Cheriot v. Foussat

3 Binn. 220, 1810 Pa. LEXIS 78

• Court: Supreme Court of Pennsylvania
• Decided: December 22, 1810
• Status: Published

Opinion

The Judges now delivered their opinions.

Tilghman C. J.

This is an action of replevin for a quan* tity of coffee, and cotton, which having been shipped from Jeremie, a port in the island bf St. Domingo, in possession bf the revolted negroes, was captured by two French privateers, and carried to St. yago de Cuba, in the island of Cuba. It was there purchased by the defendant, and brought to Philadelphia, where being discovered by the plaintiff the original owner, this suit was brought. The defendant supports his claim to the property, under a decree of condemnation by the court of the French republic at Santo Domingoi, and an order of sale, by yohn Baptist Audibert, styling himself “ commissary of marine, French agent in the island of Cuba, “ authorized to make the preparatory proceedings in matet ters of prize in this island.”

On the trial of this cause, the plaintiff’s counsel contended, that the French court had no jurisdiction, and therefore its proceedings were void; and they relied on the case of Rose v. Himely, 4 Cranch. 241, in the Supreme Court of the United States, as directly in point. My respect for that court, forbade me to dissent hastily from its decision, in a case, confessed by all to be important and difficult. I therefore requested the jury to find for the plaintiff. But at the same time I declared, that the case of Rose v. Himely involved questions, concerning some of which, notwithstanding the great weight of the authority, my mind was by no means satisfied; and I desired it to be understood, that I expected this cause would be brought before the court in bank, where I might have an opportunity of forming a final opinion, after full argument.

If the French court decided on a subject within its jurisdiction, the plaintiff cannot recover, for we have no right to inquire into the correctness of that decision. How then does this matter of jurisdiction stand? But a previous question is made. Has this court a right to inquire into the jurisdiction of the court of another nation? The general principle is, that what has been decided by a court of competent jurisdiction in one nation, shall not be questioned in the court of another* This would seem to leave the question of competency open. And there is' strong reason why that question should be open; for otherwise we should be subject to the greatest abuse. A person might style himself a judge, without any authority from the government under which he professes to act, A case of this kind has actually happened, and was brought before the Circuit Court of the United States for the Pennsylvania district. The late Mr. No allies, on his passage from St. Domingo to the island of Cuba, undertook to erect a prize-court. One of the decrees of that court was brought into question in the case of Snell v. Foussat. The jurisdiction was inquired into, and found to be without authority from the French government. The Circuit Courts therefore declared the decree to be void. But even where the authority of the court has clearly emanated from the sovereign power of the nation, it is going too far to say, that its jurisdiction cannot be questioned. All nations are on an equality. If any one then, should undertake to erect a jurisdiction in manifest violation of justice, general convenience and long established principles, is this to be submitted to? Suppose a belligerent should direct his officers to hold prize-court, within the dominions of a neutral, without that neutral’s consent, can it be doubted, whether the jurisdiction, of such a court may be called into question? But it is answered that it is the business of government, and not of courts of justice to seek redress in case of these irregular acts of sovereigns. This answer does not appear satisfactory. Government may certainly interfere with great propriety. But what are the courts to do, when the subject is brought before them in the course of the administration of justice? They cannot refuse to decide, and have no rule to govern their decisions but the law of nations. We know very well that the English courts make such inquiries, and have decided, that decrees under the authority of a belligerent, within the dominions of a neutral, are of no validity. I have frequently known the jurisdiction offoreign courts inquired into in this court, and particularly in the case of Duncanson v. Maclure, where the ship Mount Vernon was condemned by a French court in St. Domingo, while she was lying in the Spanish island of Porto Rico. That case was very much contested, but I think our right to inquire into the jurisdiction of the French court was not denied. So also in the cases of Rose v. Himely, and Hudson v. Guestier in the Supreme Court of the United States, the jurisdiction of the foreign Court was inquired into. I conclude therefore that we may inquire into the jurisdiction.

The clearest manner of inquiring into the jurisdiction of the French court, will be, to consider the objections that) have been made to it. These objections may be reduced to the following heads.

1. The arrété under which the court proceeded, was a penal municipal law.

2. A municipal law cannot be inforced extra territorium.

3. The seizure was without the territorial limits of the French republic.

4. The property condemned was never brought within the French territory.'

1. The nature of the arrété is to be collected from its words, and from the circumstances of the island of St. Domingo, before and at the time of making it.

For a considerable time before the making of this arrété, there was war between the French republic, and the negroes of St. Domingo; and the French were driven out of possession of the principal part of the island. The revolted negroes were considered by the French government as rebels, and it had been officially notified by their minister in the United States, that all persons carrying on trade or maintaining an intercourse with the inhabitants of St. Domingo, contrary to the ordinances of the French government, should be punished as violaters of the rights of the French republic, and the law of nations. The government of the United States has-taken no part between the contending parties. It has never acknowledged the independence of the revolters. We are not at liberty therefore to consider the island in any other light, than as part of the dominions of the French republic. But supposing it to be so, the republic is possessed of belligerent rights, which may be exercised against neutral nations, who carry on commerce with the revolters. This is not denied; but it is said that the words of the arrété prove, that there was no intention to exercise such rights-. This argument is not conclusive.

