REPORTS OF OASES ARGUED AND ADJUDGED IN THE U P R E M E COUR OF THE ? FEBRUARY TERM 1816. By HENRY WHEATON, COUNSELLOR AT LAW. VOL. I. FOURTH EDITION. EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS, BY FREDERICK C. BRIGHTLY, AUTHOR OF THE “FEDERAL DIGEST,” ETO. NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS, No. 144 NASSAU STREET. ALBANY: 475 BROADWAY. 1883. Entered according to Act of Congress, in the year 1883, By BANKS & BROTHERS, In the office of the Librarian of Congress, at Washington. PREFACE. In presenting to the profession the first volume of the Reports, which the editor is pledged to continue, he feels how much he will stand in need of its indulgence, for the imperfections which may be discovered in a work, at once so important and difficult. It is not, however, with the view of deprecating the justice of criticism, that he offers a few remarks upon the nature of the undertaking, and the manner in which it has been executed. Of the arguments of counsel, nothing more has been attempted than to give a faithful outline ; to do justice to the learning and eloquence of the bar, would not be possible, within any reasonable limits : the reporter, therefore, trusts that his professional brethren will regard with candor the imperfections they may perceive, whilst the public will attribute them to the cause mentioned. It is possible, that some important illustrations may have been omitted; but it is believed, that the points and authorities have been faithfully recorded, where the cases either admitted of, or required, it. The same discretion has been exercised in omitting to report cases turning on mere questions of fact, and from which no important principle, or general rule, could be extracted. Of these, an unusual number has recently occurred on the admiralty side of the court, attended with an infinite variety of circumstances, but inapplicable, as precedents, to future cases. Some notes have been added, in order to illustrate the decisions by analogous authorities ;' and whilst gleaning in the rich field of prize jurisprudence, afforded by the late war, it was thought expedient to subjoin a more ample view of the practice in prize causes than has yet been presented to the public, which may possibly serve as a check to those irregularities that had crept in, from the want of experience in this branch of the administration of justice. Its doctrines have been developed by the court in a masterly manner; and we may contemplate with pride and satisfaction, the structure which has been built up in so short a time, and under circumstances so unpropitious to the development of the true principles of public law. On this occasion, we are compelled to lament the loss of an illustrious civilian, whose labors so eminently contributed to facilitate those of the court, and who has been removed, by the inexorable hand of death, from IV PREFACE. this scene of active contention and generous emulation? With how much dignity and usefulness he adorned the bar, and with what powers of analysis he unfolded the most intricate questions of jurisprudence, the records of this tribunal will attest. Less attentive to the graces of elocution, and the technical forms of law, than to the principles of equity, his mind was enlarged by a philosophical view of universal jurisprudence, and to him may be applied what Cicero says of his contemporary Sulpicius, “ Videtur in secunda arte primus esse maluisse, quam in prima secundus, id quod est adeptus, injure ciciti esse princeps. Ncque ille magis juris consultus, quam justitioe fuit : ita ea quoe proficisebantur a legibus et a jure civili semper ad facilitatem equitatemque referebat^ But it is higher praise, and equally well merited, that in him the character of the advocate seemed to borrow a new lustre from that of the philosopher and the patriot ; that, like the illustrious Roman referred to, “in his political conduct, he was always the friend of peace and liberty ; moderating the violence of opposite parties, and discouraging every step towards civil dissensions.” Should the annotations contained in this volume be favorably received by the public, the editor will hereafter continue this branch of his labor with a less timid hand, and, in the words of Lord Bacon, make it his aim, “ to collect the rules and grounds dispersed throughout the body of the same laws, in order to see more profoundly into the reason of such judgments and ruled cases, and thereby to make more use of them for the decision of other cases more doubtful ; so that the uncertainty of law, which is thè principal and most just challenge that is made to the laws of our nation, at this time, will, by this new strength laid to the foundation, be somewhat the more settled and corrected.” Such a commentary seems indeed, indispensable to the utility of reports of the proceedings in courts of justice. For, as Sir William Jones has observed, “ if law be a science, and really deserves so sublime a name, it must be founded on principle, and claim an exalted rank in the empire of reason.” 1 Mr. Dexter, who died during the vacation. JUDGES OF THE SUPREME COURT OF THE UNITED STATES, DURING THE PERIOD OF THESE REPORTS. Hon. John Marshall, Chief Justice. “ Bushrod Washington, “ William Johnson, “ Brockholst Livingston, “ Thomas Todd, > Associate Justices “ Gabriel Duvall, “ Joseph Story, Richard Rush, Esquire, Attorney-General. A TABLE OF THE NAMES OF THE CASES REPORTED IN THIS VOLUME. The references are to the Star *pages. A ♦page Ammidon v. Smith............ 