A foreign consul has a right to claim or institute a proceeding
in rem, where the rights of property of his fellow
citizens are in question without a special procuration from those
for whose benefit he acts.
But a consul cannot receive actual restitution of the
res in controversy without a special authority from the
particular individuals who are entitled.
A capture made by citizens of the United States of property
belonging to subjects of a country in amity with the United States
is unlawful wheresoever the capturing vessel may have been equipped
or by whomsoever commissioned, and the property thus captured, if
brought within the neutral limits of this country, will be restored
to the original owners.
Whatever difficulty there may be under our municipal
institutions in punishing as pirates citizens of the United States
who take from a state at war with Spain a commission to cruise
against that power, contrary to the fourteenth article of the
Spanish treaty, yet there is no doubt that such acts are to be
considered as piratical acts for all civil purposes, and the
offending, parties cannot appear, and claim in our courts the
property thus taken.
It seems that the terms "a state with which the said King shall
be at war" in the fourteenth article of the treaty include the
South American provinces which have revolted against Spain.
But however this may be, the neutrality act of June 1797, ch. 1,
extends the same prohibition, with all its consequences, to a
colony revolting and making war against its parent country:
In the case of such an illegal capture, the property of the
lawful owners cannot be forfeited for a violation of the revenue
laws of this country by the captors or by persons who have rescued
the property from their possession.
The rights of salvage may be forfeited by spoliation, smuggling,
or other gross misconduct of the salvors.
Page 19 U. S. 153
This was the case of a Spanish vessel and cargo stranded on
Block Island, and there seized by the officers of the customs. An
information on behalf of the United States was filed in the
district court against the property as forfeited for an alleged
breach of the revenue laws. His Catholic Majesty's Vice Consul for
the District of Rhode Island interposed a claim on behalf of
"certain subjects of the King of Spain," the original owners of the
ship and cargo, which was bound on a voyage from the port of
Tarragona, in Spain, to La Vera Cruz, and was taken off Cape St.
Antonio, on the west end of the Island of Cuba, on 21 March, 1818,
by an armed vessel called the
Puyerredon, commanded by one
James Barnes, sailing under Buenos Ayres colors, and asserting a
right to make captures under the authority of the government of
that place. Restitution to the original Spanish owners was
claimed
Page 19 U. S. 154
upon the ground that the capturing vessel had been equipped in
the ports of this country, in violation of our neutrality. An
allegation was also filed by Barnes demanding restitution of the
property to the captors as having been taken
jure belli on
the high seas. Another claim was also filed by certain persons,
part of the original crew of the
Bello Corrunes, left on
board after the capture, who asserted a claim for salvage, in case
the property should be restored to the original Spanish owners,
under the following circumstances. The master of the captured
vessel, and all her crew except four, were taken out, and a prize
master and crew put on board from the
Puyerredon. Thus
equipped, the
Bello Corrunes cruised in company with the
Puyerredon nearly two months, during which period another
Spaniard, of the original crew of the
Bello Corrunes, was
returned to that vessel. The two vessels afterwards separated, and
on 8 of May, in lat. 32�30' north, and longitude
74�W. from London, the prize crew, assisted by the persons
originally on board the
Bello Corrunes, rose on the prize
master and other officers and rescued the vessel from their
possession. They then steered their course for the United States,
and the vessel was by some means stranded upon Block Island, where
the vessel and cargo were seized by the revenue officers.
A decree was entered in the district court
pro forma
and by consent of parties restoring the property to the original
Spanish owners as claimed and dismissing the other allegations and
claims. This decree was affirmed
pro forma and by consent
in
Page 19 U. S. 155
the circuit court, and the cause was brought by appeal to this
Court.
It appeared by the evidence in the courts below and by the
further proof taken under a commission from this Court that the
capturing vessel was formerly owned by citizens of the United
States, and called the
Mangoree, and was originally armed,
equipped, and manned at Baltimore and sailed from that port in
March, 1817, under the command of Barnes, a citizen of the United
States, domiciled in that city, under Buenos Ayres colors, on a
cruise, and after capturing several Spanish vessels, proceeded to
Buenos Ayres, where the vessel arrived in August, 1817. The vessel
was then altered from a schooner into a brig, and her name changed
to the
Puyerredon, an addition of one gun was made to her
armament, some of the original crew were reshipped, and other
seamen recruited. An alleged sale of the vessel took place to one
Higginbotham, a citizen of the United States domiciled at Buenos
Ayres, and a commission was issued by the Supreme Director of the
United Provinces of South America, dated 20 November, 1817,
authorizing Barnes to capture Spanish property, with which the
vessel sailed from Buenos Ayres on the cruise during which the
present capture was made.
