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1822.

The Santissima Trinidad.

opinion, it is perfectly clear, that this cannot be done without a bona fide change of domicil under circumstances of good faith. It can never be asserted as a cover for fraud, or as a justification for the commission of a crime against the country, or for a violation of its laws, when this appears to be the intention of the act. It is unnecessary to go into a farther examination of this doctrine; and it will be sufficient to ascertain its precise nature and limits, when it shall become the leading point of a judgment of the Court.

And here we are met by an argument on behalf of the claimant, that the augmentation of the force of the Independencia within our ports, is not an infraction of the law of nations, or a violation of our neutrality; and that so far as it stands prohibited by our municipal laws the penalties are personal, and do not reach the case of restitution of captures made in the cruize, during which such augmentation has An augmenta taken place. It has never been held by this Court, illegal outfit on that an augmentation of force or illegal outfit affectly affects cap

tion of force or

ring the cruise

augmentation

or outfit was made.

tures made du- ed any captures made after the original cruize was for which such terminated. By analogy to other cases of violations of public law the offence may well be deemed to be deposited at the termination of the voyage, and not to affect future transactions. But as to captures made during the same cruize, the doctrine of this Court has long established that such illegal augmentation is a violation of the law of nations, as well as of our own municipal laws, and as a violation of our neutrality, by analogy to other cases, it infects the captures subsequently made with the character

of torts, and justifies and requires a restitution to the parties who have been injured by such misconduct.

1822.

The

Trinidad.

It does not lie in the mouth of wrongdoers, to set up Santissima a title derived from a violation of our neutrality. The cases in which this doctrine has been recognized and applied, have been cited at the bar, and are .so numerous and so uniform, that it would be a waste of time to discuss them, or to examine the reasoning by which they are supported: More especially as no inclination exists on the part of the Court to question the soundness of these decisions. If, indeed, the question were entirely new, it would deserve very grave consideration, whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons, or in any other manner than a direct intervention of the government itself. In the case of a capture made within a neutral territorial jurisdiction, it is well settled, that as between the captors and the captured, the question can never be litigated. It can arise only upon a claim of the neutral sovereign asserted in his own Courts or the Courts of the power having cognizance of the capture itself for the purposes of prize. And by analogy to this course of proceeding, the interposition of our own government might seem fit to have been required before cognizance of the wrong could be taken by our Courts. But the practice from the beginning in this class of causes, a period of nearly 30 years, has been uniformly the other way; and it is now too late to disturb it. If any inconvenience should grow out of it, from reasons of state policy or executive discretion, it is competent

1822.

The

Santissima
Trinidad.

for Congress to apply at its pleasure the proper remedy.

It is further contended by the claimant, that the doctrine heretofore established has been confined to well as by pri- cases of captures made by privateers; and that it has

Captures by public ships, as

vateers, if made

in violation of never been applied to captures by public ships, and in our neutrality,

restitution.

are subject to reason and policy ought not to be so applied. The case of the Cassius, in 3 Dall. Rep. 121., has been supposed at the bar to authorize such an interpretation of the doctrine. That was the case of a motion for a prohibition to the District Court to prohibit it from exercising jurisdiction on a libel filed against the Cassius, a public armed ship of France, to obtain compensation in damages in rem, for an asserted illegal capture of another vessel belonging to the libellants on the high seas, and sending her into a French port for adjudication, as prize The libel alleged that the Cassius was originally equipped and fitted for war in a port of the United States contrary to our laws, and the law of nations. But there was no allegation that she had been originally fitted out by her present commander, or after she became the property of the French government. The principal question was, whether our Courts could sustain a libel for compensation in rem against the capturing vessel for an asserted illegal capture as prize on the high seas, when the prize was not brought into our ports, but was carried into a port infra præsidia of the captors. The Court granted the prohibition; but as no reasons were assigned for the judgment, the only ground that can be gathered, is that which is apparent on the face of the writ of prohibition,

1822.

The

Trinidad.

where it is distinctly asserted, that the jurisdiction in cases of this nature exclusively belongs to the Courts of the capturing power, and that neither the Santissima public ships of a nation, nor the officers of such ships are liable to be arrested to answer for such captures in any neutral Court. The doctrine of that case was fully recognized by this Court in the case of the Invincible, (1 Wheat. R. 238.;) and it furnishes a rule for the exemption of a public ship from proceedings in rem, in our Courts for illegal captures on the high seas, in violation of our neutrality; but in no degree exempts her prizes in our ports from the ample exercise of our jurisdiction.

Nor is there in reason or in policy any ground for a distinction between captures in violation of our neutrality by public ships, and by privateers. In each case the injury done to our friend is the same in each the illegality of the capture is the same; in each the duty of the neutral is equally strong to assert its own rights, and to preserve its own good faith, and to take from the wrongdoer the property he has unjustly acquired, and reinstate the other party in his title and possession which have been tortiously devested. This very point was directly asserted by this Court in its judgment in the causes of the Invincible. Mr. Justice JOHNSON there said, " as to the restitution of prizes made in violation of neutrality, there could be no reason suggested for creating a distinction between the national and the private armed vessels of a belligerent. Whilst a neutral yields to other nations the unobstructed exercise of their sovereign or belligerent rights, her own dignity and secu

1822.

The

Trinidad.

rity require of her the vindication of her own neutrality, and of her sovereign right to remain the Santissima peaceable and impartial spectator of the war. As to her it is immaterial in whom the property of the offending vessel is vested. The commission under which the captors act is the same, and that alone communicates the right of capture, even to a vessel which is national property." We are satisfied of the correctness of this doctrine, and have no disposition to shake it. In cases of violation of neutral territorial jurisdiction no distinction has ever been made between the capture of public and private armed ships; and the same reason which governs that, applies with equal force to this case.

Case of the

Exchange, 7
Cranch, 116.

An objection of a more important and comprehensive nature has been urged at the bar, and that is, that public ships of war are exempted from the local jurisdiction by the universal assent of nations; and that as all property captured by such ships is captured for the sovereign, it is, by parity of reasoning, entitled to the like exemption; for no sovereign is answerable for his acts to the tribunals of any foreign sovereign.

In the case of the Exchange, (7 Cranch, 116.) the distinguished grounds of the exemption of public ships were fully from this case. discussed and expounded. It was there shown that

it was not founded upon any notion that a foreign sovereign had an absolute right, in virtue of his sovereignty, to an exemption of his property from the local jurisdiction of another sovereign, when it came within his territory; for that would be to give him sovereign power beyond the limits of his own empire.

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