Although the French government from motives of polity, might not choose to make mention of war, yet it does hot follow, that it miglit not avail itself of all rights to Which by the law of nations it was intitled In the existing cifcumstan* ces, under the form of a law made for the regulation of the trade and commerce of one of its colonies» This was the Course pursued by Great Britain in the revolutionary- war with the United States, and it has not been supposed that she Violated the law of nations, when she captured and confisca* ted the vessels of neutrals, who carried on trade with the United States, in whatever part of the ocean they were found by her ships of war and cruisers.

The French court of Admiralty founded its decree of condemnation on the fourth article Of the arrété of 9th October 1802, and the first article of the arrété of 1st March 1804» By the former it is declared, that “ every coasting or other vessel, communicating with the points of the coast ic occupied by the rebels, shall be seized, and the vessel and u cargo shall be confiscated»*’ The latter is intitled, u An u arrété relative to vessels taken in contravention of the dis- “ positions of the laws and regulations concerning French “ and foreign commerce in the colony;** and is in the following Words. [Here the Chief Justice read the arrété.j Considering the Words of this last arrété, and the circumstances under which it Was made, it ought not to be understood simply as a municipal regulation, but a municipal fegu* lation connected with a state of war with revolted subjects; and in inforcing it, the republic might avail itself of all rights, which are given by the law of nations to a govern* inent thus circumstanced»

2. If this view of the subject be correct, the second ob* jection falls to the ground, for it is founded on the supposition that the law is purely municipal. When it is said that' this law cannot be inforced, extra territoritim, I presume it Is meant, that it cahnot be inforced on the ocean, at a greater distance than two leagues from the French coast. The rea* son assigned is, that the ocean is common to all nations. If it was not common to all, but the right of one, the reason Would be conclusive» But if it is common, why may not any nation make a seizure on it, for a breach of a. municipal law? Whose right is invaded by such seizure? The United States have authorized the capture of their own citizens on the ocean, for the breach of their municipal laws. The United States would not pretend to pursue their own citizens, within the territory of any other power. It seems then, that the ocean being common to all nations, no one hag a right to complain, if it is used for the purpose of capture for breach of any law. Yet as this is a point of very great importance, although I have expressed the present inclination of my mind, I will not give a decided opinion on it. I think it unnecessary, because-1 am satisfied that the arrété under consideration, ought not to- be taken as a law purely municipal.

3. The third objection is founded on the words of the arrété of the 1st March 1804. It is supposed, that the seizure is restricted to the distance of two leagues from the coast of St. Domingo. But I atn not satisfied of the correctness of that construction. The description of vessels “ cleared “from, or bound to, the ports in the possession of the rebels,” seems to be independent of, and not included in the subsequent general description of “ all vessels under sail in the “ territorial extent of the island, found at a distance of less “ than two leagues of the coast.” It appears that Chief Justice Marshall was furnished with an imperfect translation of the arrété, when he delivered his opinion in Rose v. flimely; perhaps his opinion of its construction would have been different, had the translation been correct.- But even if the seizure was restricted to the distance of two. leagues from the coast, how would the jurisdiction of the French Court be affected by it? It is not a court instituted only for the trial of captures within two leagues of the coast, but a court of'general jurisdiction, styled “ the provisional com- “ mission of justice established at Santo Domingo, judging “ in the first instance, in matters of prize, by virtue of the “arrété of the consuls of the republic of the 4th October “ 1802, on the capture of vessels found acting in contrave n- “ tion of the laws and regulations concerning the French “ and foreign commerce in the French colony of Su Do- “ mingo.” When a vessel is libelled in this court, a breach of gome law is set forth, to bring the case within its jurisdiction. If the claimant pleads that the capture was without the limits prescribed by the law, is the court to lose its jurisdiction? If so, what course is the matter to take? Is restitution to be made to the claimant without trial? Or how, or where is the cause to be tried? It should seem, that the court has the right of deciding those matters, which are alleged against its jurisdiction; and the party, who is dissatisfied with the judgment, has ho remedy but by appeal to a Supreme Court of the same nation, if- the fact of seizure, within a certain distance of the coast, be material, under the true construction of the law in question, who can say, whether that fact was not considered, and decided by the French court?

On the other hand, if that court, appearing by its style, to possess general jurisdiction in case of captures for contravention of the laws respecting commerce, has decided that the distance from the coast is not material, I know not by what principle we can inquire into the correctness of their construction of their own law. I mentioned before, that the case of Rose v. Himely was urged by the plaintiff’s counsel' on the trial of this cause. But it now appears, that the authority of the Supreme Court of the United States, on which the plaintiff relied, is to be thrown into the opposite scale. In Rose v. Himely, five judges of the Supreme Court were for reversing the judgment of the Circuit Court of South Carolina, by which the French decree was held to be conclusive. But the five judges, though they agreed that the French court had no jurisdiction, differed widely in their reasons. The Chief Justice and Judge Washington founded their opinions on the circumstance of the seizure being more than two leagues from the French coast. Judges Cushing, Chasev "and Livingston, assigned as the sole reason of their opinion, that the vessel and cargo were condemned by a French tribunal, sitting at Santo Domingo, without having beea carried into that dr any other French port, and while lying in the port of Charleston (South Carolina), whither they had been carried by and with the consent of the captor. It was afterwards decided in Hudson v. Guestier, that the French court had jurisdiction in a case circumstanced like that described by Judges Cushing, Chase, and Livingston. The principle on which these three judges relied being thus o vet-ruled, the case-of Hudson v. Guestier came again before the "court, when a majority of the judges were of opinion, that the French court had jurisdiction without regard to the distance from the coast, and that it made no difference, whether the capture was in the exercis'd of a belligerent or a municipal right,

4. It remains to b.e considered whether the French court had jurisdiction in a case, where the thing captured had never heen brought within the limits of the republic.

