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1822. 3. But the claimant, in the case now before the
v^^^w/ Court, had ceased to be a citizen, before he accepted
Th(! L • • J L • •
Santissima the commission, and made the capture in question. 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.6
a 5 Wheat. Rep. Appx- note HI. 130. b Wheat. Dig. Cat. lit. Prize, IV".
4. This capture being made by a public ship, 1822. which has come into our ports, together with her V-^7W/ prize goods, under the express permission of our go- ^ntis^a vernment, 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 coronce, 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 coronce, 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 men for this purpose, are not presumed to be made with the assent of the belligerent sovereign, and are not to be imputed to him.6 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 1822. regular means of knowiug how far he approves of
what has been done by his officers. But, upon reSantisslma monstrance and diplomatic discussion, the whole Tnmdad. affair ^^y De neard, and remedies applied fit for the occasion. Judicial decision, if it can interfere at all, is inflexible; and when the fact is established, must make entire restitution of the captured property, however insignificant may be the augmentation of force by neutral means. Besides, it is bringing into judgment the highest concerns of nations to be determined by the testimony of the basest of mankind. The enlistment of a single seaman on board a single ship of a large squadron, may draw after it the restitution of a whole enemy's fleet. The only safe course then is, to leave matters of this sort to negotiation, or at least not to take cognizance of them in Courts of justice, unless upon the application of the offended state, as in the analogous case of a capture within neutral territory."
5. But, at all events, the condemnation of the prize goods, which took place at Buenos Ayres, in a Court of the captor, is conclusive to preclude this Court from taking jurisdiction of a question which has already been determined in a competent tribu
JVJr- Tazewell, contra, stated, that three principal errors were alleged by the appellant in the decrees of the Courts below: 1. That the facts assumed by those Courts did not warrant the decrees. 2. That
o The Anne, 3 meat. Rep. 435.
the condemnation in the tribunal of prizes at Bnenos 1822.
Ayres precluded the Courts of this country from in- ^^T^"/
quiring into the legality of the capture. 3. That Santissima „ , 1 • 1 L • Trinidad,
our Courts have no authority to make that inquiry
because the facts of the case involve the sovereign
rights of an independent state.
As to the first objection, it is not necessary to discuss it until the last is disposed of. Jurisdiction must be shown to exist, before its rightful exercise can be proved. He would, therefore, invert the order of the argument, and examine the last mentioned proposition before the others. It would be shown to be the only question of real difficulty in the cause.
The argument on this proposition concedes to the neutral sovereign, or state, the very right which it denies to the neutral judiciary. Now, to the belligerent sovereign, the effect is precisely the same, whether the interference with his rights be by the executive and legislative departments, or by the judi- . ciary alone. In either case his rights are examined into, and he may be deprived of them. To the neutral state, also, the effect is the same in both cases, so far as foreign states are concerned; since, in both, the nation is equally responsible for the act done. It is no answer to the reclamation of a foreign sovereign to say, that he has been injured by the judiciary only. To him all the departments of the government make but one sovereignty. This is represented by the executive, of which the judiciary is regarded but as an emanation. It may be, and undoubtedly is, a matter of great moment to the
J 822. neutral state itself, that its powers be legitimately ex^-*~v»*' ercised by those only to whom they have been conSantisslma fided by the municipal constitution. But this is a mere domestic inquiry, in which no foreign state has any concern, nor ought to be permitted to enter. Is it not strange, then, that it should now be presented to us in a litigation between two foreign subjects?
The question being raised, however, it must be discussed; not for the sake of the parties, but of the Court itself. Let us then concede what the argument asserts, and it has no application to the cause. For justice is blind, and knows not of the existence of the sovereign, or of his rights, until made manifest by its own record. Nor will it notice even what its own record may disclose, unless the matter be therein duly and orderly set forth, i. e. by proper parties—in proper time—and in proper form. How, then, is this fact of sovereign right to be duly and orderly disclosed, so as to be made manifest to the Courts of justice, and to shut the judicial eyes to every other fact in the cause? This, although apparently a mere technical question, is one of great importance, especially on account of the practice which has been hitherto pursued by the Courts of the United States in cases of this sort. And at the very threshold of the inquiry it is plain, that the sovereign who denies the authority of the Court to decide, must not answer. If he does, he voluntarily submits to, nay, invites the exercise of the very authority which he denies can be exerted. His averments, too, may be traversed, and issue being joined on the