The Santissima Trinidad
20 U.S. 283

Annotate this Case

U.S. Supreme Court

The Santissima Trinidad, 20 U.S. 283 (1822)

The Santissima Trinidad

20 U.S. 283

APPEAL FROM THE CIRCUIT

COURT OF VIRGINIA

Syllabus

The commission of a public ship of a foreign state, signed by the proper authorities, is conclusive evidence of her national character.

During the existence of the civil war between Spain and her colonies, and previous to the acknowledgement of the independence of the latter by the United States, the colonies were deemed by us belligerent nations, and entitled, so far as concerns us, to all the sovereign rights of war, against their enemy.

The position that if witnesses concur in proof of a material fact, they ought to be believed in respect of that fact, whatever may be the other contradictions in their testimony, maybe true under circumstances, but should be received only under many qualifications and with great caution. If the circumstances respecting which the testimony is discordant be immaterial, and of such a nature that mistakes may easily exist and be accounted for in a manner consistent with the utmost good faith and probability, there is much reason for indulging the belief that the discrepancies arise from the infirmity of the human mind rather than from deliberate error. But where a party speaks to a fact in respect to which he cannot be presumed liable to mistake, courts are bound upon principles of law, morality, and justice, to apply the maxim, falsus in uno, falsus in omnibus.

The sending of armed vessels or of munitions of war from a neutral country to a belligerent port for sale as articles of commerce is unlawful only as it subjects the property to confiscation on capture by the other belligerent.

No neutral state is bound to prohibit the exportation of contraband articles, and the United States has not prohibited it.

In the case of an illegal augmentation of the force of a belligerent cruiser in our ports by enlisting men, the onus probandi is thrown on him, to show that the persons enlisted were subjects of the belligerent state or belonging to its service, and then transiently within the United States.

The sixth article of the Spanish treaty of 1795, applies exclusively to the protection and defense of Spanish ships within our territorial jurisdiction, and provides only for their restitution when captured within the same.

The fourth article of the same treaty, which prohibits the citizens or subjects of the respective contracting parties from taking commissions, &c., to cruise against the other under the penalty of being considered as pirates, is confined to private armed vessels, and does not extend to public ships.

Quaere whether a citizen of the United States, independently of any legislative action on the subject, can throw off his allegiance to his native country?

However this may be, it can never be done without a bona fide change of domicile, nor for fraudulent purposes, nor to justify the commission of a crime against the country or any violation of its laws.

An augmentation of force, or illegal outfit, does not affect any capture made after the original cruise, for which such augmentation or outfit was made, is terminated.

But as to captures made during the same cruise, the uniform doctrine of this Court has been that they are infected with the character of torts, and that the original owner is entitled to restitution when the property is brought into our jurisdiction.

This doctrine extends to captures by public, as well as private armed ships.

Case of the Cassius, 3 Dall. 121, commented on, and confirmed.

Case of the Exchange, 7 Cranch 116, 2 Cond. 439, distinguished from the present case.

The exemption of foreign public ships coming into our waters under an express or implied license from the local jurisdiction does not extend to their prize ships or goods captured in violation of our neutrality.

Page 20 U. S. 284

This was a libel filed by the consul of Spain, in the district court of Virginia, in April, 1817, against eighty nine bales of cochineal, two bales of jalap, and one box of vanilla originally constituting part of the cargoes of the Spanish ships Santissima Trinidad and St. Ander, and alleged to be unlawfully and piratically taken out of those vessels on the high seas by a squadron consisting of two armed vessels called

Page 20 U. S. 285

Independencia del Sud and Altravida, and manned and commanded by persons assuming themselves to be citizens of the United Provinces of the Rio de la Plata. The libel was filed in behalf of the original Spanish owners by Don Pablo Chacon, consul of his Catholic Majesty for the port of Norfolk, and as amended, it insisted upon restitution principally for three reasons: (1) that the commanders of the capturing vessels, Independencia and Altravida, were native citizens of the United States, and were prohibited by our treaty with Spain of 1795, from taking commissions to cruise against that power; (2) that the said capturing vessels were owned in the United States, and were originally equipped, fitted cut, armed and manned in the United States contrary to law; (3) that their force and armament had been illegally augmented within the United States.

