the legislature. Considering our national prepossessions in favour of theFrenchrepublic, congress had an ardous task to perform, even in preparing for necessary defence, and just retaliation. As the temper of the people rose, however, in resentment of accumulated wrongs, the language and the measures of the government became more and more energetic and indignant; though hitherto the popular feeling may not have beenripefor a solemn declaration of war; and an active and powerful opposition in our public councils, has postponed, if not prevented that decisive event, which many thought would have best suited the interest, as well as the honour of theUnited States. The progress of our contest withFrance, indeed, resembles much the progress of our revolutionary contest; in which, watching the current of public sentiment, the patriots of that day proceeded, step by step, from the supplicatory language of petitions for a redress of grievances, to the bold and noble declaration of national independence.
Having, then, no hesitation in pronouncing, that a partial war exists betweenAmericaandFrance, and thatFrancewas an enemy, within the meaning of the act ofMarch1799, my voice must be given for affirming the decree of the Circuit Court.
- Page 39 All the acts of congress, passed in relation toFrance, were cited and discussed by both sides in the course of the argument; but it is thought unnecessary to refer to them more particularly in this report. ↩