The Divina Pastora
17 U.S. 52
SCOTUS
1819
Check Treatment
Mr. Chief Justice. Marshall

delivered the opinion of the Court. Thé decision at the last term, in the case of the United States v. Palmer,c establishes the principle that the government of the United States, having recognized thé existence of a civil war between Spain and her colonies, but remaining neutral, the Courts of the Union are bound to consider as lawful, those acts which war authorizes, and which *64the now governments in South America may direct against their enemy. Unless the neutral rights of the United States, as ascertained by the law of nations, the acts, of congress, and treaties with foreign, powers, are violated by the cruizers sailing under commissions from those governments, captures by them are to be regarded by . us as other captures, jure belli,. are regarded; the legality of which cannot be determined in the courts of a neutral country^ If, therefore, it appeared, in this case, that the capture, was made under a regular commission from the government established at Buenos Ayres, by a vessel which had not committed any violation of our neutrality,: the captured property must be restored to the possession of the captors. But if, on the other hand, it was shown, that the capture was made- in violation of our neutral rights and duties, restitution would be decreed to the original owners. But the pleadings in this, case,are too informal and defective to pronounce a final decree upon the merits.. The proceedings in the admiralty must always -contain at least a general. allegation of such a nature as will apply to the case, as of prizé, &e. The Court has always endepyoured to .keep these proceedings within some kind of . rule, though not requiring the same technical strictness as at common law. Here the pleadings present a'case which may be consistent with the demand of the former owners for restitution, but which is tied up to such a state of facts' ásy if proved,, will not authorize, it; and will not admit the introduction of evidence varying, from the facts alleged. The decree of the Circuit Court must, there*65fore, be.jeversed, and the cause refrianded. to that Court, with directions to permit the pleadings to be amended, and for farther proceedings.'

Cause remanded.a

Notes

3 Wheat. 610.

It is a principle which'has been frequently laid down by this Court, that it is the exclusive right of governments to acknowledge new states arising in the revolutions of the world, and until such' recognition by our government, or by the government of the empire to which such new state previously belonged; courts of justice are bound to consider the ancient state of things'as remaining unchanged. Rose v. Himely, 4 Cranch, 292. Gelston v. Hoyt, ante, vol. III. p. 324. The distinction between the recognition of the independence of a newly constituted government which separates itself from an old established empire, and the recognition of the existence .of a civil war between such new government and the parent country, is obvious.' In the latter case the very object of the contest is what the former supposes to be decided. But in the-meantime, all the belligerent rights which belong to anciently established governments, except so far as they may be restrained by treaty stipulations, belong to both parties. The obligations which neutrality imposes, are also to be fulfilled towards each party. What are those obligations, and how they may be affected by the misconduct of the belligerents, has been frequently made a subject of decision in this Court.

.Thus where ,the commander of a French privateer, called the Citizen Genet, having captured, as prize, on the high seas, the sloop Betsey, sent the vessel into the port of' Baltimore ; and upon her arrival there, the owners of- the sloop and cargo filed a libel in the District Court of Maryland, claiming restitution, because the vessel belonged to subjects of Sweden, a neutral power, and the cargo was owned jointly by • Swedes, and by citizens of the United States, also neutral; it was held, that the-District Court of’Maryland had jurisdiction competent to inquire, pnd to decide, whether in such case, restitution ought to be *66.made to tlie .claimants, or either of them, in whole or in part; that is, whether such restitution could be made consistently with yle jaw 0f nations, and the treaties and laws of the "United States. Glass v. The Betsey, 3 Dali. .6. 16. This case has been sometimes criticised as involving a denial of the unques-' tionable principle of public .law, that the judicial cognizance of prizes belongs, exclusively to the tribunals of the. captor’s country, with the admitted exceptions of a violation of neutral sovereignty either in making the" capture, or fitting out the armament with which it is made, within the neutral territory. But, as is very justly qbserved by the Court in the case of the Invincible, the" only point settled by the case of Glass v. The Bet-sey was,. that the Courts of the neutral country have jurisdiclion of captures made in violation of its neutrality, and the case was sent back with a view that,the District Court should exercise jurisdiction, subject, however, to the law of nations on this •matter, as the rule to govern its decision. Ante, vol. I. p. 257.

