Usage of

§ 442. Whatever may be the true original abstract principle of natural law on this subject, it is undeniable nations subjecting enethat the constant usage and practice of belligerent na- my's goods tions, from the earliest times, have subjected enemy's vessels to goods in neutral vessels to capture and condemnation, capture.

in neutral

have been once the property of the libellants, as she was now a public armed vessel of a friendly State, visiting our ports in pursuance of the understood permission of nations, the court would not try the question, by proceedings against the vessel or her commander, of the legality of the act by which she had been converted into a public ship; and that it was proper that the suggestion of her character and immunity should be made by the attorney for the United States.

Santissima Trinidad (Brockenbrough, i. 470. Chief Justice Marshall's Circuit decisions). The act of 1794 is declaratory of the pre-existing law of nations, and intended to aid the executive in the enforcement of the law. Also, Opinions of the Attorney-General, vii. 367.

Alerta (Cranch, ix. 359). The French privateer L'Épine, being at New Orleans, increased her crew by secretly shipping several persons known to be Americans, went to sea and captured the Spanish brig Alerta, and sent her into New Orleans, as a port of necessity. On the petition of the owner, the court held that it had jurisdiction to inquire whether the prize was made by a vessel which had increased her force for the cruise, in violation of our sovereign rights. Restitution was made.

The Invincible (Wheaton, i. 238). A French privateer, captured by a British vessel of war, and captured again from the British prize crew by an American cruiser, was brought into a port of the United States for adjudication as prize. The original French owner claimed restitution, which was allowed, on payment of salvage to the American captor. The privateer was sold by consent, and the proceeds substituted. An American citizen intervened with a claim against the proceeds, on the ground that a vessel of his had been unlawfully captured by the privateer while under French command. The court decided that this question could not be inquired into; that where a privateer, duly commissioned as such by a belligerent State, comes into a port of a neutral power, the courts of that power cannot proceed against her or her officers, to obtain compensation for an alleged illegal capture made by her of a vessel of a citizen of that neutral power. The acts of the privateer, done in execution of the war-powers, have the same exemption from such procedure as those of a vessel of war the property of a State. There are a great many dicta in the opinion of Judge Washington, but that is the only point decided. The reasoning of the decision is, that, primâ facie, a Court of Admiralty has the function of inquiring into violent dispossessions of property at sea,-that, if it is suggested that the act was done jure belli, under authority of a State, the court may inquire into the validity of the authority or commission, so far as to detect piracy, and make sure that there is a sovereign responsibility for the act; but, if there be such, it cannot pass upon the question whether the capture, made bonâ fide under such authority, was in accordance with the rules of war. The court may, however, for other reasons, continue its inquiry, as if it is suggested that the capture was made in violation of the sovereign right of its own State, as when made within its waters, or by a vessel which had been fitted out or otherwise equipped for the cruise in violation of the rights of the State as a neutral sovereignty. This it may do, for the purpose of restoring a prize within its jurisdiction. But the court did not say, even as an obiter dictum, that the civil Court of Admiralty, in a private suit, could, even on such grounds, proceed against, condemn, and

as prize of war. This constant and universal usage has only been interrupted by treaty stipulations, forming a temporary conventional law between the parties to such stipulations. (a) 219

sell a vessel duly commissioned and serving as a public ship of war of a foreign power.

Estrella (Wheaton, iv. 298). A Venezuelan privateer, having increased her crew at New Orleans, captured the Spanish brig Estrella, and sent her to New Orleans. On claim of the Spanish owner, the Estrella was restored.

