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But suppose the judiciary not to be sovereign as 1822. to this matter. Yet, whoever be the sovereign, as to v^^7^~/ it, he need not act directly; but may delegate his Santissinra 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 ot neutral relations and obligations. Nor was there any weight in the argument which
1822. would confine the authority of the Court under the v^^/ act to captures made within our territorial jurisdicSantissima tion. For although the 6th section expressly gives
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cognizance over that class ot 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 made actually on the high seas, by means acquired 1822. here, is a capture within our territory. ^^The*"
It is clear then, upon principle, that the property Ssmtissima even of a sovereign acquired in war, within a neutral territory, or by means therein illegally obtained, may be subjected to judicature, and restored: and this whether the prize is made by a public or a private cruizer. Nor is the dignity of sovereigns injuriously affected by such a proceeding, which being in rem, the sovereign is not constrained to defend himself before the Courts of justice, but may properly apply to the other sovereign for redress, by whose suggestion, duly made, the judiciary must be bound.
That which is thus clear upon principle is equally established by authority. In the history of transactions of this nature, it will be found, that wherever the neutral state interferes to vindicate its own neutrality, no distinction is made whether that neutrality be infringed by a public or a private ship." Both
a LeconCapt. 116. 121. 123. edit, of 1803. "In (he year 1654, a captain of a Dutch man-of-war met with an English ship at sea, running into the port of Leghorn, and seized her even when she was coming to anchor; the Duke of Tuscany complained of this to the States General, but without redress. He, however, showed his resentment of it by condemning the ship ■which had taken the Englishman." p. 121.
This book, (Lee on Captures,) which is called in the preface, "an enlarged translation of the principal part of Bynkershoek's Quccstiones Juris Publici," is in fact little more than a very poor translation of that treatise. In the original text of Bynkershoek, it by no means appears that it was a public ship which had taken the Englishman in a neutral port. His words are: " Ex faclis, quae postea inciderunt, etiam haec videntur
Vol. VII. 40
France and England restore the property of their subjects found on board of prize ships sent into their ports by the vessels of other powers, and that whether the capturing vessels are public or private." During the beginning of the war of the revolution, the prizes sent into France by the Alliance frigate were restored by the tribunals of that country, if the property of her friends. In the case of the Swedish convoy, in the English High Court of Admiralty, the crown declined proceeding against the Swedish frigates, as has been before mentioned; otherwise, Sir W. Scott declared, that he would have con
probasse Ordines Generales; quum enim anno 1654, Navarcha
demned even those public ships." But how could 1822. he, unless they were subject to judicature? It may T|)e be said, that they were regarded as qua belligerent, *gS having forfeited their neutral character by attempting a resistance to the right of search. Be it so. Then we may, vice versa, condemn a public ship, or her prizes, for unneutral conduct, by which they lose their extra-territorial character conferred on them by a fiction which ought no longer to be regarded than it subserves the purposes of justice. There are numerous examples to show that there is nothing so sacred in the rights of sovereigns as to prevent judicature from dealing with them, both directly and incidentally. In the case of Duckicorth v. Tucker, the sovereign rights of Portugal were determined by the English Court of C. B., in a private controversy between two British Admirals about prize money.* In the Canton of Berne v. The Bank of England, that state appeared as an actor in the High Court of Chancery, which had the control of the fund, which the government of Berne laid claim to, as a part of its public treasure.' As to the case of the Exchange, in this Court, it must be repeated that it does not go on any extravagant notion of the exemption of sovereign rights from judicial scrutiny; but on the ground of preserving the national faith, and that the ship entered under the pledge of an implied license which she had not forfeited by any misconduct. Had she done so, she
a 1 Rob. 377- b 2 Taunt. 33. c 9 Va. 347.