So, also, it was held, in the same case, that no foreign power •can, of right, institute or erect any court of judicature, of any •kind, within the jurisdiction of the United States, but such only as maybe warranted by, and be in pursuance of treaties: and that the admiralty jurisdiction which had been exercised in the United States by the consuls of France in the beginning óf the war of 1793, not being so warranted, was illegal. Glass v. The Betsey, 3 Dali. 6. 16.

The District Courts of the United States have no jurisdiction on" a libel for damages for the capture of a vessel as prize by the commissioned cruizer of a belligerent power,'although the ■captured vessel is alleged to belong" to citizens of the United States, and although the capturing vessel and her commander be fou'qd and proceeded against within the1 jurisdiction of the Court’;' the captured vessel having been captured and carried infra prossidia of the captors. The United States v. Peters, 3 Dall. 121.

: The capture df a Vessel from a'belligerent power, by a citizen-of the United States, under a commission from another belligerent power, (though the captor sets upan’ act of expatriation, not carried into effect by a departure from the United *67States, with an intention to settle permanently in another country,') is. an unlawful capture, and the Courts of the United States will decree restitution to- the original owner. Talbot v. Janson, 3 Dall. 133. 164. A capture by a citizen of a neutral state, who sets up an act of expatriation to justify it, is unlawful, where the removal from his own country was by sailing, cum dolo et culpa, in the capacity of a cruizer against friendly powers. Ib. 153. Qwere, Whether a citizen of the United States, expatriating himself according to the law of a particular State of the Union, of which he is also a citizen, can be considered as having lost the character of a citizen of the United States, so as to be authorized to capture under a foreign commission the property of powers in amity with the United States '! Ib. 153. A capture by a vessel, built, owned, and fitted out as a vessel of war, in a neutral country, is unlawful, and restitution of the property captured by such vessel, will be decreed by the Courts of the neutral country, if brought within its jurisdiction. Ib. 155. 167... Every illegal act committed on the high seas, does not amount to piracy. A capture, although not piratical, may be illegal, and of such a nature >as to induce the Court to award restitution. Ib. 154. 160. A capture made by a lawfully commissioned cruizer through the medium and instrumentality of a neutral, who had no right to cruize, is unlawful and the property captured will be restored by the neutral state, if brought within its jurisdiction. Ib. 155. 167. The exemption of belligerent captures on the high seas, from inquiry by neutral courts, belongs only to a belligerent vessel of war, lawfully commissioned,- and if a vessel claims, that exemption, it is the duty of the Court, upon application, to make inquiry, whether she is the vessel she pretends to be. Ib. ' 159. If, .upon such inquiry, it appears, that the .vessel pretending to be a lawful cruizer, is really not such, but uses acolourable commission for the purposes of plunder, she is to be considered by the law of nations, so far at least, as the title of property or right of possession is concerned, in the same light, as having no commission at all. Ib. Primá facie, all piracies and trespasses committed against the general,law of mt*68tions, are inquirable, and may be proceeded against, in any nation where no special exemption can be maintained either by the general law of nations, or by some treaty which forbids or , . .. ’ „ restrains it. lb. 160.

Where a vessel belonging to one belligerent was captured by another belligerent, and being abandoned on the high seas by the captors, to avoid the necessity of weakening their force by manning the prize, was found and taken possession of by citizens of the United States, and brought into a port of this country, and libelled in the District Court for salvage ; it was held, that the District Court-had jurisdiction upon the subject of salvage, and, consequently, a power of determining to -whom the residue of the property, afterpayment of salvage, ought to be delivered. M‘Donough et al. v. The Mary Ford, 3 Ball. 188. 198. In this case the captors acquired, immediately on the capture, such a right as no neutral nation could justly impugn or destroy ; and it could not be said by the Court, that the abandonment of the captured vessel revived the interest of the original proprietors. One'third of the value of the property was, therefore, decreed' to the neutral salvors, and the residue restored to the captors, lb. This case has been sometimes supposed to. involve the inconsistency of a neutral tribunal assuming jurisdiction of the question of prize, or no prize, as an incident to that of salvage. But an attentive examination of the case will show that this is a mistaken supposition. The Court do not enter into the question of prize between the belligerents, but decree the residue to the late possessor : thus, making the fact of possession as between the belligerent parties, - the criterion of right. Those points which could be disposed of without any reference to the legal. exercise of the rights of war, the Court proceed to decide ; but those which necessarily involve the question of prize, or no prize, they remit to another tribunal. L’lnvincible, ante, vol. I. p. 259.