A claim and answer was given in by James Chaytor, styling himself Don Diego Chaytor, in which he asserted that he was commander of the Independencia, that she was a public armed vessel belonging to the government of the United Provinces of Rio de la Plata, and that he was duly commissioned as her commander; that open war existed between those provinces and Spain; that the property in question was captured by him, as prize of war, on the high seas, and taken out of the Spanish ships Santissima Trinidad and St. Ander, and put on board of the Independencia, and that he afterwards, in March, 1817, came into the port of Norfolk with his capturing ship, where she was received

Page 20 U. S. 286

and acknowledged as a public ship of war, and the captured property, with the approbation and consent of the government of the United States, was there landed for safekeeping in the custom house store. The claimant admitted that he was a native citizen of the United States, and that his wife and family have constantly resided at Baltimore, but alleged that in May, 1816, at the City of Buenos Ayres, he accepted a commission under the government of the United Provinces, and then and there expatriated himself by the only means in his power, viz., a formal notification of the fact to the United States consul at that place. He denied that the capturing vessel, the Independencia, was owned in the United States, or that she was fitted out, equipped, or armed, or her force augmented, in the ports of the United States, contrary to law. He denied, also that Altravida was owned in the United States, or that she was armed, equipped, or fitted out in the United States, contrary to law, or that she aided in the capture of the property in question. He further asserted, that the captured property had been libeled and duly condemned as prize in the tribunal of prizes of the United Provinces at Buenos Ayres on 6 February, 1818. He denied the illegal enlistment of his crew in the United States, but admitted that several persons there entered themselves on board as seamen in December, 1816, representing themselves to be, and being, as he supposed, citizens of the United Provinces or in their service, and then transiently in the United States, and that he refused to receive citizens of this country, and

Page 20 U. S. 287

actually sent on shore some who had clandestinely introduced themselves on board.

It appeared by the evidence in the cause that the capturing vessel, the Independencia, was originally built and equipped in the port of Baltimore as a privateer during the late war between the United States and Great Britain, and was then rigged as a schooner, and called the Mammoth, and was fitted out to cruise against the enemy. After the peace, she was converted into a brig and sold by her original owners. I n January, 1816, she was loaded with a cargo of munitions of war, by her new owners, who were also inhabitants of Baltimore, and being armed with twelve guns, constituting part of her original armament, she was sent from that port under the command of the claimant, Chaytor, ostensibly on a voyage to the northwest coast of America, but in reality to Buenos Ayres. By the written instructions given to the supercargo on this voyage, he was authorized by the owners to sell the vessel to the government of Buenos Ayres if he could obtain a suitable price. She arrived at Buenos Ayres, having committed no act of hostility but sailing under the protection of the United States flag during the outward voyage. At Buenos Ayres the vessel was sold to the claimant, and two other persons, and soon afterwards, in May, 1816, assumed the flag and character of a public ship, and was understood by the crew to have been sold to the government of Buenos Ayres, and the claimant made known these facts to the crew, asserting that he had become a citizen of Buenos Ayres, and had received

Page 20 U. S. 288

a commission to command the vessel as a national ship, and invited the crew to enlist in the same service, and the greater part of them accordingly enlisted. From this period the public agents of the government of the United States, and other foreign governments at that port considered the vessel as a public ship of war, and this was her avowed character and reputation. No bill of sale to the government of Buenos Ayres was produced, but the claimant's commission from that government was given in evidence.

Upon the point of the illegal equipment and augmentation of force of the capturing vessels in the ports of the United States, different witnesses were examined on the part of the libellant, whose testimony was extremely contradictory; but it appeared from the evidence, and was admitted by the claimant that after the sale at Buenos Ayres in May, 1816, the Independencia departed from that port under his command, on a cruise against Spain, and after visiting the coast of Spain, put into Baltimore early in the month of October of the same year, having then on board the greater part of her original crew, among which were many citizens of the United States. On her arrival at Baltimore, she was received as a public ship and underwent considerable repairs in that port. Her bottom was new coppered, some parts of her hull were recaulked, part of her waterways replaced, a new head was put on, some new sails and rigging to a small amount, and a new mainyard were obtained; some bolts were driven into the hull, and the mainmast (which had been

Page 20 U. S. 289

shivered by lightning) was taken out, reduced in length, and replaced in its former station. For the purpose of making these repairs, her guns, ammunition, and cargo were discharged under the inspection of an officer of the customs, and when the repairs were made, the armament was replaced, and a report made by the proper officer to the collector, that there was no addition to her armament. The Independencia again left Baltimore in the latter part of December, 1816, having at that time on board a crew of 112 men, and on or about 8 February following, sailed from the Capes of the Chesapeake on the cruise in which the property in question was captured. During the stay of the Independencia at Baltimore, several persons were enlisted on board her, and the claimant's own witnesses proved that the number was about thirty.

