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
Page 20 U. S. 347
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
Page 20 U. S. 348
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
Page 20 U. S. 349
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
Page 20 U. S. 350
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,
Page 20 U. S. 351
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
Page 20 U. S. 354
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
Page 20 U. S. 355
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.
