I have reason to believe that the decision of the Vice-Chancellor is
regarded with some distrust in its possible bearing upon the other
proceedings against the vessels in the admiralty court. If it be once
admitted that the acts of the late rebel agents are valid to change the
property in their hands, it becomes difficult to dispute any disposition
they may have chosen to make of it. There is good reason for believing
that most of the vessels have passed through some form of transfer to
private hands. The law, however, seems to me so clear in regard to the
invalidity of any transfer of the armed vessels of a belligerent to
neutral parties that I cannot suppose any doubt will be entertained of
the decision to that extent. There may, however, be a little more
question in regard to any transfer of that class of vessels which cannot
be proved to have been absolutely employed in carrying on
hostilities.
My own opinion has been in favor of at least pressing the courts to a
clear decision in all the cases. Difficulties have been made about
proving absolute ownership in the rebel authorities, which are
characteristic of the proclivities of the profession in this kingdom.
All that I can say is, that such difficulties were not regarded as
serious by the Crown lawyers of this government, when it became
necessary to determine the character of the very dubious vessel, the
Nashville. The distrust usually perceptible in pushing any claims,
however apparently well grounded on behalf of the United States, in the
courts, has now made itself apparent to me, and impaired my confidence
in ultimate success. Nevertheless. I have felt it my duty to omit no
step on that account which the national dignity would seem to demand in
maintenance of its just rights.
[Untitled]
Vice-Chancellor Wood’s Court,
Lincoln’s Inn,
Wednesday, July 26,
1865.
|
The United States oF
America
vs.
Prioleau.
|
} |
Transcript of Mr. Tolcher’s
short-hand notes of judgment.
The Vice-Chancellor. There are one or two
points which I think are tolerably clear in this case. The first
point is with reference to the right of the United States of
America, at this moment, to the cotton subject to the agreement; I
treat it first in that way. It has scarcely been disputed on the
present argument, and could hardly be disputed at any future stage
of the inquiry, that the right is clear and distinct; because the
cotton in question is the admitted result of funds raised by a de facto government, exercising authority in
what were called the Confederate States of America—that is to say,
several of those States, which in union formerly constituted the
United States, and which now in fact constitute them, and that defacto government exercising its powers over
a considerable number of States, (more than one would be quite
enough,) raises money, be it by voluntary contribution or be it by
taxation is not of much importance. The defendant. Prioleau in
cross-examination, admits they exercised considerable power of
taxation, and with those means, and claiming to exercise that
authority, they obtained from several of the States of America funds
by which they purchased this cotton for the use of the de facto government. That being so, and that
de jacto government being displaced, I
apprehend it is quite clear the United States of America, that is to
say, the government which has been successful in displacing the defacto government, and whose authority was
usurped or displaced, or whatever term you may choose to apply to
it, the authority being restored, the United States of America stand
in reference to this cotton in the position of those who have
acquired on behalf of the citizens of the United States a public
property; because otherwise, as has been well said, there would be
nobody who could sue in respect of, or deal with, property that has
been raised, not by contribution of any one sovereign State, which
might raise a question owing to the peculiar constitution of the
union, such as if it had been raised in Virginia or Texas or in any
given State; but the cotton is the produce of levies, voluntary or
otherwise, on the members of the several States which have united
themselves into the United States of America, and which are now
under the control of the present plaintiffs, and are represented for
all purposes by the present plaintiffs. That being so, the right of
the present plaintiffs to this cotton subject to this agreement is,
I think, clear, because the agreement is an agreement purporting to
be made on behalf of the then defacto
existing government, and not by other persons. That case of the King
of the Two Sicilies and the case of the King of Spain, and other
cases of the same kind, which it is not necessary to go through,
show that whenever a government de facto has
obtained the possession of property, as a government, and for the
purposes of the government defacto, the
government which displaces it succeeds to all the rights of the
former government, and, among other things, succeeds to the property
they have so acquired.