447 Anderson v. Longden........... 85 Antonia Johanna, The........ 159 Astrea, The................. 125 Aurora, The................... 96 B Ball, Henry v............,..... 1 Barr v. Lapsley............. 151 Bothnea, The................ 408 Browder, Preston v.......... 115 C Commercen, The...............382 Coolidge, United States v.... 415 Corporation of New Orleans v. Winter..................... 91 D Danforth’s Lessee v. Thomas... 155 Davis v. Wood................. 6 Dunlop v. Hepburn........... 179 E Easton, Patton’s Lessee v....476 Edward, The................. 261 Elsineur, The............... 439 F ♦page‘ Fisher, Harnden v........... 300 G George, The................. 408 Gratz, Heirs of, Walden v.... 292 Gray, Thompson v............. 75 H Harnden v. Fisher........... 300 Harrison, The................298 Henry v. Ball................. 1 Hepburn v. Dunlop........... 179 Hiram, The.................. 440 Hord, Matson v......,....... 130 Hunter’s Lessee, Martin v.... 304 J Janstaff, The............... 408 Jones v. Shore’s Executor.... 462 L Lapsley, Barr v............. 151 L’Invincible................ 238 Longden, Anderson v.......... 85 M Mandeville, Welch u......... 233 vii viii CASES REPORTED. ♦page Mary and Susan, The.......... 25,46 Marshall, Renner v.......... 215 Martin v. Hunter’s Lessee.... 304 Matson v. Hord.............. 130 Morean v. United States Ins. Co. 219 Mutual Ass. Society v. Watts’ Executor ,.................•.. 279 N Nereide, The................ 171 New Orleans v. Winter........ 91 O Octavia, The................. 20 P Patton’s Lessee v. Easton....476 Preston v. Browder.......... 115 R Renner v. Marshall.......... 215 Ross v. Reed................ 482 Rugen, The..................... 62 Russell v. Transylvania University ...........;.......... 432 S Samuel, The................... 9 ♦page Shore’s Executor, Jones v.... 462 Smith, Ammidon v............. 447 St. Joze Indiano, The....... 208 St. Nicholas, The........... 417 T Taylor v. Walton............ 141 Thomas, Danforth’s Lessee v._155 Thomson v. Gray.............. 75 Transylvania University, Rus- sell v...................... 432 U United States v. Coolidge....415 United States Ins. Co., Morean v. 219 V Venus, The.................. 112 W Walden v. Heirs of Gratz..... 292 Walton, Taylor v............ 141 Watts’ Executor, Mutual Assur- ance Society v............... 279 Welch v. Mandeville......... 233 Winter, New Orleans v........ 91 A TABLE OF THE CASES CITED IN T.H.IS VOLUME. The references are to the Star * pages. A ♦page Abby, The.................... ... .5 Rob. 224 ................... 501 Adonis, The.....................5 Rob. 228........................ 443 Adriana, The....................1 Rob. 263 ....................... 504 Amedie, The.....................Ed. Rev. vol. 16, p. 426......... 501 Anderson v. Royallnsurance Co..7 East 38.......................223, 226 Andrews v. Beecker............, ..1 Johns. Cas. 411............. 237 Andrews v. Blake................1 H. Bl. 529.................... 218 Anna Catharina, The.............4 Rob. 88 ...................... 507 Anna Catharina, The ........ .6 Rob. 10....................501, 507 Apollo, The.....................5 Rob. 256 .................... 498 Argo, The.......................1 Rob. 133...................... 114 Arnold v. United Insurance Co.. ..1 Johns. Cas. 363................ 55 Atalanta, The....................6 Rob. 440...................... 391 Atlas, The......................3 Rob. 243 ....................... 388 Aurora, The......................4 Rob. 180..........,........... 214 Avery v. Strother...............Cam. & Norw. 434 158 B Bates v. New York Insurance Co. .3 Johns. Cas. 242 .............. 237 Berens v. Rucker.................1 W. Bl. 313................... 521 Berthen v. Street................8 T. R. 326..................... 218 Betsey, The......................1 Rob. 78 ...................248, 500 Biays v. Chesapeake Insurance Co. 7 Cr. 415...................... 227 Blagge v. New York Insurance Co.l Caines 565.................... 432 Bowne v. Joy.....................9 Johns. 221.....................217 Brown v. Van Braam............ 3 Dall. 344 ..................... 218 Brymer v. Atkyns................H. Bl. 191 .*.,».* *............. 524 ix x CASES CITED. ♦page Buck v. Turcott..................3 P. Wms. 242.................. 442 Buxton v. Lister.................3 Atk. 383...................... 154 Byron v. Johnson.................8 T. R. 410......................218 C Calypso, The.....................2 Rob. 129 ................... 431 Carolina, The....................1 Rob. 256....................... 63 Carolina, The................. .4 Rob. 210..................... 391 Caroline, The....................7 Cr. 496....................... 264 Carverv. Tracy...................3 Johns. 423.................... 237 Cassius, The....................3 Dall. 122.........248, 252, 253, 259 Catharina, The...................6 Rob. 476 .............524-5-6, 528 Cocking v. Fraser................4 Doug. 295... .............225, 226 Coit v. Houston.................3 Johns. Cas. 254................ 84 Commonwealth v. Fairfax.......4 Hen. & Munf. 208.................. 90 Constantia, The............... .6 Rob. 461 ..................... 