The Estrella: Hernandez, 1

Mr. Justice Livingston delivered the opinion of the Court. The first allegation of the Spanish owner is, that the Constitution had no lawful commission from any sovereign state to commit hostilities at sea ; and he contends, that the commission in the present case, if any there was, being that of a government not acknowledged by the United^ States, ought to have, been produced, and its seal proved ; or that if the vessel carrying it had been lost, yet an exemplification of it ought to have been obtained from the proper department of the state which issued it. *304 The Court is satisfied with the proof'which has been made, of the Constitution having had a commission at the time of making the capture, and that such commission was granted by the government of Venezuela; and also, that the same was lost with the privateer herself, a very short time after the prize crew took possession of the Estrella. The fact of the sinking of the Constitution is not disputed ; and that she had, at the time she went down, a commission on board, is also fully made out, which commission there is no reason to believe was any other than the one which the Collector of New-Orleans says was on board when she arrived in that port from Carthagena. This was some time in the month of October, in the year 1816: Mr. Chew then saw the commission, and describes it as a very regular one from the Venezuelan Republic, signed, as others were, by Bolivar. Although the Court, in another case, has -said, that the seal of a government unacknowledged cannot be permitted to prove itself; it has, in the same case, said, that the fact of a vessel being so employed may be established without proving the seal. a But if the Constitution had a commission on board, it is next alleged, that the same was issued or delivered within the waters of the United States, with intent that she should be employed in the service of Venezuela, to commit hostilities, at sea, against the subjects of the king of Spain, with whom the United States were at peace-This allegation is not supported by any evidence *, *305 on the contrary, the same witnesses who declare that the1 Constitution was a commissioned vessel, and whose testimony has already been adverted to, establish, beyond controversy; that the same was obtained abroad, and not issued or delivered within the United States. The libel next alleges, that the Constitution, previous to her last cruise, had been fitted out and armed, or that her force had been increased or augmented, within the jurisdiction and waters of the United States, and also that she had there been manned by sundry citizens or residents of the United States with the same intent. Whatever doubt there may be as to the augmentation of the armament of the Constitution within the United States, the Court is satisfied that a very considerable addition was made to her crew, at New-Orleans, after her arrival at that port; one of the custom house officers declares, that, at that- time, she had only from twenty to twenty-five men, Another of these officers, who went on board on her first arrival, states the number of her crew at about twenty; and a witness by. the name of Guzman, totally unconnected with this transaction, mentions by name two persons who entered on board while she was lying there. Several of the original crew of the Estrella have also been examined to this point, who state, that after the capture, they had many conversations with the officers and seamen, who composed the prize crew, by whom they were informed that the Constitution, when she left Carthagena, had but few hands on board; that at New- *306 Orleans ,she shipped almost the whole of her crew* which at the time of the Estrella’s capture, amounted to sixty or seventy men. This species of testimony has been objected to, as being hearsay, and proceeding from a source entitled to no great credit: although there may be something in this objection, it is ho reason for rejecting the evidence altogether. If the testimony be hearsay, it must be recollected that the declarations proceeded from persons very much interested in giving a different representation of the transaction; and as to the witnesses themselves, although they formed a part of the Estrella’s crew, and may have felt some little interest in the question, they were the only persons who could give any account of the armament or crew of the Constitution, at the time of her making the capture. It may be also remarked, that the testimony of these men is in this respect corroborated by that of other witnesses, who are liable^ to no objection, and that their declarations, if untrue, might have been disproved by the claimant, by showing where and when the crew of the Constitution had been entered. But if auy of the crew of the Constitution were enlisted or entered within the jurisdiction of the United States,they may, it is said, have been,citizens or subjects of the republic of Venezuela, who were transiently in the United States at the time of her arrival, and had, therefore^ a right, within one of the provisoes of the secopd section of the act of Congress, of the 7th of June, 1794, c. 226. to enlist or enter themselves on board of,her; and.it is insisted, that the libellant should have'shown that they were not persons of this *307 description. The Court is not of this opinion. On the libellant, in the first instance, lay the onus of showing that the crew of the Constitution, had been increased within the United States; having done this, it became incumbent on the captors, if they wanted to establish their innocence, to show, as was in their power,, if the fact was so, that they had done nothing contrary to law, by bringing their case within the proviso that has been mentioned. The allegation, then, in the libel being made out, that the Constitution, being a privateer commissioned by the republic of Venezuela, was manned within the United. States, previous to the cruise on which she captured the Estrella, by sundry citizens or residents of the United States ; it remains to see whether the libellant has not made out a case for restitution. It has been attempted, but without success, to distinguish this case in principle from several which -have already been, decided'in this Court. We have been told, as heretofore, that to the courts of the nation