(prize.)
The Divina Pastora.—The Spanish Consul, Claimant.
The government of the United States having recognized the existence of a civil war between Spain and her colonies, but remaining' neutral, the Courts of the Union are bound to consider as lawful, those acts which war authorizes, and whicli the new governments in South America may direct against their enemy.
Unless the neutral rights of the United States, (as ascertained by the law of nations, the acts of congress, and treaties,) are violated by the cruizers sailing under commissions from those governments, captures by them are to be regarded by us as other captures, jure belli, are regarded; the legality of which cannot be determined in • the Courts of a neutral country.
Where the pleadings in a prize, or other admiralty cause, are too informal and defective to pronounce a final decree upon the merits, the cause will be remanded to the' Circuit Court, with directions to permit the pleadings to be amended, and for farther proceedings.
Appeal from the Circuit Court of Massachusetts.
The petition or libel, in this cause, by the Consul of his Catholic Majesty at Boston, alleges and propounds, 1. That there lately arrived at the port of New Bedford, in this district, and is now lying in the said port of N. B., a Spanish vessel, called the Esperanza, otherwise called the Divina Pastora, having on board a cargo, consisting of cocoa, cotton, indigo, hides, and horns, of great value, to wit, of the value of 10,000 dollars ; that the said vessel is navigated by seven persons, who are all American citizens, as he is~ informed, and believes ; and that there are no *53other persons on board of said vessel, and none other were on board when the said vessel arrived at said port. That the aforesaid persons say, that the said vessel was bound on a voyage from Laguira to Cadiz in Spain, and that she was captured by a privateer, or armed yessel, sailing under a flag, which they denominate, the flag of La Plata ; and that they did intend to carry said vessel to some port in the West Indies, but, afterwards, came into the port of New Bedford. 2. That the said vessel and cargo purport td haré been consigned to Antonio Seris, a merchant at Cadiz. 3. That the said Consul verily believes, that the said vessel has been captured and brought, into the aforesaid port, contrary to the law of nations, and in violation of the rights of the said Antonio Seris, and that the said Antonio is justly and lawfully entitled to the possession of the said vessel and her cargo : concluding with a prayer, that the process of the Court may issue, directed to the Marshal of this district, or-his deputy, requiring of them, respectively, to take the said vessel and cargo into custody, to the end, that due inquiry may be made into the facts pertaining to this case, and that the property may be adjudged, decreed, and restored, according to the just rights of whomsoever may be therein interested, and according to law and the comity which the United States have always manifested towards foreign nations.
The plea and answer of “Don Daniel Utley, a citizen of the free and independent United Provinces of Bio de la Plata, &c., in behalf of himself and all concerned, in the capture, of the . Spanish polacre brig *54Divina Pastora and her cargo, to the libel and petit*°n exhibited by, Don' Juan Stoughton, Consul of his Catholic Majesty, &c.,” sets forth, that the said Utley, by protestation, and not confessing or acknowledging aiiy of* the matters and things in the libellant’s petition and libel contained, to be true, in such manner and form as the same are therein and thereby alleged, for plea to the said libel and petition, says, that the United Provinces of Rio de la Plata in South America, are free and independent states, and, as such, have the power to levy war and make peace, raise armies andnavies, &c. And that the Supreme Provisional Director of said Provinces, at the’ fort of Buenos Ayres, on* the 25th day of October, 1815, commissioned a certain schooner, called the Mangoree, to cruize against the vessels and effects of the kingdom of Spain, and the subjects thereof, excepting only the Spanish Americans who defend their liberty, and authorized one James Barnes to act as commander of said schooner, and to seize and capture the vessels and effects of European Spaniards,, and bring them within the government of the United Provinces, for adjudication, according'to the law of nations, Ferdinand VIL, king of Spain, then being at war with said provinces, and general reprisals having been granted by said provisional government against the European subjects of the said king. That said schooner Mangoree, bearing the flag of the said independent Provinces, sailed on a cruise from the harbour of Buenos Ayres, within the said Provinces, on or about the first day of January, ,1816, by virtue of said, commission. And having touched *55at Port au Prince, in the island of Hispaniola, sailed again on said cruise, and on the 31st of October, 1816, on the high seas, &c. captured the polacre brig Divina-Pastora, belonging to the said king, or to his European subjects, on board of which brig said Utley was put as prize-master. And the original crew of said prize was taken out by the said Barnes, &c., and put on board of said schooner Mangoree, and a .prize crew sent on board the Pastora. And the said Barnes, &c., then appointed said Utley to the command of the said prize, and delivered to him a copy of his commission,' &c., which the said Utley now brings with him, and respectfully submits to the inspection of this honourable Court. And thereupon, the said Utley proceeded to navigate the said prize from the place where she was captured to Portau-Prince, in the island of Hispaniola, for the purpose of there procuring supplies and provisions, and thence proceeding to the port of Buenos Ayres. The plea then proceeds to state, that in the prosecution of the voyage, the prize vessel was compelled, by stress of weather, and want of provisions and water, to put into the port of New Bedford ; and concludes with alleging, that by the law of nations, and the comity and respect due from one independent nation to another, it doth not pertain to this Court, nor is it within its cognizance, at all to interfere, of hold plea respecting said brig or goods on board, so taken as prize of war, and a prayer for restitution, with costs, and damages. -