Page 19 U. S. 166
MR. JUSTICE JOHNSON delivered the opinion of the Court.
This vessel was stranded on Block Island in an alleged effort to
reach a port of the United States. The vessel and cargo have been
seized by the Collector of Newport for supposed violations of the
trade laws of this country, and an information was accordingly
filed to subject the whole to condemnation, in the District Court
for Rhode Island District.
This claim of the United States has been opposed by three
classes of competitors. The vessel and
Page 19 U. S. 167
cargo, it appears, are Spanish property and were captured on the
southwestern coast of Cuba by the
Puyerredon, a private
armed brig bearing the flag of the Buenos Ayrean Republic and
commanded by Captain James Barnes. Being armed and well calculated
for a privateer, she was manned with a complement of the
privateer's men, about thirty in number, and her original
commander, and all except four of the Spanish crew, removed. Thus
equipped, it appears that she cruised as a tender to the
Puyerredon for about two months, during which time another
Spaniard was added to her crew, and on 8 May, when in lat.
32�30'N. and long. 74' from London, the crew rose upon the
officers, subdued them, put them on board the first vessel they met
with, and steered their course for this continent.
Thus circumstanced, Capt. Barnes has libeled in behalf of the
captors, the Spanish Vice Consul in behalf of the original Spanish
owners, and the crew of the
Bello Corrunes have libeled
for a compensation by way of salvage, to which they suppose
themselves entitled in the event of restitution being decreed to
the original owners.
To these several claims it is objected on behalf of the United
States that restitution cannot be decreed to the Spanish Vice
Consul because he is not in that capacity a competent party in
court to assert the rights of individual subjects, nor in favor of
the captors, because the privateer was originally fitted out in the
United States, and is still owned by American citizens, nor in
favor of the salvors because
Page 19 U. S. 168
they have forfeited their claim to salvage by spoliation and an
attempt to smuggle.
As these suggestions open the whole case, it shall be disposed
of by considering them severally in their order, only remarking
en passant that though they were all sustained, it would
avail the United States nothing, since without evidence sufficient
to sustain the criminal charge, it would only follow that the
proceeds of the property libeled must lie in the registry of the
court until a proper claimant shall make his appearance.
On the first point made by the Attorney General, this Court
feels no difficulty in deciding that a Vice Consul duly recognized
by our government is a competent party to assert or defend the
rights of property of the individuals of his nation in any court
having jurisdiction of causes affected by the application of
international law. To watch over the rights and interests of heir
subjects wherever the pursuits of commerce may draw them or the
vicissitudes of human affairs may force them is the great object
for which consuls are deputed by their sovereigns, and in a country
where laws govern and justice is sought for in courts only, it
would be a mockery to preclude them from the only avenue through
which their course lies to the end of their mission. The long and
universal usage of the courts of the United States has sanctioned
the exercise of this right, and it is impossible that any evil or
inconvenience can flow from it. Whether the powers of the
Vice-Consul shall in any instance extend to the right to receive in
his national character,
Page 19 U. S. 169
the proceeds of property libeled and transferred into the
registry of a court is a question resting on other principles. In
the absence of specific powers given him by competent authority,
such a right would certainly not be recognized. Much in this
respect must ever depend upon the laws of the country from which
and to which he is deputed. And this view of the subject will be
found to reconcile the difficulties supposed to have been presented
by the authorities quoted on this point. Considering, then, the
original Spanish interest as legally represented, the questions are
whether that interest is not forfeited to the United States or
superseded by the superior claims of the capturing vessel.
This is not the ordinary case of a capture made under the taint
of an illegal outfit. The decision of this Court must rest upon a
very different principle. In those cases, the national character of
the claimant is immaterial. He has violated the neutrality of this
country, and cannot shelter himself under his commission or his
allegiance, however unquestionable his right, individual or
national, would have been otherwise. But can a citizen of this
country who has violated its laws ever be recognized in our courts
as a legal claimant of the fruits of his own wrong? We are of
opinion he cannot, and it therefore becomes material to determine
what is the national character of the claimants under the capture
made by the
Puyerredon.