This question has of late, years been much discussed, applied to vessels captured as prize of war. It must depend on the custom of nations; for without such custom, it does not seem essential that there should be any judicial proceeding, the property being vested in the captors by the act of cap.ture. In cases of capture by armies, on land, the plunder is divided among the eonquerers, without process of law. Fortunately for the world, it has been thought proper to proceed differently with marine captures. Courts are established iq all civilized nations, who proceed or profess to proceed according to the laws and usages of nations. The courts of the captor exclusively take cognisance of prizes. Xt is the business of those courts to inquire, whether captures have been regularly made under the authority of the nation in which they arc established, and where a neutral is concerned, to ascertain whether be has. done any thing which may justly subject his property to confiscation. They are to make the necessary inquiry, and give a decree of condemnation or acquittal with all possible despatch. Seizure and safe possession are all that has been deemed necessary to give jurisdiction; but whether the possession was within the dominion of the captor, or of a neutral, has not been thought material, Sir William Scott, who presides with great ability in the F.nglish court of Admiralty, seemed once disposed to think that jurisdiction could not be assumed, unless tho thing captured was within the dominions of the captor; but on full research and reflection, he abandoned that principle, being satisfied that the custom of his own nation as well as of France, and the other principal nations of Europe, justified the condemnation of a prize, lying in the dominions of a. neytral power. This will appear from the case of the Henrique and Maria, 26th November 1799, 4 Rob. 35. The United States have always considered themselves bound by the law of nations; and in return they expect that in their intercourse with the nations of Europe, all will observe the same law. The principle that I have mentioned with regard to jurisdiction, has been recognised by the Supreme Court of the United States in the case of Hudson v. Guestier, 4 Cranch. 293., as applied not'only to prizes of war, but seizures for breach of municipal law. Indeed there seems to be no ground for distinction between these two cases. The nation which makes a penal municipal law, has a right to direct the proceedings under it, in what manner it pleases, provided it does not violate the law of nations. The property, as in case of prize of war, is vested by the seizure, and continues as long as the possession. Nor has the neutral power, into whose dominions the thing captured happens to be brought, any right to devest the possession in one case more than the other. It can make no difference, that in the case now under consideration, the property was brought to the United States before the proceedings were instituted in the French court of Admiralty. Because, before the property was removed from St. Jago de Cuba, the papers were deposited with the public French agent there, and an order of sale had been made by him, because the coffee was in danger of being spoiled by the bad state of the vessel. That there should be authority to sell perishable goods, seems necessary, though like other necessary powers, it is subject to much abuse, and I am afraid has in fact been greatly abused.

Having thus considered the objections to the jurisdiction of the French court of Admiralty, I am led to the conclusion, that it had jurisdiction of the cause which it decided, and consequently that its decree vested the property in question in the captors, under whom the defendant derives his title. I am therefore of opinion that there should be a new trial. On the other reasons offered by the defendant for a new trial, I give no opinion.

Ye ates J.

The first question which has been raised in this case, is; whether the protest of captain Anselm Hammond should have been admitted in evidence upon the trial?

1. This point has been solemnly determined in this court in Brown v. Girard, 1 Binn. 40., in December term 1802, when the arguments on both sides underwent full consideration. Though the English adjudications, 7 T. R. 158., differ from our decision, yet such has been the uniformity of judicial opinions and practice in Pennsylvania for at least forty-eight years past, that I feel myself bound to acquiesce therein, whatever might he my individual sentiments on the subject, considered as a new point. At the same time, I do not hesitate to declare, that it becomes the duty of jurors, cautiously, and scrupulously to weigh the credibility of such testimony, and contrast it with the peculiar circumstances of each particular case.

2. Have the transactions in the island of Cuba, or the proceedings in St. Domingo, changed the property of this coffee?

On full consideration it does not appear to me, that thp mere purchase of the coffee at St. Jago, effected an alteration of the property by the operation of the laws of Spain. The unbending maxim of the common law is, nemo potest plus juris ad alium transferre, quam ipse habet; Co. Litt: 309. 6; and it accords with the plainest dictates of common sense. The.same rule holds in the civil law. Traditio nihil amplius transferre debet, vel potest, ad eum qui accepit, quam est apud eum qui tradit. L. 20 ff de acquis. Rer. Dom. The doctrine holds throughout all the civilized countries of Europe, where the civil law is adopted, as far as I can collect from the books. 1 Domat's Civ. Law. lib. 1, tit. 2, sect. 2, 11.; Poth. Traite du Contrat de Vente, part 1. n. 7.; Ersk. Institut. of Law of Scotld. vol. 2. 485.; 1 Johns. 479. In all the different stages of the much contested case of Rose v. Himely, all the judges of the Supreme Court of the United States concurred in opinion, that as far as between neutrals, at least a sentence of condemnation is indispensably necessary to produce a complete devestiture of property. 4 Cra. 280, 281-2. 514.