Where the vessel which captured the prize in question, had beén built in the United States, with the express view of being employed as a privateer, in case the then existing differences between Great Britain and the United States should terminate *69in war ; some of her equipments were calculated for war, though frequently used by merchantships ; she was subsequently sold to a subject of one of the belligerent powers, and by him carried to a port of his own country, where she was completely armed, equipped, and furnished with a commission, and after-wards sailed on a cruize, and captured the prize : It was held, that this was not an illegal outfit in the United States, so as to invalidate the capture, and give their Courts jurisdiction to restore to the original owner the captured property. Moodie v. The Alfred, 3 Dall. 307. A mere replacement of the force of a privateer in a neutral port is not such an outfit and equipment as will invalidate the captures made by her, and give the Courts of the neutral country jurisdiction to restore the captured property to the original owner. Moodie v. The Phoebe Anne, 3 Dali. 319.

A vessel and cargo belonging to citizens of the United States was captured as a prize by a cruizer belonging to one of the belligerent powers on the high seas, and run on shore within the territory of the United States, by the prize master, to avoid recapture by the other belligerent, and abandoned by the prize crew ; the vessel and cargo were then attached by the original owner, and an agreement was entered into by the parties, that they should be sold,1"and the proceeds paid into the District Court, to abide the issue of a suit commenced by the owner against the captors for damages : Held, that they were responsible for the full value of the property injured or destroyed, and that whatever might originally have been the irregularity in attaching the captured vessel and cargo, it was obviated by the consent of the captors that the prize should be sold, and that thet proceeds of the sale should abide the issue of the suit. Del Col v. Arnold, 3 Dall. 233. The consistency of the Court in this case cannot be vindicated with the same facility as in that of the Mary Ford. “ We are, however, induced to believe, from several circumstances, that we have transmitted to us but an imperfect sketch of- the decision in that case. The brevity with which a case is reported, which we are informed, had-been argued successively at two terms, by men of the first legal talents, necessarily suggests this opinion; and when we refer *70to the case,of the Cassius, (The United States v'. Peters,) decided but the term preceding, and observe the correctness with which the law applicable to this case, in principle, is laid down in the recitals to the prohibition, we are confirmed in that opinion. But the case itself (that of Del Col v. Arnold) furnishes additional confirmation. There is one view of it in which it is reconcilable to every legal principle. It appears, that when pursued by the Terpsichore, the Grand Sachem was wholly abandoned by the prize crew, and left in possession of one of the original American crew, and-a passenger ; that, in their, possession, she was driven within our territorial limits, and was actually on shore when the prize crew resumed their possession, and plundered and scuttled her. Supposing this to have been a case of total derelict, (an opinion, which, if incorrect; was only so ón a point of fact, and one in support of which much might have been said, as the prize crew had no proprietary interest, but only a right founded on the fact of possession,) it would follow, that the subsequent resumption of possession was “tortious, and subjected the parties to damages. On the propriety of the seizure of the Industry, to satisfy those damages, the Court give, no opinion, but place the application of the' proceeds of the sale of this vessel, on the ground of con-sent; a principle, on the correctness of the application of which to that case, the report affords no ground to decide.” The Invincible, ante, vol. I. p.259. 260.

A'public' vessel of war belonging to a foreign sovereign at peace with' the United Statés, coming into our ports, and demeaning herself in a friendly manner, is exempt from the jurisdiction of the Courts of the' country. The Exchange, 7 Cranch, 116. If there be-no prohibition, the ports of a friendly Ration are considered as open to'-the public ships of all other nations with whom it is at peace, and they enter such ports, and remain in them under the protection of the government bf the place: lb. 141.' Whether the public ships of war enter the ports of another friendly nation, under the license implied by .the absence of any prohibition, or under an express stipula-' tion by treaty,'they are equally exempt from the local jurisdiction. lb. 141. Where the private vessels- of one nation *71enter the ports of another, under a general implied permission only, they are not exempt from the local jurisdiction. Ib. 143. The sovereign of the place is capable of destroying the implication, under which national ships of war, entering the ports of a friendly power, open for their reception, are considered as exempted by the consent of that power from its jurisdiction^ He may claim and exercise jurisdiction over them, either by employing force, or by subjecting such vessels to the ordinary-tribunals. Ib. 146. But until such power.be expressly exerted, those general provisions which are descriptive of the ordinary jurisdiction of the judicial tribunals, and give an individual, whose property has been wrested from him, a right 'to claim that property in the Courts of the country where it is found, ought not to be so construed as to give them jurisdiction in a caste, in which the sovereign power has impliedly consented to waive its jurisdiction. Ib. 146. Upon these grounds it was determined, in this case, that a public vessel of war, belonging to the emperor Napoleon, which had before been the property of a citizen of the United States, and, as alleged, Wrongfully seized by the French, coming into our ports, and demeaning herself peaceably, could not be reclaimed by the former owner in the tribunals of this country. Ib.