La Amistad de Rues (Wheaton, v. 385). A Venezuelan privateer captured a Spanish vessel on the high seas, and sent her towards New Orleans. On her way, she was taken possession of by a United States ship, and carried into that port. She was there libelled by the Spanish owner in the Court of Admiralty for restitution, on the ground that the privateer which captured her had increased its force within the United States before the capture, in violation of the neutrality laws. The court decreed restitution, and made a further decree condemning the commander of the privateer to pay damages to the owner of the vessel for loss occasioned by the capture. An appeal from both decrees was taken to the Supreme Court. That court, on examination of the proofs, decided that the privateer had not violated our neutrality laws by the work done upon her, and dismissed the libel. This was, it will be seen, only a decision on a question of evidence; and by that decision, the whole suit failed. But Judge Story, in delivering the opinion of the court, thought proper to go beyond what was necessary for terminating the suit, and said, that, if the privateer had violated our neutrality laws, so as to have warranted the decree of restitution of the prize, that would not have justified the decree for damages. In explanation of this distinction, the learned judge shows that a civil court of a neutral country cannot adjudicate upon the validity of a capture jure belli, as between the captor and the prize. Its only function is to vindicate the offended sovereignty of its own country. If a prize is taken in war, in violation of the territory or other rights of a neutral, the neutral may undo the act, and put the parties in statu quo ante, by releasing the prize and restoring it to the owner. And the owner of the prize may demand that. The neutral does this solely to vindicate its own sovereignty, and not with any regard to the validity or invalidity of the capture as between the parties. Into that, it need not and cannot inquire. The fact that a capture is made in violation of the rights of a neutral sovereign, is no legal objection to the capture, as between the parties. Consequently, the neutral court cannot award damages to the owner of the captured vessel, as for a capture made without probable cause, or as otherwise illegal. With reference to this distinction, Judge Story used the following language: "The neutral nation should fairly execute its own laws, and give no asylum to the property unjustly captured. It is bound, therefore, to restore the property, if found within its own ports. Beyond this, it is not bound to interpose between the belligerents." This clause of the opinion has been, apparently with no attention to the facts to which alone it refers, unwarrantably cited, in Parliament and elsewhere, during the recent controversy, as

(a) Consolato del Mare, cap. 273. Wheaton's Hist. Law of Nations, 65, 115-119, 200-206. Albericus Gentilis, Hisp. Advoc. lib. i. cap. 27. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, §§ 6, 26; cap. 1, § 5, note 6. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 14. Vattel, Droit des Gens, liv. iii. ch. 7, § 115. Heineccius, de Nav. ob. vect. cap. 2, § 9. Loccenius, de Jure Marit. lib. ii. cap. 4, § 12. Azuni, Diritto Maritimo, Part II. ch. 3, arts. 1, 2.

[219 See note 223, infrà, on Free Ships, Free Goods.]—D.\

vessels

§ 443. The regulations and practice of certain mari- Neutral time nations, at different periods, have not only consid- laden with ered the goods of an enemy, laden in the ships of a friend, goods, subliable to capture, but have doomed to confiscation the ject to conneutral vessel on board of which these goods were laden. the ordiThis practice has been sought to be justified, upon a some States.

enemy

fiscation by

nances of

an authority to the point that the political department of a neutral State is under no obligation to refuse asylum to a belligerent cruiser that has violated its neutrality. (Speech of Sir R. Palmer, Attorney-General, in the House of Commons, May 13, 1864.) That question was in no way before the court; the opinion had no reference to it; and, indeed, the question is not a judicial one.

La Concepcion (Wheaton, vi. 235). The Supreme Court ordered a restitution to the Spanish owner of a vessel taken by a privateer built, fitted out, manned and owned in the United States, and commanded by a citizen of the United States, and which had sailed thence to cruise under the Buenos Ayrean flag and commission. It was proved that, after one cruise, she went to Buenos Ayres, and that the capture was on a second cruise. But, there being no satisfactory proof of a sale at Buenos Ayres, the court held her to be still an American vessel, belonging to the same owner, and decreed restitution of her prize.

