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commission." In the celebrated case of the Exchange, this Court held, that the commission of a sovereign protected that vessel from all inquiry, notwithstanding the flagrantly unjust conduct of the French Emperor in appropriating the property of an American citizen to his own use, without the form of a trial, and incorporating it into his military marine. It must be shown, that the act of the Government of Buenos Ayres in granting this commission is unlawful, before it can be shown that any of the effects of that act are invalid. Suppose the Exchange, on her voyage, had made a capture, could this Court have restored it to the former owners? Or could it inquire into the validity of such a capture consistently with the principles laid down in that case? The enlistment of men in neutral countries to serve the belligerent powers is lawful, unless there be some express prohibition of the neutral State. Such a municipal prohibition would certainly make it unlawful, in respect to the neutral State whose laws are violated; but it does not, therefore, follow, that all the acts of such persons in war would be unlawful, or that they are not entitled to the rights of lawful war. The carrying of contraband is prohibited by the law of nations under the penalty of confiscation, and the exportation of contraband articles may be prohibited by the municipal code under other penalties; but such prohibition would not invalidate a

a L'Invincible, 1 Wheat. Rep. 238. 254.

b 7 Cranch, 116.

e Vattel, l. 3. c. 2. s. 13-15. 177. of Du Ponceau's translation.

Bynk. Q. J. Pub. pp. 175.

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capture made with the munitions of war thus exported. The Government of this country naturalizes Corrunes. all foreigners indiscriminately, in peace and in war, and employs them in its land and naval service; and it is not for us to question the right of a citizen of the United States to enter into the military service of a foreign State. It is insisted, that not only the Court has no authority by the law of nations to restore to the original owners a prize thus captured, but that the law of nations gives the Congress no power to authorize the Court to restore. The Legislature may prohibit our citizens from enlisting in the service of the belligerents, or from fitting out ships to be employed in cruising, under ever so severe penalties; but those penalties cannot extend to a forfeiture of the rights of prize acquired under the commission of an independent sovereign State. Nor are Spain and the United States competent to regulate by their mutual treaty stipulations the sovereign rights of the South American Provinces, though they may stipulate to inflict penalties in personam, for what they deem the criminal conduct of their subjects or citizens. As to the claim of the United States for a forfeiture on account of the alleged violation of the revenue laws, it is already settled by this Court, that the property of foreigners cannot be forfeited for the misconduct of those who are tortiously in possession, as was the case here with the

rescuers."

a The Josefa Segunda, 5 Wheat. Rep. 338.

Mr. Webster and Mr. Wheaton, for the respondent and claimant, the Spanish Consul, (1.) contended, that the Consul, from the necessity of the case, had a right to interpose a claim for the property of his fellow subjects, brought into our ports in this manner. He does not claim as attorney in fact, but his character is more like an attorney at law. There is no necessity of a special procuration from those for whom he claims, because it does not follow, that the property will be actually delivered into his hands until the respective rights of the owners are determined, and a special authority produced from them to receive distribution. There is the more necessity for permitting the Consul, as the official protector of the commercial rights and interests of his fellow subjects in a foreign country, to interpose a claim in a case of this nature, because the usual term of a year and a day allowed in prize causes, where there is no claim, would not be allowed here, since the property is demanded by the captors under their pretended commission, and if the subjects of Spain, residing at a distance, and ignorant even of the fact of the capture, were not allowed to be represented by their Consul, the property would be taken away by the captors, and irrecoverably lost to the original owners. It will also frequently be impossible for the Consul to specify the owners for whom he claims, and he ought, therefore, to be allowed to file allegations claiming it for Spanish subjects generally. The opinion of M. PORTALIS in the case of the Danish Consul, proceeds entirely upon the peculiar

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regulation of France, which makes the Procuréur The Bello General, the official attorney of all persons who are not represented before the tribunals by any special procuration; which would, of course, render unnecessary the interposition of foreign Consuls in cases where the rights of their countrymen were involved.

2. They argued, that the vessel by which the present capture was made, having been fitted out in the ports of the United States, and the capture having been made by our citizens, in violation of the law of nations, the acts of Congress, and the treaty with Spain, the property must be restored to the original owners, according to the uniform decisions of this Court." Under our municipal constitution, the treaty is the supreme law of the land; and it would be so by the law of nations without that constitutional provision. "Every treaty," says Sir W. Scott, "is a part of the private law of the country which has entered into that treaty, and is as binding on the subjects as any part of their municipal laws." The 9th article of the Spanish treaty declares, that goods taken from pirates shall be restored to the lawful owners; and the 14th article declares the captors, in the present case, to be pirates, as it provides, that they shall be punished as such for taking a commission to cruise against Spain. And yet we are inquiring whether they are entitled to have restitution

a The Alerta, 9 Cranch, 359. Talbot v. Jansen, 3 Dall. 133. L'Invincible, 1 Wheat. Rep. 238. The Divina Pastora, 4 Wheat. Rep. 52. Note to that case, p. 62. Sir L. Jenkins' works, there cited. The Estrella, 4 Wheat. Rep. 298. b The Eenroom, 2 Rob. 6.

of the very property which they have thus piratically taken. It may be admitted, that in some cases citizens of one country may lawfully engage in the wars of another; we may take the doctrine cited from Bynkershoeck, that they may enlist where there is no prohibition. It may also safely be admitted, that as far as the other belligerents are concerned in their hostile relations with each other, it is lawful war. Spain cannot justly complain of the South American Provinces for employing foreigners in their service. And if the capturing ship were a national vessel, like the Exchange, no doubt her commission would estop all judicial inquiry into her conduct. But this is a private claim. The original Spanish owners claim nothing against the Government of Buenos Ayres. That Government claims nothing of the Spanish owners. Our own citizens assert a claim to this property acquired in war, which can only be maintained upon the supposition, that they may be at war whilst their country is at peace; that they are not bound by the laws and treaties of their own country; that they may expatriate themselves, flagrante bello, for the purpose of committing hostilities against nations in amity with the United States. If the doctrine contended for on the part of the captors, that the commission is conclusive, be correct, then the Court can never look behind it, and the belligerents may dispense with our laws, and the allegiance of our citizens, at their pleasure. The case of Talbot v. Janson, whatever may be thought

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