The seal to the commission of a new government, not acknowledged
by the government of the United States, cannot be permitted to
prove itself, but the fact that the vessel cruising under such
commission is employed by such government, may be established by
other evidence without proving the seal.
Where the privateer, cruising under such a commission, was lost
subsequent to the capture in question, the previous existence of
the commission on board was allowed to be proved by parol
evidence.
Where restitution of captured property is claimed upon the
ground that the force of the cruiser making the capture has been
augmented within the United States by enlisting men, the burden of
proving such enlistment is thrown upon the claimant and that fact
being proved by him, it is incumbent upon the captors to show by
proof that the persons so enlisted were subjects or citizens of the
prince or state under whose flag the cruiser sails transiently
within the United States in order to bring the case within the
proviso of the second section of the Act of June 5, 1794, c. 226,
and of the Act of 20 April, 1818, c. 83.
The right of adjudicating on all captures and questions of prize
exclusively belongs to the courts of the captors' country, but it
is an exception to the general rule that where the captured vessel
is brought or voluntarily comes
infra praesidia of a
neutral power, that power has a right to inquire whether its own
neutrality has been violated by the cruiser which made the capture,
and if such violation has been committed, is in duty bound to
restore to the original owner property captured by cruisers
illegally equipped in its ports.
No part of the Act of 5 June, 1794, c. 226, is repealed by the
Act of 3 March 1817, c. 58; the Act of 1794, c. 226, remained in
force until the Act of 20 April, 1818, c. 83, by which all the
provisions respecting our neutral relations were embraced and all
former laws on the same subject were repealed.
In the absence of any act of Congress on the subject, the courts
of the United States would have authority, under the general law of
nations, to decree restitution of property captured in violation of
its neutrality under a commission issued within the United States
or under an armament or augmentation of the armament or crew of the
capturing vessel within the same.
Page 17 U. S. 299
This vessel and her cargo were libeled in the District Court for
the Louisiana district by the alleged former Spanish owner.
The libel stated that he was owner of the schooner and cargo,
which sailed from Havana for the coast of Africa on 23 April, 1817;
that on the next day she was lawlessly and piratically captured on
the high seas and held as prize by an armed schooner called the
Constitution, of Venezuela, and forcibly brought within
the jurisdiction of the United States, when she was recaptured by
the United States ketch
The Surprise and conducted to New
Orleans. That the captors had no lawful commission from any
sovereign state to commit hostilities at sea, but that the said
schooner and cargo, until their recapture, were forcibly withheld
from the libellant in open violation and contempt of the law of
nations. That if they had such commission, the same was issued or
delivered within the waters and jurisdiction of the United States
with intent that the said vessel, the
Constitution, should
be employed in the service of Venezuela to commit hostilities at
sea against the subjects of the King of Spain, with whom the United
States then were and now are at peace, in violation of their laws
and of the laws of nations. The libel further stated that the
Constitution had, previously to her cruising, been fitted
out and
Page 17 U. S. 300
armed or increased or augmented in force within the jurisdiction
and waters of the United States, and also that she had been manned
by sundry citizens or residents of the United States with the
intent that she should be employed to commit hostilities as
aforesaid in violation of the laws aforesaid. For these causes, the
libellant prayed a restitution to him of the
Estrella and
cargo.
A claim was interposed by J. F. Lamoureux, prize master of the
Estrella which stated that the
Constitution was
duly commissioned by the Republic of Venezuela and authorized to
capture all vessels belonging to its enemies, under which authority
she had captured the
Estrella, which, with her cargo,
belonged to the enemies of the said republic. That before he could
receive his prize commission, the
Constitution upset in a
gale, and her commission and papers, with the greater part of the
crew, were lost. The claimant further represented that as he was
carrying the
Estrella into port to have her condemned
before a court of competent jurisdiction, she was captured by the
United States ketch
Surprise and conducted to New Orleans,
and therefore claimed that the
Estrella and cargo might be
adjudged to be restored to him.
It appeared from the transcript of the proceedings in this case
that the
Estrella was also libeled on the part of the
United States, although it was not stated for what cause such libel
was filed, but the same was dismissed, from which decree there was
no appeal.
Page 17 U. S. 301
It appeared in evidence that the
Constitution had a
commission from the government of Venezuela at the time the capture
was made which was issued and delivered at Carthagena, but that the
same was lost by the sinking of the privateer immediately after the
capture. There was some contradictory testimony as to her having
increased her armament in the United States, and it was proved,
that she had augmented the number of her crew in the port of New
Orleans.
On the libel filed by the Spanish owner, decree was made that
the claim of Lamoureux, the prize master be dismissed with costs,
and that the
Estrella and cargo be delivered up and
restored to the libellant, from which sentence the cause was
brought by appeal to this Court.
Page 17 U. S. 303
LIVINGSTON, JUSTICE, delivered the opinion of the Court.