The validity of the condemnation of the coffee at St. Jagot ■ must therefore form the great object of inquiry on this question; and I will not deny that'my mind was forcibly struck during the argument, by the remarks of the plaintiff’s counsel,

The schooner Mars, after her capture by the two French privateers, was carried into the Spanish port of St. Jago, where she arrived on the February 1804. On the next day, John Baptiste Audibert, the French prize agent, ordered her cargo to be sold. Two Spanish merchants became the purchasers of the coffee now in dispute, and the defendant, by his supercargo John Ribaut, bought it from them at second hand. It arrived here in the schooner Two Brothers, in March 1804; and while in this port, and after the present suit had commenced, the condemnation took place on the 21st July following, having a retrospective operation on the merits of the cause.

It was insisted, that while the possession remained, the res might be either restored or sold, and the sentence of the court be executed; and therefore the possession was the essential fact, on which the jurisdiction of the court depended. But if the res be out of the power of the sovereign, he cannot act upon it, nor delegate authority to act upon it, to his courts. 4 Cra. 294. The whole world are, or may become parties to a suit in the court of Admiralty, either by claim, or appeal; but relief can only be obtained by application to the tribunals of justice of the country of the captors. The neutral owners cannot enjoy this benefit, however unsubstantial, if their property when arrested may be carried into one port, and proceedings to a condemnation be had in another port, however remote therefrom, of which they can have no knowledge. Possession must therefore be essential to the jurisdiction of a prize-court. It is the duty of a.prize-court to give a prompt and fair hearing to all parties, and to restore instantly, if upon a summary examination there does not appear sufficient ground to proceed. But how, say they, can this hearing be had, and this restoration made and enforced, when the subject matter in controversy, and perhaps the captors and captured are in a foreign country? The admission of a practice so incompatible with the very constitution of a prize-court would lead to the greatest confusion. Suppose a foreign prize-court should sustain a libel against a vessel lying within one of our Own harbours, and should proceed to try, condemn and sell the same, would any person hesitate to say, that such a jurisdiction was inadmissible, that such a proceeding was coram non judice? To sustain jurisdiction in such a case, would be the height of injustice and absurdity. 1 Johns. 483.

More calm reflection has led my mind into a different train of thinking, and effaced my first impressions. I no longer view the defendant’s doctrine as a degradation of our national character. It is not pretended that if by any means whatever a prize-court should be induced to condemn as prize of war, a vessel which was never captured, that this condemnation would operate a change of property; and it is admitted, that recapture, escape, or a voluntary discharge of the captured vessel, would deprive the court of jurisdiction. 4 Cra. 269. 294.

The decisions of this court agree with those of the Supreme Court of the union, that the sentence of a foreign court of competent jurisdiction directly upon the point, is conclusive evidence of the fact which it professes to decide, between the same parties, upon the same matter coming incidentally in question in another court for a different purpose. This doctrine most frequently occurs in cases between insurers and insured, where there is no express stipulation to the contrary in the policies. The respect required to be shewn to the decrees of foreign tribunals, has for its foundation that universal independence and equality of ail governments, from which it results, as Vattel observes, “ that to undertake to examine the justice of a definitive “ sentence, is an attack on the jurisdiction of him who passed “it.” 4 Cra. 511. The doctrine rests upon three very obvious considerations; the propriety of leaving the cognisance of prize questions exclusively to courts of prize jurisdiction; — the very great inconvenience amounting nearly to an impossibility of fully investigating such cases in a court of common law; — and the impropriety of revising the decisions of the maritime courts of other nations, whose jurisdiction is coordinate throughout the world. 4 Cra. 435. Meré locality will not of itself, deprive the prize-court of one nátioh of its jurisdiction, nor give jurisdiction to another. The taking of prize is the foundation of admiralty jurisdiction. A prize brought into our ports by a belligerent, continues subject to the jurisdiction of the capturing power, although the corpus be within the limits of another jurisdiction; and it is now the general practice of the European nations to condemn in their own courts captured vessels carried into the ports of an ally, or even of a neutral. 4 Cra. 513. This practice must be submitted to, until changed by the common consent of nations; and the condemnation will bind the property. The neutral sovereign cannot wrest from the possession of the captor, a prize of war brought into his ports. 4 Cra. 295. The particular mode of introducing the subject into the court, or in other words, of instituting the particular process which is preliminary to the sentence, is properly of municipal regulation, uncontrolled by the lattf of nations, and therefore is not examinable by a foreign tribunal. 4 Cra. 297. Our citizens if injured, cannot be redressed in our courts, for the errors or injustice of foreign adjudications. In such cases, they must look to their government for protection and compensation. The possession of the captor is in principle, the possession of his sovereign; he is commissioned to seize in the name of the sovereign, and is as much an officer appointed for that purpose, as one who in the body of a county serves a civil process. He is under the control and direction of the sovereign, and must be considered as ready to obey his commands legally communicated through his courts. 4 Cra. 296. I will conclude my remarks on the present question, with the expressions of Mr. Justice Johnson in 4 Cra. 285. “ The de- “ cisions of foreign prize-courts do not derive their effect “ from their abstract justice; they are in this respect analo- “ gous to the acts of sovereignty. They are universally con- “ elusive, because no where subject to revision. Among “ nations they are considered as intitled to the same validity, “ as the decisions of municipal courts, within their respecu tivé territories, and preclude the rights of parties, although “ contrary to every idea of law, reason and evidence.”