The replication of the Spanish Consul states, that inasmuch as the said Utley, in his plea, admits that *56the said vessel, and the cargo laden on board, were, on the 31st day of October, 1816, the property of a subject or subjects of his majesty Ferdinand VIL, the said consul claims the same, as the property of such subject or subjects, the names of whom are to him, at present, unknown; excepting that he verily believes the same to be the lawful property of Antonio Seris, as he, in his petition, hath set forth: And avers, that the same ought to be restored and deliver-, ed up for the use of the Spanish owner or owners. The replication then proceeds to aver, that as the said vessel is stated in the plea to .have been captured on the high seas by a certain armed vessel called the jftlangoree, commanded by one James Barnes, which armed vessel is stated to have been commissioned under a certain authority called the United Provinces of Rio de La Plata in South America, the said capture and seizure, &c. were piratical, or tortious, and contrary to the lawful and well known rights of the faithful subjects of his said majesty, to whom the same belonged at the time of such capture, &c., and that no right of property thereby vested in the said Barnes or Utley, or any other person or persons who were navigating and sailing in the said armed vessel called the Mangoree: 1st. Because, at the time when the said pretended capture as prize of war was made, &c., the several provinces' situate in South America, and near to the river called Rio de la Plata, were provinces and colonies of his said majesty Ferdinand VIL, and now are provinces and colonies of his said majesty; and that the same had been, for a long course of years, provinces and colonies of the sue*57cessive kings of Spain; and that all the people, per* sons, and inhabitants dwelling therein, were, on the 21st day .of October,.. 1815, and for a long time before had been, and now are Spanish subjects, and did at the aforesaid limes, and now do ow*e allegiance and fidelity to his said majesty. 2dly. Because the said subjects and persons, dwelling in the said pro.vinces and colonies in South America, had not, on the 25th day of October, 1815, nor had any, or either of the said subjects and persons, then, or at any other time, any lawful right,.power, or authority, to conimission any vessel or vessels, or any person or per* sons whomsoever, to wage.war against him; the said Ferdinand VIL, nor against his subjects; or. their persons, or property, by sea, or elsewhere; and that , no. person or persons whomsoever, could lawfully receive, and take from any person or persons in any of the said colonies of provinces, any commission, power, or/authority, of right, to wage war, and make captures of any.property on the high. seas.. 3dly. Because all, captures made on the high seas, under the. pretence,of power or authority derived from,, or in virtpe of any such, commission as set forth in saifl plea,.]? unlawful and piratical; and that all pretended captures and seizures,, as prize, of. war, of property belonging to tjie subjects of. his said majesty when made .under such, commissions as aforesaid, are cogr jpizahle ;by the,.Courts of nations at peace and in amity with bi?¡ said, majesty, which bold pleas, of admiralty .and maritime jurisdiction, and take cognisance of,eases arising, under the. law of nations, whenever .the property so captured is found within *58. their respective jurisdictions. , And as a further Sroun(^ f°r the claim of restitution to the original . Spanish owners, the replication recites the 6th, 9th, and l4th articles of the treaty of 1795, between the United States and Spain. And as a further ground for the claim, it alleges, that the papers, exhibited with the plea, and by which the capture is pretended to .be justified, are false and colourablé; that the “prize crew did not speak the Spanish language, and were, shipped, at Port-au-Prince; that one of the crew .stated in his affidavit that the flag of the privateer was obtained at that place; and that all of them stated, that the Divina Pastora, from the time of her capture,' was. ordered for, and bound to the same place, all the captured persons having been previously taken out of her, and put on‘ board the privateer. And concludes with renewing the averments of thé piratical and tortious capture, and praying that restitution of the property may be decreed to him, die Spanish consul, to be held for the right owners pr owner théreof, who are subjects, or a subject of the king of Spain,
.Upon these pleadings, further proceedings- were had in the District Court,' under which a, decree, was pronounced of restitution of the vessel and cargo to the libellant, for the benefit of the original Spanish owners. This decree was affirmed, pro forma, in the Circuit Court, and the cause was brought by appeal to this Court. . .
