The captors are competent witnesses upon an order for further
proof, where the benefit of it is extended to both parties.
The captors are always competent witnesses as to the
circumstances of the capture, whether it be joint, collusive, or
within neutral territory.
It is not competent for a neutral consul, without the special
authority of his government, to interpose a claim on account of the
violation of the territorial jurisdiction of his country.
Quaere whether such a claim can be interposed even by a
public minister without the sanction of the government in whose
tribunals the cause is pending?
A capture made within neutral territory is, as between the
belligerents, rightful, and its validity can only be questioned by
the neutral state.
If the captured vessel commence hostilities upon the captor, she
forfeits the neutral protection, and the capture is not an injury
for which redress can be sought from the neutral sovereign.
Irregularities on the part of the captors, originating from mere
mistake or negligence, which work no irreparable mischief and are
consistent with good faith will not forfeit their rights of
prize.
Page 16 U. S. 443
The British ship
Anne, with a cargo belonging to a
British subject, was captured by the privateer
Ultor,
while lying at anchor near the Spanish part of the Island of St.
Domingo on 13 March, 1815, and carried into New York for
adjudication. The master and supercargo were put on shore at St.
Domingo, and all the rest of the crew, except the mate, carpenter,
and cook, were put on board the capturing ship. After arrival at
New York, the deposition of the cook only was taken before a
commissioner of prize, and that, together with the ship's papers,
was transmitted by the commissioner under seal to the District
Judge of Maryland District, to which district the Anne was removed
by virtue of the provisions of the Act of Congress of 27 January,
1813, ch. 478.
Prize proceedings were duly instituted against the ship and
cargo, and a claim was afterwards interposed in behalf of the
Spanish consul, claiming restitution of the property, on account of
an asserted violation of the neutral territory of Spain. The
testimony of the carpenter was thereupon taken by the claimant, and
the captors were also admitted to give testimony as to the
circumstances of the capture, and upon the whole evidence the
district court rejected the claim and pronounced a sentence of
condemnation to the captors. Upon appeal to the circuit court,
peace having taken place, the British owner, Mr. Richard Scott,
interposed a claim for the property, and the decree of the district
court was affirmed,
pro forma, to bring the cause for a
final adjudication before this Court.
Page 16 U. S. 444
MR. JUSTICE STORY delivered the opinion of the Court.
The first question which is presented to the Court is whether
the capture was made within the territorial limits of Spanish St.
Domingo. The testimony of the carpenter and cook of the captured
vessel distinctly asserts that the ship, at the time of the
capture, was laying at anchor about a mile from the shore of the
island. The testimony of the captors as distinctly asserts, that
the ship then lay at a distance of from four to five miles from the
shore. It is contended, by the counsel for the claimants, that
captors, are in no cases admissible witnesses in prize causes being
rendered incompetent by reason of their interest. It is certainly
true, that, upon the original hearing, no other evidence is
admissible than that of the ship's papers, and the preparatory
examinations of the captured crew. But upon an order for further
proof, where the benefit of it is allowed to the captors, their
attestations are clearly admissible evidence. This is the ordinary
course of prize courts, especially where it becomes material to
ascertain the circumstances of the capture, for in such cases
the
Page 16 U. S. 445
facts lie as much within the knowledge of the captors as the
captured, and the objection of interest generally applies as
strongly to the one party as to the other. It is a mistake to
suppose that the common law doctrine as to competency is applicable
to prize proceedings. In courts of prize, no person is incompetent
merely on the ground of interest. His testimony is admissible,
subject to all exceptions as to its credibility. The cases cited at
the argument distinctly support this position, and they are
perfectly consistent with the principles by which courts of prize
profess to regulate their proceedings. We are therefore of opinion
that the attestations of the captors are legal evidence in the
case, and it remains to examine their credit. And without entering
into a minute examination, in this conflict of testimony, we are of
opinion that the weight of evidence is decidedly that the capture
was made within the territorial limits of Spanish St. Domingo.