Much reliance was placed during the argument of this case, on the reversal of the judgment of the Circuit Court of South Carolina, in Rose v. Himely, by the Supreme Court The opinion of the court was delivered by Marshall Chief Justice, in which Mr. Justice Washington concurred, that the prohibition by France, by the arrété of 1st March 1804, of all trade with the revolted blacks of St. Domingo, was an exercise of a municipal, and not of a belligerent right; and that seizures beyond the limits of the territorial jurisdiction of two leagues from the coasts of that island, for breaches of the municipal-regulation, were not warranted by the law of nations, and could not give jurisdiction to the courts of the offended country. This opinion, together with that of Mr. Justice Johnson, who dissented therefrom, is reported in 4 Cranch 268. 281. Cushing, Chase and Livingston Justices assented to the judgment, without expressing an opinion on the validity of a seizure on the high seas under a municipal regulation, upon the ground, that the vessel and her cargo were condemned by a French tribunal sitting at St. Domingo, without having been carried into that or any other French port, and while lying in the port of Charleston, South Carolina, whither they had been carried by and with the consent of the captor. The case of Hudson et al. v. Guestier was decided at the same time, and the judgment therein having been reversed, was sent back to the Circuit Court of Maryland, under a mandate for further proceedings. It now appears that a new trial was had in that suit, wherein the court directed the jury, that it was wholly immaterial at what distance from the coast of St. Domingo the vessel was taken, the property being by the capture and sale devested out of the plaintiffs, and who therefore were not intitled to recover. The plaintiffs’ counsel took a bill of exceptions to this opinion; and a verdict and judgment passed for the defendant, upon which a writ of error was brought. The judgment of the Circuit Court was affirmed in February term 1810, by the opinions of Johnson, Livingston and Tod, so that the principle of the decision in Rose v. Himely is now.overruled. I trust that I Stand on safe ground, when I assent to the opinion of a majority of the judges of the Supreme Court of the United States on a much controverted point; and am therefore of opinion, that the proceedings in St. Domingo devested the. property of the coffee ou.t of the plaintiff.

3. It may be deertied unnecessary for me to express arty opinion, whether this court have jurisdiction over the preSent subject? This point was reserved on the trial. I shall content myself with observing, that I see no reason for receding from the unanimous opinion of the members of this court, upon this point, in Ross’s Executors v. Rittenhouse. The authorities upon which our judgments were formed, are detailed in the report of that case, 2 Dall. 164., which I will not now repeat. If the plaintiff could have sustained his suit on its merits, I think his proper remedy was in the District Court, and not in a court of common law.

Upon the whole, I am of opinion that a new trial should be awarded.

Brackenridge J.

By article 3, sec. 2, of the constitution of the United States, it is provided, that “the judicial “ power shall extend to ail cases of admiralty and maritime “jurisdiction.” This might be construed as giving to the courts of the United States exclusive jurisdiction of all admiralty and maritime cases; but the judiciary law of the United States, 1 U. S. Laws 54., has not construed it so extensively; for by sect. 9 of that law, there is a saving to “ suitors in all cases, of the right of a common law remedy, “ where the common law is competent to give it.’’ A suitor therefore has a right to demand of the court of any state, the remedy of a wrong, where the common law is competent to give it. It follows, that it is démandable of this court, that we give a remedy in this case of alleged wrong, if we are competent to give it.

Our competency will depend upon the question, are wé excluded from the “jurisdiction?” Cases of admiralty and mai'itime jurisdiction, in the meaning of the constitution,, must have a reference to cases of that nature as they were understood before the framing of the constitution; and that understanding must have a reference to the admiralty and maritime jurisdiction of the courts of England, whence wé have drawn our laws. In the courts of England, the boundaries are clearly settled, both as to where the jurisdiction is concurrent, and where it is exclusive. The cases of prohibition shew where the admiralty and maritime courts may have a concurrent jurisdiction: where they take exclusively may also be seen from the English cases. That of Le Caux and Eden, Doug. 572., may lay a foundation of this examination in tracing the cases.