The first allegation of the Spanish owner is that the
Constitution had no lawful commission from any sovereign
state to commit hostilities at sea, and he contends that the
commission in the present case, if any there was, being that of a
government not acknowledged by the United States, ought to have
been produced and its seal proved, or that if the vessel carrying
it had been lost, yet an exemplification of it ought to have been
obtained from the proper department of the state which issued
it.
Page 17 U. S. 304
The Court is satisfied with the proof which has been made of the
Constitution's having had a commission at the time of
making the capture, and that such commission was granted by the
government of Venezuela, and also that the same was lost with the
privateer herself a very short time after the prize crew took
possession of the
Estrella. The fact of the sinking of the
Constitution is not disputed, and that she had, at the
time she went down, a commission on board is also fully made out,
which commission there is no reason to believe was any other than
the one which the collector of New Orleans says was on board when
she arrived in that port from Carthagena. This was some time in the
month of October in the year 1816, Mr. Chew then saw the
commission, and describes it as a very regular one from the
Venezuelan republic, signed, as others were, by Bolivar. Although
the Court in another case has said, that the seal of a government,
unacknowledged, cannot be permitted to prove itself, it has in the
same case said, that the fact of a vessel's being so employed may
be established without proving the seal.
United
States v. Palmer, 3 Wheat. 635.
But if the
Constitution had a commission on board, it
is next alleged that the same was issued or delivered within the
waters of the United States with intent that she should be employed
in the service of Venezuela to commit hostilities at sea against
the subjects of the King of Spain, with whom the United States was
at peace. This allegation is not supported by any evidence;
Page 17 U. S. 305
on the contrary, the same witnesses who declare that the
Constitution was a commissioned vessel, and whose
testimony has already been adverted to, establish beyond
controversy that the same was obtained abroad, and not issued or
delivered within the United States.
The libel next alleges that the
Constitution, previous
to her last cruise, had been fitted out and armed, or that her
force had been increased or augmented, within the jurisdiction and
waters of the United States, and also, that she had there been
manned by sundry citizens or residents of the United States with
the same intent. Whatever doubt there may be as to the augmentation
of the armament of the
Constitution within the United
States, the Court is satisfied that a very considerable addition
was made to her crew, at New Orleans after her arrival at that
port; one of the custom house officers declares that at that time
she had only from twenty to twenty-five men; another of these
officers, who went on board on her first arrival, states the number
of her crew at about twenty, and a witness by the name of Guzman,
totally unconnected with this transaction, mentions by name two
persons who entered on board while she was lying there. Several of
the original crew of the
Estrella have also been examined
to this point, who state that after the capture, they had many
conversations with the officers and seamen who composed the prize
crew, by whom they were informed that the
Constitution,
when she left Carthagena, had but few hands on board; that at
New
Page 17 U. S. 306
Orleans she shipped almost the whole of her crew, which at the
time of the
Estrella's capture amounted to sixty or
seventy men. This species of testimony has been objected to as
being hearsay and proceeding from a source entitled to no great
credit. Although there may be something in this objection, it is no
reason for rejecting the evidence altogether. If the testimony be
hearsay, it must be recollected that the declarations proceeded
from persons very much interested in giving a different
representation of the transaction; and as to the witnesses
themselves, although they formed a part of the
Estrella's
crew and may have felt some little interest in the question, they
were the only persons who could give any account of the armament or
crew of the
Constitution at the time of her making the
capture. It may be also remarked that the testimony of these men is
in this respect corroborated by that of other witnesses who are
liable to no objection, and that their declarations, if untrue,
might have been disproved by the claimant by showing where and when
the crew of the
Constitution had been entered.
But if any of the crew of the
Constitution were
enlisted or entered within the jurisdiction of the United States,
they may, it is said, have been citizens or subjects of the
Republic of Venezuela who were transiently in the United States at
the time of her arrival and had, therefore, a right, within one of
the provisos of the second section of the Act of Congress of 6
June, 1794, c. 226, to enlist or enter themselves on board of her;
and it is insisted that the libellant should have shown that they
were not persons of this
Page 17 U. S. 307
description. The Court is not of this opinion. On the libellant,
in the first instance, lay the onus of showing that the crew of the
Constitution had been increased within the United States;
having done this, it became incumbent on the captors, if they
wanted to establish their innocence, to show, as was in their
power, if the fact was so, that they had done nothing contrary to
law by bringing their case within the proviso that has been
mentioned.
