The guaranty of the islands was against all men, traitors as well as enemies. The revolt of the negroes was a matter which concerned both nations. It was IX. The troops and ships demanded shall continue at the disposal of the requiring power during the whole continuance of the war, without its incurring in any case any expense. The power called on shall maintain them in all places where its ally shall cause them to act, as if it employed them directly for itself. It is simply agreed on, that, during the whole of the time when the aforesaid troops or ships shall be on the territory or in the ports of the requiring power, it shall furnish from its magazines or arsenals whatever may be necessary to them, in the same way and at the same price as it supplies its own troops and ships. It shall X. The power called on shall immediately replace the ships it furnishes, which may be lost by accidents of war or of the sea. also repair the losses the troops it supplies may suffer. XI. If the aforesaid succours are found to be, or should become, insufficient, the two contracting powers shall put on foot the greatest forces they possibly can, as well by sea as by land, against the enemy of the power attacked, which shall employ the aforesaid forces either by combining them, or by causing them to act separately, and this conformably to a plan concerted between them. XII. The succours stipulated by the preceding articles shall be furnished in all the wars the contracting powers may have to maintain, even in those in which the party called on may not be directly interested, and may act merely as a simple auxiliary. XIII. In the case in which the motives of hostilities being prejudicial to both parties, they may declare war with one common assent against one or several powers, the limitations established in the preceding articles shall cease to take place, and the two contracting powers shall be bound to bring into action against the common enemy the whole of their land and sea forces, and to concert their plans so as to direct them towards the most convenient points, either separately or by uniting them. They equally bind themselves, in the cases pointed out in the present article, not to treat for peace unless with one common consent, and in such a way as that each shall obtain the satisfaction which is its due. XIV. In the case in which one of the powers shall act merely as an auxiliary, the power which alone shall find itself attacked may treat of peace separately, but so as that no prejudice may result from thence to the auxiliary power, and that it may even turn as much as possible to its direct advantage. For this purpose advice shall be given to the auxiliary power of the mode and time agreed on for the opening and sequel of the negotiations. XV. Without any delay there shall be concluded a treaty of commerce on the most equitable basis, and reciprocally advantageous to the two nations, which shall secure to each of them with its ally a marked preference for the productions of its soil or manufactures, or at least advantages equal to those which the most favoured nations enjoy in their respective states. The two powers engage to make instantly a common cause to repress and annihilate the maxims adopted by any country whatever, which may be subversive of their present principles, and which may bring into danger the safety of the neutral flag, and the respect which is due to it, as well as to raise and re Rose V. Himely. Rose V. Himely. * 263 *264 equally the interest of both that they should be suppressed. *The trading with the revolted slaves was in itself a violation of the law of nations. It is immaterial whether it be a violation of a municipal law, or of the rights of war. A vessel may be lawfully seized and condemned *as prize for a violation of the law of nations, whether there be war or not. A French prize court does not come into existence, nor cease, with a war, but, like our district courts, always exists as a prize court. The arretes of Le Clerc, Ferrand, &c. were mere proclamations; not laws, but declarations of what the law was before. The vessel was as liable to seizure establish the colonial system of Spain on the footing on which it has subsisted, or ought to subsist, conformably to treaties. XVI. The character and jurisdiction of the consuls shall be at the same time recognised and regulated by a particular convention. The conventions anterior to the present treaty shall be provisionally executed. XVII. To avoid every dispute between the two powers, they shall be bound to employ themselves immediately, and without delay, in the explanation and development of the 7th article of the treaty of Basle, concerning the frontiers, conformable to the instructions, plans and memoirs which shall be communicated through the medium of the plenipotentiaries who negotiate the present treaty. XVIII. England being the only power against which Spain has direct grievances, the present alliance shall not be executed unless against her during the present war, and Spain shall remain neuter with respect to the other powers armed against the republic. XIX. The ratifications of the present treaty shall be exchanged within a month from the date of its being signed. Done at St. Ildephonso, 2d Fructidor, (August 19,) the 4th year of the French Republic, one and indivisible. (Signed) PERIGNON and the The Executive Directory resolves on and signs the present offensive and defensive treaty of alliance with his catholic majesty, the King of Spain, negotiated in the name of the French Republic by Citizen Dominique Catharine Perignon, General of Division, founded on powers to that effect by a resolution of the Executive Directory, dated 20th Messidor, (September 6,) and charged with its instructions Done at the national palace of the executive directory, the 4th year of the French Republic, one and indivisible. Conformable to the original, (Signed) REVEILLIERE LEPAUX, President. By the executive directory, LAGARDE, Secretaire General. after she had got out of the territorial jurisdiction, as if she had violated a blockade. Whether it be a case of prize of war, or of municipal cognisance, the court had a right to order a sale before condemnation, and a purchaser under such sale gained a good title against all the world. The sale was made under the order of the court by