The admiralty and maritime jurisdiction of the United States must therefore be the same with that of the English courts, as to what they shall possess exclusively of the common law courts of the individual states; and what the courts of the United Stales cannot exclusively take, we must concurrently possess. It is clearly settled by the English cases, that it is not the place, supra altum mare or high seas, but the nature of the question, that must determine. Of what nature then must the question be that will exclude? The answer to this may be anticipated from the reason of the thing, even were not the decisions of the courts very clear upon this head. The purport of these is, that it must be a question which will involve a claim of some foreign power originally or derivatively; that is, immediately from the foreign power, or derivatively, by some claiming under it. For it must be a question, on the determination of which the preserving peace with some foreign power may depend. Every case of capture as prize of war, must be of this nature. A case of seizure and condemnation for the violation of a prohibitory law, with relation to the subjects of a foreign power, is within the same reason, and must be of the same nature. For the sovereign has a right to prohibit an intercourse with all, or any part of his dominions. The subject of a foreign power violating such a prohibition, subjects himself by the law of nations to the forfeiture of the prohibition. If a forfeiture of the property be the comminution, that property may be seized. But the subject of the foreign power is under the protection of his sovereign, to whom the power prohibiting is answerable for the seizure of the property. He is bound to shew the grounds of the seizure, that it may appear to be justifiable. It ultimately comes therefore to be a question between the respective sovereigns, whether at peace with each other or at peace with all the world. Why is it that capture jure belli is made cognisable only in what are called prize-courts, but in order the better to preserve the relations of amity with other powers, with whom the nation is at peace. The capture of a vessel of a neutrál nation for a breach of a blockade, is triable only in a prize-court. In the American revolutionary war, the vessels of other nations trading with the revolted colonies, and seized, which case is analogous to that df France and Hayti, the capture, or rather seizure, as before the declaration of war with those nations it strictly was, could be triable only in the prize-courts. Could cases of this nature have been tried in the instance courts of Admiralty? Or were they exclusively cognisable in the prize-courts? A prize-court of a nation, may be considered in the light of a commission of inquiry on behalf of the sovereign of the captor, to inform the conscience of the sovereign, and direct his policy. This at least seems now the only use that is made of it. Does not the same sense of justice, or dictate of good policy, direct an inquiry in the case of a seizure for the violation óf a prohibitory law, as in the case of a capture de jure belliP Is it not as necessary7 for the preservation of peace in the one case as in the other? Is there not as much reason that it be in the court of the sovereign peculiarly appointed for inquiring into cases where the relations with foreign powers may be affected, in the one case as in the other? I take it, that on principles deducible from the limitation of the jurisdiction of the English courts, a seizure of a foreign vessel for the violation of a prohibitory law, would be inquirable into only in the prize-court, and not concurrently in thé instance court of Admiralty. If not concurrently in the instance admiralty court, the common law courts of England could not take jurisdiction. If'so, we cannot; for it is to that jurisdiction only that we succeed, under the clause of the judiciary act of the United States, which saves the common law remedy. I lay aside the case of Hughes and Cornelius, or any other which may seem to countenance the idea that the legality of capture incidentally coming into view, but not so far as to affect the res, may be inquirable into in a common law court. For though it is the conclusiveness of the sentence of the foreign court of Admiralty, that is given as the reason of sustaining the change of property by the condemnation and sale, yet the paramount and better reason deducible from principle would have been, that the legality of capture was a prize question, and not inquirable into in the common law court. It does not militate with this principle, that in a policy of assurance, of which the common law courts hold cognisance, the fact of condemnation may.come into view, or that even the legality of the sentence may come into view, as some contend it ought to do; because this is a question, not between sovereign and sovereign, except so far as respects the subject of the sale and condemnation; and so far as respects that, we see that the prize-courts have exclusive jurisdiction. The legality of capture, condemnation, sale, &c. on a policy of assurance, is a collateral question by the terms of the policy, and is made a covenant, of which the common law courts have cognisance. It is not the condemnation, but the condemnability, in the case of a policy of assurance, that is in question; and which may be inquired into, independent of the fact of condemnation.

Considering forfeiture under a prohibitory law, as giving a right of seizure, in the same manner as the breach of blockade gives the right of capture, it will follow that' the property forfeited may be pursued and taken on any seas, excluded only by the jurisdictional limits of another power; so that it would not make any difference with me, whether the seizure was within the territorial jurisdiction, or without upon the high seas, after a forfeiture legally incurred; nor whether the seizure was for the actual entry of a port, or for hovering within the jurisdiction, and raising the presumption of an intention to enter, such hovering being prohibited. As to the limits of the jurisdiction alleged to be violated, territorial jurisdiction seems to be what any nation •chooses to make it, and what other nations will suffer it to be. If this extent is to be contested, it must lie with the sovereign power of a state to say what that of another shall be. I do not know that our government has said what shall be the territorial jurisdiction of France, in Europe or the ■Indies; and until that is done, we cannot say what it shall be: for the law of nations, which is a part of our common law, has not ascertained this distance without controversy. In case of vessels bound to the United States, our government exercises the right of search to the extent of four leagues. In the opinion of Azuni, the territorial extent for the purpose of subjecting vessels to the visit of revenue officers, ought to be contracted, rather than enlarged as in the case of protection. I have not the facts of this case so fully in my mind, as to recollect with certainty whether the-capture was of a vessel which had violated the prohibitory law, by entering a port of the island, or only by hovering within the two leagues, and subjecting herself to the reasonable suspicion of an intention to enter; or by having entered a port, and having escaped to a greater distance than two leagues; or by having only been within the two leagues, and having then escaped without the two leagues and been captured. But I take it that she had entered and traded, and had then escaped to a greater distance than two leagues; because if she had been taken tidthin the two leagues, even hovering, without being able to account for it, there could be nothing said; or even if she had been hovering with intention to trade, and had afterwards escaped without the two leagues, I do not think she ought to be protected against seizure, or reclaimed by her country, much less if she had actually entered a port and afterwards escaped to any distance. I would consider her as liable to the penalty, wherever found, and seizable by the injured power, unless within the territorial jurisdiction of another state.