Bello Corrunes (Wheaton, vi. 152). A vessel owned and commanded by American citizens, and fitted out and armed in Baltimore, sailed thence, under Buenos Ayrean colors and commission, on a cruise against Spanish commerce; the commander assuming to have become a Buenos Ayrean citizen, but leaving his family domiciled in Baltimore. After a cruise, she went to Buenos Ayres, where a form of sale was gone through with, to another American, domiciled there. She then proceeded on a new cruise, and captured the Spanish vessel Bello Corrunes, which, after many adventures, including a cruise as consort to her captor, came into Newport, R.I., where she was libelled in behalf of the Spanish owner. The court held that the commander of the privateer was still an American citizen; that the sale at Buenos Ayres was only ostensible; that cruising as privateers against Spanish commerce by American citizens, under whatever foreign authority, was in violation of our treaty with Spain; and that, consequently, our courts would restore Spanish prizes made by such American vessels, when within our jurisdiction. There had been no condemnation of the prize by a Buenos Ayrean tribunal.

Santissima Trinidad (Wheaton, vii. 283). The facts as found by the court were, that a brig owned, built, and armed in the United States, and used as a privateer in the war with Great Britain, was, at the close of that war, sent under the American flag to Buenos Ayres, for sale. She was there sold to the Buenos Ayrean Government, and duly commissioned as a public ship of war of that State, and called the Independencia, and proceeded to cruise against Spanish commerce. She put into Baltimore; augmented her force, in violation of our statutes of neutrality, by enlisting persons not Buenos Ayrean subjects, and by other acts; and then captured the Spanish ship Santissima Trinidad, took cargo from her, came to Norfolk with this cargo on board, where it was taken out, and lodged in the public stores, while she was under repairs. While in the stores, it was libelled in behalf of the Spanish owners. The court decided — (1) That the clause in the treaty with Spain, prohibiting cruising against the commerce of either nation by citizens of the other, was confined to privateers; (2) That captures made in violation of our neutrality, by public vessels, were as much subject to restitution, when coming within our jurisdiction, as those made by privateers; (3) That,

supposed analogy with that provision of the Roman law, which involved the vehicle of prohibited commodities in the confiscation pronounced against the prohibited goods themselves. (a)

as our government had recognized the existence of a civil war between Buenos Ayres and Spain, and avowed her determination to remain neutral, the captures of either party would be treated with the same respect, although our government had not recognized the independence of Buenos Ayres; (4) That a condemnation made by a prize tribunal of Buenos Ayres of this property, after it had been libelled in this cause and was in custody of the court, would not prevent the court making restitution to the owners; and (5) That, whatever might be the exemption of the Independencia herself, this prize cargo, landed and stored at the request of her commander, was subject to this proceeding. The grounds for decreeing restitution were sufficient. Judge Story, in delivering the opinion of the court, said—which was not necessary to the decision of the case, as there had been illegal augmentation of forcethat the sending of this vessel, fully armed and ready for use in war, under American colors, papers, and command, to Buenos Ayres, for a bonâ fide purpose of offering her there for sale in the market, as a commercial enterprise, though it subjected her to capture as contraband, would not be a violation of our national neutrality. He also suggested, that, in all cases where prizes came into our jurisdiction which had been made in violation of our national rights as neutrals, whether as being captured within ⚫ our waters, or as made by vessels fitted out in our ports, the proceeding for restitution to the belligerent owner ought, on principle, to be instituted or sanctioned by the government itself, and not upon private responsibility, since the captures, as between the two belligerents, were valid, and only to be disregarded as violations of our national rights but, as the practice had been uniform to proceed on private complaint, it would be recognized by the court; and the practice could, if found inconvenient, be altered by Congress.

more,

Gran Para (Wheaton, vii. 471). The schooner Irresistible was built and owned in Baltimore, and sailed thence in 1818, the owner being in command, to Buenos Ayres. She had in her hold, entered as cargo, guns and other things suitable to fit her for hostile operations, and a crew of fifty men; clearing for Teneriffe as a merchant-vessel, and the shipping-articles being for a commercial voyage. At Buenos Ayres, a commission was obtained to cruise against Spain, the crew were discharged, and the greater part re-enlisted for the cruise. The day after she left Buenos Ayres, the captain produced a commission from General Artigas, as chief of the Oriental Republic, to cruise against Portugal, and sent back the Buenos Ayrean commission. She made several Portuguese prizes, took money from them, and returned to Baltiand deposited it in a bank in that city. A libel was filed in behalf of the owners of the Gran Para (one of the vessels captured), for the amount of money taken from her and on deposit. The opinion is by Chief Justice Marshall. The court thought it clear that the Irresistible had violated the neutrality acts, because the crew were "hired and retained to go beyond the limits and jurisdiction of the United States, with intent to be enlisted and entered in the service," &c; and because the owner "fitted her out with intent that she should be employed in the service," &c., of a nation at war with one with which the United States was at peace. The taking her armament in her hold in the form of cargo, and the clearance, shipping-articles, &c., the court regarded as mere devices to avoid the law; and that the intent, when she was sent from Baltimore, was that she should be employed to cruise in the belligerent service of