391 Convenientia, The................4 Rob. 166........................63, 504 Coopman’s Case...................1 Rob. 12...................... 161 Copenhagen, The.................3 Rob. 147..............502, 527, 528 Copenhagen, The..................1 Rob. 243................... 162 Cornelis and Maria, The..........5 Rob. 32....................... 501 Countess of Lauderdale, The......4 Rob. 232 ..................... 506 .Craig v. Pelham................ ..Sneed 286..................... 493 D Del Col v. Arnold............ .3 Dall. 333.............243, 248, 259 Der. Mohr, The..................3 Rob. 108..................... 500 Duguet v. Rhinelander...........2 Johns. Cas. 476.............. 55 Durouse v. Jones................4 T. R. 300.................... 297 Dyson«. Rowcroft................3 Bos. & Pul. 474 ............. 225 E ^Edward, The.....................4 Rob. 56 ...................... 395 Eenrom, The.....................2 Rob. 1 ................. 431, 504 Eliza and Katy, The...........6 Rob. 185......................... 496 Emanuel, The................... 1 Rob. 249..............387, 512, 529 Emily, The.... .................7 Cr. 500.................... 264 .Endraught, The..................1 Rob. 19...................... 114 Erstern, The................... .2 Dall. 34...................... 161 Etrusco, The.....................6 Rob. 347 n.................... 501 Exchange, The....................7 Cr. 116....................... 252 F Fabius, The.................... 2 Rob. 245.................... 19 Flad Oyen, The...................1 Rob. 114............... .128, 533 Fletcher, v. Peck................6 Cr. 87.................. 118, 120 Floreat Commercium, The..........3 Rob. 147..................... 63 Francis, The................... 1 Gallis. 618................... 210 Franklin, The................. 3 Rob. 178...................... 395 CASES CITED. xi *PAGE Franklin, The...................6 Rob. 127................ .442, 447 Frederick Molke, The............1 Rob. 72 ...................... 532 Friends, The....................1 Edw. 246..................... 162 Friendship, The.................6 Rob. 420...............388, 391, 393 G George, The.....................3 Rob. 175..................... 500 Glass v. The Betsy..............3 Dall. 6....................243, 257 Graaff Bernstorf, The...........3 Rob. 92................431, 502, 505 Graham v. Bickham...............4 Dall. 149..................... 218 Grand Sachem, The...............3 Dall. 333....................260-1 Greenhow v. Barton..............1 Munf. 598..................... 291 H Haase, The......................1 Rob. 240..................... 387 Hamilton, The...................3 Rob. 90 n.................... 162 Hanson v. Meyer.................6 East 614....................... 80 Harmony, The....................2 Rob. 264...................... 442 Henrick and Maria, The..........4 Rob. 35....................496, 501 Hepburn v. Ellzey...............2 Cr. 445 ................... 92, 94 Hinde v. Whitehouse.............7 East 558.................... 81 Hoffnung, The...................6 Rob. 231..................... 162 Holdipp v. Otway................2 Saund. 107................... 218 Hoop, The.......................1 Rob. 165..................... 501 Hubert’s Case...................Cro. Eliz. 531................. 455 Huldah, The.....................3 Rob. 192...................... 500 I Immanuel, The...................2 Rob. 156..................... 387 Indian Chief, The...............3 Rob. 26....................... 55 Isabella Jacobina, The..........4 Rob. 63...................... 162 J Jackson v. Decker...............11 Johns. 418................. 304 Jemmy, The. ....................4 Rob. 26....................64, 161 Jenks v. Hallett................1 Caines 60...................... 55 Johnston v. Ludlow..............2 Johns. Cas. 481 ; 1 Caines Cas. 29 55 Jonge Amelia, The...............3 Rob. 44 n..................... 161 Jonge Jan, The..................6 Rob. 139..................... 527 Jonge Klassina, The...........1.5 Rob. 265.................... 161 Jonge Margaretha, The...........1 Rob. 159.................... 388 Jonge Pieter, The...............4 Rob. 65................... 504 Jonge Tobias, The...............1 Rob. 277................. 395, 443 Juffrouw Anna, The..............1 Rob. 106.................... 505 Juffrouw Elbrecht, The..........1 Rob. 107.................... 505 Juno, The.......................2 Rob. 96..................... 504 K Korn v. Mutual Assurance Society 6 Cr. 192...................... 282 xii CASES CITED. L ♦page La Flora, The...................6 Rob. 1.................... 501 Lavinia, The....................1 W. C. C. 49................. 100 Le Guen v. Gouverneur...........1 Johns. Cas. 437............. 452 Liebart v. The Emperor.......... .Bee 339 ..................... 191 Liverpool Packet, The.......... 1 Gallis. 513.................. 508 Livingston v. Gilchrist........7 Cr. 506....................... 55 Longman v. Fenn................1 H. Bl. 541.................... 218 M McAndrews v. Vaughan...........Parkins. 114................... 225 Madonna delle Gracie, The......4 Rob. 161...................... 388 Maggrath v. Church..............1 Caines 211........ 223, 225, 226 Manning v. Newham..............Park Ins. 169................... 226 Marcardier v. Chesapeake Ins. Co.. 8 Cr. 39 ................. 228 Margaretha Magdalena, The......2 Rob. 115...................... 532 Maria, The.....................1. Rob. 287................... 