its authorized agent. The communications of the French ministers Pichon and Turreau to our government, consider this trade as a violation of the law of nations, and our government has considered it in the same light. If it was only a violation of the municipal law of France, this country must have been prostrated in dust and ashes, when congress passed a law to carry into effect the municipal law of France. But the truth is, that if this government had not put a stop to the trade, it would have sanctioned a violation of the law of nations. The In the Baltimore case, the court ought to have left the jury to decide, under all the circumstances of the case, whether the brigands had such a title to the property as to make a valid sale to the plaintiffs. purchase was made only a few months after the slaves had driven out or murdered all the whites, and had confiscated their property. The probability is, that this very property was the property of the whites, obtained by plunder and robbery. If so the robbers gained no title. It was, therefore, a matter of fact for the jury to decide. But the principal question, whether a French court can condemn a prize lying in a neutral port, is to be determined, not by adjudged cases in one nation only, but by the law and practice of the civilized maritime *nations of Europe. It has been shown to be the practice of most, if not of all the maritime nations of Europe for a century; and if we have no practice on the subject, and are now called upon to establish one, it will certainly be our interest to conform to that of Europe. This is a civil war of the most odious kind; slaves against their masters. It is said, indeed, that they were free. But the same power which had declared them free, had since declared them to be slaves. But whether Rose V. Himely. * 265 Rose V. Himely. *266 they are to be considered as free rebels, or as revolted slaves, we had no right to trade with them. There are duties which one state owes to another in the case of rebellion. If a nation joins or assists the rebels, it becomes an enemy. Upon this point, authorities are not necessary. Reason alone is sufficient. The United States have never acknowledged the independence of Hayti; and the citizens of the United States have no right to consider it as an independent nation. A law of a nation regulating the trade of foreigners in the territory of that nation, is not a municipal law, but a modification of the law of nations. By the law of nations, every state has a right to regulate the trade of foreigners with that state, and every such regulation is only a modification of that law. To succour rebels is as much a violation of the law of nations, as to succour a blockaded port, or a besieged city. A prize may be condemned while lying in a neutral port, or at the bottom of the sea, or even if the thing be consumed. The condemnation does not give property; it only establishes the fact that the captor or his sovereign had a lawful title by the capture. 1 Wilson, 211. 2 Azuni, 262. 12 Mod. 134. Rex v. Broom. Carthew, 398. S. C. *The owner of goods captured can only resort to the courts of the captor for redress. Doug. 614. Le Caux v. Eden. No other nation can interfere. He has no right to apply to the courts of his own country, even if his goods are carried there. Neutrals cannot interfere; if they do, they make themselves parties in the war. The treaty of alliance bound Spain to assist France against the revolted slaves. Vattel (p. 234. b. 2. s. 197.) says, "An ally ought doubtless to be defended against every invasion, against every foreign violence, and even against his rebellious subjects." A Spanish port was, therefore, to be considered as a port of an ally. A neutral, whose property has been seized for violation of the law of nations, has no right to rescue it. He may escape with it if he can; but there is no jus postliminii in favour of neutrals. (a) The court at Santo Domingo was the sole judge of its own jurisdiction. Its decision upon that point is conclusive upon this court. A The questions of jus postliminii, and infra præsidia, and of 24 hours' possession, can only arise in a case *between the recaptor and the first owner, or between the latter and a vendee of the captor. As between the captor and the captured, the title passes by the seizure. condemnation is only evidence of the lawfulness of the seizure. But it is not the only evidence. This doctrine is acknowledged by all the nations of Europe, except England. But England cannot make the law of nations. Grotius, p. 580, 581. b. 3. c. 6. s. 2, 3. tit. 4. Vattel, p. 570. b. 3. s. 195, 196. 212. p. 585. Burlemaqui, (last part,) p. 222. s. 13, 14. Lee on Captures, 68, 69, 70. 73. 76. 101, 102. fus postliminii does not arise with regard to moveable goods, except ships; but a belligerent acquires the right to immoveable things, immediately upon capture. 1 Emerigon, 4to. ed. (French,) p. 513. 2 Azuni, 236. 238. Lee on Captures, p. 64. c. 5. 1 Rob. 114. The reason of a distinction being taken between ships and other moveables, is, that the identity and title of a ship may be as certainly traced as that of land; and there is the same reason for the rule caveat emptor. If the title to all foreign merchandise is to be thus questioned, it will be necessary to trace it up, in all instances, to the original manufacturer, or to the cultivator (a) MARSHALL, Ch. J. Do you contend that, after its escape, the captor may proceed to libel and condemn the property in the courts of the captor? Martin. Unquestionably. The property vests by the capture. JOHNSON, J. Is not a neutral vessel, captured as prize for a breach of the law of nations, quoad hoc an enemy, and as much entitled to rescue herself as an open enemy? Martin. No. The offended nation would have a right to demand that she be given up by her government; and if it refuses, it sanctions the inimical act of its subject, and makes itself a party in the war. So if the seizure be for violation of a municipal law, the government of France has a vested right; but not if there be no seizure. If an American neutral vessel, not having a commission therefor, should assist in rescuing another neutral American vessel from a belligerent who had seized her as prize for violation of the law of nations, she would be guilty of piracy. Rose V. Ilimely. *267 |