The Anne, Barnabeu, Claimant

(Pbize.) The Anne, Barnabeu, Claimant. The captors are competent witnesses upon an order for farther. proof, where the benefit- of it is extended to both parties. The captors are always competent' witnesses, as to the circumslancec of the capture, whether it be. joint, collusive, or within neutral territory. It is not competent for a neutral constil, without th^e special authority ef his government., to interpose a clain on account of the violation of territorial jurisdiction of his country. Quaere, Whether such a claim can be interposed, evon by a public minister, without the sanction of the government in whose tribunals the cause is pending ? A capture, made within neutral territory, is, as between the belligerents, rightful; and its validity can only .be questioned by the neutral state. If the captured vessel commences hostilities upon the' captor,' she [forfeits the neutral protection, and the capturéis not an iojury &r which redress can be sought from the neutral sovereign. Irregularities on the part of the captora, originating from mere mistake, or negligence, which work no irreparable mischief, and are consistent with good faith, will not forfeit their rights of prize. ' ©pptot* Si^tewhere itbecomes matenal to ascertain the cireumslanees of jibs capture.' A consul can not interpose a claim for the. spédal^autho"fyof his g<!‘ vernmcnt. Appeal to the circuit court of the district of Maryl- and. Tfie British ship Anne írith a cargo belonging to-<a subject, was captured by the .privateer' Ultos, while lying at anchor near the Spanish part oí the inland of St. Domingo, ,on the 13th of March, 1815, and carried into New-York for adjudication. .The master and supercargo were put on shore at St. Domingo, and all the rest of the crew, except the mate, carpenter, and .cook, were put on board the capturing ship. After arrival at New-York, the deposition of •the cook only was taken, before a commissioner of prize, and that, together with the' ship’s papers, was •transmitted by the commissioner, under seal, to the district judge of Maryland district, to which district -the Anne was .removed, by virtue of the provisions of •the act of congress of the 27th of January, 1813, ch. 478. Prize proceedings were duly instituted against .the ship and cargo, and a claim was afterwards interposed in behalf of the Spanish consul, claiming resti ■tútion of the property, on account óf ah asserted vi* .elation .of the neutral territory of Spain. ■ The testimp■ny óf the carpenter was thereupon taken by the .claimant, and the captors were also' admitted to give testimony as to the circumstances of the capture; and, .upon the whole evidence, thé district court rejected the claim, and pronounced a sentence of condemnation to-the captors. Upon appeal to the circuit ¡court, peace having taken, platee, the British owner, Mr. Richard Scott, interposed a claim for the property, and the detííee of the. district court was affirmed, proforma, to bring the cause for a final adjudication before this court. March 5th. ■Mr. Harper, for the appellent and claimant, argued, that the captors were incompetent witnesses, on the ground of interest, except when farther proof was im_ parted to them ; and that they were not entitled to-the benefit of farther proof in this case, being in delicto. The irregularity ‘of their proceedings, and the violation .of the neutral territory, would not. only exclude them from farther proof, but forfeit their rights of prize. The testimony being irregular, it must appear, affirmatively, that.it was taken by consent, where the irregularity consists, not in a mere omission' of form, but “in-the incompetency of .irrelevancy of the evidence. The testimony of the eaptprs being ex-, eluded from the case, the violation of the neutral territory would appear uncontradicted. The • text writers affirm the immunity of the neutral territory from hostile operations in its ports, bays, and harbdufs, and.within the range of cannon shot along its coasts. fior can it b.e used as a station from which to exercise hostilities. As to the authority by which the claim was intefposedj the Spanish consul’s was sufficient for that purpose p especially under the peculiar circumstances of the times when, on. account of the unsettled state of the government in. Spain, no .minister, from that country, was received by our government, but the former consuls were continued in the exercise functions by its permission. In- one of the cases in the English books, the Portuguese consul ■Was allowed to claim on account of violated territory, although