The general rule as to the prize jurisdiction is, that the trial of captures made on the high seas, jure belli, by a duly commissioned vessel of war, whether from an enemy or a neutral, belongs exclusively to the Courts of that nation to which the captor belongs. The Alerta, 9 Cranch, 359. 364. But to this rule there are exceptions as firmly established as the rule itself. If the capture be made within the territorial limits of a neutral country, into which the prize is brought, or by a privateer which has been illegally equipped in sueh neutral country, the prize Courts of such neutral country not only possess the power, but it is their duty to restore the property so illegally captured to the owner. Ib. 364. Talbot v. Janson, 8 Dall. 133. Ib. 288. note. A neutral nation may, if so disposed, without a breach of its neutral character, grant permission to both belligerents to equip their vessels of war within its .territory. But without such permission, the subjects of the belligerent powers have no right to equip vessels, or to augment their force,.either *72with arms, or with men, within the territory of the neutral,nation. The, Alerta. 9 Crunch, 365. All captures made by means ¿f .such equipments ,of vessels, or augmentation, of their force witbih the neutral territory, are illegal in respect to the neutral nation, and it is competent for its courts to punish the offenders, and in case the prizes taken by them are brought infra prmsidia, to order them to be restored. ■ lb. Even if there were any doubt as to the rule of the law of nations on the subject, the illegality of equipping a foreign vessel of war within the territory.of the United States, is declared by the act of June 5th, 17,94, c. 226. (1) and the power and duty of the proper court of the United States, to restore the prizes made in violation of that act, is clearly recognized. Ik. To constitute an illegal equipment or augmentation of the force of a vessel within the territory of the United States, it is immaterial whether the persons enlisted are native,citizens, or foreigners domiciled within the United States. Neither the law of nations, nor the act of congress, recognizes any distinction in this respect, except as to subjects of the foreign state in whose service they are so enlisted, being .transiently within the United States.. lb. 366.

„ During the late war between the United States and Great ■Britain, a French privateer, called the Invincible, and duly commissioned, wa3 captured by a British cruizer, afterwards recaptured by a private armed vessel of the United States ; again cap.iured by a squadron of British frigates ; again recaptured by another United States privateer, and brought into a port of the United States for adjudication. Restitution on payment of salvage was claimed by the French consul on behalf of the owners of the Invincible. A claim was also interposed by citizens of the ■United States, who alleged, that their property .had been unlawfully taken by the Invincible, before her first capture, on the high séas, and prayed, an indemnification from the proceeds. Restitution-to, the original French owner was decreed by the Circuit,Court, which-decree was affirmed in this Court; and it was determined that the tribunals of this country have no juris diction to redress any supposed torts committed on the high *73,$«as upon the property of our citizens,’"by a cruizer -regularly commissioned by a foreign and friendly power,- except where. such cruizer has been fitted out in violation of our neutrality. L'Invincible, ante, vol. 1. p. 238. S. C. 2 Gallis. 29.

*72(1) This act was made perpetual by that of April 24th, 1800, c. 189. which was repealed, and all laws respecting- our neutral relations were incorporated into oqp, by the act of the 20th of April, 1818, c. 93.

*73‘ Vide infra, the. cases of the Estrella, and the Ncustra Señora de la Caradid, in .which the same principles which are collected in this nóte wer§ applied to captures of Spanish property by Venezuelan and Carthagenian privateers, and the property was restored to the original owners, or to the captors, according as the capture had, or had not been made in violation of our neutrality.

For the different public acts by which the government of the. United States has recognized the existence of a civil war between Spain and her American colonies, see the Appendix, note II.