
    NAPOLEON COLLINS ET AL. vs. THE STEAMER FLORIDA.
    In Prize. —
    No. 229.
    The rebel cruiser Florida, while anchored in the neutral port of Bahia was captured by a war vessel of the United States, and brought into Hampton Roads by a prize-crew, where she was accidentally sunt; - Brazil demanded and received satisfaction from the United States for this violation of her neutrality; and this circumstance, in connection with the illegality of the seizure, was held to conclude the rights of the captors, and that she could not be condemned as prize.
    STATEMENT OF THE CASE.
    The confederate cruiser Florida was captured on the morning of the 7th of October, 1864, by the United States war-steamer Wachusett, Commander Collins, under the following circumstances :
    The Florida, being in the bay of San Salvador, and within the port of Bahia, was placed under the protection of the guns of the Brazilian corvette D. Jaunana, and her presence there was the subject of official correspondence between the United States consul and the Brazilian government, and the latter formally protested against any interference with the Florida. Notwithstanding this protest, the Wachusett steamed for the Florida, “ struck her starboard quarter, cutting down her bulwarks, and carrying away her mizzenmasts and her main yards.” A few shots having been exchanged, she was captured and brought to Hampton Roads, where she sprang a leak, and accidentally sunk, on the 28th of November, 1864, off Newport News.
    The Brazilian government immediately demanded restoration as well as satisfaction for the violation of its neutrality. In reply to that demand, the Secretary of State for the United States answered, on the 26th of December, 1864, among other things, as follows:
    “ The President disavows and regrets the proceedings at Bahia. He will suspend Captain Collins and direct him to appear before a court-martial. * * * The consul at Bahia will therefore be dismissed. The flag of Brazil will receive from the United States Navy the honors customary in the intercourse of friendly maritime powers.”
    This official apology and disavowal of the acts of Commander Collins stated the grounds upon which it was made, as follows: “ The answer now given rests exclusively upon the ground that the capture of the Florida was an unauthorized, unlawful, and indefensible exercise of the naval force of the United States within a foreign country, in defiance of its established and duly-recognized government.”
    In their diplomatic correspondence this Government also declared that they would have promptly returned* the Florida to the harbor of Bahia had she not been accidentally sunk while lying at anchor in Hampton Boads a few days after her arrival there. The United States consul at Bahia, who was implicated, was recalled; and Commander Collins was suspended and sent before a court-martial; and a salute was made to the Brazilian flag by a United States war-vessel in the port of Bahia, where her neutrality had been violated.
    On the 18th of August, 1862, the Secretary of the Navy issued general instructions to commanders and others for their guidance in the then pending war, which contained the following orders : “ You will exercise strict vigilance to prevent supplies of arms, munitions, and contraband of war from being conveyed to the insurgents, but under no circumstances will you seize any vessel within the waters of a friendly nation.”
    On the 24th of April, 1S71, the libelant, Napoleon Collins, ■commodore in the Navy of the United States, on behalf of himself and the officers and crew of the Wachusett, filed his ■ libel in the district court of the District of Columbia, in admiralty, praying that court “to condemn the said rebel steamer Florida, her tackle, apparel, and armament, and the value thereof, as good and lawful prize.”
    On the 3d of June, 1873, the district attorney, on behalf of the United States, moved the court to dismiss the libel for several reasons not necessary to state, as the motion to ■dismiss was overruled, and the district attorney of the United States then answered the libel and presented a number of objections to this procedure; as, for instance, that the Florida was not brought into the proper court for adjudication; that the evidence to acquit or condemn must, in the flrst instance,. come from the papers and crew of the captured vessel; and until that is done, or proper excuse for not doing it has been furnished, there is no proper showing for the introduction of secondary proof. That there is no res, the property having been totally lost before it was brought in for adjudication,, and that the explanation of the long delay and of the failure to comply with the law of prize is that it was well understood that there was no lawful prize.
    But the conclusion reached by the court renders a. fuller statement of these objections unnecessary, as the case was disposed of on another ground, viz, that the capture was unlawful, having been made within the waters of Brazil,, a neutral and friendly power. It is proper also to state that the safe of the Florida, containing gold, was captured on board, and the proceeds, amounting- to $20,399.43, were distributed among the officers and crew of the Wachusett by virtue of the seventh section of the act of July 28, 1866.
    On the 2d of June, 1875, the district court decreed “that the steamer Florida, her armament, tackle, and apparel, be, and hereby is, declared good and lawful prize to the United States of America; that the libelants are the captors, as set forth in the said libel, and entitled to participate in the proceeds as shall be hereafter ordered.”
    And from this an appeal has been taken to the genera! term.
    
      B. F. Butler, of Massachusetts, William F. Chandler, and Frank W. Hackett for libelants:
    The alleged violation of the neutrality of Brazil is no defense to this' libel. This is an objection which the neutral' nation alone can interpose. The Lillie, 2 Sprague, 177; The Sir William Peel, 5 Wall., 517; The Adela, 6 Wall., 266.
    In The Anna, 3 Wheat., 435, it was held that even a consul, unless specially authorized by his government, cannot interpose a claim of violated sovereignty. The Sancta Trinita, cited in a note to The Anna, shows that the French law is like the English and American in this particular.
    