Now I come to the second head of the question: and I confess at this
moment, as at present advised, (of course it will open to more
argument hereafter,) I do not feel much doubt on the subject,
namely, the question whether or not taking this property they must
or must not take it subject to the agreement. It appears to me at
present they must take it subject to the agreement. It is an
agreement entered into by a de facto
government, treating with persons who have a perfect right to deal
with them. I apprehend, if they had been American subjects, they
might do so. One of them, Prioleau, is not an American subject, at
least I have no evidence that he is. He is a naturalized British
subject; he would have a perfect right to deal with a defacto government, and it cannot be compared
with any one of those cases Mr. Gifford put, of persons taking the
property of another with knowledge of the rights of that other. That
is a species of argument that cannot be applied to international
cases of. this description, and for a very good reason. If so, there
would be no possibility, during the existence of a government defacto, of any person dealing with that
government in any part of the world. The courts of every country
recognize a government de facto to this
extent, for the purpose of saying, you are established defacto if you are carrying on the course of
government, if you are allowed by those whom you affect to govern to
levy taxes on them, and they pay those taxes, and contribution is
made accordingly, or you are acquiring property and are at war,
having the rights of belligerents, not being treated as mere rebels,
but having the rights of belligerents by persons who say they are
the authorized government of the country. Other nations can have
nothing to do with that matter. They say we are bound to protect our
subjects who treat with the existing government, and we must give to
those subjects in our country every right which the government de facto can give to them, and must not allow
the succeeding government to assist any right as against the
contracts which have been entered into by the government de facto, but as expressed by Lord Cranworth
in the case referred to; they must succeed in every respect to the
property as they find it, and subject to all the conditions and
liabilities to which it is subject, and by which they are bound.
Otherwise, I do not see any answer to Mr. James’s illustration, and
I do not see why there should not have been a bill filed to have the
Alabama delivered up. I do not see
[Page 448]
why, when the two vessels were in the port of
Southampton with their flags flying at the mast-head, there should
not have been a bill filed in this court to have the Alabama given
up, because on the theory of the present plaintiffs it was their
property just as much as this cotton is now. If the case had been
this, and it is the only case I can consider as making any
difference, but that difference would be fatal to the plaintiff’s
case in another point of view, if they had been a set of marauders,
a set of robbers, (as was said to be the case in the Kingdom of
Naples, truly or untruly, ) devastating the country and acquiring
property in that way, and then affecting to deal with your subjects
in England, it would not be the United States, but the individuals
who had been robbed and suffered who would come as plaintiffs. That
would be fatal to the claim of the United States as plaintiffs. The
United States could only come to claim this because it has been
raised by public contribution; and although the United States who
are now the government defacto and de jure claim it as public property, yet it
would not be public property, unless it was raised, as I have
stated, by exercising the rights of government, and not by means of
mere robbery and violence.
I confess, therefore, I have so little doubt of this agreement being
one that would be binding on the plaintiffs that I cannot act
against these gentlemen without securing to them the reasonable
benefit of this agreement, and I cannot put them under any terms
which would exclude them from the reasonable benefit of what they
are entitled to, and must be held entitled to, as, I think, at the
hearing of the cause.
As to the reasonable benefit of the agreement itself, the matter
stands thus: It is open to argument, and that is enough for the
purpose of securing the fund at the hearing; to say that the
measures of the defendant’s rights will be this, I am not precluding
it as against him at all, but merely mention it to secure the fund
in the interim; that he will be entitled only to take the expenses
of sailing the vessel, and so on, out of the gross proceeds, then he
will have to divide the surplus into moieties. One moiety of the
whole clearly belongs to the plaintiffs, (all that is very agreeable
at the hearing, and I say no more upon it at present,) and the other
moiety would have to pass to account for the purchase-money of the
eight ships; and then, of course, passing to the account of the
purchase-money of the eight ships, the plaintiffs would be entitled
to have the eight ships.
There is a clause at the end which did not escape my attention, that
he shall take the ships or such as shall remain. That does not apply
to selling them to the Brazils, or to anybody else, but to sinking
or destroying them. As I read the agreement at present, I incline to
think they were to be paid for if destroyed, that is to say, by
blockading vessels, accidents at sea, and so on.
That being so, the defendants then swearing that they are under
liabilities to the extent of £20,000, that they have actually
accepted bills for more than one-half that amount and are liable for
the rest; I do not think I ought to deal with them in respect to
that £20, 000 in any way, but I treat that as a matter which they
may put into their own pockets, subject to the possibility of their
being called on to refund, if any different view should be taken at
the hearing, or if, on taking the account, there should be found due
less than is really at this moment claimed. But, on the other hand,
with regard to the separate £40,000, divided now into two parts,
£20,000 having gone to the expenses, and the other £20,000
remaining; of that £20,000 it appears to me at present the
plaintiffs would be entitled to one-half, and if the defendants
insist on laying by the other £10,000, it can only be on the terms
of their having come with promptitude, ready to let it be
surrendered; when this money shall be raised they cannot hold both
the vessels and the money, they have got four of them and sold one,
and have been paid a great deal of money by cotton; on the others
that are afloat: it does not appear to me I could possibly leave
them in possession of the property without their giving security or
paying into court (it does not signify which) everything ultra the
£20,000.
Therefore, the proper order will be to appoint Mr. Prioleau receiver,
he having giving security for the value ultra. I think I will fix it at £20,000 at once, he either
giving security for £20,000, or undertaking on or before the 2d
November to pay £20,000 into court.