The allegation, then, in the libel being made out that the
Constitution, being a privateer commissioned by the
Republic of Venezuela, was manned within the United States previous
to the cruise on which she captured the
Estrella by sundry
citizens or residents of the United States, it remains to see
whether the libellant has not made out a case for restitution. It
has been attempted, but without success, to distinguish this case
in principle from several which have already been decided in this
Court. We have been told, as heretofore, that to the courts of the
nation to which the captor belongs and from which his commission
issues exclusively appertains the right of adjudicating on all
captures and questions of prize. This is not denied, nor has the
Court ever felt any disposition to entrench on this rule, but, on
the contrary, whenever an occasion has occurred, as in the case of
The
Invincible, 1 Wheat. 238, it has been governed by
it. Not only is it a rule well established by the customary and
conventional law of nations, but it is
Page 17 U. S. 308
founded in good sense, and is the only one which is salutary and
safe in practice. It secures to a belligerent the independence to
which every sovereign state is entitled and which would be somewhat
abridged were he to condescend so far as to permit those who bear
his commission to appear before the tribunals of any other country
and submit to their interpretation or control the orders and
instructions under which they have acted. It ensures also not only
to the belligerent himself but to the world at large a great decree
of caution and responsibility on the part of the agents whom he
appoints, who not only give security to him for their good
behavior, but will sometimes be checked in a lawless career by the
consideration that their conduct is to be investigated by the
courts of their own nation and under the very eye of the sovereign
under whose sanction they are committing hostilities. In this way
also is a foundation laid for a claim by other nations of an
indemnity against the belligerent for the injuries which their
subjects may sustain by the operation of any unjust or improper
rules which he may think proper to prescribe for those who act
under his authority.
But general and firmly established as this rule is, it is not
more so than some of the exceptions which have grown out of it. A
neutral nation which knows its duty will not interfere between
belligerents so as to obstruct them in the exercise of their
undoubted right to judge, through the medium of their own courts,
of the validity of every capture made under their respective
commissions, and to decide on every question of prize law which
may
Page 17 U. S. 309
arise in the progress of such discussion. But it is no departure
from this obligation if, in a case in which a captured vessel be
brought or voluntarily comes
infra praesidia, the neutral
nation extends its examination so far as to ascertain whether a
trespass has been committed on its own neutrality by the vessel
which has made the capture. So long as a nation does not interfere
in the war, but professes an exact impartiality towards both
parties, it is its duty as well as right, and its safety, good
faith and honor demand of it, to be vigilant in preventing its
neutrality from being abused for the purposes of hostility against
either of them. This may be done not only by guarding, in the first
instance, so far as it can, against all warlike preparations and
equipments in its own waters, but also by restoring to the original
owner such property as has been wrested from him, by vessels which
have been thus illegally fitted out. In the performance of this
duty, all the belligerents must be supposed to have an equal
interest, and a disregard or neglect of it would inevitably expose
a neutral nation to the charge of insincerity and to the just
dissatisfaction and complaints of the belligerent, the property of
whose subjects should not under any such circumstances be
restored.
The United States, instead of opening its ports to all the
contending parties when at peace themselves (as may be done if not
prevented by antecedent treaties), has always thought it the wisest
and safest course to interdict them all from fitting out or
furnishing vessels of war within their limits, and to punish those
who may contribute to such equipments.
Page 17 U. S. 310
To enforce a general and strict observance of this neutrality on
the part of our own citizens and of others who reside among us, a
law passed as early as the year 1794 making it penal, among other
things, for anyone within the jurisdiction of the United States to
enlist in the service of any foreign prince or state as a soldier,
marine, or seaman on board of any vessel of war, letter of marque
or privateer. This law, it is supposed, was not in force at the
time when the crew of the
Constitution was increased at
New Orleans, having been repealed, as is alleged, by the Act of 3
March, 1817, c. 58. But this act contains no repealing clause of
this or any other section of the former law, and having made no
provision on the subject of enlistment, it must have been the
intention of the legislature to leave in full force all those parts
of the first law which had undergone no alteration in the one which
was then passing, and we therefore find no repeal of the act in
question until 20 April, 1818, when all the provisions respecting
our neutral relations were embraced by one act and all former laws
on the same subject were repealed.
But whether the Act of 1794, c. 226, was in force or not would
make no difference, for it did not in terms contain, nor did any of
the others which have from time to time been passed, contain a
provision for the restitution of property captured on the ocean by
vessels which might be thus illegally fitted out or manned in our
ports. It is true they recognize a right in the courts of the
United States to make restitution when these laws have been
disregarded, and impart
Page 17 U. S. 311
to the courts a power to punish those who are concerned in such
violations. But in the absence of every act of Congress in relation
to this matter, the Court would feel no difficulty in pronouncing
the conduct here complained of an abuse of the neutrality of the
United States, and although in such case the offender could not be
punished, the former owner would nevertheless be entitled to
restitution. Nor is our opinion confined to the single act of an
illegal enlistment of men, which is the only fact proved in this
case, for we have no hesitation in saying that for any of the other
violations of our neutrality alleged in the libel, if they had been
proved, the Spanish owner would have been equally entitled to
restitution.
Sentence affirmed with costs.