Mr. Winder, for the appellants, argued,
that*there was toothing stated , in the. allegation of the Spanish *59consul, or .in the other pleadings in the cause, by which a prize court of this country could take jurisdiction of this capture. Nothing was alleged to show that it was made within our neutral territory, or iu violation of our neutral rights by an armament fitted out, or augmented in our ports; the only two cases in .which the tribunals of a neutral country can assume jurisdiction of captures made jure belli. The present cápture was made jure belli, because made under a commission from the United Provinces of the Rio de la Plata. The government of the United States, recognizing 'the existence of a civil war between Spain and the United Provinces, but remaining neutral, the Courts of the United States must consider as legal, those acts of hostility which war authorizes, and. which the new government may direct against the parent country. Possession under the capture is prima facie evidence sufficient to maintain that possession, unless it is shown that the libellants have a better right. But that possession is' admitted, and nothing is shown by the pleadings to authorize the Courts of this country to devest it from the captors. There is nb infraction of the treaty with Spain pleaded, which can give our Courts jurisdiction to restore to the former Spanish owners. The 6th and 9th articles of the treaty of 1795 are the only articles which can have any bearing upon the case, and these only provide for restitution where the capture is made within our territorial limits, or, where it is made by pirates. , But it is not pretended, that the present cap*60ture was made withiii our territorial jurisdiction; and Court has already determined, that a capture un~ der a com mission, from the revolted provinces is not a piratical capture.
Mr. Webster and Mr. D. B. Ogden, contra,
contended, that the District Courts of the United States are Courts of the law of nations, and that a general allegation of a marine tort, in violation of the law of nations, is sufficient; prima facie, to give them jurisdiction, where the captured property is brought within our territory. As a general allegation of prize is sufficient, so is a general allegation of an unlawful capture. It then' becomes incumbent upon the captors to show that the capture was made under a commission from a.sovereign power in amity with the United States. A neutral tribunal has a right to inquire, whether the commission was regularly issued by a competent authority, in order to see whether the capture was piratical, or in the exercise of the lawful rights of war. The general rule, unquestionably, is, that the Courts of the captors’s country have the exclusive cognizance of all seizures as prize: but to this rule there are exceptions, as ancient, and as firmly established as the rule itself. Among these is the case of a capture made by an armament fitted out oij augmented within neutral territory. A capture thus made in violation of the neutral sovereignty *61deprives the Courts of the belligerent country of their exclusive jurisdiction, and confers it on the Courts of , . . . the neutral state, who will exercise it by making restitution to the injüred party.' The acts of congress, and the Spanish treaty, prohibiting the equipment of armed vessels in our ports, and imposing the obligation- to restore captures made by them, are merely accumulated upon the pre-existent law of nations, which equally prohibited the one, as an injury to friendly powers, and enjoined the other, as a correspondent duty. But even if this -were not the law *62of nations, the treaty with Spain and the acts of congress make it the law of this' Court. “ Every treaty,” says Sir W. Scott, u is a part of the private *63law of that state which enters into it.’’ This principle of public law is expressly recognized by our municipal constitution, in which, treaties entered into by the United States, are declared to be a part of the supreme law of the land. The Spanish treaty and the acts of congress pronouncing the illegality of captures in violation of our neutrality, the duty to restore the captured property to the , original owner follows as a corollary. Supposing the allegations to be sufficiently pleaded, the proofs will fully authorize the Court in decreeing restitution to the original Spanish owners in this case. But if the Court should be of opinion, that the pleadings are defective, it will not dismiss the injured party, but will pérmit him to assert his rights in a new allegation.