1822. The Trinidad. within the same reason, and, therefore, should fall within the same exception to the general rule. The Santissima rule, then, if true at all, must be limited as I have stated; and if so, it will not apply to the present case. It may, indeed, protect the public ship herself, but not her prize goods. These are not the regalian rights of the sovereign; they are a mere accidental, military possession, which are not indispensably necessary to maintain his faith, dignity, or security. Again; the argument which asserts exemption for sovereign rights does not confine itself to the rights of a belligerent, but equally applies to all sovereigns, whether in peace or war. But if a wrong doing sovereign may claim this exemption, what becomes of the rights of the injured sovereign? Must he submit, or hold his hand, and ask redress of the offender? Every objection which applies to the one, exists in equal effect as to the other; and if the tortfeasor may not pursue this course, he must not, by his own act, constrain the injured party to adopt it. To guard against this conflict of dignities, the public law has wisely settled the rule, that each sovereign is supreme at home; all are equal on the high seas, except in war, and then the comity of nations, and the necessity of the case, refers it to the arbitrium of the captors. But this rule of comity protects not violators of the neutral territory, within which its sovereign is supreme; for the implied pledge given to a foreign state, of exemption from the local jurisdiction, is violated the moment it infringes our laws, treaties, and sovereign rights. The fiction of extra 1822. The territoriality only applies to the peaceful observers of this implied pledge. The implication is repelled, and the pledge forfeited by abusing the rights of Santissima hospitality and asylum. This exception to the rule is recognized distinctly by the Court in the case of the Exchange, and it was upon this ground that the Court has interfered in the whole class of captures made by means of illegal armaments in our ports." The question in every one of these cases was not as to the character of the wrong doer, but as to the nature of the act done, and the locus in quo, it was committed. No inquiry was ever made whether the capturing vessel was public or private; but only whether our neutrality had been violated. And the principle to be extracted from them all is, that the neutral tribunal may properly restore any prize brought within its territory, which has been made in violation of neutral laws, or rights, or obligations. Within this principle the present case is found; and, therefore, it is not universally true, that the rights of sovereigns are exempt from judicial examination. The argument we are discussing concedes, that the injured sovereign himself may restore, although it denies the power of making restitution to his Courts. But the effect to both parties is precisely the same, whether the restitution be made by sovereign or Court, as has been already shown. Still, granting that it may be done by the sovereign only; a 7 Cranch, 116. b The Divina Pastora, 4 Wheat. Rep. 52. and cases collected in note a. Ib. p. 65. Trinidad: 1822. The Trinidad. who is sovereign here, quoad hoc? It must be the judiciary since wherever individual rights are involvSantissima ed, whether arising under war, or treaty, or municipal regulations, the judiciary in this country must decide." Where indeed no case is made upon which the judiciary can act, then the executive may interfere, as it did in the commencement of the European war in 1793, in the case of the Grange. But even here the genius of our institutions requires, that the preliminary inquiry should be made through the judiciary, which is the proper tribunal to make such examinations, in which private rights are for the most part involved. Such was the course pursued in the case of Thomas Nash alias Robbins. The parties, one of whom was the king of Great Britian, could not appear in Court; the executive acted therefore by judicial means, and the facts being judicially ascertained, it proceeded to carry into effect the treaty. If then the sovereign must submit to his co-equal sovereign, as the argument concedes, and the judiciary is invested with this portion of sovereignty, the case is clear, and the argument has no application to it. Nor does this reasoning exclude the executive action, but yields to it in every instance where no case is made adapted for judicial determination; and even where such a case is made, the executive may interpose by suggestion, by which the Court will be bound as they would by an act of the legislature in a case fit for the exertion of legislative power. α See 3 Dall. 13. b Speech of Mr. (now Chief Justice) MARSHALL, 6 Wheat. Rep. Appx. 1822. The Trinidad. But suppose the judiciary not to be sovereign as to this matter. Yet, whoever be the sovereign, as to it, he need not act directly; but may delegate his Santissima power of decision and action to another: still it is the sovereign who acts. If the executive be sovereign, this delegation is effected by suggestion, or the want of it, as the case may be. If he means that the judiciary should decide for him in a particular way, he suggests it. But if he is content to take the lead from the judiciary, and to adopt its construction, he declines to suggest. In the latter case, the judiciary acts according to the sovereign will, because he adopts theirs. In the former, the same thing is effected, for the judiciary adopt his. By this means that harmony is produced which can be effected by no other. But if it be thought that the legislature is the true sovereign, quoad hoc, then the legislative will has been distinctly expressed in the Neutrality Act of 1794, c. 226. It is in vain to contend that this statute does not apply to public or national ships. For not only are its terms sufficiently copious to embrace any ship, but their context plainly shows that they were designed to apply especially to such ships. Here the learned counsel analyzed the act, in order to show that it extended to public, as well as private armed ships; and insisted that this construction was confirmed by the consideration that both the cases were equally within the mischief intended to be provided against, which was the violation of our own territory, and of neutral relations and obligations. Nor was there any weight in the argument which 1822. The Trinidad. would confine the authority of the Court under the act to captures made within our territorial jurisdicSantissima tion. For although the 6th section expressly gives cognizance over that class of cases, the history of the law on the subject plainly proves that this was merely an affirmative position, and was not meant as an exclusion of judicial authority in other cases. The provision was meant to define the territorial jurisdiction of the Union, and to settle a supposed doubt with the Courts, which did not exist in fact. It was therefore merely declaratory of the law in that case, and could not be intended as a restriction upon the general authority of the Courts. If this were not so, what would become of the cases, occurring before this statute was passed? or of the numerous cases since decided, of captures without our limits, by means acquired within them? This series of adjudications manifestly shows that the Courts exercise their power independently of the statute, the sole effect of which is (of the 6th section at least) to recognize an existing authority in a particular case, and not to limit it to that case only. But even if this be not so, what is a capture within our waters? Is it not to all legal purposes made within our territory, when the captor is within and the prize without, the potential force being exerted within? or where the actual force is exerted without, by boats sent from within? And if so, it proceeds solely on the ground that the locus in quo is to be fixed, not by the place of seizure, which in both the supposed cases is without, but by the source from whence the exerted force proceeds. Consequently, a capture |