Gelston v. Hoyt

13 Johns. 561

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: February 15, 1816
• Status: Published

Opinion

Tus Chahcelloe.

The suit in the: supreme c'oUrt betwéép 'these parties was .-ah action of trespass?in which'Hoyi- declared ag‘ainst-GeIsio»f and." Schenck,. for seizing, taking, and carrying " away his ship, called the American Eagle. To this charge the . . defendants plead, not only the general issue, but two special pleas in bar; and to these pleas there was a general demurrer and joinder, and judgment for the plaintiff.

' On théítrial of the general issue Hoyt gave in evidence?: that? fit the time of the seizure of the said ship, she was in his actual, full, and peaceable possession; and that, upon being seized, she was libelled in the district court of New-York, on a charge of being fitted out, armed, and equipped, with intent to be empíoyed in the service of Petion, who had under his governipent part of the island of St, Domingo, against Christophc, who had under his government another part of the said island. That, on a trial in the district court, under that charge, the libel was dismissed, and the ship decreed to be restored to Hoyt, the claimant.

On this evidence, amotion was made for a nonsuit,-and oyer-» ruled.

The plaintiff, Hoyt, afterwards, in the progress of the trial, proved his purchase of the ship of the owner; and the defendants offered in evidence, by way of defence, or in mitigation of damages, under the notice of’special matter, subjoined to the general issue, that the ship, with her equipment, was fitted out, and armed at New-York, on the 1st of July, '1810, to be employed in the" service of Petion, as aforesaid ; and that the defendants, as being, respectively, collector and surveyor of tl;e port, of New York, seized the ship. This evidence was overruled as a justification; and as the plaintiff thereupon admitted that; the defendants had not been influenced by any malicious motives. and fiad not acted with any view or design of oppressing, or injuring the plaintiff, it was overruled, also, in mitigation of damages ; for, after that admission, the plaintiff could recover only the actual damages sustained; and with that direction the judge left the cause to the jury.

To all these decisions of the judge, at the trial, exceptions-were taken, and upon that bill of exceptions the cause was brought into this court.

The first error assigned, on the part of the plaintiffs in erfoiy is, that the matters contained in the 2d and 3d pleas in bar, and which appear upon the record, amounted, in law, to a justification, and that the judgment on the demurrer ought to have been in favour of those pleas. As connected with this point, it is also urged, that the first and fourth counts in the declaration are bad, and the defects fatal, after a general verdict upon the declaration at large.

The judges of the supreme court have not assigned reasons for the judgment which they pronounced ©n the demurrer;• hqcause, as was stated by Mr. Justice Spencer, in behalf of that -court, “ when the cause was called, (meaning the issue joined" on the demurrer,) the defendant’s counsel appeared and declined to argue ; whereupon, judgment was-given for the plaintiffs, on the defendant’s counsel declining the argument,”

Are, then, the plaintiffs in error to be permitted to come here and argue the questions'‘arising upon the derirthférj: $hteW:they" declined the argument in the court below? This is an.important question, and it meets us in the very threshold of the case; '

I am, of opinion that they are precluded, and for the following reasons: ‘ '! - •; ’’

Í. In the first place, it is an unfair pleading, Tor if takes from the party demurring an advantage which he would have been entitled to in the supreme court, if the inclination' of that court had been against him', of withdrawing his d'efourTfer''and reply-5 ing to the pleas. . I presume this'court canxiot grant such a favour. , If it can, the favour .W.Ould be overloaded' with costs) I know of no such precedent; ' It is not a case of amendment) and not within the ordinary province of a court' merely of review; A party acts against good conscience' if he'will' hot. come forward and disclose his reasons,'when cáliédupon by %e proper tribunal, but reserves- himself fb.r another court, and for the cold', hard purpose of accumulating costs; or' of depriving'hiaadversary of the opportunity óf correcting his error.' " , *

•2. This point is within the reason of the decision of this’ court,-at the last Session, in the case of Sands v. Hildreth. (12 Johns. Rep. 493.) There the appeal fwaS' dismissed: fxeb'áü&e? the appellant'did not appear in the court' of chancery after the-cause 'had been, regularly set down for hearing, on' .due notice, but voluntarily suffered a decree to pass against him by default. r That .decision was not founded'on ariy new principle, áad it equally applies to this cáse, .There is the same rule' in the English house of lords ;• and irt Dean v. Abel, (Dickens’ Rep. 287.,) an appeal was dismissed without going into the merits, because the party, at the hearing in-chancery, had made default) and suffered a decree to' be pronounced.'aga,ihst him, So) again, in a late case, (2 Schoale & Lefroy, 712.,) Lord Eldon said if was well known as an established rule,, that no point not made in the court below, could be made on appeal to the house5 of lords. . ' ' ' / ' ' ‘ , ’■ "