On her departure from Baltimore, the Independencia was accompanied by the Altravida, as a tender or dispatch vessel. This last was formerly a privateer called the Romp, and had been condemned by the district court of Virginia for illegal conduct, and was sold under the decree of court, together with the armament and munitions of war then on board. She was purchased ostensibly for one Thomas Taylor, but immediately transferred to the claimant, Chaytor. She soon afterwards went to Baltimore, and was attached to the Independencia as a tender, having no separate commission, but acting under the authority of the claimant. Some of her guns were mounted, and a crew of about twenty-five men put on board at Baltimore. She dropped

Page 20 U. S. 290

down to the Patuxent a few days before the sailing of the Independencia, and was there joined by the latter, and accompanied her on her cruise.

The district court, upon the hearing of the cause, decreed restitution to the original Spanish owners. That sentence was affirmed in the circuit court, and from the decree of the latter the cause was brought by appeal to this Court.

Page 20 U. S. 334

MR. JUSTICE STORY delivered the opinion of the Court.

Upon the argument at the bar several questions have arisen, which have been deliberately considered by the court, and its judgment will now be pronounced. The first in the order, in which we think it most convenient to consider the cause, is whether the Independencia is in point of fact a public ship, belonging to the government of Buenos Ayres. The history of this vessel, so far as is necessary for the disposal of this point, is briefly this: she was originally built and equipped at Baltimore as a privateer during the late war with Great Britain, and was then rigged as a schooner, and called the Mammoth, and cruised against the enemy. After the peace she was rigged as a brig, and sold by her original owners. In January, 1816, she was loaded with a cargo of munitions of war, by her new owners (who are inhabitants of Baltimore), and being armed with twelve guns, constituting a part of her original armament, she was dispatched from that port under the command of the claimant on a voyage, ostensibly to the Northwest Coast but in reality to Buenos Ayres.

Page 20 U. S. 335

By the written instructions given to the supercargo on this voyage, he was authorized to sell the vessel to the government of Buenos Ayres if he could obtain a suitable price. She duly arrived at Buenos Ayres, having exercised no act of hostility, but sailed under the protection of the American flag, during the voyage. At Buenos Ayres, the vessel was sold to Captain Chaytor and two other persons, and soon afterwards she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the government of Buenos Ayres, and Captain Chaytor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres, and had received a commission to command the vessel as a national ship, and invited the crew to enlist in the service, and the greater part of them accordingly enlisted. From this period, which was in May, 1816, the public functionaries of our own and other foreign governments at that port, considered the vessel as a public ship of war, and such was her avowed character and reputation. No bill of sale of the vessel to the government of Buenos Ayres is produced, and a question has been made principally from this defect in the evidence, whether her character as a public ship is established. It is not understood that any doubt is expressed as to the genuineness of Captain Chaytor's commission, nor as to the competency of the other proofs in the cause introduced, to corroborate it. The only point is whether supposing them true, they afford satisfactory evidence of her public character. We are of opinion that they do. In general, the commission of a public ship, signed

Page 20 U. S. 336

by the proper authorities of the nation to which she belongs, is complete proof of her national character. A bill of sale is not necessary to be produced. Nor will the courts of a foreign country inquire into the means by which the title to the property has been acquired. It would be to exert the right of examining into the validity of the acts of the foreign sovereign, and to sit in judgment upon them in cases where he has not conceded the jurisdiction, and where it would be inconsistent with his own supremacy. The commission, therefore, of a public ship, when duly authenticated, so far at least as foreign courts are concerned, imports absolute verity, and the title is not examinable. The property must be taken to be duly acquired, and cannot be controverted. This has been the settled practice between nations, and it is a rule founded in public convenience and policy, and cannot be broken in upon without endangering the peace and repose, as well of neutral as of belligerent sovereigns. The commission in the present case is not expressed in the most unequivocal terms; but its fair purport and interpretation must be deemed to apply to a public ship of the government. If we add to this the corroborative testimony of our own and the British Consul at Buenos Ayres, as well as that of private citizens, to the notoriety of her claim of a public character; and her admission into our own ports as a public ship, with the immunities and privileges belonging to such a ship, with the express approbation of our own government, it does not seem too much to assert, whatever may be the private suspicion of a lurking American

Page 20 U. S. 337

interest, that she must be judicially held to be a public ship of the country whose commission she bears.