506 Maria, The.....................5 Rob. 325.................... 532 Mars, The...........'...........6 Rob. 79..................... 505 Martha, The....................3 Rob. 90 n..................... 162 Mary and Susan, The............1 Wheat. 46......................210 Mary Ford, The..................3 Dall. 138...........243, 258, 261 Mason v. Skurray...............Park Ins. 116................... 224 Master v. Miller................4 T. R. 340................. 237 Maunsell v. Ld. Massareene.....5 T. R. 87...................... 218 Mentor, The.....................1 Rob. 151.................... 500 Mercurius, The..................1 Rob. 67..................... 529 Merrimack, The................. 8 Cr. 317...................209, 210 Meux v. Howell..................4 East 1...................... 455 Mima Queen v. Hepburn..........7 Cr. 290......................... 7, 8 Minerva, The....................1 Hall’s L. J. 217............ 531 Murray v. The Charming Betsy.... 2 Cr. 65....................... 55 Mutual Insurance Society v. Byrd. .1 Virg. Cas. 170............ 291 N Nancy, The......................3 Rob. 102.................505, 527 Nayade, The.................... 4 Rob. 206................... 533 Neilson v. Columbian Ins. Co...3 Caines 108.............223, 225, 226 Nelson v. Sherdian.............8 T. R. 395................. 218 Neptunus, The...................3 Rob. 143.................... 395 Neptunus, The..................6 Rob. 408...............65, 113, 114 Neutralitet, The................3 Rob. 239.................388, 395 O Odin, The.......................1 Rob. 208..................64, 113 Omnibus, The...................6 Rob. 71...................... 64 Orozembo, The........1.6 Rob. 430.............................. 391 CASES CITED. xiii P ♦page Paine v. Shadbolt................1 Camp. 427......................... 80 Pegram v. Isabel.................2 Hen. & Munf. 193................... 8 Phillemore- v. Barry.............1 Camp. 513......................... 81 Phoenix, The.................%. .5 Rob. 25........................ 160 Phoenix Insurance Co. v. Pratt.... 2 Binn. 308..................... 432 Polkv. Hill......................2 Overt. 118, 157................. 486 Polly, The.......................2 Rob. 295...................... 504 Portland, The...................3 Rob. 40........................ 161 Port Mary, The..................3 Rob. 191....................... .501 Powell’s Case................. 1 Lords’ J. 191; 8 Com. J. 344.... 456 Preston v. Browder...............1 Wheat. 115...................155, 158 Princessa, The...................2 Rob. 26.......................... 507 Providentia, The.................2 Rob. 119........................ 509 Putnam v. The Polly..............Bee 159........................ 100 R Race Horse, The..................3 Rob. 86.......................... 162 Ranger, The......................6 Rob. 125........................ 395 Rashleigh v. Salmon..............1 H. Bl. 352....................... 218 Raymond v. Squire................11 Johns. 47....................... 237 Recovery, The....................6 Rob. 341 ........................ 501 Repdsborg, The...................4 Rob. 98.......................... 507 Resolution, The..................6 Rob. 13.......................... 506 Richmond, The....................5 Rob. 290........................ 395 Rising Sun, The..................2 Rob. 87....................3^8, 505 Romeo, The.......................6 Rob. 351...................504,« 506 Rosalie and Betty, The...........2 Rob. 281......................... 506 Ross v. The Active.... .........2 W. C. C. 226...............100, 101 Rucher v. Conyngham..............2 Pet. Ad. 295................... 101 S Sally, The.......................3 Rob. 148......................... 502 Santa Cruz, The..................1 Rob. 50......................... 126 Sarah, The.......................3 Rob. 267...................504, 506 Sarah Christina, The.............1 Rob. 199......................... 387 Schieffelin v. New York Ins. Co.. .9 Johns. 21...................... 223 Sere v. Pitot....................6 Cr. 336........................... 93 Shepherdess, The.. ..-...........5 Rob. 234......................... 443 Shirras v. Caig..................7 Cr. 34........................... 290 Simms v. Slacum..'...............3 Cr. 300...................456-7, 460 Sisters, The.....................5 Rob. 141......................... 62 Smith v. State of Maryland.......6 Cr. 286.......................... 359 Speculation, The.................2 Rob. 242....................497, 530 Staadt Embden, The...............1 Rob. 23.....................395, 501 St. Juan Baptista, The...........5 Rob. 36........................ 443 Strawbridge v. Curtis............3 Cr. 267 ......................92, 95 Streshley v. United States.......4 Cr. 170...........................466 CASES CITED. xiv *PAGE Susa, The........................2 Rob. 208..................... 161 Susanna, The.....................6 Rob. 48...................... 500 T Talbot v. Jansen...............3 Dall. 133... 243, 247, 253, 258, 260 Thellusson v. Fletcher.........1 Doug. 302.................... 218 Tiger, The.................... 6 Rob. 476.............525, 527, 528 Twiling Riget, The.............5 Rob. 77.................... • • 170 Two Brothers, The................1 Rob. Ill...................... 64 Twyne’s Case.....................3 Co. 80...................... 