3. This is a just and wise, rule; 'for the very theory and constitution of a court of appellate jurisdiction only^. is the corróctifen of errors which a court below may have committed ; ■and a court below cannot' be said to have committed an er-' ror when their judgment was never called into exercise, and the point of law was never taken into consideration, but was abandoned, by the acquiescence, or default of the party who raised it. To assume the discussion and consideration of a matter of law, which the party would not discuss in the supreme court, and which that court, therefore, did not consider, is to assume, in effect, original jurisdiction. It is impossible to calculate all the mischiefs to which such a course of proceeding .Would lead. ‘Either party would then be able, in every case, to. bring his question of law, as new undiscussed points, before this ' -court. This would, indeed, be leaving the supreme court, with its plenitude of power, to enjoy the oliwni cum dignitatem harmless repose; but this was never the intention of the constitution. That court was created, with all its competence and organs, to bp ¡the great trustee, the tutelary guardian of the vast body of the ¡common Jaw. What good motive , can a party have who. will not argue a law question in the supreme court, but insists. •on bringing it here to be exclusively discussed? ■ It is according •to the .genius of our whole judicial establishment, that the court ■which originally decides a cause, should be subject to review by another court; but on the plan pursued in the present case, this court, though only a court of review, will be the first and the •last, originally, and finally, to decide the law. Why should not a party be obliged to obtain the opinion of the supreme court before he comes here ? How -can he. know but that such opinion might have saved him the expense, and us the trouble, of ■the writ of error ? It is certainly as much as we can do wel-i, -and I fear more than we can do with despatch, to. hear and decide questions of law after they have been maturely considered, in the supreme'court, and with the assistance of all the light and .. knowledge which can be imparted to the subject, from the re■searches of that tribunal. . . ;

4. But a still more decisive objection to our tailing into consideration a question on demurrer in the court below, and there refused to'be argued, is to be drawn from that article-in the ■constitution which provides-for'the institution of this court. It ■declares, that f< if -a cause shall be brought up by writ of error, pn a question of law on a judgment in the supreme court, the judges of the court shall assign the reasons of such their judges ■ment. ” In a case, then, in which the opinion of the supreme e^urt was never, required, or taken,- no:reasons ean be assigned,;' iris not a casé for a writ of,error within the purview of the-constitution. This court is entitled, as of rig-fit, in all castes-of error, to th,e aid of those reasons; and if the party will not Condescend to ask for the opinion of- the -supreme court before', he comes here, he. cannot justly complain if we refuse to hear' him. It will be imputable to his own fault or folly; and he-.ought not to be permitted to deprive the opposite party, and this court also, of the benefit of -that investigation which the su--. prem,e court is' always ready and able -to give to every- ques-J jiion properly submitted to it. " '

For these reasons, I have thought it to be my duty toabs.tain from any consideration of -the first point,.in the plaihllffs’ fiaste,' ¡respecting "the- demurrer .-to the, second,and third-.pleas. The; 'Same objection applies to a new point suddenly started in the. midst of the argiimept here,, and never heard of in the court below, and which was, that the first ..and fourth counts in the de-. .clarati.qn were back If I'had chosen to, have gone, into the-discussi.ofi, I apprehend, I should have no great difficulty $ for,, the defects; if any, i tv the counts, were, Supplied,"and cured by’ the pleas in'bar, which identified and made certain, the goods, mentioned in- the first aiid fourth counts. The matters -in' the special pleas wef.e tiresome, in substance, with, the matters contained in the notice to the general issue -; so that the plaintiffs" ju error have, rn> foot, lost nothing by .the course they- took> as-.every benefit of the . special pleas was-reserved to them by the" notice, and the 'evidence offered under if. That: evidence involved the y/hple merits of the ease,'and to those merits: I now-proceed.. ■ - - , '. ' ■ :

floyt was in-the actual and- peaceable possession of the ves? gel, when, the seizure-was made; and there can be no doubt, from that fact, that' he was entitled lo maintain the action-of trespass, and that the motion at the trial for a nonsuit was properly overruled, . It would be a waste óf timo to cite authov rides tp- sp plain and wel-l-settled a proposition. - The -great point is, whether the matter offered in evidence by the-defend? ant-s ought-to- have been received. ■■ The defendants offered to: prove, that the ship was fitted out, and equipped in the port of New- York, with intent to be- employed in the service of P.etion pgainst Ohristophe, and. that -she was-seized by the defendants^ |g ppllecior ancl surveyor of the pustonts,. under the-.act,of e.ójp, gress. When this evidence was offered, the plaintiff had alréady proved that the seizure was made by Schenck, under the directions of Gelston, and had given in evidence the proceedings in the district court, in pursuance of that seizure, and under the-very allegations set up by the defendants, and from which it ¡appeared, that the district court had, notwithstanding, dismissed the libel and restored the vessel, with the strong opinion that there was not even reasonable cause for the seizure,