There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship, which may as well be disposed of in connection with the question already considered. It is that Buenos Ayres has not yet been acknowledged as a sovereign independent government by the executive or Legislature of the United States, and therefore is not entitled to have her ships of war recognized by our courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent without making ourselves a party to the contest, and departing from the posture of neutrality. All captures made by each must be considered as having the same validity, and all the immunities which may be claimed by public ships in our ports under the law of nations must be considered as equally the right of each, and as such must be recognized by our courts of justice, until Congress shall prescribe a different rule. This is the

Page 20 U. S. 338

doctrine heretofore asserted by this Court, and we see no reason to depart from it.

The next question growing out of this record is whether the property in controversy was captured in violation of our neutrality, so that restitution ought, by the law of nations, to be decreed to the libellants. Two grounds are relied upon to justify restitution: first, that the Independencia and Altravida were originally equipped, armed, and manned as vessels of war in our ports; secondly, that there was an illegal augmentation of the force of the Independencia within our ports. Are these grounds, or either of them, sustained by the evidence?

If the cause stood solely upon the testimony of the witnesses who have been examined on behalf of the libellants, we should have great hesitation in admitting the conclusions which have been drawn from it. The witnesses indeed speak directly and uniformly either to the point of illegal equipment or illegal augmentation of force within our ports. But their testimony is much shaken by the manifest contradictions which it involves and by declarations of facts the falsity of which was entirely within their knowledge and has been completely established in proof. It has been said that if witnesses concur in proof of a material fact, they ought to be believed in respect to that fact, whatever may be the other contradictions in their testimony. That position may be true under circumstances, but it is a doctrine which can be received only under many qualifications and with great caution. If the circumstances

Page 20 U. S. 339

respecting which the testimony is discordant be immaterial and of such a nature that mistakes may easily exist and be accounted for in a manner consistent with the utmost good faith and probability, there is much reason for indulging the belief that the discrepancies arise from the infirmity of the human mind, rather than from deliberate error. But where the party speaks to a fact in respect to which he cannot be presumed liable to mistake, as in relation to the country of his birth, or his being in a vessel on a particular voyage, or living in a particular place, if the fact turn out otherwise, it is extremely difficult to exempt him from the charge of deliberate falsehood, and courts of justice under such circumstances are bound upon principles of law and morality and justice to apply the maxim falsus in uno, falsus in omnibus. What ground of judicial belief can there be left when the party has shown such gross insensibility to the difference between right and wrong, between truth and falsehood? The contradictions in the testimony of the witnesses of the libellants have been exposed at the bar with great force and accuracy, and they are so numerous that in ordinary cases no court of justice could venture to rely on it without danger of being betrayed into the grossest errors. But in a case of the description of that before the court, where the sovereignty and rights of a foreign belligerent nation are in question and where the exercise of jurisdiction over captures made under its flag can be justified only by clear proof of the violation of our neutrality, there are still stronger reasons for abstaining

Page 20 U. S. 340

from interference if the testimony is clouded with doubt and suspicion. We adhere to the rule which has been already adopted by this Court that restitution ought not to be decreed upon the ground of capture in violation of our neutrality unless the fact be established beyond all reasonable doubt.

But the present case does not stand upon this testimony alone. It derives its principal proofs altogether from independent sources, to the consideration of which the attention of the Court will now be directed.

The question as to the original illegal armament and outfit of the Independencia may be dismissed in a few words. It is apparent that though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband, indeed, but in no shape violating our laws on our national neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemned as good prize and for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws or in the law of nations that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit and which only exposes the persons engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bona fide sale (and there is nothing in the evidence before us to contradict it), there is no pretense to say that the original outfit on the

Page 20 U. S. 341

voyage was illegal or that a capture made after the sale was for that cause alone invalid.