And this brings us to the second question in the cause, and that
is whether it was competent for the Spanish consul, merely by
virtue of his office and without the special authority of his
government, to interpose a claim in this case for the assertion of
the violated rights of his sovereign. We are of opinion that his
office confers on him no such legal competency. A consul, though a
public agent, is supposed to be clothed with authority only for
commercial purposes. He has an undoubted right to interpose claims
for the restitution of property belonging to the subjects of his
own country, but he is not considered as a minister or diplomatic
agent of his sovereign
Page 16 U. S. 446
entrusted by virtue of his office with authority to represent
him in his negotiations with foreign states or to vindicate his
prerogatives. There is no doubt that his sovereign may specially
entrust him with such authority, but in such case his diplomatic
character is superadded to his ordinary powers, and ought to be
recognized by the government within whose dominions he assumes to
exercise it. There is no suggestion or proof, of any such
delegation of special authority in this case, and therefore we
consider this claim as asserted by an incompetent person and on
that ground it ought to be dismissed. It is admitted that a claim
by a public minister, or in his absence by a charge d'affaires in
behalf of his sovereign would be good. But in making this admission
it is not to be understood that it can be made in a court of
justice without the assent or sanction of the government in whose
courts the cause is depending. That is a question of great
importance, upon which this Court expressly reserve their opinion,
until the point shall come directly in judgment.
The claim of the Spanish government for the violation of its
neutral territory being thus disposed of, it is next to be
considered whether the British claimant can assert any title
founded upon that circumstance. By the return of peace, the
claimant became rehabilitated with the capacity to sustain a suit
in the courts of this country, and the argument is that a capture
made in a neutral territory is void, and
Page 16 U. S. 447
therefore, the title by capture being invalid, the British owner
has a right to restitution. The difficulty of this argument rests
in the incorrectness of the premises. A capture made within neutral
waters is, as between enemies, deemed to all intents and purposes
rightful; it is only by the neutral sovereign that its legal
validity can be called in question, and as to him and him only, is
it to be considered void. The enemy has no rights whatsoever, and
if the neutral sovereign omits or declines to interpose a claim,
the property is condemnable,
jure belli, to the captors.
This is the clear result of the authorities, and the doctrine rests
on well established principles of public law.
There is one other point in the case which, if all other
difficulties were removed, would be decisive against the claimant.
It is a fact that the captured ship first commenced hostilities
against the privateer. This is admitted on all sides, and it is no
excuse to assert that it was done under a mistake of the national
character of the privateer, even if this were entirely made out in
the evidence. While the ship was lying in neutral waters, she was
bound to abstain from all hostilities except in self-defense. The
privateer had an equal title with herself to the neutral
protection, and was in no default in approaching the
Page 16 U. S. 448
coast without showing her national character. It was a violation
of that neutrality which the captured ship was bound to observe, to
commence hostilities for any purpose in these waters, for no vessel
coming thither was bound to submit to search or to account to her
for her conduct or character. When, therefore, she commenced
hostilities, she forfeited the neutral protection, and the capture
was no injury for which any redress could be rightfully sought from
the neutral sovereign.
The conclusion from all these views of the case is that the ship
and cargo ought to be condemned as good prize of war. And the only
remaining inquiry is whether the captors have so conducted
themselves as to have forfeited the rights given by their
commission, so that the condemnation ought to be to the United
States. There can be no doubt that if captors are guilty of gross
misconduct or laches in violation of their duty, courts of prize
will visit upon them the penalty of a forfeiture of the rights of
prize, especially where the government chooses to interpose a claim
to assert such forfeiture. Cases of gross irregularity, or fraud
may readily be imagined in which it would become the duty of this
Court to enforce this principle in its utmost "rigor". But it has
never been supposed that irregularities, which have arisen from
mere mistake or negligence, when they work no irreparable mischief,
and are consistent with good faith, have ordinarily induced such
penal consequences. There were some irregularities in this case,
but there is no evidence upon the record from which we can infer
that there was any fraudulent
Page 16 U. S. 449
suppression, or any gross misconduct inconsistent with good
faith, and therefore we are of opinion that condemnation ought to
be to the captors.
It is the unanimous opinion of the court, that the decree of the
circuit court be affirmed with costs.
Decree affirmed.