      During the Crimean war, English armed ships seized certain Russian merchantmen lying in the neutral port of Libau, Prussia. The prizes, not being fit to make the voyage to. England, were taken to Memel, where they remained to await the decision of the court. There were no papers and no prisoners. The Queen’s advocate moved to condemn the vessels and decree their sale in Memel, stating that an intimation had been received from the Prussian government that no objection would be made, provided they were sold by private-contract, without being advertised or put up at auction. While expressly disclaiming to cr eate a precedent for the condemnation of a prize while lying in a neutral port, the court said the case was exceptional and pec uliar.
    
      The Polka, 1 Spink, 447.
    But it is objected that the Florida was captured in direct violation of the orders of the Secretary of the Navy, and that her capture was therefore illegal and void. To distribute the proceeds of the sale of this vessel as prize would be to reward officers for disobedience of orders.
    The orders of the Secretary are mere re gulations for the discipline of the Navy. Their violation subjects the offender to a court-martial. “ If the sovereign should, by a special order, authorize the capture of neutral property for a cause manifestly unfounded in the law of nations, it would afford a complete justification of the captors in all tribunals of prize.” Story, J., in Maisonnaire vs. Keating, 2 Gall., 325. But the orders of the Secretary of the Navy can go no further than, international law itself in stamping the capture with illegality. Commander Collins was found guilty by a court-martial of disobeying the orders of the Secretary. The sentence of dismissal was not approved by the Secretary. So-long as Brazil was satisfied, the Navy Department and the country were glad the' capture was made. This alleged violation of the orders of the Department cannot be set ups therefore, except by the Brazilian government. It is only another form of insisting that neutral rights were invaded.
    This objection is completely removed by the action of Congress upon the 2Sth of July, 1868. By the seventh section of' the civil appropriation act of that date, it was enacted as. follows: That the Secretary of the Navy be, and he is hereby authorized to dispose of the property saved from the rebel steamer Florida, aud distribute the proceeds thereof as other prize-money is required by law to be distributed.”
    
      H. H. Wells, district attorney, for the United States:
    This seizure was unauthorized and illegal, because, in the •first instance, it was in violation of the law of nations, by which all belligerents are governed. All captures made by armed vessels stationed in a bay or river, or in the mouth of a river, or iu the harbor of a neutral state, for the purpose of •exercising the right of war from this station, are absolutely illegal and void. Lawrence’s Wheaton, 716, note 216. The Vrow Anne Katherina, 5 Robinson’s Admr,, 15 ; The Anne, 3 ib., 373; The Two Gebroders, ib., 162; Halleck’s Int. Law, 520; 1 Kent’s Com., 120; 3 Philli. Int. Law, sec. 154; Manning’s Law of Nations, 186, 386.
    This seizure was illegal, in the next place, because it was not only in violation of the law of nations, but it was also forbidden by the general laws and regulations of the United States, and especially was it iu violation of the particular-orders and instructions, before referred to, given by! the Secretary of the Navy, on August IS, 1862, for the government of all officers and the crews of ships in the naval service of the United States.
    “ You will exercise strict vigilance to prevent supplies of arms, munitions, and contraband of war from being conveyed to the insurgents, but under no circumstances will you seise any vessel within the waters of a friendly nation]' was the emphatic language and the authoritative order legally issued by the superior of the libelants in this case.
    It will not do, in reply, to say that this order of the Secretary of the Navy was a mere regulation for the discipline •of the Navy, for there was no law of nations, nor any law of the United States, authorizing this capture, nor does the view presented by the libelant in the fourth subdivision of his brief find any support in the language used by Mr. Justice Story in Maisonnaire vs. Keating, 2 Gall., 335; for while it is undoubtedly true that an order of the sovereign, manifestly unwarranted, would afford protection to the captors, here there was no order, direction, or authority given by the Government of the United States, or any authorized officer of it, to make this illegal and unauthorized seizure. There was, however, an unlawful seizure, made in violation of orders, •and the wrong-doer is claiming bounty of his government for such violation.
    This claim receives no support whatever from section 7 of the act of July 28,1866. That section did not relate or in any way have reference to the maintenance of any action or suit for prize. It simply authorized the Secretary of the Navy to •distribute the proceeds of the gold taken from the Florida as prize-money in a case of prize is lawfully distributed. In other words, it was an act of grace, a gratuity, and not a right which the captors could command at law; on the contrary, if a libel for prize could have been maintained, then the act was unnecessary.
   By the Court :

The justices who heard this case are unanimously of'opinion that the steamer Florida cannot be condemned as lawful prize. It is admitted that she was captured within the jurisdiction of the government of Brazil, then a neutral and friendly power. The capture was-therefore illegal; and that government having demanded indemnity and restitution, and the authorities of the United States having acknowledged the wrong and made satisfactory reparation, that circumstance has concluded all rights of captors, and there the matter ought to rest.

The decree beíow must be reversed and the libel dismissed.  