APPEAL to the circuit court for the District of Maryland.

(436) The British ship Anne, with 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 Janaury, 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.

1

(437) Mr. Harper, for the appellant and claimant, argued, that the captors were incompetent witnesses, on the ground of interest, except when further proof was imparted to them; and that they were not entitled to the benefit of further 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 further 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 harbors, and within the range of cannonshot along its

1 The Adriana, 1 Rob. 34; The Haabet, 6 Rob. 54; L'Amitie, Id. 269, note a.

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, (438) 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 Portugese 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 persona 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 further proof. A claim founded merely upon the allegation of a violation of neutral territory is a case peculiarly requiring the (439) 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

Vattel, L. 3, ch. 7, s. 132; Id. L. 1 Ch. 23, s. 289; Bynk. Q. J. Pub. L. 1 c. s; Martens L. 8, s. ch. 6, s. 6; Azuni, part 2, ch. 5, Art. 1, s. 15. The Twee Gebroeders, 3 Rob. 162; The Anna, 5 Rob. 332.

The Vrow Anna Catherina, 5 Rob. 15.

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 Jannstoff, 1 Wheaton, 408. Wheat. 3.

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 embassador; 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 (440) 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. Bynkershoek and Sir William Scott hold, that a flying enemy (441) may lawfully be pursued and taken in such places, if the battle has been commenced on the high seas.' A fortioro, 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 interest of the (442) latter was completely devested by the capture. The title of the captors acquired in war was confirmed by bringing the captured property infra praesidia. The neutral government has no right to interpose, in order to prevent the execution of

6 The Twee Gebroeders, 3 Rob. 162, note; The Dilligentia, Dodson, 412; The Eliza Ann, Id. 244.

The Vrow Anna Catharina, 5 Rob. 15.

The Eliza Ann, Dodson, 244, 245.

1The Anna, 5 Rob. 345.

Wheaton on Capt. 307, and the authorities there cited.

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.

3

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 Anna Catharina it does not appear that any proof was given to the court that the Portugese 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 the right still to be considered, in courts of justice, as a neutral state. In the case of The Eliza Ann, Sir W. Scott went on the ground of the (443) 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 of misapprehension, accident, or mistake. But resistance to search by a neutral on the high seas is generally unjustifiable. Here the right to search could not exist, and, consequently, an attempt to exercise it might lawfully be raised. 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 (444) 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.

STORY, J., delivered the opinion of the court: The first question which he presented to the court is, whether the capture was made within the territorial limits of Spanish St. Domingo. The testimony of 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 the island. The testimony of the captors as distinctly asserts that the ship then lay at a distance of from four or 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 of the captured crew. But, upon an order for farther proof, where the benefit of it is allowed to the captors, their attestations are clearly admissible evidence. This is the ordinary course of prize courts, especially where it becomes material to ascertain the circumstances of the capture; for in such cases the (445) facts lie as much within the knowledge of the captors as the 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 incompetent merely on the ground of interest. His testimony is admissible, subject to all exceptions as to its credibility. The cases cited at the argument distinctly support this position; and they are perfectly consistent with the principle by which courts of prize profess to regulate their proceedings. We are therefore of opinion that the attestations of the captors are legal 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 competent for the Spanish 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