delivered the opinion of the the Court.
Upon the argument at the bar several questions have arisen, which have been deliberately considered by the Court; and its judgment will now be pronounced. The first in the order, in which we think it most convenient to consider the cause, is, whether the Independencia is in point of fact- a public ship, belonging to the government of Buenos Ayres. The history of this vessel, so far as is necessary for the disposal of this point, is briefly this : She was originally built and equipped at Baltimore as a privateer during the late war with Great Britain, and was then rigged as a schooner, and called the Mammoth, and cruized.against the enemy. After the peace she was rigged as a brig, and sold by her original owners. In January, 1816, she was loaded with a cargo of munitions of war, by her new owners, (who are inhabitants of Baltimore, and being armed with twelve, guns, constituting a part of her original armament, she was despatched from that port, under the command of the claimant, on a voyage, ostensibly to the Northwest Coast, but in reality to Buenos Ayres.
There is another objection urged, against the admission of this vessel, to the privileges and immunities of a public ship, which may as well be disposed of in connexion with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign, independent government by the executive or legislature of the United States, and, therefore, is not entitled to have her ships of war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The government of the Uni
ted
States has recognized the existence of a civil ~ . . . , . . , war between Spam and her colonies, and has avow? . . , ed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent without making ourselves a. party to the contest, and departing from the posture of neutrality. All captures made by each must be considered as having the same validity, and all the immunities which may be claimed by public ships in our ports under the law of nations must be considered- as equally the right of each ; and as such must be recognized by our Courts of justice, until Congress shall prescribe a different rule. This is the
The next question growing out of this record, is w hether the property in controversy was captured in violation of our neutrality, so that restitution ought, by the law of nations, to be decreed to the libellants. Two grounds are relied upon to justify restitution : First, that the Independencia and Altravida were originally equipped, armed, and manned as vessels of war in our ports ; Secondly, that there was an illegal augmentation of the force of the Independencia within our ports. Are these grounds, or either of them, sustained by the evidence ?
If the cause stood solely upon the testimony of the witnesses who have been examined on behalf of the libellants, we should have great hesitation in admitting the conclusions which have been drawn from it. The witnesses, indeed, speak directly and uniformly either to the point of illegal equipment, or illegal augmentation of force within our ports. But their testimony is much shaken by the manifest contradictions which it involves, and by declarations of facts, the falsity of which was entirely within their knowledge, and has been completely established in proof. It has been said, that if witnesses concur in proof of a material fact, they ought to be believed in respect to that fact, whatever may be the other contradictions in their testimony. That position may be true under circumstances; but it is a doctrine • i t i ■ i ■ can be received only under many qualinca- . rions, and with great caution. If the circumstances
But the present case does not stand upon this testimony alone. It derives its principal proofs altogether from independent sources, to the consideration of which the attention of the Court will now be directed.
The question as to the original illegal armament and outfit of the Independencia may be dismissed in a few words. It is apparent, that though equipped ,
r ,
„ . as a vessel ot war, she was sent to Buenos Ayres on a commercial adventure, contraband, indeed, but 7 77 jn no shape violating our laws on our national neutrality. If captured by a Spanish ship of war during the voyage she would have been justly condemned as good prize, and for being engaged in a traffick prohibited by the law of nations. But there is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit; and which only exposes the persons engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a
bona fide
sale, (and there is nothing in the evidence before us to contradict it,) there is no pretence to say, that the original outfit on the
The more material consideration is as to the augmentation of her force in the United States, at a subsequent period. It appears from the evidence, and, indeed, is admitted by Captain Chaytor, that after the sale in May, 1816, the Independencia sailed for Buenos Ayres .under his * command, on a cruise against Spain ; and after visiting thé coast of Spain, she put into Baltimore early in the month of October of the same year, having then on board the greater part of her original crew, among whom were many Americans. On her arrival at Baltimore, she was received as a public ship, and there underwent considerable repairs. Her bottom was new coppered, some parts of her hull were recaulked, part of the water-ways were replaced, a new head was put on, some new sails and rigging to a small amount, and a new mainyard was obtained, some bolts were driven into the hull, and the mainmast, which had been shivered by lightning, was taken out, reduced in length, and replaced in its former station. In order to make these repairs, her guns, ammunition and cargo were discharged under the inspection of an officer of the customs, and when the repairs were made, the armament was replaced, and a report made by the proper officer to the collector, that there was no addition to her armament. The Independencia left Baltimore in the latter part of December, 1816, Having, then on board a crew of 112 men ; and about the 8th of January: following, she sailed from the Capes of the Chesapeake on the cruise on which
