« 이전계속 »
possession of an officer duly commissioned by the emperor, sailing under the flag of that nation, and now lying in the port of Philadelphia, and the question of law is: Whether the district court of the United States, for this district, can take cognizance of a libel filed in that court against this vessel, on the part of the original owner, who has never, by any act of his, parted with his right to her? The case is highly important, and has been argued with great ability on both sides.
The general rule of the law of nations, laid down by the counsel for the appellants, is: That whatever goods and effects lie within the extent of a country, or are found there, whether movable or immovable, are subject to the authority and jurisdiction of the courts of that country. The rule—as a general one—is admitted. It is certainly supported by the most respectable authority, and is contradicted by none. But it is contended on the other side, that a public armed vessel, belonging to a foreign prince, which has committed no offence within the jurisdiction of the country where she is found, forms an exception to the rule. This exception is not to be discovered in the writings of any jurist, foreign or domestic, nor does it appear to be founded in the practice of nations, so far as is recollected by the court, or has appeared from the researches of the bar. Bynkerahock (who has been roughly handled by the counsel on one side, and highly eulogised on the other, but whom all must admit to be a respectable writer on the laws of nations) in stating the general rule, and for the purpose of negativing an exception to, or on account of any supposed privilege which sovereigns might claim, lays it down in the clearest terms, that the goods and effects of a sovereign, whilst they are within a foreign territory, are subject to the laws of that country, and to the jurisdiction of its courts. He considers the privilege of the sovereign to be exempted from the jurisdiction of a foreign tribunal, to be merely personal, and not extending to his goods found there. He proceeds to support this doctrine by the practice of the courts of Holland, at that time amongst the most respectable nations of Europe.—It is true that in many of the cases which he cites, the government interfered and arrested the proceedings; but this only proves that such interference was deemed necessary for reasons of state, to prevent the exercise of jurisdiction by the judicial tribunals, which otherwise would have proceeded in its regular and acknowledged channel. It is said that this author, in his efforts to regulate an exception in favour of a foreign prince, is not supported by any other elementary writer, or by a usage founded on the practice of nations. The answer given to this observation is, I think, a fair one. The doctrine is consistent with the general rule, and has for near a century been pronounced, by this author, as forming a part of the law and practice of nations, and is denied by no writer of respectability, nor by any evidence of a contrary usage. But it is not true that this position has not received the sanction of more modern writers on the law of nations. Rutherforth is express. He says, " that the right of territory extends the authority of such
laws to all questions which relate to the use or private ownership of such movable goods as are within the territory of the nation, and of such immovable goods as are confessedly a part of its territory, whether its own members only are concerned in these questions or the collective bodies, or the individual members of other nations." In other parts of this chapter he explains the term " collective body of the nation," to mean the nation itself, or the sovereign power.
But it is still contended, that though the exemption of the sovereign from the foreign jurisdiction, in relation to his private effects, may be denied by these authorities, still the public armed vessels of the same sovereign stand upon different ground, and that their exemption is not controverted by those writers. It is true, that except in some of the cases stated by Bynkershnrk, where public armed vessels were arrested, this distinction between the public armed vessel and the private property of the sovereign is not noticed. The general expressions of these jurists embrace both public and private vessels; and if the former are entitled to the exception, those who contend for the exception are bound to prove it, supported either by authority, or by strong and unquestionable reasons. How then does this question stand on the ground of reason? what is there in the character of a public armed vessel to withdraw her from the jurisdiction of a foreign court? It is admitted, and such indubitably is the law, that if such a vessel should, within the foreign jurisdiction, do any act which would expose a private vessel to forfeiture, she would not be protected on account of her public character. Why would she not be protected? The answer given by the counsel, who endeavors to maintain the exception, and yet who is compelled to admit this qualification of it, is, because the offence is committed within the foreign jurisdiction. Then it follows, that the reason for the exemption is not founded on the character of the vessel, but on the place where the offence was committed; because the same reason equally applies to a private vessel of the sovereign or of an individual: and if a private vessel would be forfeited, because the offence which produces the forfeiture was committed within the jurisdiction, and would not be forfeited if it were committed elsewhere, and a public armed vessel would equally be forfeited, or not, for the same reason, I should like to know what becomes of the distinction which is attempted between the one vessel and the other? It is true, that offences are in their nature local, unless rendered otherwise by express statute; but if that statute makes no distinction between public armed and private vessels, the locality of the offence would no more protect the one than the other from the jurisdiction of the foreign courts, both being found within the territory of that nation.