it does not' appear that he had any special instructions from his sovereign for that purpose. . -B&t even1 supposing the powers of a consul not adequate to this function, whence arises.the necessity that the neutral: government should interfere in general? Because the. enemy proprietor is absolutely incapable of Interposing a claim on this, or any other ground. But here the incapacity of the claimant is removed, his pesona standi in judicio being.restored by the intervention of peace. He may, consequently, assert hiis claim upon every ground which shows that the capture, though of enemy’s property, was originally unlawful apd void. Mr. D. B. Ogdeit and Mr.' Winder, contra, contended, that the captors were admissible witnesses in this case, as they are in all cases respecting the circumstances of the capture ; such as collusive and joint captures, where the usual simplicity of the prize pro«efedings i§ necessarily departed from. So, also, their testimony.is generally admitted on farther proof. A claim founded merely upon the allegation of a violation of neutral territory, is a -case peculiarly requiring the .introduction of evidence from all quarters,, the cap-toys being as much, necessary witnesses of tlxc action as are ,the captured persons. Every, capture pf enemy’s property, wheresoever taade, is valid, prima facie; and it rests with the neutral government to interfere, where the capture is made within neutral jurisdiction. The enemy proprietor has no persona standi in judicio for this or any other purpose. ' But here the suggestion of a violation of the neutral territory is not made by proper authority. All the cases show that a claim for 'this purpose can only he in-imposed by authority of the- government whose territorial rights have . been violated. The public' ministers of that government xnay make the claim, because they are presumed to be fully empowered for tjiat purpose; But a • consul is a mere commercial Ugent, and has none of the diplomatic attributes, p?r privileges of an ambassador ; be must, therefore, be specially empo w.ered to interpose the claim,- in pr,dey that the court may be satisfied'that it comes from tlxe offended government. A consul may, indeed, claim for the property of his fellow subjects, but . not for the alleged violation of the rights of his sovereign ; because it is fóí the sovereign alone to judge when .thosé rights are Violated, and how far policy may induce him silently tn-acquiesce in those acts of the belligerent by which they are supposed' to'be infringed. There-is only one case in the English books, where a’ claimof thissort appears. .to have been made by a consul; apd . from the report of that case it may be fairly inferred that he was specially directed by his government to interpose the' claim. But even the Spanish government itself has not. conducted with that impartiality between the .belligerents, which entitles it to set up 'this exemption. Its territory was, during the late war, permitted to be made the theatre Of British hostility, and iri various instances Wás violated with impunity. Spain was incapable, or' unwilling, at that time, to. maintain her' neutrality in any párt of her immense dominions. In this very case the captured vessel was not attacked ; she was the aggressor: and, m self-defence,• the privateer had not only a, right to -resist, but; to capture. The local circumstances alone '.would have prevented; the Spanish government from protecting the inviola-' bility of • its territory; on. a desert coast, and out-of the reach of -the guns of any fortress. Bynker shoek and Sir'William Scott hold,-that a flying :en- my may lawfully be pursued .and taken in such píaces, if the battle has been commenced on the seas. A fortiori, may an enemy, who commences the first-attack.within neutral jurisdiction, be resisted and captured,- But should all these grounds fail, the captors may stand upon the .effect of the treaty of peace in quieting all titles of possession arising out of the war. As between the American captors and the British, claimant, the proprietary interests of ihff latter was. completely devested by the capture; The of the captors acquired in war was confirmed by bringing the captured property infra preesidiá. The: neutral government has no right to interpose, in order to prevent the execution of the treaty of peace in this; respect, by chip pell mg restitution to British- subjects: contrary to the treaty to which they are parties. The ■neutral government may, perhaps', require some atonement for the, violation of its . territory, but it has no» right to