At the time of this vessel's first sailing from Baltimore, she
was unquestionably American owned and commanded. During the time of
her cruising
Page 19 U. S. 170
under the name of the
Mangoree, it is not pretended
that she changed owners. The legality of her conduct at that period
has been defended altogether on the ground of her taking the flag
of Buenos Ayres, being commissioned in a foreign state, and her
commander, Barnes, assuming the character of a citizen of the power
that had commissioned him. It is not until her arrival at Buenos
Ayres in 1817 that any change of property in the vessel has been
set up in proof. At that time it is contended she was set up at
auction and changed owners, passing into the hands of a Mr.
Higginbotham, a citizen of the United States, married and domiciled
at Buenos Ayres.
If this fact had been satisfactorily made out in evidence, it
would have drawn this Court into the consideration of some
questions of great nicety which have never yet received a solemn
adjudication in this Court. But the evidence to support this
pretended change of property is so wholly unsatisfactory that the
Court rejects it, for the ordinary solemnities of such transfers
are too well known to admit the belief that in this instance the
change of property, had it been real, would not have been effected
or commemorated by written documents.
This Court, then, proceeds upon the assumption that the
Puyerredon is still, in reality, American owned, and it is
also of opinion that she must be held to be American commanded,
since even if the doctrine could be admitted that a man's
allegiance may be put off with his coat, it is very clear that Mr.
Barnes' citizenship is altogether in fraud of the laws of his own
country. His family has never
Page 19 U. S. 171
been removed from Baltimore, and his home has been always either
there or upon the ocean.
The question, then, is whether, thus circumstanced, the claim in
behalf of the owners and mariners of the
Puyerredon can be
sustained.
We are decidedly of opinion it cannot.
By the 2d section of the 14th article of the treaty with Spain,
"Citizens, subjects or inhabitants" of the United States are
strictly prohibited from taking
"any commission or letter of marque for arming any ship or
vessel to act as privateers against the subjects of his Catholic
Majesty or the property of any of them from any prince or state
with which the said king shall be at war."
And it is further provided "that if any person of either nation
shall take such commissions or letters of marque, he shall be
punished as a pirate."
Whatever difficulties there may exist under the free
institutions of this country in giving full efficacy to the
provisions of this treaty by punishing such aggressions as acts of
piracy, it is not to be questioned that they are prohibited acts,
and intended to be stamped with the character of piracy, and to
permit the persons engaged in the open prosecution of such a course
of conduct to appear and claim of this Court the prizes they have
seized would be to countenance a palpable infraction of a rule of
conduct declared to be the supreme law of the land.
Some doubts have been suggested on the use of the words "state
at war" with Spain. This Court would not readily lean to favor a
restricted construction
Page 19 U. S. 172
of language, as applied to the provisions of a treaty, which
always combines the characteristics of a contract as well as a law,
but it is not necessary to examine the grounds of these doubts, as
applied to the present case, because this treaty has been enforced
by the provisions of the Act of Congress of 14 June, 1797, so as to
leave no doubt of its extension to the case of cruising against
Spain under a commission from the new states formed in her
colonies.
Citizens of the United States therefore present themselves to
this Court to demand restitution of a prize which they had made in
violation of the most solemn stipulations of a treaty and
provisions of a law of their own country, and of which they have
been dispossessed by their own associates in guilt. Under such
circumstances, this Court cannot hesitate to reject the claim and
adjudge the property to the original proprietors.