Mr. Rolt. Your honor said something about
paying into court the £20,000 ultra, what is
realized.,
The Vice-Chancellor. It is this: I assume
your property will be £40,000, and I give you £20,000 for the
present; then I appoint you receiver, you either giving security for
the £20,000, (which I assume to be the balance for the present
purpose,) or, if you prefer not giving security, undertaking to pay
it into court before the first day of Michaelmas term
Mr. Rolt. I think the first day of
Michaelmas day would be better. I will communicate with my client,
but if your honor would put it a little later than that, the cause
might be heard and disposed of in the course of Michaelmas term
Mr. Gifford. I doubt that.
The Vice-Chancellor I confess I think they
should have reasonable security until the hearing that the money
will be forthcoming, however high the house may stand. I appoint you
receiver, which makes you accountable of course; you act as receiver
under the court.
Mr. Robinson. Your honor sees that at
present there are some very heavy charges on this cotton; my client
states in his affidavit that the freight alone is £1,300 and
over.
The Vice-Chancellor. All that they take
upon them. They get the £20,000; he acts as receiver, and that will
make him at once accountable to the court. It will be without
prejudice to any question in the cause; appoint Mr. Prioleau
receiver, he giving security for
[Page 449]
£20,000; that is one alternative of the order
or undertaking on or before the 2d day of Michaelmas term to pay
£20,000 in court.
Mr. Rolt. I do not think it necessary to
settle it now; we shall give security, no doubt.
The Vice-Chancellor. I give them the option
any time before drawing up this order.
Mr. Rolt. It will be either to give
security or to pay on or before the 2d day of Michaelmas term.
The Vice-Chancellor. No, no; the order
should specify what it is to be.
Mr. Osborne. I suppose the Dock Company
will be entitled to deliver it up to the receiver.
The Vice-Chancellor. The receiver is the
receiver appointed by the court.
Mr. Rolt. Why the Dock Company was ever
made a party the United States may explain.
Mr. Druce. I can explain it in a moment; I
am told they would at once have given up the property to you, unless
we had made them parties.
Mr. Rolt. Sir, Mr. Prioleau elects to give
security for £20,000.
The Vice-Chancellor. Very well. He acts as
receiver under the court and is accountable.
Mr. Rolt. That is without prejudice to any
question, of course.
The Vtce-Chancellor. Yes, without prejudice
to any question.
Mr. Rolt. The cotton must be delivered up
to him at once.
The Vice-Chancellor. He is receiver.
Mr. Rolt. I mean he is not to wait until
the order is handed out.
Mr. Gifford. I dare say the registrar will
hand the order out at once.
The Vice-Chancellor. Mr. Rogers will give
it out as quickly as possible.
Mr. Rolt. We must have the cotton; we
undertake to give security as promptly as the plaintiffs can have
the order drawn up.
Mr. Druce. Mr. Prioleau undertakes to act
as if the order had been drawn up to-day; I have no doubt that will
be sufficient.
Mr. Rolt. Yes, certainly; Mr. Prioleau is
here and will undertake.
Mr. Robinson. And we will send word down
this very day to discharge.
The Vice-Chancellor. Yes; all who are here
present as defendants will be at liberty to deliver up to the
receiver; indeed it will be ordered to be delivered up to the
receiver.
Mr. Druce. Anybody who does not deliver to
the receiver will be attached.
Mr. Robinson. There are certain
charges.
The Vice-Chancellor. You have heard the
order of the court appointing the receiver, and you will deliver
over to him; you will look out for your own charges.
Mr. Gifford. If you hand over to the
receiver you will be indemnified, of course.
Mr. Rolt. The freight and all shipping
charges will be paid by the receiver.
Mr. Druce. We had better dismiss the Dock
Company.
The Vice-Chancellor. That you might do;
dismiss the Dock Company and pay them their costs.
Mr. Gifford. Very well; without prejudice
to how the same are ultimately to be borne.
Mr. Rolt. Without prejudice to any
question. Is it to be entered that Mr. Prioleau, being in court and
undertaking to act as if the order were now drawn up ?
The Vice-Chancellor. Yes; he undertakes to
act as if the order were already drawn up.
Mr. Gifford. That need not be put in the
order.,
Mr. Rolt. We had better indorse it on our
briefs, and then let the cotton be delivered up to him
forthwith.
The Vice-Chancellor. Yes. [At the rising of
the court: ]
Mr. Gifford. Will your honor allow me to
mention the case of the United States vs.
Prioleau. We propose, with your honor’s sanction, to dismiss the
Malcomsons and Legarde. We would merely ask, as nobody objects, to
dismiss them.
The Vice-Chancellor. There cannot be any
difficulty in that.
