1822. The Barcelones. crées pronounced by Courts of the captors, sitting in the country of the ally or co-belligerent, and therefore confirmatory of our position. The very silence Arrogante of the writers on the law of the admiralty as to this subject, and the absence of all judicial authority, argues the soundness of the doctrine contended for. The case of the Harmony was a condemnation of a British vessel, by the French commissary of marine, sitting in the country of an ally in the war; and the cases of the Adelaide, and the Betsey Kruger, were under similar circumstances. The Cosmopolite presents a condemnation by the French Consul, in a Spanish port, Spain then being a co-belligerent with France; and though the res capta was American property, the principle is the same. So likewise in the case of Oddy v. Boville, mainly relied on by the appellant's counsel, we find the condemnation to have been pronounced by a French Court, sitting in Spain, then an ally of France, in a war against Great Britain. In fine, all the cases of condemnation in the country of a co-belligerent, are by courts of the captor sitting within the dominions of the ally. But it is not alone on the absence of authority, sanctioning prize proceedings in the courts of the ally, that the doctrine now contended for reposes. Every principle and analogy of the law on the subject are at variance with the exercise of such a powThe principles which introduced condemnation as an evidence of transmutation of property under the laws of war, in lieu of the doctrine of deductio infra er. a 2 Rob. Adm. Rep. 174. note. c 2 East's Rep. 474. с b 3 Rob. 268. 1822. The Barcelones. præsidia, pernoctation, &c. evince the impropriety of transferring the investigation ad aliud examen. A juArrogante dicial inquiry into the regularity of prize proceedings is important to the world at large. The capturing nation has an interest in knowing that its prize ordinances are strictly adhered to, and the Courts of that nation are the most competent to inquire into this, and to enforce their observance. The nation of the captured belligerent has also some rights in respect to the things taken as war is a contest by force to compel the party in the wrong to make retribution for some injury, the principals in the war have an account to settle, and they are reciprocally responsible for the justice and regularity of all hostile acts. No tribunals, therefore, but those of the capturing belligerent, ought to inquire into the validity of captures. Neutrals, likewise, are interested that the regularity and validity of seizures made from them should be passed on by the tribunals of that belligerent by whom the taking was effected. A contrary doctrine might deprive them of the benefit of that responsibility to which captors should ever be liable. If the ally passes sentence, it is probable the neutral would be referred to the capturing nation for any satisfaction the case of an illegal capture might demand; and if application were then made to that nation, the neutral might be referred back to the ally who pronounced the sentence. In theory, therefore, and practice, there appears to be a moral fitness in the rule which would restrict the power of condemnation to the tribunals of that belligerent by whom the property has been actually taken. The country then, of an ally, may be subservient to this purpose, but not the Courts, unless where the captures are made by the allies or co-belligerents themselves. In addition to the objections to the mode of authenticating the condemnation, and the competency of the tribunal pronouncing it, may we not ask for some proof of an alliance or association in arms between Venezuela, the alleged ally, and the power, whatever that be, under which the claimant pretends to have acted? Even the sentence itself affords no light on this subject, and if it did, the proof should be by matter aliunde. As the condemnation is silent as to the power granting the commission, and no commission has been produced, this Court has no evidence that the condemnation was pronounced even by the Court of an ally; for the Court may justly infer that there was no commission, and if the inference be not made, but it should turn out that Almeida acted under an Artigas commission, the Court might then be of opinion that no alliance could be formed with the Banda Oriental, or its chieftain, Artigas, as none are capable of maintaining the relation of an ally who cannot be a sole belligerent. Hence, then, the necessity of proving the alliance, and thus furnishing an additional reason for requiring the production of something more than a naked sentence of condemnation. 4. But should all these objections prove unfounded, we then resort to the ground, that a condemnation by a Court of competent jurisdiction does not deprive this Court of the power it otherwise would possess of restoring this property, the exercise of this 1822. The Arrogante Barcelones. 1822. The Arrogante Barcelones. power being essential to the maintenance of our laws and neutrality. That this sentence is wholly inoperative, as respects he restoring power of this Court, appears to be manifest from a variety of considerations. As the avowed object of this condemnation was to close the judicial eye, and paralize the judicial arm, of this tribunal, it will be proper to inquire into the object and extent of the prize proceeding in the Vice Admiralty of Juan Griego, and the jurisdiction and power now required to be exercised by this Court. We contend, first, that this Court, in vindication of the violated laws of the land, will, if necessary, wholly disregard this condemnation; but, secondly, that restitution may be decreed without impugning, in any degree, the operation of this sentence, or the general doctrine of the conclusiveness of admiralty decrees. This is not a petitory but a possessory suit. The title to the property is no way involved in this proceeding. There is but one inquiry: Has the claimant acquired the possession of this property by means unlawful, as regards this country? if So, that possession will be restored to those from whom it has been wrested by the instrumentality of our citizens. The possession will be placed in statu quo, without any reference to the title which may otherwise have been acquired by the capture and condemnation. If this can hereafter avail the claimant any thing, it is well; this Court only claims the power of undoing that which has been done in breach of the laws, and only so far as to place both parties, in regard to the possession, in their former condition. 1822. The Barcelones. Were the Court deprived of this wholesome Arrogante power, our citizens and foreigners might violate our laws and most solemn treaties with complete effect. The fruits of their illegal captures, though brought here, and in the control of our tribunals, might be at once snatched from it by the production of a condemnation decreed by the very power, and in favour of the very persons, by whom our laws have been infracted. If, during this investigation, the captors, by the pretended necessity of sending a commission abroad, should procrastinate the adjudication, sufficient time would be gained for the production of a well concocted condemnation, which would never fail to make its appearance in due time; and thus the violators of our laws would uniformly be confirmed in the possession of the fruits of their own wrong. In the case of the Anne" it was decided by this Court, that a capture made within neutral territory, is nevertheless valid, as between the belligerents, though it be a nullity as respects the neutral whose territory has been violated. If England, then, and France be at war, and an English privateer captures a French vessel, in the port of Philadelphia, and forthwith proceeds with the prize to sea, carries her infra præsidia capientium, where she is condemned, and is then brought back to the port of Philadelphia; what would probably be the lan a 3 Wheat. Rep. 435. |