APPEAL to the circuit court of the district of Maryand.
The British ship Anne, with a cargo belonging to a British subject, was captured by the privateer Ultor, while lying at anchor near the Spanish part of the island 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 restitution of the property, on account of an asserted violation of the neutral territory of Spain. The testimony of 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, the district court rejected the claim, and pronounced a sentence of condemnation to the captors. Upon appeal to the circuit court, peace having taken place, the British owner, Mr. Richard Scott, interposed a claim for the property, and the decree of the district court was affirmed, pro forma, to bring the cause for a final adjudication before this court.
Mr. Harper, for the appellant and claimant, argued, that the captors were incompetent witnesses, on the ground of interest, except when farther proof was imparted 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 or irrelevancy of the evidence. The testimony of the captors being excluded 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 harbours, and within the range of cannon shot along its coasts.  Nor can it be used as a station from which to exercise hostilities.  As to the authority by which the claim was interposed, the Spanish consul's was sufficient for that purpose; 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 of their 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.  But even 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 his claim upon every ground which shows that the capture, though of enemy's property, was originally unlawful and void.
Mr. D. B. Ogden 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 proceedings is 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 captors being as much necessary witnesses of the transaction as are the captured persons. Every capture of enemy's property, wheresoever made, 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 be interposed by authority of the government whose territorial rights have been violated.  The public ministers of that government may make the claim, because they are presumed to be fully empowered for that purpose: But a consul is a mere commercial agent, and has none of the diplomatic attributes, or privileges of an ambassador; he must, therefore, be specially empowered to interpose the claim, in order that the court may be satisfied that it comes from the 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 for the sovereign alone to judge when those rights are violated, and how far policy may induce him silently to 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 claim of this sort appears to have been made by a consul; and 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 in various instances was violated with impunity. Spain was incapable, or unwilling, at that time, to maintain her neutrality in any part of her immense dominions. In this very case the captured vessel was not attacked; she was the aggressor: and, in 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 inviolability 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 enemy may lawfully be pursued and taken in such places, if the battle has been commenced on the high 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 the latter was completely devested by the capture. The title of the captors acquired in war was confirmed by bringing the captured property infra proesidia. The neutral government has no right to interpose, in order to prevent the execution of the treaty of peace in this respect, by compelling 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 claimant.
Mr. Harper, in reply, insisted that the claim of neutral territory, as invalidating the capture, might be 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 in the case of the Vrow Anne Catharina,  it does not appear that any proof was given to the court, that the Portuguese consul was specially instructed to make the suggestion. However partial and unjustifiable may have been the conduct of Spain in the late war, it has not yet been considered by the executive government 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 Ann,  Sir. W. Scott went on the ground of the legal existence of a war between Great Britain and Sweden, although declared by Sweden only; and that the place where the capture was made was in 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 maintaining 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 frequented those seas, and being the result of misapprehension, could confer no right to 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 privileges of neutrality; it may be excused under circumstances ofsmisapprehension, accident, or mistake.  But resistance to search by a neutral on the high seas is generally unjustifiable. Here the 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 be applied to a mere tortious possession, unconfirmed by any sentence of condemnation like the present. The capture being invalid ab initio, and the former proprietor being rehabilitated in his rights by the intervention of peace, may interpose his claim at any time before a final sentence of condemnation.
Mr. Justice STORY delivered the opinion of the court.
^1 The Adriana, 1 Rob. 34. The Haabet, 6 Rob. 54 L'Amitie, Id. 269. note (a.)
^2 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.
^3 The Twee Gebroeders, 3 Rob. 162. The Anna, 5 Rob. 332.
^4 The Vrow Anna Catharine, 5 Rob. 15.
^5 The Maria, 1 Rob. 340. The Resolution, 6 Rob. 13. The Grotius, 9 Cranch, 368. The Sally, 1 Gallis. 401. The George, The Bothnea, and The Jahnstoff, 1 Wheaton, 408.
^6 The Twee Gebroeders, 3 Rob. 162. note. The Diilgentia, Dodson, 412. The Eliza Ann, Id. 244.
^7 The Vrow Anna Catharina, 5 Rob. 15.
^8 The Eliza Ann, Dodson, 244, 245.
^9 Q. J. Pub. L. 1. ch. 8. Uno verbo; territorium communis amici valet ad prohibendum vim, quae ibi inchoatur, non valet ad inhibendam, quae, 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 reprobated 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 fatti dacche il demico perseguitato si trova sotto il cannon o nel mare territoriale della Potenza amica e neutrale egli considera tosto sotto l'asilo, e protezioie della nazione pacifica ed amica: laonde se fosse permesso di continuare il corso fino alle spiagge neutrali, potrebbe anche continuarsi nel porto medesimo ed incendiare perfino la citta ove l'inseguita nave si fosse rifugiata. Lo stesso Casaregi connobe in appresso lo sbaglio preso su di questa materia o scordo questia sua dottrina, giacche sostenne di poi l'opinione in altro discorso posteriormente scritto da lui.' 'Aut naves inimicae (et haec est secunda pars distinction is principalis) reperiuntur intra Portus, vel sub praesidiis, vel arcibus maritimis alicujus principis alieni, aut in mari ita vicino, ut tela tormentave muralia maritimae arcis illuc adigi possint, tunc citra omne dubium dictae naves hostilles, eoque minus naves communis amici principis recognosci, visitari, et depraedari subquovis praetextu minime valent, quia dictae naves non minus sunt sub custodia et protectione talis principis, quam sunt illius subditi intra civitatis muros existentes.' Optimus textus est in lege 3. § fin. ff. De adquir. rer. dom. Ibid. 'Quidquid autem eorum coeperimus, eo usque nostrum esse intelligiter, donec nostra custodia coercetur.' Casaregis, Disc. 174. n. 11. Ibid.'
^10 The Anna, 5 Rob. 345.
^11 Wheaton on Capt. 307. and the authorities there cited.
^12 5 Rob. 15.
^13 Dodson, 244.
^14 The St. Juan Baptista, &c. 5 Rob. 36.