“ They cannot take North American vessels into pay, and commission them as public ships. Their only resource, consequently, is to engage and encourage private adventurers, by granting them privateering commissions; and they, unfortunately, find multitudes in this country, who, through lust of gain, or a restless and irregular spirit of enterprise, catch eagerly at this bait. The profits of these irregular adventures depend, almost entirely, on the power of bringing the prizes into the United States; where alone they can find an adequate and advantageous market. ”

“ The manner in which the war has been carried on between the South Americans and Spain, and in which it will, no doubt, continue to be carried on, while it exists, is peculiarly calculated to inflame the resentments of both parties, and to render each more and more eager to seize on every means of distressing its enemy. ”

“ The Courts of another nation, whether an ally or a co-belligerent only, can acquire no general right to entertain cognizance of the cause, unless by the assent, or upon the voluntary submission of the captors. In such a case, it is peculiarly proper to show the jurisdiction of the Court by an exemplification of the proceedings anterior to the sentence of condemnation. And in all cases, it is the habit of Courts of justice to require the production of the libel, or other equivalent document, to verify the nature of the case, and ascertain the foundation of the claim of forfeiture as prize. ”

“ The commission which has been given to this prize, is not sustained by any principles similar, or equivalent to those on which the force of condemnations ordinarily rests. It can seek no aid from the doctrine of comity; it can claim no exemption from the binding operation of an actual, or supposed notice of a proceeding, in which all the world is a party; it can demand no privilege from the doctrine of the absolute coequality of all nations. On what principle, then, can the commission shield the vessel from the power of this Court? ”

“ This contingent jurisdiction can no more be annihilated or impaired by the act of a nation or State, than by an individual. As to this country, the taking was an absolute nullity. There was a deep seated infirmity in the original capture, which could not be cured by the condemnation, nor by Francesche's purchase, even if it had been genuine. For if the condemnation be not sufficient, no act done in execution of that judicial sentence, could be thus operative: debile fundamentum fallit opus; and Francesche could succeed only to the title of Daniels, whatever that was. ”

“ If such a declaration shall be made by this high tribunal, pronouncing, in the last resort, the maritime law of the country, most certainly no future capture will be made under a South American commission, the fruits of which will not find their way hither immediately, clothed with this protecting mantle; and this certainty of success, and impunity, will multiply tenfold the number of depredators, armed and equipt in our ports, to sally forth and seize the property of our neighbours, our friends, and our own citizens. ”

“ It was not upon the ground, that the vessel had become the property of the French emperor by a regular condemnation as prize, but that she bore his flag and commission, and coming into our ports under a general permission, was not amenable to the jurisdiction of our Courts, any more than that sovereign himself, or his ambassador, would have been. Whether the ship be a public, or a private armed vessel, can make no difference. It is sufficient that she bears the commission of the State, and is engaged in the service of the State. ”

“ It is a mere matter of fact, which, like any other matter, may affect the rights or interests of individuals, but cannot, in any way, become a public concern. Those, consequently, who may wish to set it up, in the course of a judicial proceeding, as the foundation of any right or claim, must prove it, as every other fact is proved. ”

“ He appears, in that case, in a Court of the United States, to ask its aid in the assertion of a claim founded on a direct violation of our laws and treaties. The acts of Congress expressly forbid, under severe penalties, the armament of vessels within our territory, by our citizens or others, to cruise against any nation with whom we are at peace; and the fourteenth article of the treaty of 1795, with Spain, expressly stipulates, that no American citizen shall take a commission from any foreign power, to cruise against Spain, her people or property, on pain of being treated as pirates. ”

“ No asylum, therefore, was granted to the Nereyda, and her officers and crew. The United States cannot be supposed to have admitted the Nereyda, exempt from all inquiry as to her real character, and as to the conduct of those in whose possession she was found. But the Exchange not only arrived here in distress, and demeaned herself with strict propriety, but those who had her in possession had never violated our laws, nor was she ever capable of restitution by this Court; she entered our ports under an acknowledged and certain immunity. ”

“ The Oriental Republic, or Banda Oriental, is that portion of the ancient vice-royalty of La Plata, lying between the river Uruguay and Brazil; which, for a long period, and at the time
3. The capture having been made under a lawful commission, was carried into a port of Venezuela, an ally or co-belligerent with the Banda Oriental in the war with Spain, and there condemned as prize to the captors, in the regular Court of the ally. The present claimant asserts his claim as a purchaser under that sentence of condemnation. ”

“ That our government, and this Court, having, in no instance whatever, recognised Artegas as engaged in a war with Spain, he is as incompetent to grant commissions of prize, as any other individual in the Spanish provinces. That this Court, therefore, as an Instance Court, will decree restitution and damages, as in ordinary cases of maritime tort.
2. That the neutrality and laws of this country having been violated by the captors, this Court will decree restitution on that ground, even if the authority under which they acted were, in other respects, fully competent. ”

“ Is it consistent with the ordinary prudence which every man applies to the preservation of his own interest? Can it be rationally explained, but upon the supposition, that his interest in this suit is nominal, and not real.
This is not all. Immediately after the ostensible sale to Francesche, the Nereyda was put in command of Childs, an American citizen, who was an utter stranger to him, as far as we have any means of knowledge, and sailed for Baltimore, the home port of the Irresistible, and the domicil of Daniels and Childs. ”

