nations, he had a right, within his own territory, to grant. 1822. The Trinidad. The acts of Congress to protect the neutrality of Santissima the United States have nothing to do with it, because none of them extend to, or pretend to extend to, the acceptance of a commission in a foreign country by a citizen of this. And the silence of Congress on the subject is a strong legislative exposition of the treaty; for in making provision to preserve the neutrality of the United States generally, and especially in relation to the contest between Spain and her colonies, they have not rendered criminal such acceptance of a commission, and as they have manifested a spirit of some severity on this subject, and are silent on such a case, it is strong evidence that Congress did not feel bound to add any thing to the treaty; since, if they were bound, they would have done so in obedience to this treaty obligation of neutrality as they have done in other cases. Where the law stops, the Courts of justice must stop; expressum facit tacitum cessare. The plain object of the law was, even in cases within it, to affect the offending citizen; not to affect the foreign government who employs him; or, in other words, not to authorize a judicial interference with its belligerent acts. The statute committed to the judiciary all that the legislature intended to be within their competency. The rest it reserved for national adjustment by forbearing to submit it to the judiciary. The law must be taken as it is, not expanded by inference. To put a judicial rider upon it, is to legislate. The inference which 1822. The Santissima Trinidad. would vacate a capture under the commission would be a supplement to the law, would be to legislate on a distinct subject, i. e. the effect of a belligerent act by a foreign state. The law is a restraining law, in terrorem, aimed at the citizens only. The inference deals with a third party, a sovereign state, who is not subject to our jurisdiction; and acts in a way which the law does not prescribe; for the law authorizes nothing but the punishment of the individual. If more had been intended, more would, and ought to have been done; for the whole subject was well understood from 1794, to 1819, when the last act was passed. There is no positive municipal rule giving judicial jurisdiction as to such a commission, or any commission, even within the law, with reference to the effect of restoring a prize made under it. Every belligerent state has a right to decide upon the means of annoyance, which it organizes against its enemy within its own territory. If its commission to make war can be subject to ordinary judicial question in a neutral tribunal, where it cannot be heard and cannot condescend to appear, it is not a sovereign act. But the granting such a commission is the very highest act of sovereignty, and is peculiarly above ordinary judicial control in foreign countries. The legality, the force and effect of the commission itself, must defy ordinary judicial inquiry, or the belligerent can only authorize war so far forth as neutral tribunals shall think fit to suffer it. A judicial recognition of the legality of the capture in question by a Court of prize at Buenos Ayres would undoubtedly have put the capture out of 1822. The Trinidad. reach of our Court. But the sentence of such a Court is no more a sovereign act, than the granting the commission. It does but ascertain the granting Santissima of the commission, and gives to it no new force or validity. The belligerent state is just as much answerable for the wrong done to the neutral state, if any there be, in granting the commission, after the sentence as before. A judicial sentence, in a case of prize, binds for no other reason, than that it is the act of the state to which the Court belongs. That it is a judicial sentence is of no importance. It is the sovereignty of the state, and its right of decision which gives to the sentence its conclusive character, in the view of foreign tribunals and all this applies equally to the act of granting a commission, within the territory of the belligerent. : All the cases of this class, which have been decided in this Court, turn exclusively upon the fact of an illegal equipment of the capturing vessel within our ports, except that of the Bello Corrunes, in which the judgment does indeed refer to the national character of the claimant, Barnes, as repelling his right to claim." But as the facts of that case will show that it might have been determined on the ground of the illegal equipment of the capturing vessel, without giving a construction to the treaty, or ascertaining the national character of the claimant, all that is said by the learned judge who pronounced the opinion of the Court in that case, on these subjects, may be considered as obiter dictum. a 6 Wheat. Rep. 125. 169. 1822. The 3. But the claimant, in the case now before the Court, had ceased to be a citizen, before he accepted Santissima the commission, and made the capture in question. Trinidad. He had expatriated himself, and become a citizen of Buenos Ayres, by the only means in his power, an actual residence in that country, with a declaration of his intention to that effect. This act is countenanced by the general usage of nations, and was not forbidden by any law of his own country. By the British law, not only are privateers and merchant vessels allowed to enlist foreign seamen, but the mere fact of two years service during war makes them British subjects. A resident neutral in a belligerent country is subjected to the disabilities of the country in which he resides, so far as respects the opposite belligerent, and his trade is considered liable to capture and condemnation as enemy's property. Shall he not then be entitled to the correspondent advantages of his situation? The hostile character is fixed upon him by residence even if he goes to the belligerent country, with the desire of preserving his neutral character. Shall he not then be entitled to all the advantages of that character, when it is his avowed purpose and object to acquire it? Length of time generally decides the character of the residence of a neutral to be belligerent or not: but it is taken merely as evidence of his intention, and if that intention is unequivocally manifested in any other mode, his character is instantly fixed." a 5 Wheat. Rep. Appx. note III. 130. 4. This capture being made by a public ship, which has come into our ports, together with her prize goods, under the express permission of our government, the Court cannot interfere to restore the captured property to the original owners upon the ground that the capturing vessel has committed a violation of our neutrality. The ship itself must certainly be exempt from the local jurisdiction." And if the ship be exempt, it is difficult to perceive how any other property of the same sovereign, which he has acquired and holds jure coronæ, can be subjected to the local jurisdiction by being brought into the territory under the same permission. Still less can the prizes made by a ship which is herself exempt from the jurisdiction of the local tribunals be subjected to that jurisdiction. These prizes are as much the property of the sovereign, jure coronæ, as the ships by which they are taken and brought in. The illegal augmentation of her force by the capturing vessel in our ports, cannot forfeit the immunity to which she is entitled by the law and usage of nations. Enlistments of aren for this purpose, are not presumed to be made with the assent of the belligerent sovereign, and are not to be imputed to him. It is, therefore, an offence which is not to be visited on the sovereign or his property. Reprisals cannot lawfully be made, until application to him for redress has been made. Courts of justice cannot interfere in such a case, because the sovereign cannot condescend to appear in them, and they have no a The Exchange, 7 Cranch, 116. 38 1822. The Santissima Trinidad. |