455 U United States v. Hudson..........7 Cr. 32.................. 415, 416 University v. Foy..............2 Hayw. 310.....................118 V Van Vechten v. Graves............4 Johns. 406................... 237 Venus, The ..............».......6 Rob. 235 ............210, 213, 214 Vigilantia, The..................1 Rob. 1............•......161, 498 Vriendschap, The.................4 Rob. 136 .................... 506 Vrouw, The.......................1 Rob. 139...................... 63 Vrouw Dorothea, The..............MS............................. 19 Vrow Anna Catharina, The.........5 Rob.- 20, 144................ 501 Vrow Hermina, The................1 Rob. 138................... 505 W Wasp, The........................1 Gallis. 140.................. 21 Werdell v. Eden.................... 1 Johns. 532................ 237 Washingham Packet, The...........2 Rob. 64...........«......501, 506 Welvaart, The....................1 Rob. 103..........63, 504, 505, 528 Welvaart, The....................2 Rob. 107..................... 388 Westor v. Barker................ 12 Johns. 276................. 237 Wilhelmina, The...................2 Rob. 84 n................ 534 William, The.......................4 Rob. 177................... 500 William, The.......................5 Rob. 249................... 532 William and Mary, The.............4 Rob. 342 .................. 497 Wilson v. Smith................ .3 Burr. 1551............... 232 Wilson v. Royal Insurance Co......3 Camp. 623................... 223 RULES AND ORDERS OF THE SUPREME COURT OF THE UNITED STATES. I. February Term 1790. Ordered, That the clerk of this court do reside and keep his office at the seat of the national government, and that he do not practice, either as an attorney or a counsellor, in this court, while he shall continue to be clerk of the same. II. February Term 1790. Ordered, That (until further order) it be requisite to the admission of attorneys or counsellors to practice in this court, that they shall have been such for three years past in the supreme courts of the state to which they respectively belong, and that their private and professional characters shall appear to be fair. III. February Term 1790. Ordered, That counsellors shall not practice as attorneys, nor attorneys as counsellors, in this court. IV. February Term 1790. Ordered, That they shall respectively take the following oath, viz : I,-------, do solemnly swear, that I will demean myself (as an attorney or counsellor of the court) uprightly, and according to law, and that I will support the constitution of the United States. V. February Term 1790. Ordered, That (unless and until it shall be otherwise provided by law) all process in this court shall be in the name of the President of the United States. VI. February Term 1791. Ordered, That the counsellors and attorneys, admitted to practice in this court, shall take either an oath, or, in proper cases, an affirmation, of the tenor prescribed by the rule of this court on this subject, made February term 1790, viz: I,--------------, do solemnly swear (or affirm, as the case may be), that I will demean myself as attorney or counsellor of this court, uprightly, and according to law, and that I will support the constitution of the United States. VII. August Term 1791. The Chief Justice in answer to the motion of the attorney-general, informs him and the bar, that this court consider the practice of the court of king’s bench, and of chancery, in England, as xv xvi RULES OF COURT. affording outlines for the practice of this court; and that they will, from time to time, make such alterations therein as circumstances may render necessary. VIII. February Term 1795. The Court give notice to the gentlemen of the bar that hereafter they will expect to be furnished with a statement of the material points of the case from the counsel on each side of the cause. IX. February Term 1795. The Court declared, that all evidence on motions for a discharge upon bail, must be by way of deposition, and not vivd voce. X. August Term 1796. Ordered, That process of subpoena, issuing out of this court in any suit in equity, shall be served on the defendant, sixty days before the return-day of the said process ; and further, that if the defendant, on such service of the subpoena, should not appear at the return-day contained therein, the complainant shall be at liberty to proceed ex parte. XI. February Term 1797. It is ordered by the Court, that the clerk of the court to which any writ of error shall be directed, may make return of the same, by transmitting a true copy of the record, and of all proceedings in the cause, under his hand and the seal of the court. XII. August Term 1797. It is ordered by the the Court, that no record of the .court be suffered by the clerk to be taken out of his office but by the consent of the court; otherwise, to be responsible for it. XIII. August Term 1800. In the case of Course v. Stead's Executors, Ordered, That the plaintiff in error be at liberty to show, to the satisfaction of this court, that the matter in dispute exceeds the sum or value of 82000, exclusive of costs ; this to be made appear by affidavit, and----- days’ notice to the opposite party, or their counsel, in Georgia. Rule as to affidavits to be mutual. XIV. August Term 1801. Ordered, That counsellors may be admitted as attorneys in this court, on