But it will be said, that whether capture as prize of war, or seizure for the violation of a prohibitory law, be alleged, it must be examinable whether such capture or seizure and condemnation have been legally made. The sentence of a foreign court of Admiralty will not conclude as to such capture, or seizure and condemnation, but the legality of these will be examinable to a certain extent. It is so determined by the-Supreme Court of the United States. Going as they presume on the same law which is adopted in the English courts, they have determined in the case of Rose v. Himely, 4 Cranch. 241., that the capacity of the court to act upon the thing condemned, arising from its being within, or without their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence. “ The court will examine the constitutional. “ powers of the tribunal, the character in which it acted, and. the situation of the subject on which it acted.” I understand this to be spoken of any court, admiralty or common law court. If such a qualification of the general rule as to the condusiveness of a foreign sentence can be supported, it may turn a capture, and what purports to be a condemnation, into a marine trespass, and give a common law jurisdiction; though it would seem to involve an inconsistency, to say that the primary and principal act of the court, the assuming jurisdiction, should be examinable, and not the justice of the adjudication; or that reasons of policy which forbid in the one case, should not exclude in the other; and this not confined to the courts of the sovereign of a peculiar jurisdiction, but that the sentence of even a foreign court of Admiralty is examinable to a certain extent in a common law' court. Assuming this to be the law, let us examine the sentence in the case before us, as to its effect upon the property in question. It is said to be posterior to the sale.. If so, it would seem that it would not protect the sale. The owner is not devested of his property by capture, but only by condemnation. If in the mean time it comes into his possession, by recaption, the vendee cannot set up the sentence as a bar; 2 Burr. 694.; though there has not been an actual recaption by the owner, but a legal one by attachment of a suit brought* For the vendee being in no better situation, until condemnation, than the captor, the property may be recaptured in his hands on the high seas, or attached within the municipal jurisdiction of any country, by applying to the laws which regulate the mode by which property wrongfully detained may be recovered. And under these laws, a suit instituted, must be the same thing as a manucaption or taking possession of the property. There would seem to be the same reason in the one case as in the other. Can there be a distinction taken between the case of seizure and the case of capture, with regard to a change of property? By the violation of the law, or declaration of the will of the sovereign, a forfeiture is incurred, and a right to seize accrues; seizure gives possession and an eventual right of property; but that right is suspended until1 the will of the sovereign is declared upon the particular subject, There can be no transfer in the mean time, at public or at private sale. Even the officers of the capturing power can have no authority to transfer, until the will" of the sovereign is expressed, and the seizure legitimated by a sentence of his court. It is contrary to the law of nations, and contrary" to good policy, that it should be otherwise. For though there is no jus posfliminii, no right of recapture In the case of seizure, it is because in the nature of the case it cannot exist, any more than in the case of a breach of blockade; the matter being between powers supposed to be at peace in the one case, and between powers at war in the other. An enemy may retake himself if he can, or his own vessel, and his sovereign will protect him; and it is not a question of right but of power to hold the property. But in case of a forfeiture, the penalty is incurred and the debt is due, and may be exacted without any right of self-deliverance; but, nevertheless, an act of the sovereign of the seizing power must pass upon it, in order to ascertain the subject, and the legality of the seizure made.

Admitting that there might be a change of property as , amongst the subjects of the seizing power, by a sale by admiralty decision, can the courts of other nations regard a transfer that is not previously covered with a sentence of condemnation, that has not this to produce as the title deed or evidence of the property of the goods purchased?

The reason on which respect is paid to a foreign court of Admiralty, so as to protect the subject of a sale, is the maintaining the relations of amity with foreign powers. Is not a comity founded in this reason carried far enough, when we respect the sentence of the court, by supporting the sale made under it, without confirming it by relation? That is a step farther; and is there any good policy to warrant it? Is it not enough if they are protected after condemnation? The purchase is otherwise at the risk of the purchaser, that if he take the property out of the dominions of the power seizing, he cannot call upon the municipal law of another country to protect him.

But in this case it is said that the property is covered by a sale made by an agent of the foreign government, by the French agent at St. fago de Cuba. The British government would seem, as in the case at Lisbon,,to have commissioned consuls with special power to make sale of the perishabl property captured and brought in; and this as under the special and immediate order of the court of admiralty; and which sale will amount to a change of property, and protect the vendee, let the consequence be an acquittal or condemnation. If that be the usage, and it has become the law of nations, the law of the French government authorizing agents in cases of necessity, that is, in cases of perishable property, cannot have a less effect. In that case, the property here will be protected in favour of the vendee. The sentence however does not refer to this sale, or on the face of it ratify the sale. But in the case of a sale by an order-of the Admiralty Court, which may be legally made, is it necessary that the sentence should recite and expressly sanction the sale? If not, why should it be necessary in the case of a sale by a consul, or an agent authorized by the sovereign of the captor?

