tence is always open, whatever may be the law as to the conclusiveness of a foreign sentence. The court at Santo Domingo had no jurisdiction over this coffee. Incompetence may arise from want of jurisdiction, as to the subject of litigation, or as to the place where the tribunal sits. Neither by the law of nations, nor by treaty, could it condemn property while it was in the custody of our laws, and in contest in our courts. Even if the property had been in France, it is very doubtful whether the court of Santo Domingo could have condemned it. The proceeding was in rem, and from the nature of things, the res, the thing against which the *suit is instituted, ought to be within the power and jurisdiction of the court before which it is tried; it ought at least to be in the same country. If it be a case of mere municipal jurisdiction, the court cannot proceed if the thing be in the country even of an ally; for an ally in a war is not an ally as to the execution of the municipal laws of the co-ally. Suppose a seizure to be made by Spain, for an illicit trade in contravention of her municipal laws, and the vessel never carried into a Spanish port, but into a French port. The Spanish court could not proceed. One country will not enforce the municipal laws of another. In this country no court has jurisdiction in rem, unless the thing be within its jurisdiction. So by our treaty with France, no court has jurisdiction of a cause of prize but the court of the place or country to which the prize was carried. But here the vessel was carried to a Spanish country, and condemned in a French court. This court has an undoubted right to examine into the competency of the court whose sentence is produced in evidence. That question was decided in the case of Glass v. Gibbs, (The Betsey,) 3 Dall. 7. and if not competent, this court will disregard its sentence. Sir W. Scott, in a great number of cases, has looked into the question of the competency and jurisdiction of the court, and inquired whether the court proceeded according to the law of nations. 1 Rob. 142. The Flad Dyen. 8 T. R. 270. Havilock v. Rockwood, and 2 Rob. 172. The Christopher. In the case of Sheafe & Turner v. Aparcel of sugars, Rose V. Himely. *251 Rose V. Himely. * 252 in the circuit court of South Carolina, in 1800, the sugars, it is said, were carried into a Spanish port and condemned in a French port; but Spain was then an ally of France, and the capture was jure belli. When it is said that a neutral court has no cognisance of prize, it means that a neutral court cannot interfere between belligerents, but not that a neutral court shall not interfere between a belligerent and one of its own neutral citizens. 3 Rob. 82. The Kierlighett. 2 Rob. 239. The Perseverance. Of what use is a treaty, if a sentence *contrary to that treaty is to be respected by the nation whose rights are thereby violated? In Mayne v. Walter, Park, 414. Pollard v. Bell, 8 T. R. 437. and Bird v. Appleton, 8 T. R. 562. it is decided that a condemnation grounded upon an arbitrary arrete is void. Browne (Civ. Law, vol. 2. p. 332.) says, that where the proceeding is in rem, it must be where the thing is. The powers of condemnation and of restoration belong to the same court. It must have the possession of the thing in order to restore it. The court is said to proceed instanter, velo levato. If the court of Santo Domingo had decreed restitution, it could not have enforced its decree. In the case of the Henrick and Maria, 4 Rob. 52. Sir W. Scott, while he acknowledges that the English practice has been to condemn vessels lying in a neutral port, seems to express a wish that the superior court would recal the practice to the proper purity of the principle. In p. 46. he says, that upon principle it is not to be asserted that a ship, brought into a neutral port, is, with effect, proceeded against in the belligerent country. The res ipsa, the corpus, is not within the possession of the court; and possession, in such cases, founds jurisdiction." It was upon this pure principle that the 22d article of the French convention was founded. It is no argument to say that the courts of each nation must have an equal right to expound that convention, and that if we think their construction incorrect, we must apply to government for redress. If application were to be made to government, we should be sent back again to our courts of law; and not until it should be there pronounced that the French construction was incorrect, would our government make application to that of France for redress. In case of rescue or escape, the government is never bound to restore. The capturing nation takes redress in its own way, and by its own strength, and cannot require the aid of our arm. The penal laws of a foreign country can affect only the property in its power, (1 H. Bl. 134, 135.) and cannot be executed by the courts of another. 2 Wash. 295. 298. Municipal law cannot make prize of war. 2 Dall. 4. 3 Dall. 77. *And if the thing be not within the jurisdiction of the court, it cannot proceed. 3 Dall. 86. It must at least be in the country of the captor, or of his ally. 2 Browne's Civ. Law, 268. No property can be acquired by capture, unless it be carried infra præsidia, i. e. into the ports of the enemy of the captured; and according to Lee, the ports of an ally will not answer. Lee on Captures, 87-96. A capture cannot give a title, unless it be of enemy's property. 2 Dall. 2. 