taking the usual oath. XV. It is ordered, That in every cause when the defendant in error fails to appear, the plaintiff may proceed ex parte. XVI. February Term 1803. It is ordered, That where the writ of error issues within 30 days before the meeting of the court, the defendant is at liberty to enter his appearance, and proceed to trial; otherwise, the cause must be continued. XVII. In all cases where a writ of error shall delay the proceedings on the judgment of the circuit court, and shall appear to have been sued out merely for delay, damages shall be awarded at the rate of ten per centum per annum, on the amount of the judgment. XVIII. In such cases, where there exists a real controversy, the damages shall be only at the rate of six per centum per annum. In both cases, the interest is to be computed as part of the damages. RULES OF COURT. xvii XIX. February Term 1806. All causes, the records of which shall be delivered to the clerk on or before the sixth day of the term, shall be considered as for trial in the course of that term. Where the record shall be delivered after the sixth day of the term, either party will be entitled to a continuance. . In all cases where a writ of error shall be a supersedeas to a judgment, rendered in any court of the United States (except that for the district of Columbia), at least thirty days previous to the commencement of any term of this court, it shall be the duty of the plaintiff in error to lodge a copy of the record with the clerk of this court, within the first six days of the term, and if he shall fail so to do, the defendant in error shall be permitted, afterwards, to lodge a copy of the record with the clerk, and the cause shall stand for trial, in like manner as if the record had come up within the first six days ; or he may, on producing a certificate from the clerk, stating the cause, and that a writ of error has been sued out, which operates as a supersedeas to the judgment, have the said writ of error docketed and dismissed. This rule shall apply to all judgments rendered by the court for the district of Columbia, at any time prior to a session of this court. In cases not put to issue at the August term, it shall be the duty of the plaintiff in error, if errors shall not have been assigned in the court below, to assign them in this court, at the commencement of the term, or so soon thereafter as the record shall be filed with the clerk, and the cause placed on the docket; and if he shall fail to do so, and shall also fail to assign them, when the cause shall be called for trial, the writ of error may be dismissed, at his cost ; and if the defendant shall refuse to plead to. issue, and the cause shall be called for trial, the court may proceed to hear an argument on the part of the plaintiff, and to give judgment according to the right of the cause. XX. February Term 1808. Ordered, That all parties in this court, not being residents of the United States, shall give security for the costs accruing in this court, to be entered on the record. XXI. Ordered, That upon the clerk of this court producing satisfactory dence, by affidavit, or the acknowledgment of the parties, or their sureties, of having served a copy of the bill of costs, due by them respectively in this court, on such parties or their sureties, an attachment shall issue against such parties or sureties, respectively, to compel payment of the said costs. XXII. February Term 1810. Ordered, That upon the reversal of a judgment or decree of the circuit court, the party in whose favor the reversal is, shall recover his costs in the circuit court. XXm. February Term 1812. Ordered, That only two counsel be permitted to argue for each party, plaintiff and defendant, in a cause. XXIV. There having been two associate justices of the court appointed since its last session ; It is Ordered that the following allotment be made of the Chief Justice, and of the associate justices of the said Supreme Court among the circuits, agreeably to the act of congress in such case made and provided, and that such allotment be entered or ordered, viz : 1 Wheat.—B xviii RULES OF COURT. For the first circuit, the Honorable Joseph Story : For the second circuit, the Honorable Brockhoist Livingston : For the third circuit, the Honorable Bushrod Washington: For the fourth circuit, the Honorable Gabriel Duvall : For the fifth circuit, the Honorable John Marshall, Ch. J.: For the sixth circuit : the Honorable William Johnson : For the seventh circuit, the Honorable Thomas Todd. XXV. February Term 1816. It is oedeeed by the Court, That in all cases where further proof is ordered by the court, the depositions which shall be taken, shall be by a commission to be issued from this court, or from any circuit court of the United States. CASES DETERMINED IN THE SUPREME COURT OF THE UNITED STATES. FEBRUARY TERM, 1816. Negress Sally Henry, by William Henry, her father and next friend, v. Ball. Slavery, The act of assembly of Maryland, prohibiting the importation of slaves into that state, for sale or to reside, does not extend to a temporary residence, nor to an importation by a hirer or person other than the master or owner of such slave. Error on judgment, rendered by the Circuit Court for the county of Washington, in the district of Columbia, against the plaintiff, who was, in that court, a petitioner for freedom. The plaintiff, being a child, and the slave of the