The first observation that occurs on this part of the case is, that here is a clear augmentation of force within our jurisdiction. The excuse offered is, that the persons so enlisted, represented themselves, or were supposed to be,- persons in the service of Buenos Ayres. Of this, however, there is not the slightest proof. The enlistment of men being proved, it is incumbent on the claimant td show that they were persons who might lawfully be enlisted ; and as the burden of proof rests on him, the presumption necessarily arising from the absence of such proof is that they were not of that character. It is not a little remarkable that not a single officer of the Independencia has been examined on this occasion. They are the persons who, from their situation, must have been acquainted with the facts; and the total omission to bring their testimony into the cause can scarcely be accounted for but upon a supposition extremely unfavourable to the innocence of the transaction.
Another observation which is drawn from the predicament of this case is, that if, as the claimant as
If any doubt could be be entertained as to the Independencia, none can be as to the predicament of the Altravida. This vessel was formerly a privateer, called the Romp, and was condemned for illegal conduct by the District Court of Virginia; and under the decree of the Court, was sold, together with the ar
What, then, are the consequences which the law attaches to such conduct, so far as they respect the property now under adjudication ? it is argued on the part of the libellant, that it presents a
casus fcederis
under our treaty with Spain. The sixth and fourteenth articles are relied upon for this purpose. The former is in our judgment exclusively applicable to the protection and defence of Spanish ships within our territorial jurisdiction, and provides for the restitution of them when they have been captured within that jurisdiction. The latter article provides, that no subject of Spain ‘£ shall apply for, or take any commission or letter of marque for arming any ship or siiips to act as privateers,” against the United States, or their citizens, or their property, from any prince or state with which the United States shall be at war; and that no citizen of the United States “ shall apply Jor, or take any commission or letters of marque, for arming any ship or ships to act
as
privateers” against the King of Spain, or his subjects, or their property, from any prince or state with which the said king shall be at war. t£ And if any person of either nation shall take such commission or letter of marque, he shall be punished as apirffie.” In the Spanish counterpart of the treaty, the word ££ privateers” in the first clause has the corresponding word t£ corsarios;” but in the second clause, no such word is to be found. But it is ob
This view oi the question renders it unnecessary to consider another which has been discussed at the bar respecting what is denominated the right of expatriation. It is admitted by Captain Chaytor, in the most explicit manner, that during this whole period his wife and family have continued to reside at Baltimore; and so far as this fact goes, it contradicts the supposition of any real change of his own domicil. Assuming, for the purposes of argument, that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to his native country, as to which we give no
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 taken place. It has never been held by this Court, that an augmentation of force or illegal outfit affected any captures made after the original cruize was terminated. By analogy to other cases of violations of public law the pffi nce 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
It is further contended by the claimant, that the doctrine heretofore established has been confined to cases of captures made by privateers ; and that it has never been applied to captures by public ships, and in reason and policy ought not to be so applied. Thecase 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 prcesidia
of the captors. The Court granted the prohibition ; but as no réasons 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,
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 I,nvincible. 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 sove - reign or belligerent rights, her own dignity and secu^
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 soyereign.
In the case of the
Exchange, (7 Cranch,
116.) the grounds of the exemption of public ships were -fully 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 giye him sovereign power beyond the limits of his own empire.
The last question which has been made at the bar, on which it is necessary to pronounce an opinion, is as to the effect of the asserted condemnation of the
Upon the whole, it is the opinion of the Court that the decree of the Circuit Court be affirmed, with costs,