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sary and inevitable consequence of the prohibition it- 1822. self. This article cannot therefore be considered as ^^ThT merely monitory: the words are promissory; they express the undertaking of the two governments and their reciprocal duty. Nor is it confined to captures made by private armed vessels. It is true that the first clause of the article speaks of "any commission or letters of marque, for arming any ship or ships to act as privateers." But in the Spanish counterpart of the second clause, these last words que obren como corsarios are dropped, although they are retained in the English. The Spanish counterpart speaks generally of " patente para armar Algun Buque 6 Buques con el Jin de persequir los subditos de S. M. catolica" which obviously extends to public as well as private cruisers. As to our municipal laws, they are not confined to acts done within the limits of the United States. They are full of provisions making it unlawful for our citizens (without those limits) to fit out and arm, or command and enter on board of, a foreign cruizer intended to be employed against powers in amity with us." Whether, therefore, the offence in this case was committed within or without the United States, the illegal equipment or augmentation is within the statutes, and consequently the property acquired under it must be restored to the true owners.
3. What gives additional strength to this national obligation, is the fact that the claimant in the present cause, and those for whom he claims as captors,
a Act of 1797, c. I. Act of 1817, c. 58. ». 2. Act of1818, r. 83. «. 4. * 10. Vol. VII. 41
1822. are citizens of the United States, who claim a title s^^"' to property acquired in violation of the laws and Santissima treaties of their own country, in a Court of that
But it is said that the claimant, Chaytor,has ceased to be a citizen of this country by what is called an act of expatriation, (but which ought rather to be called emigration,) and has become a citizen of Buenos Ayres. Now it cannot, and certainly ought not to be denied, that men may remove from their own country in order to better their condition, or to avoid civil and religious persecution. But it does not follow that under all circumstances, and for all possible reasons, a person may shake off his allegiance to the land which gave him birth. The slavish principle of perpetual allegiance growing out of the feudal system, and this fanciful novelty of a man being authorized to change his country and his alle giance at his own will and pleasure, are both equally removed from the truth on this subject. Whatever doubtful cases may be supposed, this much may be affirmed with certainty, that there must be an actual change of the party's domicil, and that this must be done, not merely with the intention of remaining in his adopted country, but it must not be coupled with a design fraudently to evade the laws of his native country. No act whatever of a foreign government can dispense with the allegiance of a citizen, and authorize him to violate our penal code or our treaties with other nations. This is a prior, paramount obligation, which must be first fulfilled, before he assumes any new and inconsistent duties. Even if there had been, in this case, an actual bona fide change of domicil, animo manendi, so as to enti- isss. tie the claimant to all the privileges of commercial v*«-s^w inhabitancy under the lanv of prize or the revenue santissima laws, it does not follow that he can with impunity Tnmdfld-. levy war against the United States or their friends. And even if it be admitted that he might defend his adopted country, it does not follow that he may attack his native country, or those whom she is bound to protect. Can it be sufficient to legalize such an act that he has made his election, and that the foreign government has ratified it? Is it not manifest that it was done, cum dob et culpa, for no other purpose than to evade and violate our laws? In this respect, it is impossible to distinguish between the neutrality acts, and other laws, such as the statutes of treason, or any other the most intimately connected with the national safety and existence. But it is unnecessary to dwell upon this point, as it is the settled doctrine of this Court, that a citizen of the United States cannot claim in their Courts, the property of foreign nations in amity with them, captured by him in war, even if the capturing vessel be in other respects lawfully equipped and commissioned ;" and that an act of expatriation cannot be set up to justify such a capture, where the removal from his own country was with the fraudulent intent of violating its laws.*
Even admitting that foreign armed vessels may, in the absence of any express prohibition, enter our ports for the purpose of refreshment, or of making repairs, and will not thereby be subject to the local
o The Bello Cornines, 6 Wheat. Rep. 152. 169. b Talbot v. Jatison, 3 Doll. 133. U3. 164.
1822 law and judicature, it does not, therefore, follow that
^^^"^ they may make extraordinary repairs so as to be
Santissima transformed in the species. - The implied license may
Trinidad. extenci t0 a mere replacement of the original force;
but it cannot extend to such an augmentation of the force as would be inconsistent with the neutral character of the power granting the license. It cannot extend to acts done subsequent to the vessel entering the neutral port; in other words, to a violation of the license itself. The vessel may remain in the same condition as she came, but she may not increase her capacity for war by the addition of neutral means, either in munitions or men. Nor does it follow, in any supposable case, that because the capturing ship herself cannot be made answerable to the jurisdiction of the local tribunals for violating the laws and treaties of the neutral state, that her prizes are entitled to a similar exemption. They do not stand on the same principle or reason. The ship of •war ought not to be detained from the public service of the sovereign to whom she belongs. Neither his dignity nor safety will permit it. But neither the prize vessels or goods captured by her are necessarily connected with his military power.
5. As to the facts of the illegal equipment and augmentation of the force of the capturing vessels in our ports, they are sufficiently established by the testimony. Although there may be some discrepancies in their evidence as to certain immaterial circumstances; yet, as they all concur in proof of the material facts, and their testimony is uncontradicted even by the claimant's witnesses as to some of the most important, they are entitled, in this respect, to 1822 credit. Their testimony, taken in connection with v-^TW^ the res gesta, which are admitted on all hands, sa- Santissima tisfies the rule which the Court nas laid down in this class of causes, that the fact of illegal equipment in violation of our neutral duties, must be proved beyond all reasonable doubt.
6. Lastly: As to the pretended condemnation at Buenos Ayres. Independent of the objection which has already been stated to it, the question which has been here raised as to the capture having been made by military means obtained within our neutral territory, could not possibly have occurred in the course of the prize proceedings in the Court of the belligerent state. The goods being confessedly the property of its enemy, and liable to capture and condemnation as prize of war, the plea that the capture was made in violation of our neutrality could not be set up by the Spanish owner. Being an enemy, he had no persona standi in judicio for that purpose. The government of the United States must have interposed a claim upon this ground, or have authorized the Spanish claimant to interpose it. Unless this were done, the goods were clearly liable to condemnation as prize of war, as they would be in the analogous case of a capture actually made within the neutral territory itself; where, unless the objection is made by authority of the neutral government, it cannot be made by the enemy owner, who, in his character of enemy, is not injured by it. We need not, therefore, directly impeach the validity of the condemnation at Buenos Ayres, so far as the rights