defendant, who resided in Virginia, was, some short *time before the month of May 1810, put to live with Mrs. Rankin, then residing also in Virginia, whose husband was an officer in the marine corps, stationed in the city of Washington. Mrs. Rankin was to keep the girl for a year, and was to give her victuals and clothes for her services. Some time in May 1810, Mrs. Rankin removed to Washington, and brought the petitioner with her, whether with or without the permission of Mr. Ball, was entirely uncertain. It was, probably, though not certainly, with his knowledge. In October 1810, Mr. Ball married, and soon after took the petitioner into his possession, and carried her home, he then residing in Virginia. Mrs. Rankin gave her up, being of opinion, though the girl had remained with her only seven or eight months, that she was bound to give her up, when required by her master. Mr. Ball afterwards removed, himself, into the city, and brought the petitioner with him. Upon this testimony, the counsel for the petitioner prayed the court below to instruct the jury, that if they believed, from the evidence, that the defendant knew of the intended importation of the petitioner by Mrs. Rankin, and did not object to it, then such importation entitled the petitioner to her freedom ; and further, that it was competent to the jury to infer, from his knowing of the importation, and not objecting to it, that such importa-r 1 Wheat.—1 1 2 SUPREME COURT * [Feb’y Henry v. Ball. tion was made with his consent. This instruction the court refused to give; but did instruct the jury, that if they should be of opinion, that Mrs. Rankin was, at the time she brought the petitioner into the city of Washington, a citizen of the United States, coming into the city of Washington *with J a bond fide intention of settling therein, then her importation of said slave was lawful, and did not entitle the petitioner to her freedom, whether the said importation were or were not made with the consent of the defendant. An exception was taken to this opinion, and the jury having found a verdict for the defendant, on which judgment was rendered by the court, the cause was brought into this court by writ of error. Key, for the plaintiff in error, and petitioner, cited the act of the assembly of Maryland, of 1796, c. 67, § 1, 2, contending, that its true construction applied only to bond fide owners, and not to bailees or hirers. Law, contra, stated, that the domicil of the owner had been in Virginia, and that she was a bond fide emigrant from that state. Being a hirer of the slave, she w&spro hdc vice owner. (2 Bl. Com. 254, and the civil law writers there cited.) The act of assembly must be construed to refer to both species of property, qualified and absolute. ’ He referred to the 6th section of the act, to show that a property may be, in slaves, limited in point of time. February 10th, 1816. Marshall, Ch. J., delivered the opinion of the court, and after stating the facts, proceeded as follows :—This cause depends on an act of the state of Maryland, which is in force in the county of Wash-*. 1 ington. The first section of that statute enacts, *“ that it shall not J be lawful to bring into this state any negro, mulatto or other slave, for sale, or to reside within this state ; and any person brought into this state, contrary to this act, if a slave before, shall, thereupon, immediately cease to be the property of the person or persons so importing or bringing such slaves within this state, and shall be free.” The 2d section contains a proviso in favor of citizens of the United States coming into this state with a bond fide intention of settling therein, and bringing slaves with them. The 4th section enacts, that “ nothing in this act contained shall be construed or taken to affect the right of any person or persons travelling or sojourning with any slave or slaves, within this state, such slave or slaves not being sold or otherwise disposed of, in this state, but carried by the owner out of the state, or attempted to be carried.” This act appears to the court not to comprehend the case now under consideration. The expressions of that part of the first section which prohibits the importation of slaves, are restricted to cases of importation “ for sale, or to reside in this state.” The petitioner was obviously not imported for sale, nor is the court of opinion, that the short time for which she was to continue with Mrs. Rankin can satisfy the words, “ to reside within this state.” The legislature must have intended to prohibit a general residence, not a special limited residence, where the slave is to remain for that portion of the year, for which she was hired, that still remained. If, on this point, the first section of the act could be thought doubtful, $ , the fourth section seems to remove *that doubt. It declares, that J “ nothing in the act contained shall be construed or taken to affect 2 1816] OF THE UNITED STATES. 