require' that, this atonement shall include any sacrifice to the British claiman t - Mr- Harper, m reply, insisted that the- claim of neutral territory, as invalidating the capture, might bo set up by .a consul as well' as any other public minister. He may be presumed to have been -authorized to interpose it by his government; and m the Case, of the Vrow Arme Catharina, it does not appear» that any pr oof was given to the- court, that the Portuguese consul Was specially instructed, to mate the-suggestion. However partial and unjustifiable may have been the conduct of Spam m the late war, it has .not yet been considered by the executive gov. eminent and the legislature, (who are. exclusively charged with the ,care of our foreign relations,} -as-forfeiting her right still to be considered, in courts of justice, as a neutral state. In the case ‘ of Eliza Aimj, Sir.: W.. Scott, went on the, ground of the .egal existence of a war between Great Britain and Sweden, although declared by Sweden only; and -that the place where the. capture was made was >n the hostile possession of the. British arms. The observations thrown, out by him in delivering his judgment,'as to the necessity of the neutral state main taining a perfect impartiality between the belligerents, In order'to support a claim of. this'sort in the prize court, were superfluous ; because the facts showed that Sweden was in no respect, to be considered as neutral, having openly declared war against ■ Great Britain, and a counter declaration being unnecessary to constitute a state of hostilities. As to the alleged resistance of the captured vessel, it was a premature defence only, commenced in consequence of apprehensions from Carthagenian rovers, which frequent ed those seas , and being the result of misapprehension, could confer no right tp capture where none previously existed. Being in a neutral place, the vessel was' entitled to the privileges of a neutral. Resistance to search does not always forfeit the privilegesof neutrality; it may be excused under circumstances of misapprehension, accident, or mist alee, ■ But resistance to search by a neutral bn the high seas Is generally unjustifiable. Here Ihe right of search could not exist, and, consequently, an .attempt to exercise it might lawfully be resisted. Finding the neutral territory no, protection, the captured vessel .resumed her rights as an enemy, and. attempted to defend herself. The titles of possession, which are said to be confirmed by a treaty of peace, are those which 'arise from sentences of condemnation, valid or invalid, ; but' the principle cannot he applied to a mere tortious possession, unconfirmed by any sentence of .condemnation like1 the present. The capture being invalid ab initio, and the former proprietor being rehabilitated in hisrights by the intervention of peace, may interpose his claim at any time before a final sentence of condemnation. . March 7th. The Adriana, 1 Rob. 34. The Haabet, 6 Rob. 54. L’Amitie, Id. 269. note (a.) Vattel, L. 3. ch. 7. & 132. Id. L. 1. ch. 23. § 289. Bynk. Q, J. Pub. L. 1 c. s. Martens L. 8. s. ch. 6. § 6. Azuni, part 2. ch. 5. art. 1. § 15. The Twee Gebroeders, 3 Rob. 162. The Anna, 5 Rob. 332. The Vrow Anna Catharine, 5 Rob, 15. The Maria, 1 Rob. 340. The Resolution, 6 Rob. 13. The Grotius, 8 Cranch, 368. The Sally, 1 Gallis. 401. The George, The Bothnea, and The Jahnstoff, 1 Wheaton, 408. The Twee Gebroeders, 3 Rob. 162. note. The Diilgentia, Dodson, 412. The Eliza Ann. Id. 244. The Vrow Anna Catharina, 5 Rob. 15. The Eliza Ann, Dodson, 144, 245. Q. J. Pub. L. 1. ch. 8. Uno verbo; territorium communis amici valet ad prohiben4um vim, quae ibf inchoatur, non valet ad inkibendam, quse, extra- territorium inchoata, dum fervet opus, in ipso territorio continuatur.” This opinion of Bynkershoek, in which Casaregis 'seems to concur;. (Disc. 24, n. 11.) is reproba*ted by several writers. De Habreu, Part 1. ch. 4. § 15. Azuni, part 2. c. 4. art. 1. Valin, Traite des Prises, ch. 4 sec. 3. n. 4. art. 1. Emerigon, Des Assurances, Tom. 1. p. 449; Azuni observes, “Di fat-ti Aacche.il demico perseguitato si trova sotto il caqnon onel mare territoriale della Potenza árnica e neutrale egli si considera tosto sotto l’asilo, e protezioie della nazione pacifica ed amica: laoade se fosse permésso di continuare il corso fino alie spiagge neutrali, potrebbe anche continuarsi nel porto medesimo ed incendiare perlino la citta ove l’inseguita nave si fosse rifu-giata. Lo stesso Casaregi connobe in appresso lo sbaglio preso su di questa materia o scordo ' questia sua dottrina, giacche sostenne di poi