tp which the captor belongs, and from which his commission issues, exclusively appertains the right of adjudicating on all captures and questions of prize. This is not denied ; nor has the Court ever Veit any disposition to intrench on this rule; but, on the contrary, whenever an occasiomhás occurred, as in the case of the Invincible,! a it has been governed by it. Not only is it a ,rule well established by the customary and. conventional law of nations, but it is *308 founded in good sense, and is’the only one which is salutary and safe in practice.' It secures to a belligerent the independence to which every sovereign state is entitled, and which would be somewhat abridged, were he to condescend so far as to permit those who bear his commission to appear before the tribunals of any other country, and submit to their interpretation, or control, the orders and instructions under which they havé acted. It ensures, also, not only to the belligerent himself, but to the world at large, a great degree of caution and responsibility, on the part of the. agents whom he appoints; who not only give security to him for their good behaviour, but will sometimes. be checked in a lawless career, by the consideration that their conduct is to.be investigated by the Courts of their own nation, and under the very eye of the sovereign, under whose sanction they are committing hostilities. ^ In this way, also, is a foundation laid for a claim by other nations, of an indemnity against the belligerent, for .the injuries which their subjects may sustain, by the operation of any unjust or improper rules, which he may think proper to prescribe for those who act under his authority. But general, and firmly established as this rule is, it is not more so than some of the exceptions which have grown put of it., A neutral nation, which knows its duty; will not interfere between belligerents, so. as to obstruct theifi in the exercise of their undoubted right' to judge, through the inedium of their own Courts, of. the validity of every captive ftiade tinder tjieir respective commissions, and to, decide on every question of prize lavv, which may *309 arise iii the progress of such discussion. Bui it is no departure from this obligation, if, in a case in. which . a captured vessel be brought, or voluntarily comes, infra preesidia, the neutral nation extends its examination so far as to ascertain whether a trespass has been committed on its own neutrality by the vessel which has made the capture. So long as a nation does not interfere in the war, but professes an exact impartiality toward both parties, it is its duty, as well as right, and its safety, good faith, and honour demand of it, tó be vigilant in preventing its neutrality from being abused, for the purposes of hostility against either of them. This may be done, not only by guarding, in the first instance, as far as it can, against all warlike preparations and equipments ini its own waters, but', also, by restoring to the original owner such property as has been wrested from him, by vessels which have been thus illegally fitted out. In the performance of this duty, all the belligerents must be supposed, to háve an equal interest, and a disregard, or neglect of it, would inevitably expose a neutral nation to the charge of insincerity, and to the just dissatisfaction.and complaints of the belligerent, the property of whose subjects should not, under such circumstances, be restored. The. United States, instead of opening their ports to all the' contending parties, when at peace themselves, (as may be dóne, if not prevented by antece-. dent treaties,) have always thought it the wisest and safest course, to interdict them all from fitting out or furnishing vessels of war within.their limits, and to punish those who may contribute to stich equip *310 ments. To enforce á general and strict observance of this neutrality, on the part of our . own citizens, and of others who reside among us, a law passed, as early as the year 1794, making it penal, among other things, for any one,1 witiiin the jurisdiction of the United States, to enlist in the service of any foreign prince or state, as a, soldier, marine, or seaman, on board of any vessel of war, letter of marque, or privateer., This law, it is supposed, was hot in force at the time when the crew of the Constitution was increased at'New-Orleans, having been repealed, as is alleged, by the act of the 3d of March, 1817, c. 58. JBut this act contains no repealing clause of this, or any other section of the former law; and having made no provision on the subject of enlistment, it must have been the intention of the legislature to leave in full force all those parts of the first law which had undergone no alteration, in the one which Was then passing, and we therefore find no repeal of the act in question, until the 20th of April, 1818, when all the provisions respecting our neutral relations were embraced by one act, and all former laws on the same subject were repealed. But whether the act of 1794, c. 226. were in force or not, would make no difference-; for it did not, in terms, contain, nor did any of the others, which have, from time to time, been passed, contain a provision for the restitution of property captured on the ocean, by vessels which might be thus illegally fitted out, or manned in our ports. It is true, they recognize a right in, the Courts of the United States to make restitution, . when these laws have been disregarded, and impart *311 to the Courts a .power to punish those who are concerned in such violations. But in the absence of every act of Congress in relation to this matter, the Court would feel no difficulty in pronouncing the conduct here complained of, an abuse of the neutrality of the United States ; and although, in such case, the offender could not be punished, the former owner would, nevertheless, be entitled to restitution. Nor is our opinion confined to the single act of an illegal enlistment of men, which is the only fact proved in this case; for we have no hesitation in saying, that for any of the other violations of our neutrality alleged in the libel, if they had been proved, the Spanish owner would have been equally entitled to restitution. Sentence affirmed, with costs. Footnotes [a] The United States v. Palmer, 3 Wheat. 635. [a] 1 Wheat 538,