5 Davis v. Wood. the right of any person travelling or sojourning with any slave or slaves, within this state, such slave or slaves not being sold or otherwise disposed of, in this state, but carried by the owner out of this state, or attempted to be carried.” This section sufficiently explains the residence contemplated by the legislature in the first section. The term sojourning means something more than “travelling,” and applies to a temporary, as contra-distinguished from a permanent, residence. The court is also of opinion, that the act contemplates and punishes an importation or bringing into the state by the master or owner of the slave. This construction, in addition to its plain justice, is supported by the words of the first section. That section declares, that “ a person brought into this state as a slave, contrary to this act, if a slave before, shall, thereupon, cease to be the property of the person or persons so importing or bringing such slave within this state, and shall be free.” It is apparent, that the legislasture had in view the case of a slave brought by the owner, since it is the property of the person importing the slave which is forfeited. Upon the best consideration we have been able to give this statute, the court is unanimously of opinion, that the petitioner acquired no right to freedom, by having been brought into the county of Washington, by Mrs. Rankin, for one year’s service, she having been, in the course of the year, carried back to Virginia by her master. * The circuit court appears to have considered the case as coming within the proviso of the 2d section. If, in this opinion, that court were even to be thought mistaken, the error does not injure the petitioner, and is, therefore, no cause for reversal. The court is unanimously of opinion, that the judgment ought to be affirmed. Judgment affirmed. Negro John Davis et al. 0. Wood. Evidence.—Hearsay.— Verdict. Evidence by hearsay and general reputation is admissible only as to pedigree, but not to establish the freedom of the petitioner’s ancestor, and thence to deduce his or her own. Verdicts are evidence between parties and privies only : and a record proving thé ancestor’s freedom to have been established in a suit against another party, by whom the petitioner was sold to the present defendant, is inadmissible evidence to prove the petitioner’s freedom. Mima Queen v. Hepburn, 7 Cr. 290, re-affirmed. This case was similar to the preceding, in which the petitioners excepted to the opinion of the court below : 1st. That they had offered to prove, by competent witnesses, that they (the witnesses) had heard old persons, now dead, declare, that a certain Mary Davis, now dead, was a white woman, born in England, and such was the general report in the neighborhood where she lived ; and also offered the same kind of testimony, to prove that Susan *Davis, mother of the petitioners, was lineally descended, in . r^ the female line, from the said Mary ; and it was admitted, that said Susan was, at the time of petitioning, free, and acting, in all respects, as a free woman ; which evidence, by hearsay and general reputation, the court refused to admit, except so far as it was applicable to the fact of the petitioners’ pedigree. 2d. That they having proved, that the petitioners are 3 7 SUPREME COURT [Feb’y Davis v. Wood. the children of Susan Davis, and that she is the same person named in a certain record, in a cause wherein Susan Davis, and her daughter Ary, were petitioners, against Caleb Swan, and recovered their freedom, the plaintiffs offered to read said record in evidence to the jury, axprimd facie testimony that they are descendants in the female line from a free woman, who was born free, and are of free condition, connected with the fact, that the defendant in this cause sold said Susan to Swan, the defendant in said record, which the court refused to suffer the petitioners to read to the jury as evidence in this cause. Lee, for the plaintiffs in error and petitioners, referred to the opinion of the court (Duvall, J., dissenting) in the case of Mima Queen and child v. Ilepburn, February term 1813 (7 Cr. 290), as to the admissibility of hearsay evidence, in a similar case, remarking that, unless the court was disposed to review its decision, it must be taken for law, and he could not deny its authority. Duvall, J.—The petitioners in that case were descended from a yellow *R1 woman, a native of South *America. In this case, they are descended J from a white woman. Lee cited the opinion of the Virginia court of appeals, in the case of Pegram v. Isabel, 2 Hen. & Munf. 193, as to the admissibility of the record, in which a record was admitted. Key, contra, contended, that both grounds were irrevocably closed against the other party. The first, certainly ; and the second, equally so ; as the evidence could not be admissible as primd facie testimony merely, but if admitted, must be conclusive. The decisions in the state courts of Virginia are against the evidence of the parent’s or other ancestor’s freedom being conclusive in favor of a child. The case of Pegram n. Isabel is no authority here, for it was formerly considered and repudiated by this court in the decision alluded to. Lee and Law replied, and cited 2 Wash. 64, and Swift’s Law of Evidence 13. March 12th, 1816. Marshall, Ch. J., delivered the opinion of the court, and stated, that, as to the first exception, the court had revised its opinion in the case of Mima Queen and child v. Ilepburn, and confirmed it. As to the second exception, the record was not between the same parties. The rule is, that verdicts are evidence between parties and privies.1 The * court does *not feel inclined to enlarge the exceptions to this general ■* rule, and therefore, the judgment of the court below is affirmed. Judgment affirmed. 1 See Vigel v. Naylor, 24 How. 208, 212 ; Alexander v. