Pastora. consul, or in the other pleadings in the cause, by 1819. which a prize court of this country could take juris- The Divina diction of this capture. Nothing was alleged to show that it was made within our neutral territory, or in violation of our neutral rights by an armament fitted out, or augmented in our ports; the only two cases in which the tribunals of a neutral country can assume jurisdiction of captures made jure belli. The present capture was made jure belli, because made under a commission from the United Provinces of the Rio de la Plata. The government of the United States, recognizing the existence of a civil war between Spain and the United Provinces, but remaining neutral, the Courts of the United States must consider as legal, those acts of hostility which war authorizes, and which the new government may direct against the parent country." Possession under the capture is prima facie evidence sufficient to maintain that possession, unless it is shown that the libellants have a better right. But that possession is admitted, and nothing is shown by the pleadings to authorize the Courts of this country to devest it from the сарtors. There is no infraction of the treaty with Spain pleaded, which can give our Courts jurisdiction to restore to the former Spanish owners. The 6th and 9th articles of the treaty of 1795 are the only articles which can have any bearing upon the case, and these only provide for restitution where the capture is made within our territorial limits, or, where it is made by pirates. But it is not pretended, that the present cap a The United States v. Palmer, 3 Wheat. 610. 634. 1819. ture was made within our territorial jurisdiction; and the Court has already determined, that a capture under a commission from the revolted provinces is not a piratical capture. The Divina Mr. Webster and Mr. D. B. Ogden, contra, contended, that the District Courts of the United States are Courts of the law of nations, and that a general allegation of a marine tort, in violation of the law of nations, is sufficient, prima facie, to give them jurisdiction, where the captured property is brought within our territory. As a general allegation of prize is sufficient," so is a general allegation of an unlawful capture. It then becomes incumbent upon the captors to show that the capture was made under a commission from a sovereign power in amity with the United States. A neutral tribunal has a right to inquire, whether the commission was regularly issued by a competent authority, in order to see whether the capture was piratical, or in the exercise of the lawful rights of war. The general rule, unquestionably, is, that the Courts of the captors's country have the exclusive cognizance of all seizures as prize : but to this rule there are exceptions, as ancient, and as firmly established as the rule itself. Among these is the case of a capture made by an armament fitted out or augmented within neutral territory. A capture thus made in violation of the neutral sovereignty a The Fortuna, 1 Dodson. The Adeline, 9 Cranch, 244. 284. b Talbot v. Janson, 3 Dall. 159. The Invincible, 1 Wheat. 258. 2 Sir L. Jenkins, 727. deprives the Courts of the belligerent country of their exclusive jurisdiction, and confers it on the Courts of the neutral state, who will exercise it by making restitution to the injured party." The acts of congress, and the Spanish treaty, prohibiting the equipment of armed vessels in our ports, and imposing the obligation to restore captures made by them, are merely accumulated upon the pre-existent law of nations, which equally prohibited the one, as an injury to friendly powers, and enjoined the other, as a correspondent duty. But even if this were not the law a Talbot v. Janson, 3 Dall. 133. 164. The Alerta, 9 Cranch, 359. 364. b Vattel, L. 3. c. 7. s. 104, 105. 2 Rutherforth, c. 9. s. 19. p. 553. Martens on Privateers, s. 13. p. 42. Burlamaqui, p. 4. c. 3. s. 20, 21. 23. 2 Sir L. Jenkins, 727, 728. "So that upon this whole matter of fact, there do arise two questions: The one, whether the commission whereby this Ostender was taken, is a good commission? The other, whether this capture was not a violence to that protection and safe guard, which your majesty's authority affords unto strangers, coming upon their lawful occasions towards any of your majesty's harbours or ports? "As to the commission, 'tis true, his majesty of Portugal is not obliged, in granting out commissions, to take his measures from the English, or any other foreign style; yet the general law determines all commissions, (most especially, such as this is,) to be stricti juris, and not to be farther extended, either by inferences or deductions, than the express words do natuturally import. So that, whatever the meaning of that clause be, viz., that de Bills may set out a man of war, and what other vessels shall be necessary for him, (as if he might have several vessels at sea, at one and the same time, and yet, himself and his commission can be but in one of them,) it cannot be said, that he hath liberty to substitute er depute another to act in 1819. The Divina Pastora. 1819. the new governments in South America may direct The Divina against their enemy. Unless the neutral rights of the United States, as ascertained by the law of nations, the acts of congress, and treaties with foreign powers, are violated by the cruizers sailing under commissions from those governments, captures by them are to be regarded by us as other captures, jure belli, are regarded; the legality of which cannot be determined in the courts of a neutral country. If, therefore, it appeared in this case, that the capture was made under a regular commission from the government established at Buenos Ayres, by a vessel which had not committed any violation of our neutrality, the captured property must be restored to the possession of the captors. But if, on the other hand, it was shown, that the capture was made in violation of our neutral rights and duties, restitution would be decreed to the original owners. But the pleadings in this case are too informal and defective to pronounce a final decree upon the merits. The proceedings in the admiralty must always contain at least a general allegation of such a nature as will apply to the case, as of prize, &c. The Court has always endeavoured to keep these proceedings within some kind of rule, though not requiring the same technical strictness as at common law. Here the pleadings present a case which may be consistent with the demand of the former owners for restitution, but which is tied up to such a state of facts as, if proved, will not authorize it; and will not admit the introduction of evidence varying from the facts alleged. The decree of the Circuit Court must, there fore, be reversed, and the cause remanded to that Court, with directions to permit the pleadings to be amended, and for farther proceedings. Cause remanded." a It is a principle which has been frequently laid down by this Court, that it is the exclusive right of governments to acknowledge new states arising in the revolutions of the world, and until such recognition by our government, or by the government of the empire to which such new state previously belonged, courts of justice are bound to consider the ancient state of things as remaining unchanged. Rose v. Himely, 4 Cranch, 292. Gelston v. Hoyt, ante, vol. III. p. 324. The distinction between the recognition of the independence of a newly constituted government which separates itself from an old established empire, and the recognition of the existence of a civil war between such new government and the parent country, is obvious. In the latter case the very object of the contest is what the former supposes to be decided. But in the mean time, all the belligerent rights which belong to anciently established governments, except so far as they may be restrained by treaty stipulations, belong to both parties. The obligations which neutrality imposes, are also to be fulfilled towards each party. What are those obligations, and how they may be affected by the misconduct of the belligerents, has been frequently made a subject of decision in this Court. Thus where the commander of a French privateer, called the Citizen Genet, having captured, as prize, on the high seas, the sloop Betsey, sent the vessel into the port of Baltimore; and upon her arrival there, the owners of the sloop and cargo filed a libel in the District Court of Maryland, claiming restitution, because the vessel belonged to subjects of Sweden, a neutral power, and the cargo was owned jointly by Swedes, and by citizens of the United States, also neutral; it was held, that the District Court of Maryland had jurisdiction competent to inquire, and to decide, whether in such case, restitution ought to be VOL. IV. 9 1819. The Divina |