How is it with respect to contracts?—It is admitted, that the property of a sovereign, found within a foreign territory, is as much subject to the jurisdiction of the courts of that country, in a matter of contract, as if it had belonged to a private individual.
Vol. III. App. t Y
The goods of a sovereign, found within a foreign territory, may be made liable for liens to which the laws of that country subject them; and I presume it will scarcely be denied, that for repairs done in this state to the public armed vessel of a foreign prince, she may be proceeded against in the admiralty, by the ship carpenter and material men, in the same manner as if she were a merchant vessel. The reason of this cannot be, because the repairs were made within this state; because contracts are, in their nature, transitory. If then, public armed vessels no less than the private property, movable or immovable, of a foreign prince, being within the territories of a foreign country, are subject to the jurisdiction of its courts, not only to answer for offences but in matters of contract, it would seem to follow that the distinction which has been attempted between the public armed vessels and the private armed vessel of a foreign prince is entirely fanciful.
It was said, that to lay the arm of the law upon a public armed vessel of a sovereign prince is an act of hostility. If so, then the admitted cases, where such a vessel may be arrested and subjected to a judicial sentence, cannot be well founded in law; for it never can be allowed to courts of justice to commit acts of hostility against foreign nations. This power, in all countries, belongs to some other department of the government; and although the acts of a court may sometimes be the remote cause of a war, just or unjust, on the part of a foreign nation, yet a power to commit a direct act of hostility can never be properly lodged with that department.
If, then, the exemption of a foreign prince from the jurisdiction of the courts of a country within whose territories his property is found is not to be maintained on the ground of his personal privileges, the character of his property, or the locality of the transaction which becomes the, subject of judicial inquiry, I am at a loss for a solid ground for excluding the present case from the jurisdiction of the district court.
I am fully sensible of the delicate nature of the question which is here decided, and I feel cheered by reflecting that the error of my judgment, if I have committed one, can and will be corrected by a superior tribunal; for surely a question of such national importance as this is, ought not, and 1 hope will not rest upon the decision of this court. I can, at the same time, truly declare, that if I could be so wicked as to decide this case different from the opinion which I must sincerely entertain respecting it, my humble genius and talents would not enable me to give one single reason which my conscience or judgment could approve.
It is, therefore, adjudged, ordered, and decreed:—that the decision of the district court be reversed, and that the decree be remilted to the district court for further proceedings.
From thissentence of reversal the district attorney appealed to the Supreme Court of the United States, where the cause was fully and ably argued.
On the 2d of March 1812, the opinion of the Court, (all the Judges being present) was delivered as follows:
Marshall, C. J—This case involves the very delicate and important inquiry, Whether an American citizen can assert in an American court a title to an armed national vessel found within the waters of the United States.
The question has been considered with an earnest solicitude, that the decision may conform to those principles of the national and municipal law by which it ought to be regulated.
In exploring an unbeaten path, with few, if any, aids from precedents of written law, the court has found it necessary to rely much on general principles, and on a train of reasoning founded on cases in some degree analogous to this.
The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power.
The jurisdiction of the nation within its own territory is necessarily exclusive and absolute- It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.
All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent •f the nation itself. They can flow from no other legitimate source.
This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.
The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers.
This consent may in some instances be tested by common usage, and by common opinion, growing out of that usage.
A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.
This full and absolute territorial jurisdiction, being alike the attribute of every sovereign, and being incapable of conferring extra-territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another, and being bound by •bligations of the highest character not to degrade the dignity of bis nation by placing himself or its sovereign right within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.
This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to wave the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation.
1st. One of these is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory.
If he enters that territory with the knowledge and license of its sovereign, that license, although containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation.
Why has the whole civilized world concurred in this construction? The answer cannot be mistaken. A foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation, and it is to avoid this subjection that the license has been obtained. The character to whom it is given, and the object for which it is granted, equally require that it should be construed to impart full security to the person who has obtained it. This security, however, need not be expressed; it is implied from the circumstances of the case.
Should one sovereign enter the territory of another without the consent of that other, expressed or implied, it would present a question which does not appear to be perfectly settled,adecision of which is not necessary to any conclusion to which the court may come in the cause under consideration. If he did not thereby expose himself to the territorial jurisdiction of the sovereign whose dominions he had entered, it would-seem to be because all sovereigns implicitly engage not to avail themselves of a power over their equals, which a romantic confidence in their magnanimity has placed in their hands.
2d. A second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers.
Whatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents, or by a political fiction suppose him to be extraterritorial, and, therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides; still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of ex-territoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it.
The consent is not expressed. It is true, that in some countries,