1822. The Trinidad. a commission to command the vessel as a national ship; and invited the crew to enlist in the same serSantissima vice; 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 cruize 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 water ways 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 1822. The Trinidad. shivered by lightning) was taken out, reduced in length, and replaced in its former station. For the. purpose of making these repairs, her guns, ammuni- Santissima tion, 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 the 8th of February following, sailed from the Capes of the Chesapeake on the cruize 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 despatch 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 Balti-. more, 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 twentyfive men put on board at Baltimore. She dropped 1822. down to the Patuxent a few days before the sailing of the Independencia, and was there joined by the Santissima latter, and accompanied her on her cruize. The Trinidad. Feb. 28th. 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. Mr. Winder, for the appellant, (1.) argued upon the facts to show that there had been no such illegal outfit or augmentation of the force of the capturing vessel in our ports, as would entitle the original Spanish owners to restitution of the captured property, on the ground of a violation of our neutrality by the captors. 2. He argued that even supposing the claimant, Chaytor, to be a native citizen of the United States, the capture was not invalidated by the circumstance of his commanding the capturing vessel. Being apublic ship of a foreign state, this Court could not, upon its own principles, inquire into her conduct further than to see that she had a regular commission, signed by the proper authorities of that state." It is perfectly consistent with the law and universal practice of nations for neutral subjects to take commissions in foreign wars. This Court has determined that an alien may command a private armed vessel a The Exchange, 7 Cranch, 116, b Vattel, Droit des Gens, l. 3. c. 2. s. 13. 14. 16. l. 3. c. 7. s. 228.230. Bynk. Q. J. Pub. l. 1. c. 22. Du Ponceau's Transl. p. 175. 1822. The Trinidad. of the United States, and cruize against their enemy, though it happens to be his own native country." So also the prize ordinance of Buenos Ayres declares, Santissima that all officers of commissioned vessels or privateers belonging to that state, although they may be foreigners, shall enjoy all the privileges of citizens, whilst thus employed." But it may be said that the Spanish treaty of 1795, renders such an act criminal, and all its consequences void, and therefore this Court cannot listen to the claim of a citizen who has thus violated the supreme law of the land. The answer to this is, that the treaty shows the idea of the contracting parties, that independently of its stipulations, their respective citizens and subjects might take commissions to cruize against each other without violating the pre-existing law of nations. The sole effect of the treaty is, to subject them to be treated as pirates by the opposite party, if it thinks fit. It excludes them from the protection of their own government, leaves them at the mercy of the opposite party, and excuses the government of the offenders from all responsibility to the other for their misconduct. They are not made pirates by the treaty, but only made liable to be considered as such by the party against whom they act. Would not the government in whose service they held commissions, have a right to retaliate, if they were treated as pirates, either by their own government, or by that a The Mary and Susan, 1 Wheat. Rep. 57. b 4 Wheat. Rep. Appx. Note II. 30. 1822. The Santissima Trinidad. against which they acted; since by the law of nations the belligerent might grant to them as foreigners, and they might accept the commissions? The treaty operates only between the contracting parties, and cannot interfere with the lawful powers and rights of other nations, under the law of nations; and between the parties, it only operates to give the belligerent, so far as the neutral contracting party is concerned, a right to treat the citizen as a pirate, without complaint from his government. It dispenses the offended party, so far as the other is concerned, from the obligation to observe the rules of civilized warfare, quoad its citizen thus implicated; but it can have no effect upon the rights of the other belligerent quoad the officer of that belligerent. The party, whose citizens or subjects they are, is not bound to treat the supposed offenders as pirates, and our Courts cannot so treat them in the absence of an act of Congress. The United States are not bound so to treat or consider them. They are simply bound to leave them to the discretion of Spain, and there the effect of the treaty stops. The prohibition of the treaty has its prescribed peril and effect, and cannot, at least judicially, be extended further. To make the treaty bind the United States to restore a prize made by one of its citizens under a commission from a foreign government would be to make a treaty stipulation between Spain and the United States operate to interfere with the undoubted rights of a third foreign power who is no party to the treaty. It would abridge and annul the effect of a commission, which, by the unquestioned law of |