Consul of Spain v. Consul of Great Britain

6 F. Cas. 360

• Court: U.S. Circuit Court for the District of South Carolina
• Decided: July 1, 1808
• Status: Published

Opinion

• The CHIEF JUSTICE delivered the opinion of the court to the following: purport:

The right to sell cannot be claimed by treaty. If it exists at all, it rests on permission. Without doubt, a neutral nation may permit a belligerent to sell, without violating its neutrality: treaties apart, it is wholly dis-cretional. The sovereignty of a neutral power authorizes the exercise of such discretion. Between aiding commerce and permitting the sale of prizes, there is a great difference. Silence, in the ordinary cases of commerce, may be considered as a consent to it; but the sale of prizes must be by positive permission. If permitted to sell, without a previous decision by the court of the capturing power as to the legality of the prize, there is •danger of fraud, and even of piracy. I do not say that a condemnation is necessary, but all nations are interested that it should take place before a sale is made. The sale of prizes ensnares, and insensibly leads to a departure from strict neutrality; for this reason, a neutral nation should first give its ■consent, by treaty, or otherwise. Here there is no treaty that authorizes the sale, nor is any permission of the government shewn. An attempt, therefore, to sell is inconsistent with the sovereignty of the United States. What we are at liberty to grant as a favour must be granted equally; but, by treaty with Great Britain we cannot grant this fa-vour to the Spaniards; therefore, we ought not to grant it to the British. As the court does not undertake to decide what the executive ■ought to do, I wish to frame the decree so as to permit an application to that branch of the government. Let there be an injunction to stop the sale, till further order of this court, unless permission be sooner obtained from the president of the United States.