(a) Barbeyrac, note to Grotius, lib. iii. cap. 6, § 6, note 1.

Thus, by the marine ordinance of Louis XIV., of 1681, all vessels laden with enemy's goods are declared lawful prize of war. The contrary rule had been adopted by the preceding prize ordia State at war with a nation with which we were at peace. The more serious question was, whether this offence was not deposited by the transactions at Buenos Ayres and the entering on a second voyage there, as she had done, and intended to do, no act of hostility on her voyage out. There was no change of ownership at Buenos Ayres. The court says, "This court has never decided that the offence adheres to the vessel, whatever changes may have taken place, and cannot be deposited at the termination of the cruise in preparation for which it was committed;" but held that, in this case, on the facts, the illegal preparation was for the cruise to be begun after a visit to Buenos Ayres, on which cruise this capture was made; and that, if under such circumstances, we should hold that a vessel sailing from our ports for hostile operations could, by visiting a belligerent port, getting a commission, going through the form of discharging and re-enlisting her crew, remove the taint of illegal preparation, — the whole of which was practically made in our port, and become legitimate cruisers, "the laws for the preservation of our neutrality would be completely eluded," and our neutrality would be "a fraudulent neutrality, disgraceful to our own government, and of which no nation would be the dupe." The captured money was restored.

Arrogante Barcelones (Wheaton, vii. 496). In this case, the court restored to the Spanish owner a prize of war brought into our jurisdiction, where the capture had been made by a vessel fitted out in the United States in violation of our neutrality acts, although there had been a regular condemnation in the prize court of the captor's country, the prize being still owned and controlled by the original wrong-doer; giving no opinion how it would be, in such case, if the prize were in the hands of a bonâ fide purchaser without notice.

Nereyda (Wheaton, viii. 108). A Spanish ship of war was captured by the privateer Irresistible, which was fitted out, owned, and commanded by American citizens, cruising under a commission from Artigas, as chief of the Oriental Republic of Rio de la Plata. The prize was taken to Margarita, an island of Venezuela, and there condemned as prize: Venezuela being an ally of the Oriental Republic. She was there commissioned as a Venezuelan privateer, and came to Baltimore. Here she was libelled in behalf of the King of Spain. A claim was put in by one Francesche, who alleged that he had bought her at the prize sale. The court held that this purchase was not proved, and that she was still in the hands and ownership of the owners of the Irresistible; that their title was not improved by the condemnation, if valid otherwise; and restored her to the King of Spain.

The Fanny (Wheaton, ix. 658). A vessel, fitted out as a privateer in Baltimore, owned and commanded by American citizens, sailed thence and cruised under a commission from Artigas, and captured Portuguese property, being cargo of the Fanny, which she took to St. Thomas, whence it was brought to Baltimore. Here it was libelled by the Portuguese owner, for restitution. One Levy, a resident. of St. Thomas, claimed the cargo as having been bought by him of the captors at St. Thomas. The court held, that, if he was a bonâ fide purchaser, which they doubted, his title was not good against the owner, as he had bought it of persons in wrongful possession. In this case, it is to be observed that the capture, as between the government which commissioned the privateer and the Portuguese citizen, was valid jure belli; but the court held that the privateer, being owned and commanded by Americans, could not make a capture which courts of the United States would consider valid, even in the hands of a bonâ fide purchaser, before condemnation.