But, are not these considerations proper for the determination of the prize-court? F or, admitting that the Admiralty Courts of one nation, have a right to judge of the jurisdiction of the Admiralty Courts of another nation, though it would seem to involve an inconsistency to say that the assumption of jurisdiction, which is the principal and primary act of the court, and not the legality of the adjudication or sentence on the merits, should be examinable, the same reasons of policy which forbid in the one case, would seem to exclude in the other, and every court is presumed to be a competent judge of its jurisdiction; nevertheless, I say, admitting that the, jurisdiction is examinable to a certain extent, is it competent to any but the Admiralty Prize-court to examine? “ If “ the taking has been as a prize, though from want of legal “ condemnation there has not been a complete prize, claim w of restitution must be in the prize-court. If in any other “ way a suit for restitution is proper in the instance court, “ it is not easy to conceive such a case unconnected with “ either piracy or war. We may however suppose or ima- “ gine a case of possession unlawfully taken, where no cir- “ cumstance of capture in war was concerned, as if there was “ a disputed property in'a ship, and one of the claimants “ prevailed upon the master at sea to betray to him the pos- “ session previously held by the other. In such a case a suit “ by the latter in the Admiralty for restitution would be “ proper. Some think that such would be a case for the “ instance court, and that the question of prize comes in “only incidentally; but. surely taking as prize, though ille- “ gaily, o.r purchasing from such a.taker, is equally a question “ for the prize-court, as legal capture and purchase thereof; “ and accordingly the case o.f the Perseverance, Pillar, in “2 Robinson’s Rep. which was of the former kind, was “ tried in the prize-court. Where the consideration of pro- “ perty comes in incidentally, and in such a manner as is “ not disputed between the parties, the court doth judge, “ though the question of property can hardly there be said “ to be before it; but the suit always purports to be in a “ possessory cause civil and maritime.”

These observations are extracted from 2d Brown Civ. and Adm. 113.115., who goes on to add, that though such suits for restitution may be proper in the Admiralty, yet it may be asked whether the courts of common law have not here concurrent jurisdiction; for though the tort be committed upon the sea, the main question is a simple question of possessory right between man and man, and which in its nature savours not necessarily of a marine business. Lord Mansfield has answered this question in the case of Lindo v. Rodney; “ a thing,”, says he, “ being done upon the high sea, “ does not necessarily exclude the jurisdiction of the courts “ of the common law; for seizing, stopping, or taking a ship “ upon the high seas, not as prize, an action will lie; though “ for taking as prize, no action will lie. The nature of the “ question excludes not the locality. The proper distinction “ seems to be, that if 'the suit be in rem for the restitution “ of the ship itself, the suit should be in the Admiralty. “ If for damages only, at common law. But Sir Leoline “ Jenkins agrees with the attorney and solicitor-general of 14 his time in opinion, that even for spoil and damage and “ loss of time or demurrage occasioned by violence, suits might be brought either in the courts of common law, or “ in the Admiralty. But he adds weighty reasons for preferring the latter. Having, says he, the authority of two “ such eminent persons in the law, that this cause of spoil is ~ “ cognisable in the Admiralty, I will only add besides, that “it has been always so, till some late interruption; and that “ it is not without special ease and satisfaction to a foreign “ plaintiff, that he shall have the benefit of the same marine “ laws here, by which we are judged in his country: and “ instead of entering as many actions of trover and conver- “ sion as there are parties to the spoil, and proprietors of the “ ship and goods, need enter but one single action in the Ad- “ miralty. In many cases of this kind, an action of trover has “ been brought, and in others the language of the court “ seems to imply, that this or replevin was the more proper “method.” p. 117". — “ When formerly the Admiralty was “ permitted to try petitory suits, or causes of property, di- ' “ rectly, it was held that the sentence of the Admiralty on “ the property of a ship taken upon the sea was final, and “ it should not afterwards be tried in trover.” p. 118. — “ The “ ground of these determinations seemed to be, that where “ the Admiralty has cognisance of the principal, it has also “ of the incident; yet that is only where the whole makes “ one continued act, and here the purchase is severed from u the first taking, and it becomes a mere question of pro- “ perty on land. But this seems subtilty. The sale is surely “ a continuation of the violence; and as we see that in the “ prize-court the validity of such a sale after a capture in war “ would be tried as inseparable from the prize question, why “ should not the same rule apply in the instance court to “ takings not by an enemy.” p. 118.

So far the sentiments of this elementary writer, to which I subscribe, and add that I can see no distinction between, the instance court being excluded from a proceeding in rem, and sustaining a proceeding for damages on account -of the taking or detention, where the taking has been as prize. For the same i-easons of policy would require the intervention of the peculiar jurisdiction of the prize-courts in the one case as in the other; and if questionable in the instance court of Admii-alty, so at least in the common law-court.

Are there not reasons arising from the constitution of the federal government, that render it necessary to confine the jurisdiction of the common law courts of the states? The common law courts oiEngland are national courts, though not the courts of the government, in other words the executive, as the admiralty courts in a great measure are in that country. But the courts of a state are not with regard to the states, the same as the superior courts in England are with regard to the whole people of England. This would seem to make a difference in policy, and to exclude more forcibly the jurisdiction of the common law courts, where prize may come in question, which is a question that involves the peace of the community of states, and ought to be alone cognisable in a court of the whole states.

This consideration would perhaps not seem to have been duly weighed by the legislature of the union, in the judiciary act, in saving a common law remedy in the state courts where the constitution would have warranted an exclusive jurisdiction to the courts of the union in all matters of admiralty jurisdiction, whether as instance or prize-courts.

But on the ground of policy I will consider them as not intending to give jurisdiction to the state courts, where prize, or its incidents or consequences come in question.

New trial granted.