This view of the subject obviates the necessity of examining the
reality and effect of the alleged rescue on behalf of the original
owners with a view to the question of restitution, but it still
becomes necessary with a view to the question of forfeiture and the
merit of the alleged salvors. With regard to the former it is very
clear that, supposing the rescue to have been real and complete,
the Spanish consul ought not to be precluded from his election,
whether to put his claim upon the ground that the interest of those
whom he represents was never legally devested or that it was
afterwards legally recovered. In the one case, there is no ground
for
Page 19 U. S. 173
affecting it with the forfeiture because of the conduct of the
crew, and in the other, some question may be made how far the
property was affected by the illegal acts of those who, at that
time, held in the right of the owners. But even in this latter view
of the state of the property, we are of opinion that the forfeiture
was not incurred, since, although it be supposed that the property
was in custody of those who held for the Spanish owners, it was not
held by those to whom the Spanish owners had entrusted the vessel
and cargo. And this is the only ground upon which the acts of the
ship's company are made to produce forfeitures of the interest of
shippers or ship owners. For besides the considerations drawn from
the great predominance of the force detached from the privateer in
the effort to recapture, the few men of her own crew were
gratuitous actors. Their contract with the owners had ceased, and
they assumed the character of voluntary agents whose conduct the
owners might or might not adopt according to their own views or
interests.
As to the claims of the salvors, it may be remarked that
maritime courts always approach them with great benignity and
favor. Yet in proportion to the inclination to favor where there is
merit is the indignation with which they view every indication of a
disposition to take advantage of the unfortunate. Spoliation and
even gross neglect may forfeit all the pretensions of salvors to
compensation.
In the case before us, it is not too much to pronounce the claim
of those of the crew of the
Puyerredon
Page 19 U. S. 174
who libel for salvage to be not only groundless but impudent,
for besides spoliation, smuggling, and the grossest irregularities,
it is perfectly clear from the pilot's evidence that they ran the
vessel on shore purposely. So that whatever may have been the
reality of their benevolent designs towards the Spanish owners
originally, their subsequent conduct not only casts a doubt over
their candor, but divests them of all pretensions to
compensation.
Nor do the five Spaniards who composed a part of the crew of the
Bello Corrunes at the time she was stranded, and who were
not of the capturing crew, escape being involved in the suspicions
which fasten on their associates.
It is a melancholy truth too well known to this Court that the
instruments used in the predatory voyages carried on under the
colors of the South American states are among the most abandoned
and profligate of men. Under the influence of strong interests or
fears, the mind of man too often yields, even where the moral sense
still exerts its influence, but hold out to one of these practiced
adventurers in a course of plunder the hope of gain, on the one
hand, and the fear of imprisonment for piracy, on the other, and
what are the chances for truth!
That these men were selected from the Spanish crew to associate
with those of the capturing vessel is a circumstance not very
favorable to their characters and conduct, and it would require
some strong evidence of their innocence to remove from them the
suspicion of a voluntary association with the enemies of their
King. Joining in or even setting on
Page 19 U. S. 175
foot or promoting the recapture (facts which rest wholly on
their own veracity) can prove very little in their favor, since
such mutinies are become everyday occurrences whenever such a crew
find themselves in possession of a valuable cargo. Nor will the
inference in their favor be very strong from their resorting to the
consul of their country, since it was the only course which held
out a chance of gain or of escape from the imputation both of
piracy and smuggling. There is no evidence to separate their
conduct from a complete identification with the rest of the crew
except what is obtained from their own testimony. Yet it is
suggested that they may still make their innocence and merits to
appear, and as the parties have signified their consent that the
case may be opened in the court below as to this class of salvors,
the case will be remanded to the circuit court for further
proceedings so far as the claim for salvage is concerned.
Decree accordingly.
DECREE. This cause came on to be heard on the transcript of the
record of the Circuit Court for the District of Rhode Island, and
was argued by counsel, on consideration whereof it is ORDERED and
DECREED that the decree of the said circuit court in this case be
and the same is hereby affirmed with costs against Barnes and
others except so far as relates to the libel for salvage of Emanuel
Rodriguez, Emanuel Josef, Emanuel Barbarus, Antonio
Page 19 U. S. 176
Josef, and Josef Isnages, who formed no part of the crew of the
private armed brig
Puyerredon, and as to so much of the
said decree as relates to the said libellants Emanuel Rodrigues and
others it is further DECREED and ORDERED by consent of parties by
their counsel that the decree of the said circuit court be and the
same is hereby reversed and annulled. And it is further ORDERED
that the said cause be remanded to the said circuit court for
further inquiry, and that the proceeds of the said
Bello
Corrunes and cargo lie in the registry of the said circuit
court to be paid over under the order of that court to the Spanish
owners as interest shall be made to appear.