I’opinione in altro discorso posteriormente scritto da Jui.” “Aut naves inimicae (bt haec est secunda parsdistincti.onisprineipalis) reperiuntur intra Portus, vel sub praesidiis, vel arcibus maritimis alicujus principis alieni, aut in mari íta vici-' no, ut tela tormentave muraba maritúnae aréis illuc adigi possint, tunc citra omne diibium diclae naves hostilles, eoq,ue minus naves communis amici principis recognoscv visitari, et depraedari subquovis praetextu minime valent, quia dictae naves non minus sunt sub custodia et protectfione tabs principis, quam. sunt illiils subditi intra' civilatis muros existentes.” Optimus textus est in legé3. § fin. ff. De adquir. rer. dom. Ibid. “Quidquid autem eorum cóeperimus, eo usque nostrum esse intelligiter, donee nostra custodia coeroetur.” Casaregis Disc. 174. n. 11. Ibid.” The Anna, 5 Rob. 345. Wheaton on Capt. 307. and the authorities there cited. 5 Rob. 15 Dodson, 244. The St. Juan Baptista, &c. 5 Rob. 36. [MAJORITY — Mn Justice Stok y] Mn Justice Stok y delivered the opinion, of the courf^ first question which is presented to the court whether the capture was made within thé territorial' limits of Spánish St. Domingo. The testimony .the carpenter and cook of the- captured vessel distinctly asserts that the ship, at the time of the capture, was laying at anchor about a mile from the shore of island. The testimony of the captors as distinctly, asserts, that the ship then lay at a distance of from four to five miles from the , shore. It is contended, by the counsel for the claimants, that captors, are. in no cases admissible witnesses in prize causes being rendered incompetent by reason of their interest. ‘ It is certainly true, that, upon the .original hearing, no other evidence • is . admissible than that of the. ship’s papers, and the preparatory examinations the captured crew. But, upon an order for far-proof, where the benefit of it is allowed to'the captors, their attestations are clearly admissible evi£[ence This is the ordinary' course of prize courts, ■ J . , 1 ' 7 especially where it becomes material to ascertain the r r ! , . circumstances of the capture; tor tn sura cases the facts'lie as much within the knowledge of the capíorS ásthe captured; and the objection of interest generally applies as strongly to the one party as to the other. It'is a mistake, to suppose that the common law doctrine, as to competency, is: applicable to prize proceedings. In courts of prize, no person is incompe-' tent merély on the ground of interest. His testimony is admissible, subject tó all exceptions as .to its crqdibflity. The cases cited at the argument distinctly support this position ; and they are perfectly consistent with fhe principles by which courts of prize profess to regulate their proceedings. We. are, therefore, of opiñion, that the attestations ,of the eaptors are le-. gal. evidence in the case, and it remains to examine their credit. And without entering into a minute examination, in this conflict of .testimony, we are of opinion, that the weight of evidence is, decidedly, that the capture was made within the territorial limits of Spanish St, Domingo. And this brings us to the second question in the cause; and that is, whether it was competént for the Spanish . r consul, merely by virtue of his office, and without the special authority of his government, to interpose a claim in this case for the assertion of the violated rights of his sovereign. We are of opinion, that his , , . office confers on him no such legal competency. A .consul, though a public agent, is supposed to be clothed with authority only for' ecinmercial purposes. He has an undoubted right to interpose claims for the restitution of property belonging to the subjects of Jiis own country; but he is hot considered as a minister, or di • plomatic agent of his sovereign, intrusted, by virtue of his office, with authority to represent him in hisne g0tiations with foreign states, or to vindicate his prero- . 5 . ■ ’ v gatrves. 