The Bello Corrunes

by William Johnson

United States Supreme Court

19 U.S. 152

The Bello Corrunes

APPEAL from the Circuit Court of Rhode Island.

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 the 21st of March, 1818, by an armed vessel called the Puyerredon, commanded by one James Barnes, sailing under Buenos Ayres colours, and asserting a right to make captures under the authority of the government of that place. Restitution to the original Spanish owners was claimed, 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 the 8th 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 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 farther 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 colours, on a cruize; and after capturing several Spanish vessels, proceeded to Buenos Ayres, where the vessel arrived in August, 1817.a 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 the 20th of 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.

February 8th.

The Attorney-General, for the United States, argued, that the officers of the Government being in possession of this property, would hold it as a droit until some person appeared duly authorized to claim it. The consul of Spain has no authority to claim, in his own name, and in his official character, the property of persons to him unknown, and by whom he cannot therefore have been invested with a special procuration. He is not invested with a general authority for that purpose, virtute officii, nor is there evidence in this particular case that the consul is the agent, consignee, or correspondent of the owners, who are sometimes permitted to claim for their principal, when the latter is absent from the country.b Great public inconveniences and mischief, might follow from allowing foreign consuls, not specially authorized by their own government, or by this, nor by the parties, to receive restitution of property, for which they may interpose a claim as belonging to their fellow subjects. Supposing the property here to be devested out of the original owners by the capture, and vested in the captors, jure belli, it must be forfeited to the United States for violating the revenue laws, which was the original intention of the parties, and was partially accomplished at Block Island. Or supposing the recapture by the prize crew to be valid, they must be considered as the agents of the original proprietors, and their misconduct must be visited upon the original proprietors.

Mr. Winder, for the appellants and captors, insisted, that the present capture being made on the high seas, jure belli, under a commission regularly issued by a Government acknowledged to be entitled to exercise the rights of war against its enemy, could not be inquired into by the Courts of this country; but that the captors being entitled to the possession, having only been dispossessed by the criminal misconduct of the prize crew which they had put on board to secure the prize, were entitled to restitution, in order to enable them to proceed against it as prize in the competent Court. Whatever military means are directed, from within the territory of one of the belligerent States, against its enemy, are not subject to the review or control of any neutral or other foreign tribunal or authority, except in the single case of a direct violation of the neutral territory itself. This principle grows out of the perfect independence and equality of nations, existing as it were in a state of nature in respect to each other. Their conduct in authorizing acts of war is no more reviewable by other nations, than any other their acts of sovereignty.c It is this perfect independence and equality of sovereign States which is the sole foundation of the exclusive jurisdiction of the Prize Courts of the captor's country over every thing done under a prize commission.d In the celebrated case of the Exchange,e 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.f 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 capture made with the munitions of war thus exported. The Government of this country naturalizes 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.g

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,h proceeds entirely upon the peculiar regulation of France, which makes the Procur eur 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.i 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.'j 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 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,k 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,l whatever may be thought of it in other respects, has never been overruled as to the principle, that the neutral tribunals have a right to inquire into the validity of a captor's commission, to see whether it was obtained and used in violation of the laws of the neutral country. That case has been made the basis of a series of decisions, which have become the settled law of this Court, and which it is now too late to question. The Court has uniformly treated it as a necessary consequence of the personal illegality of the act of taking the commission that the property captured under it should be restored to the lawful owner. It is, therefore, immaterial where, or by whom, the capturing vessel was equipped. It is sufficient, that the capturing persons are citizens of the United States, and cannot asser a right of property founded on their own illegal conduct.

3. But even admitting that the original capture was legal, the prize cannot now be reclaimed by the captors. An interest acquired in war by possession, is lost with the possession. The rights of capture are completely devested by recapture, escape, or rescue.m Here the property has been devested out of the possession of the captors by the rescuers, for the benefit of the original owners, and the rescuers hold it in trust for their benefit.

Mr. Wheaton, for the salvors, stated, that the original owners being thus shown to be entitled to restitution, the next question would be, whether the salvors were entitled to any, and what salvage. Unless the property were thus restored to the Spanish owners, the rescuers could not claim any salvage; for certainly the captors would not admit that any meritorious service had been rendered them by the rescue. But, as against the former owners, the rescuers have a just claim, having saved the property from the grasp of their enemy: and it would be idle to send the salvors to the Courts of Spain, to prosecute their claim, since the possession of the property enables this Court to do complete justice between all the parties.n And this Court has already determined, that in a case of derelict by one belligerent, a neutral is entitled to salvage, and the Courts of the neutral country into which the property is brought, have authority to award it.o As to the quantum of salvage: one third was allowed in that case; and it was doubted whether more ought not to have been allowed, if the salvors had appealed. The case of the Adventure,p which was a donation at sea by the belligerent captor to a neutral, who brought the property into a port of his own country, was held to be a lawful salvage, and a moiety was allowed. In the case of Rowe et al. v. the Brig _____, which was a Spanish vessel captured by a South American cruiser, one of the learned judges of this Court allowed a moiety of the net value.q And in general, it may be affirmed that there is no inflexible rule, either in cases of derelict, or of rescue; a reasonable salvage, proportioned to the meritorious exertions of the salvors, is to be decreed; but never less than a third, unless the property is very valuable, or the services rendered very inconsiderable.r

Mr. Webster, contra, upon the claim for salvage, insisted, that it appeared by the evidence that there had been a partial embezzlement of the property by the alleged salvors, and that it was a fixed rule that such misconduct, or any circumstance of fraud, forfeited the rights of salvage.s

February 26th.

Mr. Justice JOHNSON delivered the opinion of the Court.

Notes