34. The case of Wheelwright v. Depeyster, 1 Johns. Rep. 471. was in all its circumstances exactly like the present, and the supreme court of NewYork decided the court at Santo Domingo to be incompetent to condemn a vessel lying at St. Jago de Cuba. Spain was not an ally in the war. She professed to be neutral, and was bound to neutral duties. (See her own declaration to her subjects, dated the 10th of September, 1804, and her manifesto and declaration of war of 10th December, 1804, in the New Annual Register of that year.) Although there was a treaty of alliance between her and France, yet, by the terms of that treaty, Spain was not bound to assist France until called upon; and France had not then demanded her aid. She was, therefore, neutral, and was bound to refrain from giving any direct aid to either of the belligerents. But to allow one belligerent to carry prizes into her ports, and deposit them there for safe keeping, is a violation of neutrality; it is a direct aid. Spain did wrong to permit this kind of deposit, and therefore no right can be derived from it. It is not always necessary to make application to government for redress by negotiation or war. If the title derived from the captor be bad, and the thing is brought within the jurisdiction of our courts, it is competent for those courts to give redress, and restore the thing to its lawful owner. But when a neutral becomes an ally, she is no longer bound to perform these neutral duties; she becomes a Rose V. Himely. * 253 Rose V. Himely. * 254 partner in the war, and is bound to belligerent duties. She is bound to give her aid to her co-belligerent. The exception of the country of an ally, therefore, strengthens the general rule, that the property cannot be lawfully condemned while lying in a neutral country. *The possession of one ally is quoad hoc the possession of the other. Proceedings for forfeitures are always proceedings in rem; and to make them valid, it is always necessary that the court should have possession of the thing. Possession is the foundation of all its proceedings. How can it condemn what is not in its power to give? Or how restore what is not within its control? This principle applies as universally to captures jure belli, as to seizures for municipal offences. If this be a municipal seizure, it is immaterial whether Spain was an ally in the war or not; because she could not be an ally as to municipal offences. One ally never gives up offenders against the municipal laws of the other, unless bound so to do by treaty. One ally is not bound to aid the other in maintaining the authority of its own laws. So if property be carried to the country of one ally, the laws of the other cannot reach it. The former is not bound to give it up to the latter, nor to enforce its municipal judgments or decrees. The arrete of 2d October, 1802, gives the jurisdiction only to "the ordinary tribunal of the place where the prize shall have been conducted;" so that by the lex loci the court at Santo Domingo had no jurisdiction, even if the vessel had laid at another French port. Captors gain no right by mere capture. Whatever is acquired jure belli belongs to the sovereign. No title is gained until condemnation. 3 kob. 193. France herself, when neutral, will not permit a belligerent to detain his prize in her ports more than 24 hours. 2 Azuni, 256. A man can sell only what he has. But the captor, before condemnation, had at most a right of possession. The right is said to be in abeyance, subject to the chance of recapture, and to the jus postliminii. If it be said that jus postliminii does not apply to neutrals, we say, that when a belligerent treats a neutral as an enemy, the latter becomes entitled to belligerent rights. If rescued, what becomes of the right acquired by capture? There is no instance of a condemnation after such a rescue, nor of a complaint to the government of the neutral. The rule in all cases of sale of captured goods is, caveat emptor. On the part of the respondent (the purchaser under the sale at Barracoa) it was admitted that there were only two questions in the case, viz. 1. Whether the vessel was seized jure belli, or in execution of the municipal laws? 2. Whether the condemnation by a court in Santo Domingo, while the vessel was in a Spanish port, was a legal condemnation? 1. The condemnation was in exercise of belligerent rights, and not for violation of a municipal law. England, during the contest with these states, always claimed and exercised the rights of war. France never complained, even before she became a party. So France is to be considered as a belligerent with respect to Hayti. There were armies on both sides, arrayed against each other, fighting battles, taking towns, and carrying on a war in fact. It was not a trifling and partial insurrection, but a most cruel and bloody war. It was a civil, or rather a servile war, but not to be distinguished from other wars as to belligerent rights. The non-intercourse act, passed by congress in 1798 or 1799, if it had stood alone, might have been considered as a municipal regulation; but connected with other facts, it was taken by this court, to be an act of the partial war then waging against France. So the act of the British parliament, in 1776, prohibiting all trade with the North American colonies, was an act of war. The word war was not used, because England, as a matter of punctilio, would not acknowledge us as an independent nation. This court said we were at war with France in 1798, but congress did not say so; and France always denied it. So the Netherlands were at war with Spain for 70 years, but Spain would never acknowledge it. If there was war between France and Hayti, the arrete seems clearly to be a war measure, an exercise of *belligerent rights. Its only object was the annoyance of the enemy. There are many acts which, if considered alone, might appear equivocal whether intended as measures of peace or of war, and can only Rose V. Himely. 255 * 256 |