“ The dignity of the sovereign who grants the commission; which would be impaired, if any tribunal but those authorized by himself were permitted to take cognizance of the acts done under that commission; in other words, if any one but himself were allowed to superintend the conduct of his agents and officers;
It cannot escape observation, that no where, by no writer or advocate, nor in any adjudged case, is any distinction taken, or hinted at, between the case of an ally, and that of a neutral, in the application of this rule. It is every where laid down absolutely, and without exception ”

“ There was no illegal outfit. No violation of our neutrality, or our laws, was alleged or pretended. The act complained of was a capture, as of enemy's property, under a regular French commission, by a vessel regularly fitted out in the French territory. This capture might be a good prize, according to the law of nations, by reason of some unneutral conduct in the owner, or his agents, which rendered him, pro tanto, a belligerent. Consequently, it was a simple question of prize or no prize, and was most correctly adjudged to belong exclusively to the Courts of the captors' country. ”

“ While these proceedings were pending, a claim for damages was interposed by certain American citizens, who alleged, that the Invincible, before her capture by the British, had plundered them at sea. And the question was, whether this claim could be sustained, or the claimant must be left to seek his remedy against the privateer, in the Courts of France. This Court decided, that the seizure of the American property was an exercise of the rights of war, which must depend for its justification or condemnation on the circumstances of the case. ”

“ Their former masters restrained them from commerce, shipbuilding, and navigation; for all of which, indeed, their country, from its want of ports, is peculiarly unfit. Their pursuits and habits are essentially agricultural. They are destitute of ships, equipments, shipbuilders, and mariners. For a naval force, consequently, the want of which they have always severely felt, they must look to foreigners; and there are none so near as the United States, or so ready to aid them, as that portion of our maritime population, which is ever more eager for enterprise and gain, than scrupulous of means. ”

“ It is admitted that Daniels is a citizen of the United States, resident with his family in Baltimore; and it is in proof, that the vessel with which he made this capture, was fitted out, armed, and manned in the Chesapeake. If, then, he shall appear to be the real claimant, and not Francesche, in which name Childs professes to claim, his case is exposed to the full operation of that maxim of law, which declares, that no rights can be founded on a wrong: Quod ex maleficio non oritur actio. ”

“ Our Courts rigorously and successfully enforce this penalty of restitution. The other, and more penal enactments, are much more easily eluded, by the various artifices and subterfuges which such persons know but too well how to employ. An attempt is now made to elude this penalty also, by the intervention of South American Courts of Prize. Let this attempt succeed; let such a sentence as that now relied on, be once declared by this Court to be a bar to all inquiry concerning the violation of our laws, our treaties, and our neutral obligations, by means of which a capture may have been effected ”

“ Our laws against arming and equipping vessels in our waters, to cruise against our friends, cannot be enforced; our treaties on this subject cannot be executed; our peace and our honour cannot be preserved;-if it shall be adjudged by this Court, that a sentence of condemnation such as this, precludes all inquiry into the measures and means by which the force for making the capture was provided. ”

“ Looking, therefore, to all the circumstances of the case, the fact of the unchanged possession of the captors, the habits of the vessel, the apparent control of the property by Daniels, the utter absence of all proper documentary proofs of ownership, instructions, disbursements, and even connexion with her on the part of the claimant, we think that there is the strongest reasons to believe, that no real sale ever took place, and that the property remains still in the original captors, unaffected by the asserted transfer. ”

“ That we are at liberty to look to considerations of this sort, in the application of established maxims, and rules of law, to new combinations of circumstances, is not only manifest from the nature of the thing, and the general practice of all Courts in analogous cases, but has been emphatically asserted by one of the members of this tribunal, in a very learned and elaborate judgment, which contains many important principles, and cannot fail to attract great attention. ”

“ Here we find various countries distinctly enumerated, of some of which the governments are noticed, but no mention whatever of the 'Orientals,' or the 'Oriental Republic.' A country called the 'Banda Oriental,' indeed, is mentioned, and we may conjecture, but are no where informed, that it constitutes the whole, or a part of this supposed republic. ”

“ The South Americans, too, from the infant state and imperfection of their systems of finance, the disturbed state of their country, and their great sacrifices and efforts, are extremely deficient in revenue, and little able to maintain, or to provide a regular naval force for the public service. ”

“ As these relations, moreover, must often depend on the state of peace or war in which foreign governments may be, as it respects each other, it may be proper that the President should be constituted, for many purposes, the judge, and even the sole judge, of the existence of a state of war between certain nations ”

“ Hence, they may be expected to be, and are, in fact, much more anxious to find means of annoying their enemy, than capable of judging how far those means might be consistent with the rights of neutral and friendly nations. ”

“ She soon afterwards left Margaritta, under the command of Childs, who was the original prize master, and arrived at Baltimore, the place of residence of Childs and Daniels, who are both American citizens; and her subsequent history, after seizure and delivery upon stipulation or bail to the claimant, shows, that she has continued exclusively under the control, management, and direction of the same persons. ”