1822. The Santissima Trinidad. regular means of knowing how far he approves of what has been done by his officers. But, upon remonstrance and diplomatic discussion, the whole affair may be heard, 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 tribunal. Mr. 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 a The Anne, 3 Wheat. Rep. 435. 1822. The the condemnation in the tribunal of prizes at Buenos Ayres precluded the Courts of this country from inquiring into the legality of the capture. 3. That Santissima 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 Trinidad. 1822. The Santissima Trinidad. neutral state itself, that its powers be legitimately exercised by those only to whom they have been confided 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 1822. The Trinidad. traverse, must be decided in some way; and so his sovereignty denied by judicature. Neither can he plead in abatement, or any dilatory exception; for Santissima he may be decreed to answer over. Neither may he protest; for the question cannot be raised by a naked protest; and if he couples his protest with an answer, if he does not so overrule his protest, his answer leaves him as before. If he adopts the practice pursued in the case of the Cassius, and suggests his exemption upon the record, he will be met, as in that case, by a replication to his suggestion, and it becomes a mere plea in abatement; for whatsoever one party may affirm, the other may deny. These are the only known modes of defence, and none of them can the foreign sovereign adopt, without abandoning the exemption claimed for him by the argument. What then must he do? He must not defend himself in judicature at all. He must apply to the sovereign of that tribunal where his rights are drawn in question, and refer to his accountability. This sovereign, if he sees fit, will suggest for him; if he does not, he will refuse to do so, and meet the consequences. To a suggestion coming from this quarter there can be no replication; for he who makes it is no party in interest. Nor is proof necessary to establish it; for it comes duly authenticated. Such was the course pursued in the memorable case of the Exchange, where a suggestion of the sovereign rights the Em United States v. Peters, 3 Dall. 123. b7 Cranch, 116. 1822. peror Napoleon was made by the executive government; although proof of the commission of the Santissima commander of the vessel was unnecessarily super The Trinidad. added. This is the only proper mode in which the matter of sovereign right can, duly and orderly, be set before the Court. It avoids all the technical difficulties of pleading and practice, and places the matter where, according to the argument, it ought to rest, with the sovereign. This course has not, however, been adopted here; and therefore the Court will not take judicial cognizance of the fact of sovereign right, involved in the determination of the cause: and the argument insisted on, even if abstractly true, has no application to the cause, as presented upon the record. The matter is reduced to a mere question of practice, settled by the form of the pleadings, which it is now too late to amend. Suppose, however, it were res integra. The Court must contrive some proper form in which subjects of this sort may be brought before it. In adjusting this form, it is a sound and a safe rule to be followed, to attain the object by known, rather than by untried means; to adhere to ancient forms, as far as may be done; and, if possible, to alter nothing. If this be so, whatever may be the rule adopted by the Court, the case will still be found exposed to the objection before stated for the record will not show any information derived from our sovereign, but the very reverse. It is only important then to examine the question, whether the information of the sovereign or executive government be the proper and only |