The more material consideration is as to the augmentation of her force in the United States at a subsequent period. It appears from the evidence, and indeed is admitted by Captain Chaytor, that after the sale in May, 1816, the Independencia sailed for Buenos Ayres under his command on a cruise against Spain, and after visiting the coast of Spain she put into Baltimore early in the month of October of the same year, having then on board the greater part of her original crew, among whom were many Americans. On her arrival at Baltimore, she was received as a public ship, and there underwent considerable repairs. Her bottom was new-coppered, some parts of her hull were recaulked, part of the waterways were replaced, a new head was put on, some new sails and rigging to a small amount, and a new mainyard was obtained, some bolts were driven into the hull, and the mainmast, which had been shivered by lightning, was taken out, reduced in length, and replaced in its former station. In order to make these repairs, her guns, ammunition and cargo were discharged under the inspection of an officer of the customs, and when the repairs were made the armament was replaced and a report made by the proper officer to the collector that there was no addition to her armament. The Independencia left Baltimore in the latter part of December, 1816, having then on board a crew of 112 men, and about 8 January following she sailed from the Capes of the Chesapeake on the cruise on which

Page 20 U. S. 342

the property in question was captured, being accompanied by the Altravida as a tender or dispatch vessel. It will be necessary hereafter to make more particular mention of the Altravida, but for the present the observations of the Court will be confined to the Independencia. It is admitted by the claimant, that during her stay at Baltimore, several persons were enlisted on board the Independencia, and his own witnesses prove that the number was about thirty.

The first observation that occurs on this part of the case is that here is a clear augmentation of force within our jurisdiction. The excuse offered is that the persons so enlisted represented themselves or were supposed to be persons in the service of Buenos Ayres. Of this, however, there is not the slightest proof. The enlistment of men being proved, it is incumbent on the claimant to show that they were persons who might lawfully be enlisted, and as the burden of proof rests on him, the presumption necessarily arising from the absence of such proof is that they were not of that character. It is not a little remarkable that not a single officer of the Independencia has been examined on this occasion. They are the persons who, from their situation, must have been acquainted with the facts, and the total omission to bring their testimony into the cause can scarcely be accounted for but upon a supposition extremely unfavorable to the innocence of the transaction.

Another observation which is drawn from the predicament of this case is that if, as the claimant asserts,

Page 20 U. S. 343

the original voyage to Buenos Ayres was a mere commercial adventure, the crew must have been composed principally of Americans or residents in our country. They enlisted at Buenos Ayres on board the Independencia as officers and seamen for the purposes of warfare, and there is no evidence in the case as to the length of time of their engagements or of the place where the crime was to terminate. Why are the documents on this subject, for documents must exist in the possession of the claimant; why are they not produced? If the cruise was to terminate at Buenos Ayres or at a specific period of time, the fact would have a material bearing on the merits of the cause. Yet though the pressure of this point must at all times have been forcibly felt, there has not up to the present moment been the slightest effort to relieve it from the darkness which thus surrounds it. Under such circumstances, the natural conclusion would seem to be that the crew were to be discharged and the cruise to terminate at Baltimore. This was their native or adopted home, the place where they first embarked on board the Mammoth and that to which most of them must be supposed solicitous to return. The conduct of the vessel indicated the same intent. She underwent general repairs, some of which could hardly be deemed of great necessity and must have been induced by the consideration that Baltimore was a port peculiarly well fitted for naval equipments. During the repairs (a period of two months), the crew were necessarily on shore, and it is scarcely to be supposed that they were held together by

Page 20 U. S. 344

any common bond of attachment or that they had so far lost the common character of seamen as not to be easily led into some other employment or enterprise, which should yield immediate profit. What proof, indeed, is there that the same crew which came to Baltimore sailed again in the Independencia on her new cruise? It is stated only as hearsay by one or two of the claimant's witnesses, who had no means and do not pretend to any means of accurate knowledge of the fact. If true, it might have been proved by the officers of the ship, by the muster roll of the crew, and by the shipping articles, and these are wholly withdrawn from the cause, without even an apology for their absence. It would certainly be an unreasonable credulity for the court under such circumstances to believe that the actual augmentation of force was not far greater than what is admitted by the party, and that there was either an innocence of intention or act in the enlistments. The Court is therefore driven to the conclusion that there was an illegal augmentation of the force of the Independencia in our ports by a substantial increase of her crew, and this renders it wholly unnecessary to enter into an investigation of the question whether there was not also an illegal increase of her armament.

