made actually on the high seas, by means acquired here, is a capture within our territory. It is clear then, upon principle, that the property 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 Lee on Capt. 116. 121. 123. edit. of 1803. "In the 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 Quæstiones 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 factis, quae postea inciderunt, etiam haec videntur 1822. The Santissima Trinidad. 1822. The Trinidad. France and England restore the property of their subjects found on board of prize ships sent into their Santissima 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 Hollandus navem Anglicam, in mari deprehensum et ad portum Liburnensem fugientem, occupasset, etiam tunc, cum navis Anglica jam funem in terram projecerat, Dux quidem Tuscia ea de re questus est ad Ordines Generales, sed nequicquam questum esse legimus. Vide tamen, an non ipse dux id postea vindicaverit; publicata nempe nave, quae opportunitatem proebuerat occupandae istius Anglicae. (Q. J. Pub. l. 1. c. viii. p. 64. Edit. Lugd. Batav. 1752.) which Mr DUPONCEAU, in his elegant and accurate translation, thus renders: "From facts which afterwards took place, the States General appear to have approved thus much; for when in the year 1654, a Dutch commander met an English vessel on the high seas, and pursued her flying into the port of Leghorn, where he took her at the moment she was coming to anchor, the Grand Duke of Tuscany complained of it to the States General, but we read that he complained in vain. He, however, afterwards, took satisfaction by condemning the Dutch vessel that had made the pursuit and occasioned the capture of the English one." Duponceau's Bynk. p. 63. a Ord. de la Mar. Art. 9. Des Prises, 15. 2 Sir L. Jenkins' Life, 780. 1822. The Trinidad. demned even those public ships." But how could he, unless they were subject to judicature? It may be said, that they were regarded as qua belligerent, Santissima 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 Duckworth 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 Ves. 347. 1822. The Santissima Trinidad. would have been condemned as unhesitatingly as the most insignificant privateer. It is only necessary to recur to the case of the Cassius, a public armed ship of the French republic, and to the words used by the Court respecting that case in the Invincible," to show that it never has recognized any distinction in this respect between public and private armed ships. The learned counsel then proceeded to examine the testimony in the cause, to show that it clearly established the fact of an illegal outfit and augmentation of force, by the capturing vessels in our ports; and, lastly, answered the argument attempted to be drawn from the alleged condemnation at Buenos Ayres, by stating, that the decree was not established in proof, and that if it were so, it could not avail as a bar to the present proceedings, as the property was at the time in the custody of our Court, and had been actually sold by consent of the claimant who now sets up the decree in the foreign tribu nal. Mr. Webster, on the same side, (1.) argued, that there was no force in the general objection set up by the captors, that the ship which made the capture being a public ship; we could not examine into her acts, because it would be to interfere with the sovereign rights of the state to which she belongs. He denied that there was any such general principle, and no book, or case, or even dictum could be found to a 1 Wheat. Rep. 253. 1822. The Trinidad. support it. Judicature deals with sovereign rights perpetually, in our Courts, in England, and in every country, and in every case where the government is Santissima a party to the suit. Is it meant that judicature cannot deal with sovereign rights, neither domestic nor foreign? All history shows the contrary. If it were so, no sovereign could come into Court. The great political powers of government, as those of peace and war cannot indeed be submitted to judicial decision; but proprietary interests, in which the public are concerned, are settled every where by the tribunals of justice, as in the familiar instances of inquests of office, and writs of intrusion. So an ejectment may be brought for the crown lands, the most favourite fief. And nothing can be more sovereign than the right of prize, jure belli; it is a great branch of the prerogative; yet every body may contest it, and the king must claim, and if he cannot make out a title he must lose it. Any jewel in any king's diadem may become the subject of judicial discussion. The extent and rights of the prerogative are discussed in every Court in England; and all the powers of this government are discussed in this Court, and in all the State tribunals. The government of the United States, and of the States, are sovereign, and cannot be sued ; but in a contest between individuals or corporations, the sovereign rights of the Union and the several States may bẹ decided. Judicature may then deal collaterally with sovereign rights, and wherever the sovereign himself is actor; wherever he brings the suit. The true pro |