1 here is no doubt, that his sovereign may specially intrust him with such authority; but in such case his diplomatic character is superadded to his ordinary powers, and ought to be recognized by the government within whose dominions he assumes to exercise it. There is no suggestion, or proof, of any such delegation of special authority in this case; and therefore we consider this claim as asserted by an incompetent person and on that ground it ought to be dismiss-sed. It is admitted, that a claim by a public minister, or in his absence, by a charge d’áffairs in'behalf of his sovereign would be good. But in making this admission, it is not to be understood that it can be made in a court of justice without the assent or sanction of the government in Whose courts the cause is depending. That is a question of great importance, upon which this court expressly reserve their opinion, until the point shall come directly in judgment. The claim of the Spanish government for the violation of its neutral territory being thus disposed of, It is next to be considered whether the British claimant can assert any title founded upon that circumstance. By the return of peace, the claimant became rehabilitated with the capacity to sustain a suit in the courts of this country; and the argument is that a capture made in a neutral territory is. void and therefore, the title by capture being invalid, the Brt-. tish owner has a right to restitution. The difficulty of this argument rests in the incorrectness of the premises. Á capture made within neutrál waters is, as between enemies, deemed, to all intents, and purposes, rightful; it is only by the neutral sovereign that its legal validity can he called in question; and as to him and him only; is it to be considered void. The enemy has no rights whatsoever ; and if the neutral sovereign-, omits or declines to interpose a claim, the property is condemns ble, jure lelh^ to the captors. This is.the clear result of the authorities; and the doctrine rests, oh well established principles of public law. _A capture within neutral territory is rightful, as between the belligerents; the neutral state a lone can question its validity- - Captured ship first conwrten-. cing hostilities upon tli* cap tor, forfeits the neutral protas tion. There is one other point in the cáse which, if all other difficulties were removed, would be decisive against the claimant. It is a fact that the captured ship first commenced- hostilities against the privateer. This is admitted on all sides ; and it is no excuse to assert that it was done under a mistake of the national character of the privateer, even if this were entirely made out in the evidence. While the ship was lying in neutral waters,, she, was bound to abstain1 from all hostilities, except in self defence. The privateer had án equal title, with herself to the neutral protectionr.an,d was in no default in approaching the coast without showing: - her national character. It was. a violation of that neutrality which the captured ship was bound to observe, to-commencehostilities for any purpose in-these waters; for no-vessel coming thither was bound to submit to search, or to account to her for her conduct or character. When, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral'sovereign. The conclusion from all these views of the .case is, that the ship and cargo ought to be condemned as ■good prize of war. And the only remaining inquiry is, whether the captors have so conducted themsel ves as to have forfeited the rights given by their cómmission, so that the condemnation ought to' be to the United Spates. There can be no doubt, that .if captors are guilty of gross misconduct, or laches, in violation of their duty, courts of prize will - visit upon thepi the penalty of a forfeiture of the rights of prize, especially- where the government chooses to interpose a claim to.assert such forfeiture. Cases of gross irregularity, or fraud, may readily be Imagined in which it would become the duty of this court to enforce this principle in -its utmost rigour. But it has never been supposed that irregularities, which have-arisen from mere mistake, or negligence, when they, work no irreparable mischief,.and are consistent with good faith, have ordinarily induced such penal consequences. There wrere some irregularities in this case; but there is no evidence upon the record from which we can infer that there was any fraudulent suppression,, or any gross misconduct inconsistent with good faith; and, therefore, ,we are of opinion, that condemnation ought to be to the captors.. It is the unanimous opinion of the court, that the decree of the circuit court be affirmed, with costs. Decree affirmed. See Viveash v. Becker, 3 Maule and Selwyn, 284. as to the extent of the powers and privileges of consuls. The same rule, is adhered' to- in,-the prize practice of France, and was acted on in the case of the Sanct'a Trinila a Russian vessel, captured within a mile and a haif-of the coast- of Spain; but the council of prizes refused restiiution, because the Spanish-government did-not interpose a claim on account of its violated-territory. BpnntmnnPa Translation of Bé Mabrm* oim. 1 p. 117.