If any doubt could be entertained as to the Independencia, none can be as to the predicament of the Altravida. This vessel was formerly a privateer, called the Romp, and was condemned for illegal conduct by the District Court of Virginia, and under the decree of the court was sold, together with the armament

Page 20 U. S. 345

and munitions of war then on board. She was purchased ostensibly for a Mr. Thomas Taylor, but was immediately transferred to Captain Chaytor. She soon afterwards went to Baltimore, and was attached as a tender to the Independencia, having no separate commission, but acting under the authority of Captain Chaytor. Part of her armament was mounted, and a crew of about twenty-five men were put on board at Baltimore. She dropped down to the Patuxent a few days before the sailing of the Independencia, and was there joined by the latter, and accompanied her on a cruise in the manner already mentioned. Here, then, is complete evidence from the testimony introduced by the claimant himself of an illegal outfit of the Altravida and an enlistment of her crew within our waters for the purposes of war. There is no pretense that the crew was transferred to her from the Independencia, for the claimants own witnesses admit that a few only were of this description. The Altravida must be considered as attached to, and constituting a part of the force of the Independencia, and so far as the warlike means of the latter were increased by the purchase, her military force must be deemed to be augmented. Not the slightest evidence is offered of the place or circumstances under which the enlistment of the crew took place. It consisted, according to the strong language of the testimony, of persons of all nations, and it deserves consideration that throughout this voluminous record, not a scintilla of evidence exists to show that any person on board of either vessel was a

Page 20 U. S. 346

native of Buenos Ayres. We think, then, that the fact of illegal augmentation of force by the equipment of the Altravida is also completely established in proof.

What, then, are the consequences which the law attaches to such conduct so far as they respect the property now under adjudication? It is argued on the part of the libellant that it presents a casus foederis under our treaty with Spain. The sixth and fourteenth articles are relied upon for this purpose. The former is in our judgment exclusively applicable to the protection and defense of Spanish ships within our territorial jurisdiction, and provides for the restitution of them when they have been captured within that jurisdiction. The latter article provides that no subject of Spain "shall apply for or take any commission or letter of marque for arming any ship or ships to act as privateers" against the United States or its citizens or their property from any prince or state with which the United States shall be at war, and that no citizen of the United States "shall apply for or take any commission or letters of marque for arming any ship or ships to act as privateers" against the King of Spain or his subjects or their property from any prince or state with which the said King shall be at war. "And if any person of either nation shall take such commission or letter of marque, he shall be punished as a pirate." In the Spanish counterpart of the treaty, the word "privateers" in the first clause has the corresponding word "corsarios," but in the second clause, no such word is to be found. But it is obvious

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that both clauses were intended to receive and ought to receive the same construction, and the very terms of the article confine the prohibition to commissions, &c., to privateers. It is not for this Court to make the construction of the treaty broader than the apparent intent and purport of the language. There may have existed and probably did exist reasons of public policy which forbade an extension of the prohibition to public ships of war. It might well be deemed a breach of good faith in a nation to enlist in its own service an acknowledged foreigner, and at the same time subject him by that very act and its own stipulations to the penalties of piracy. But it is sufficient for the Court that the language of the treaty does not include the case of a public ship, and we do not perceive that the apparent intention or spirit of any of its provisions justifies such an interpolation. The question, then, under the Spanish treaty may be dismissed without further commentary.

This view of the question renders it unnecessary to consider another which has been discussed at the bar respecting what is denominated the right of expatriation. It is admitted by Captain Chaytor in the most explicit manner that during this whole period, his wife and family have continued to reside at Baltimore, and so far as this fact goes it contradicts the supposition of any real change of his own domicile. Assuming for the purposes of argument that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to his native country, as to which we give no

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opinion, it is perfectly clear that this cannot be done without a bona fide change of domicile under circumstances of good faith. It can never be asserted as a cover for fraud or as a justification for the commission of a crime against the country or for a violation of its laws when this appears to be the intention of the act. It is unnecessary to go into a further examination of this doctrine, and it will be sufficient to ascertain its precise nature and limits when it shall become the leading point of a judgment of the Court.