The evidence offered by the defendants below was not admissible in mitigation of damages. After the plaintiff had renounced all claim to extra damages, and after the judge had ruled that he was only entitled to his actual damages, the testimony, in that view, became wholly useless ; for, if entitled to recover any thing, the pláintiff was; finally, entitled to recover the actual damages he had sustained, and we are bound to presume upon the record before us, that he recovered no more. The testimony, if proper in any sense, was a complete bar to the action.

But I am of opinion that it was properly overruled; ffor after the decree of acquittal in the district court, the same question could not be tned again in the action of trespass; and the decision, that the vessel was not liable to seizure and forfeiture under the charge alleged, was binding and conclusive in the action between these parties. The officer who seizes goods on the ground of forfeiture, and causes them to be libelled and tried, has but two pleas in bar to' an action by the owner; these .are the judgment of the court, if the goods be condemned, and a certificate of probable cause, if the goods be acquitted. If he can show neither, he must answer for the seizure in an action at common law.

This point was discussed at large upon the argument, and with much talent and research. I feel myself; therefore, called on to give it a more particular attention.

It may be admitted as a general principle, that the sentence of a competent court, binds only parties and privies, and does not bind strangers who have no interest in the suit, and who could not be admitted to agitate the case, nor to bring an appeal. Lord Ch. J. De Grey, in delivering the opinion of the judges, on the trial of the Dutchess of Kingston, stated this general rule , but he said there wmre some exceptions to it, found/¡xl on particular reasons. It does not appear to me, however^ .$at the defendants below come within the reason of the rule % an^ h seenis to be perfectly just, that the acquittal of the ship,, in the district court, on" the-charge of being equipped for the. seryice of P.etion, should, as to that charge, be binding and con» elusive in the-trespass suit. . _ 1 . .

I do not consider those defendants as strangers to the prosecution in the district court. In the first pla.ee, it is to, be inferred from the case, that they were the persons who gave in-¡ formation, óf the offence,” and:, conséquently, were- the persons, entitled to one half of the proceeds of the seizure and forfeit-»' ure. The statute, under which the. seizure was made, gives a, moiety to the informer. And who, are we to presume, gave the information, in this case, to the government,, and caused the, prosecution to be instituted? Whom could it be but Messrs. Gelston and Schenck, who voluntarily made, the seizure upon some observa tion or kno wledge of their o wn ? It is in proof that the ship; was seized by the one, under the written "directions of the other; Some person must have given information to the government j. Some-person must have set on foot the prosecution 5 and, in the absence of any- .other proof, which the defendants omitted to furnish, the: necessary intendment is, that the same persona who seized the sbip; were the persons who gave the informa» tion. We cannot trace the information to any other source^ and we áre not bound to enter the land of dreams for. shadowy beings, when we have before us the very persons who made the seizure, who possessed all the' knowledge that the cáse afford» ed, and upon whose seizure, as thé libel admits,, the whole proT secution was grounded, The .law looks no further than to Ihq immediate i.cause of an act; ñon remota, -causa sed-próxima specT tátur. Wé have a right, then, to consider Gelston and Schenck as the informers* and as being parties in. Interest to the prosecution carried on. at their instance in the name of the United .States, ' '■ »> . . . ..

. But if they were-not-the informers, théy-were, in effect, by virtue of their office, and act of ‘seizure, privies to the prosecu^ tion. They seized in the character of officers of the customs', and as assumed agents of the government of the United States, A decision-against the principal binds his agent, and the agent must look- to the principal for indemnity, Scaccia, in his book de Sententia et Re Judicata, in' .a passage cited by, Mr. Margrave in-his Law Tracis, p. 48:3., after stating the general -rule, -that res inter alios acta aliis nec prodest nec nocet, gives this exception to it, sententia lata cum eo cujus principaliter interest, el a quo alii jus hobent consecutivum,facit jus quoad omnes, etiam non intervenientes et non citatos. There is a close intimacy and sympathy, ñowing;from the law, between the officers of the customs and the government; and it might as well be pretended, that if the seizure had been made by the secretary of the treasury, a decision against the United States would not have bound him. By the acts of congress, (Laws of U. States, vol. 1. 74. vol. 4. 427. sect. 89.,) all penalties and forfeitures incurred under the revenue laws are to be sued for in the name of the United States, by the attorney for the district; and the collector of the customs is to cause suits to be prosecuted for all forfeitures tinder the revenue laws, and to receive and distribute the penalties when collected. It is also made the duty (Lazos of U. States, vol. 4. 390.) of the officers of the customs to seize all vessels liable to seizure under any revenue law. This case does not, indeed, come strictly within the provision of these laws, but it would be acting against the truth of the fact, as well as against the justice of the case, to regard these defendants as strangers to a prosecution carried on by the United States under a seizure made by them as officers of the customs. Most undoubtedly they are to be regarded as agents of the government in the whole of the transaction, and upon all the principles of justice, they ought to be concluded by a decision against that very government in whose behalf they seized, and instituted the suit. The government itself cannot be sued. There is no remedy but against its public officers. And if they, clothing themselves with the powers of the government to commit a trespass, are not to be bound by a decision against the government, and that too in a proscution brought at their instigation, individuals would contend upon most unequal terms.

It would operate most injuriously to the plaintiff below, if the acquittal of his vessel, in the district court, was not to be held conclusive, on the question of forfeiture, in all other courts. Let us pursue this point to its practical consequences. Suppose the supreme court, in this case, had admitted, as a legaL justification, the matter set up as a defence, and had held, in opposition to the decree of the district court, that the vessel was lawfully seized, and justly liable to forfeiture under the laws of the United States. What then ? If. is certain that snch a decis’on could not work a forfeiture of the ship.;.-for ho other court but the district court-has. authority to condemn. The Only- effeet of sucha decision would be to deprive Hoyt of his remedy ffi1’ the seizure and detention of his vessel. He and fils vessel aré to be deemed innocent as-respects the United States, btft guilty as respects the officer who seized. His property is fairly acquitted by the only, court that-has authority to-try and condemn. The government, in whose name,, and on whose behalf it was seized and libelled, acquiesces in t-he justness of the sentence, and files no appeal. But when he attempts to she the officer who did him the injury, a state court, which has no jurisdiction over,the question of forfeiture, declares in fávour of the lawfulness of the seizure,.and right of forfeiture, and thus deprives him of all redress. Can it be possible that a doctrine ■leading to such absurd results, to-such inextricable confusion, is well founded? •

Without entering into a large field of'-inquiry,, I apprehend it can be easily and satisfactorily shown that-this is.notthe rule of law. ■. .

The ease . of Scott v. Shearman (2 Wm. Black 977.) arose in -the English court of C. B. in ' 1775.. The case was cited and relied upon in the supreme court. It was ap act-ion' of trespass against custom-house officers for entering'the-plaintiff’s house and seizing'his goods. The defendants g-aye in evidence, by way of justification, a condemnation- of those goods in the Exchequer, , The cause-was twice argued, and underwent, great examination.. It was then contended, as it has been here, that the condemnation was’only conclusive in rem, or on-the point of forfeiture of the goods, but not m a collateral action, if the owner couldprove that the goods were, in fact, not seiza-bje, and had-shed the officers seizing for damages. .But the court unanimously held, that the sentence- of condemnation was conclusive upon .the action,, aid gave judgment accordingly.

There can be no doubt that this- decision is a declaration of the established English law, and: that it was so when our constitution. was made. When'Lord Ch. J. De. Gréy . gave to the-house of Lords, in the.Dutchess of Kingston’s Case, the opinion of thejudg.es on the effect of a’sentence jn the -ecclesiastical-courts,, in bar of a criminal prosecution, he. certainly did not mean to touch the authority, or correctness of'this.decision, which he had pronounced the year before. This is'Still more evident when we advert to the fact, that two years after the trial of the Dutchess of Kingston, he said, (2 Bl. Rep. 1174.,) the determination in this cause, that a condemnation of goods in the exchequer wás conclusive against all the world, had been the uniform law for above a century. And many years after-wards, we find Lord Kenyon (7 Term Rep. 696.) declaring, that the same rule had been deemed settled in the early part of Lord Mansfield’s time, and that he always acted upon it.

The law, then, is to be considered as settled, clearly, uniformly, and definitely, that if goods be seized by a customhouse officer, and are libelled, tried, and condemned in the exchequer, district, or other court having cognizance of the forfeiture, and the seizing officer be afterwards sued in trespass for taking the goods, he may plead that condemnation in bar of the action. So far we have proceeded with perfect assurance. The next question, then, is, suppose the goods to be seized, tried, and acquitted in the district court, and the officer be then sued for seizing the goods, can the officer contest the legality of the seizure over again, or cannot the owner, in his turn, set up the sentence of acquittal as a bar to that inquiry ? This is the very point and pith of the controversy, aqd I entertain no doubt, it is equally well settled as the other ; and . that if the condemnation is a bar to the action on the one hand, the acquittal is a bar to the defence on the other. It would bo monstrously unjust, and repugnant to all principle, if the rule were not so. Ought not" the parties to be placed upon equal ground ; and if the sentence of condemnation be conclusive in favour of the seizing officer, ought not the sentence of acquittal to be conclusive against him ? The most obvious dictates of justice will teach every man of common understanding, that the rule, to be just, should be equal and impartial in its operation. In the opinion delivered, in behalf of all the judges, in the case ©f the Dutchess of Kingston, to which I have already referred, and to which I again allude, with the more satisfaction, because it is not only of great authority, but was very much relied on by the learned counsel ffir the plaintiffs in error, Lord Ch. J¿ De Grey, lays down this important maxim, that “ the rule of evidence must be, as it is often declared to be, reciprocal, and that in all cases in which sentences favourable to the party are to be admitted as csnclugive evidence for him, the sentences, if ’unfavourable, aré, in like manner, conclusive evidence against him.”

After a principle is so- clearly laid down, and is,-in itself,-so eminently just, we hardly Stand.in need of cases to illustrate it.

But we have a case,, as early as 1716, before Baron Price, precisely to the point (12 Viner, 95, A, b. 22. 1.) It was an action of trover, for a parcel of brandy which had been seized'on some alleged breach of the revenue laws; and on an information in the exchequer, -in the.name of the attorney-gene-, yal, the party and his property were acquitted. ■ The sentence ' of acquittal was given"in evidence, in the trover suit; and, on the other side,, evidence was offered against the sentence, and to let in thepárties to contest the fact of forfeiture .over again, notwithstanding the trial and decision in the exchequer. Bat ■the evidence was Rejected, and the decision of acquittal held binding, " ' ' , "

' 1 entertain no doubt; that this decision has been considered as good and settled law ever since it was made'. It was cited as. ".pncontradicted law, by';Mr. Justice' Blackstonein the elaborate • Opinion he gave in.the Case of Scott v. Shearman, already fe» ferred to; and,in Cook v. Sholl, 'which came' before the K. B, in"T?93, Lord Kenyon Said, he conceived that the judgment of acquittal in the- exchequer, being a judgment in rem, was conclusive in the subsequent action of trovet, as to the question of the illegality of the seizure. The whole court of K. B. were; at once, o'f that opinion, and so determined -the cause;. but on a subsequent day, one of the counsel said that poinffwas notsq clear, for that there’was a distinction as4ó the effect', of-a judgment fof acquittal, or of condemnation,'in the exchequer,'and he ' referred 4ó a passage in Buller's N. P., 245,, in support of his distinction, But the court never reconsidered this point* for the cause Went off ón other grounds. ‘ ;

. Wé have, then, the decision before Baron Price, as. long as a péntury ¿go; we have that case cited in 1775, as good law* by Sip Wm: Blackstone, apd we have' the decision of the K B.. in -1793, qn the'same point. ' In opposition' ttf all this authority* there is nqthing'to be cited but a passage in Buller’s N. P., without any adjudged case to support it; and when wé come, to examine the passage, We must be satisfied it caripot have ,beep intended tq apply to ^jDrpc'eeding in rein..- The reason Assigned in Buller's N. P. whyian acquittal is not conclusive in a collateral action, a§ well as a condemnation, is that an acquittal ascertains no fact as a conviction does. This is the reason assigned* Thus, it is said, if. a party he indicted for bigamy, and convicted, it must have been a full proof that he was twice married, and could not have been on any other ground; but if he was acquitted, it might have been because'he had reason to believe his first wife was dead, though she was not dead; or. it might have been for many other reasons, without supposing the second to have been a lawful marriage* All this, may be true in that and like cases, but in a case in the exchequer, where the goods are themselves seized and libelled as being forfeited to the government, and which is termed a proceeding in rem, the question of forfeiture is the only question that can be made, and a decree of acquittal does ascertain the fact that they were not forfeited, with as much certainty, as a decree of condemnation ascertains the fact that they were forfeited* indeed, in the next preceding page in Buller, (p. 244.,) an adjudged case is given, which completely Overturns his disfunction*. It is the case of Lane v. Degberg, decided in 11 W. III., prior to the decision before Baron Prices It was an action by a soldier against his officer for an assault and battery. The officer justified the act as done in the army for disobedience, and gave in evidence the sentence of a coun-4 eil of war, founded on a petition of the plaintiff against him, ánd the acquittal, being the sentence of a court of exclusive jurisdiction in a case arising under martial law, was held to be Conclusive evidence for the officer in the action for. the assault and battery. Lord Thwiozu, who acted as attorney-general on, the trial of the Dutchess of Kingston, cited this case as good law | and it appears to me that, in all the learned and profound discussions to which the Dutchess of Kingston's case gave rise, it was never controverted, but was a.conceded point, that a sentence in rem,, pronounced by a court of peculiar and exclusive jurisdiction,, .was, as to the question of rightful seizure or forfeit» lire of the property in controversy,, binding and conclusive Upon all mankind.

But admitting, that the decision in the district court Was üóf> binding, and the right of seizure was to be tried- over again, Í inn, then, of opinion, on, the merits, that the plaintiff’s ship Was never armed and equipped with any intent contrary to the act of congress.

Í am persuaded the plaintiffs in erroí hate ht¡ faith in. th& soundness of their position. If they had, why did they not procure an appeal from the decision of the' districi eoujtA whole proceeding was, doubtless; very; much under their con» trouk nnd their agency would have beep as effectual for this purpose, as it was.’originally in the institution of the suit., The government itself has, no confidence in this ground, or it would never have suffered so important a question to have slept quiet» Iy under the decisión óf a single judge.

The prohibition was against fitting out any vessel to be employed “ in the service of any foreign prince or-state,” against h another foreign prince or state with whom- the-United Stales were at peace.” The. evidence offered was; that the ship .was fitting; out to be; employed ’ in the service of Pel-ion against, the government of Christóphe.'- ' ■

- It .is a well-known fact, -that the part of the island of St. po« •mingo under the government of those chiefs was, at the com»' mencemc-nt of the French revolution, a -colony of France? and that the authority of France was afterwards destroyed by- the insurrection of the blacks. It is equally notorious, that Frame never ¿.enounced her claim to, dominion, over that colony 5 and* in 18QT, she sent a fleet and army to subdue it. ,■

It may also be stated, as a further fact,-resting-on .the.same public notoriety,’that the government of the Uaiiled States have never, by any,public act whatever, recognised either -P'etiok-or .Uhristophe-por any other prince,; or emperor, .in-St..-Domingo, as hideperident-powers, .with’whoffi the customary' relations- of peace and amity were,to be maintained. ’. The-ac.t of congress of The, 28 th of, February?, 1806,. which I believe''was ■ cited upon the argument,1. .is decisive-evidence of the sense -of the-government. It prohibited all commercial- intercourse: be.tween the ümíe’d States and any person, or persons, resident within any part of ,the island of St. Domingo not in possession, -and under the acknowledged.government, of,France. ■ At that time all the Spanish -part, of- ¡Sí. Domingo had been ceded-.to France, so that the act-was made on purpose to apply to every part of the island which might ’be considered; by France, as in rebellion.. have.nó concern, at present,:with the policy of -this statute.. It is sufficient, that it. shows the unequivocal.sense ofAhé administration, and my position is, that it. belongs.'to the government, and not to the courts of. justice,, to determine our foreign relations ; and, especially, to determine the timé wheffi -the recognition; of new states-is called for upon'principles of national, policy. ,.... ' , ...

The act oí congress, of 1794* under- which the; seizure ivas .iaade, did not relate, when it was passed, to the independent governments in St. Domingo; for they did not then exist; and when they do exist, so as to come within the purview of the law, as “ foreign princes, or states, with whom wé are at peace,” must depend upon the pleasure and the solemn act of the government itself.

It is a very strange and novel doctrine, that it belongs to the municipal courts to anticipate the views, and distract the policy of the government, by being the first to acknowledge new States, as they may successively arise in the revolutions of the world. There never could-be more unfit organs for this purpose. The courts are, by their very constitution, passive and tranquil, and devoted to the administration of domestic justice. They have no concern with foreign intercourse, and no knowledge of the secret springs' and complicated policies of nations. Among all the volumes on public law, not a passage is to be found which bestows such a function upon the judicial power; and as often as the question has arisen in the' discussions on private right, the judges have uniformly disclaimed the authority.

In the case of The City of Berne v. The Bank of England, which came before Lord Eldon in 1804, (9 Vesey, 347.,) a motion was made to restrain the bank from permitting a transfer of certain funds belonging to the old government of Berne, before the conquest and revolution of Switzerland, by the' acts and arms of France. The motion was objected to on the ground that the existing government of Switzerland, not being acknowledged by the government of England, could not be noticed by the court. The chancellor denied the motion, for the reason that a judicial court cannot take notice of a government never recognised by the government of the country in which the court sits. The same point came before the lords commissioners of appeals in prize causes, in March, 1308, and they decided, that ■St. Domingo was still, in point of law, under the dominion of France, and to be considered an enemy5s colony ; and that the courts could not undertake to determine otherwise, as it had not been otherwise declared by the government. This decision of the lords commissioners was referred to by Sir Wm. Scott, in the case of the Manilla, (1 Edw. Adm. Rep. 1.,) and he considered it as most undoubtedly correct.

These are decisions of the highest authority in England; and we have a similar decision of the highest authority in this country*!

In Rose v. Himely, (4 Cranch, 241.,), it was declared bytíie Supreme court of the United-States,Jhá.tit was for governments to decide whether they, couM consider $i. Domingo as an- iíide? pendent nation j . and until such .decision should be made, or France should.relinquish her claim, courts of justice' must, consider the ancient state Of 'things as remaining unaltered, and the sovereign power Of Franee over that colony as still su'bsistinge It was, said upon the argument, that this was to be considered as the dictum of the chief justice, and.not the opinion of the court* on- a- point arising in the cause,»- But I apprehend this-t® be a mistake.' The chief justice, in giving the opinion, observed^ that the relative situation of Si. Domingo .and Franc'é estrié " necessarily to be considered;, and if so, the decision of that' point was materially involved in: the judgment of the co.urta And 'while, on this case,-, it is worthy of .notice, .that the de.cisioE here,, and the decision .before the lords commissioners of. appeals* were remarkably coincident in. point of time, as both were made within the same month,, and. without any possible influence ef the one upon the other-.. . ■ . . .

; It appears to me, then, that this .great .turning point ,o‘n.theBlerits of this case, is equally well supported By reason aridau*. thority ; and it is.-not in my power to entertain any doubt a's what ought'to be our conclusion. '

I am, accordingly, of opinion that the judgment of the stt;, preme court ought to be affirmed.

(a)

This being the unanimous opinion of the court, [two of the senators only being absent,] it was, thereupon, ordered and ad judged, That the judgment of the supreme court be, and the same hereby affirmed; and that the defendant recover against the plaintiffs his double costs for his defence of the said writ of error, to be .taxed; and that the record of proceedings be remitted to the supreme court, tp the end’ that this judgment be executed.(a) •

A motion was made by the defendant in error for interest on the judgment, to be taxed, by way of damages, under the 13th section of the act concerning costs. '

Per totam Curiam.

The allowance of interest on. the judgment of affirmance, by way of damages, rests in the discretion of the court, and where the cause of action, in the court below, was a tort, it. is not in the course to allow interest. Interest is, therefore, denied; but double costs are allowed ito the defendant, under the 14th.section of the act.

At the conclusion of his opinion,'his Honour, in answer to- the argument of the counsel for the plaintiffs in error, drawn fromth'e present Stater of tbe governmentsof St. Domingo, made, the following observations ! ,

.Tt-has-heen urged, by the counsel here,-.'that,the governments ia.St.-DcN mingo were, in fact, and of right, independent; that they were administered With- wisdom,' and entitled to he acknowledged by us'as independent .states*. I might, perhaps, be deemed wanting in attention to the learned counsel, if I passed over in silence these .observations, which', however, I think would ■.have been more'suitably addressed to .the government than, to Us.- The courts ‘have no business with the question how, far, and when, it becomes proper to acknowledge a foreign ppwér. It. is a- matter of policy, and not' Cf-legal-obligation. The simple fací of the recent erection of atíTndepéücfe, ént-state cannot form, of itself, and without , reference to other yiews; and .Considerations,, a sufficient, basis on which government can act. Hothing can be more-transient, as the experience-of this age has taught ús, than newly-erected powers in’, revolutionary times,-,-of in the turbulent state of "the European-colonies.- They must give, evidence of stability before they can effin'mand confidence,' Whén .the-.aet of eóngresS Was passed iifiSOfly dím5aismng.alime«ateüaiiG.é of iheyebelliQuwpoWers in St. Domingo, well known to the government, that Dessalines, under the title of Emperor, was then reigning as absolute master over nearly the whole island. But I am very far from meaning to cast any blame upon our government for its reserve in respect to those powers ; for in what age or nation do we meet with a more rapid succession of revolution than this same ill-fated island has been doomed to experience ? ' •

Without noticing the convulsions which agitated the island for the first ten years, which opened a civil war of extraordinary violence, and which threatened to destroy the last vestiges of civilization, if not to exterminate the inhabitants, we find that, by the year 1801, Touissant had recalled the laws of justice, and assumed and consolidated a peaceable authority. He had subdued Rigañd and other brigands. He had besieged and taken the city of Si. Domingo, and broken up the last asylum of French dominion. He bad established a wise and liberal constitution, and became the protector of the whites, and the éncourager of our American trade. This Black Prince, was a man of good sense, probity, and virtue; and he imparted consolation to bis subjects for the horrors they had witnessed, and the miseries they had endured, by a reign of prosperity and justice, moderation and glory. But the scene was as fleeting as it was brilliant. • After the arrival of the French army, under Le Clerc, in 1802, he was perfidiously kidnapped, and sent, loaded with chains, to France, where he was suffered to languish and expire in the horrors of a dungeon. The blacks soon took ample vengeance on their enemies. The French army was wasted by incessant warfare and by pestilence, and the remains of it escaped from the island in 1803, by a voluntary surrender to the English. The independence of the blacks was then reTassumed, and Dessalines became their ruler, under the title of Emperor of Hayti. His reign was one career of rapacity,*lust, and cruelty; and he fell, in 1806, by assassination, provoked by the overruling principle of self-preservation, and the impulse of universal indignation at the monster. His repeated massacres of the whites, had been quietly endured, but like Domilian,

--“ Pqnitxpostquam cerdombus esse timendus Caperat s hoc nocuit Lamiarum cade madenti.”

His successors were the rival chiefs Christopke and Petion, who soon divided the empire between 'them; and, from that time to this day, they have carried on a fierce and implacable war against each other. Nearly all the white, and, perhaps, three-fourths of the black population which existed in 1789, perished in these revolutions; and the fury of the human passions has converted one of the finest and most fertile islands on the face of the globe, into a region fruitful only in crimes, and frightful vyith desolation.

Such is the sad story of these independent powers in St. Domingo, What future destiny awaits them, no mortal eye can foresee. The prospect is, indeed, a little cheered by some wise measures lately proceeding from one of -these chiefs. But, at present, I think we must all concur in opinion, that fhe recognition of these powers, by the United States, is a question of seriqus and complicated policy, requiring, at all times, the utmost consideration and discretion in the governmeilt, and very unfit to be decided, at any time, - by the courts of justice.

A writ of- error was brought on- the above judgment,.from the supreme court of the United' Stateswhich; was presented to this court after the transcript of -the proceedings had beeñ sent back to-the court below; and the following return to the writ of. error was made by-this court. “ State of New-Yorlc, &s. The president of the senate, the senators, chancellor, and judges of the supreme court, in the court for the1 trial of impeáchments ánd the correction of errors* certify, and return to the supreme courtof the' United States, that before the coming of their writ oF error, the transcript of the record in the cause.'in the said writ of error mentioned*together with the judgment of this court thereon;,and all things tóuching.the same, were duly remitted,-in pursuance of the.statute, instituting this1 court, into the supreme court of judicature of 'thjs state, to the epd,thqt further proceedings might be thereupon had, as well for, execution as otherwise, as might be-agreeable tp law and justice; and in which supreme.courtof judicature, Ihe said judgment, and;,all other proceedings in the .said suit, now remain of record; and as the .same areno longer before, or within the cognizance of this-court,, this cdurt is unable-to make any other, or further retúrn to the.said writ. ■ All which is humbly submitted.”- • . *.

In May term.iapplicatión was made to the supreme, court, by the‘plaintitf 'beiow,.for leave to takeout an execution on the judgment,, theremittitur from the court of errors having, been Gled with*the clerk of the supreme court 3 a motion was, at the-same time, made* on the part-of the defendant below,'for leave to annex the transcript of the record to the writ of error from the •supreme'court of t\ié United States'; but nojdecision was made on- the subject, the counsel for the parties agreeingthat the transcript of the record should beaqnexéd to the writ of error, so that íthe causé might be carried up to the supreme coiirt of the United States, .reserving the question ás'-.to tbe.regularity or propriety of the proceeding, to be determiqed.by that court;

4 Granch, 2272. Edw. Adm. Rep. 1.