And here we are met by an argument on behalf of the claimant that the augmentation of the force of the Independencia within our ports is not an infraction of the law of nations or a violation of our neutrality, and that so far as it stands prohibited by our municipal laws, the penalties are personal, and do not reach the case of restitution of captures made in the cruise during which such augmentation has taken place. It has never been held by this Court that an augmentation of force or illegal outfit affected any captures made after the original cruise was terminated. By analogy to other cases of violations of public law, the offense may well be deemed to be deposited at the termination of the voyage, and not to affect future transactions. But as to captures made during the same cruise, the doctrine of this Court has long established that such illegal augmentation is a violation of the law of nations as well as of our own municipal laws, and as a violation of our neutrality, by analogy to other cases, it infects the captures subsequently made with the character

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of torts, and justifies and requires a restitution to the parties who have been injured by such misconduct. It does not lie in the mouth of wrongdoers to set up a title derived from a violation of our neutrality. The cases in which this doctrine has been recognized and applied have been cited at the bar, and are so numerous and so uniform that it would be a waste of time to discuss them or to examine the reasoning by which they are supported, more especially as no inclination exists on the part of the Court to question the soundness of these decisions. If indeed the question were entirely new, it would deserve very grave consideration whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons or in any other manner than a direct intervention of the government itself. In the case of a capture made within a neutral territorial jurisdiction, it is well settled that as between the captors and the captured, the question can never be litigated. It can arise only upon a claim of the neutral sovereign asserted in his own courts or the courts of the power having cognizance of the capture itself for the purposes of prize. And by analogy to this course of proceeding, the interposition of our own government might seem fit to have been required before cognizance of the wrong could be taken by our courts. But the practice from the beginning in this class of causes, a period of nearly 30 years, has been uniformly the other way, and it is now too late to disturb it. If any inconvenience should grow out of it from reasons of state policy or executive discretion, it is competent

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for Congress to apply at its pleasure the proper remedy.

It is further contended by the claimant that the doctrine heretofore established has been confined to cases of captures made by privateers, and that it has never been applied to captures by public ships, and in reason and policy ought not to be so applied. The case of The Cassius, in 3 Dall. 121, has been supposed at the bar to authorize such an interpretation of the doctrine. That was the case of a motion for a prohibition to the district court to prohibit it from exercising jurisdiction on a libel filed against the Cassius, a public armed ship of France, to obtain compensation in damages in rem for an asserted illegal capture of another vessel belonging to the libellants on the high seas and sending her into a French port for adjudication as prize. The libel alleged that the Cassius was originally equipped and fitted for war in a port of the United States contrary to our laws and the law of nations. But there was no allegation that she had been originally fitted out by her present commander or after she became the property of the French government. The principal question was whether our courts could sustain a libel for compensation in rem against the capturing vessel for an asserted illegal capture as prize on the high seas, when the prize was not brought into our ports, but was carried into a port infra praesidia of the captors. The court granted the prohibition, but as no reasons were assigned for the judgment, the only ground that can be gathered is that which is apparent on the face of the writ of prohibition,

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where it is distinctly asserted that the jurisdiction in cases of this nature exclusively belongs to the courts of the capturing power, and that neither the public ships of a nation nor the officers of such ships are liable to be arrested to answer for such captures in any neutral court. The doctrine of that case was fully recognized by this Court in the case of The Invincible, 1 Wheat. 238, and it furnishes a rule for the exemption of a public ship from proceedings in rem in our courts for illegal captures on the high seas in violation of our neutrality, but in no degree exempts her prizes in our ports from the ample exercise of our jurisdiction.

Nor is there in reason or in policy any ground for a distinction between captures in violation of our neutrality by public ships and by privateers. In each case, the injury done to our friend is the same; in each the illegality of the capture is the same; in each the duty of the neutral is equally strong to assert its own rights and to preserve its own good faith and to take from the wrongdoer the property he has unjustly acquired and reinstate the other party in his title and possession which have been tortiously divested. This very point was directly asserted by this Court in its judgment in the causes of the Invincible. MR. JUSTICE JOHNSON there said:

"As to the restitution of prizes made in violation of neutrality, there could be no reason suggested for creating a distinction between the national and the private armed vessels of a belligerent. Whilst a neutral yields to other nations the unobstructed exercise of their sovereign or belligerent rights, her own dignity and security

Page 20 U. S. 352

require of her the vindication of her own neutrality and of her sovereign right to remain the peaceable and impartial spectator of the war. As to her it is immaterial in whom the property of the offending vessel is vested. The commission under which the captors act is the same, and that alone communicates the right of capture, even to a vessel which is national property."

We are satisfied of the correctness of this doctrine, and have no disposition to shake it. In cases of violation of neutral territorial jurisdiction, no distinction has ever been made between the capture of public and private armed ships, and the same reason which governs that applies with equal force to this case.

An objection of a more important and comprehensive nature has been urged at the bar, and that is that public ships of war are exempted from the local jurisdiction by the universal assent of nations, and that as all property captured by such ships is captured for the sovereign, it is, by parity of reasoning, entitled to the like exemption, for no sovereign is answerable for his acts to the tribunals of any foreign sovereign.

In the case of The Exchange, 7 Cranch 116, the grounds of the exemption of public ships were fully discussed and expounded. It was there shown that it was not founded upon any notion that a foreign sovereign had an absolute right, in virtue of his sovereignty, to an exemption of his property from the local jurisdiction of another sovereign when it came within his territory, for that would be to give him sovereign power beyond the limits of his own empire.

Page 20 U. S. 353

But it stands upon principles of public comity and convenience, and arises from the presumed consent or license of nations, that foreign public ships coming into their ports and demeaning themselves according to law and in a friendly manner shall be exempt from the local jurisdiction. But as such consent and license is implied only from the general usage of nations, it may be withdrawn upon notice at any time without just offense, and if afterwards such public ships come into our ports, they are amenable to our laws in the same manner as other vessels. To be sure, a foreign sovereign cannot be compelled to appear in our courts or be made liable to their judgment so long as he remains in his own dominions, for the sovereignty of each is bounded by territorial limits. If, however, he comes personally within our limits, although he generally enjoy a personal immunity, he may become liable to judicial process in the same way and under the same circumstances as the public ships of the nation.

But there is nothing in the law of nations which forbids a foreign sovereign, either on account of the dignity of his station or the nature of his prerogative, from voluntarily becoming a party to a suit in the tribunals of another country or from asserting there any personal or proprietary or sovereign rights which may be properly recognized and enforced by such tribunals. It is a mere matter of his own good will and pleasure, and if he happens to hold a private domain within another territory, it may be that he cannot obtain full redress for any injury to it except through the instrumentality of its courts of justice. It may therefore

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be justly laid down as a general proposition that all persons and property within the territorial jurisdiction of a sovereign are amenable to the jurisdiction of himself or his courts, and that the exceptions to this rule are such only as by common usage and public policy have been allowed in order to preserve the peace and harmony of nations and to regulate their intercourse in a manner best suited to their dignity and rights. It would indeed be strange if a license implied by law from the general practice of nations for the purposes of peace should be construed as a license to do wrong to the nation itself and justify the breach of all those obligations which good faith and friendship, by the same implication, impose upon those who seek an asylum in our ports. We are of opinion that the objection cannot be sustained, and that whatever may be the exemption of the public ship herself and of her armament and munitions of war, the prize property which she brings into our ports is liable to the jurisdiction of our courts for the purpose of examination and inquiry, and if a proper case be made out, for restitution to those whose possession has been divested by a violation of our neutrality, and if the goods are landed from the public ship in our ports by the express permission of our own government, that does not vary the case, since it involves no pledge that if illegally captured, they shall be exempted from the ordinary operation of our laws.

The last question which has been made at the bar on which it is necessary to pronounce an opinion is as to the effect of the asserted condemnation of the

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property in controversy at Buenos Ayres during the pendency of this suit. Assuming for the purpose of argument that the condemnation was regularly made and is duly authenticated, we are of opinion that it cannot oust the jurisdiction of the court after it had once regularly attached itself to the cause. By the seizure and possession of the property under the process of the district court, the possession of the captors was divested, and the property was emphatically placed in the custody of the law. It has been since sold by consent of the parties under an interlocutory decree of the court, and the proceeds are deposited in its registry, to abide the final adjudication. Admitting, then, that property may be condemned in the courts of the captor while lying in a neutral country (a doctrine which has been affirmed by this Court), still it can be so adjudicated only while the possession of the captor remains, for if it be divested in fact or by operation of law, that possession is gone which can alone sustain the jurisdiction. A fortiori, where the property is already in the custody of a neutral tribunal and the title is in litigation there, no other foreign court can, by its adjudication, rightfully take away its jurisdiction or forestall and defeat its judgment. It would be an attempt to exercise a sovereign authority over the court having possession of the thing, and take from the nation the right of vindicating its own justice and neutrality.

Upon the whole, it is the opinion of the court that the decree of the circuit court be

Affirmed with costs.

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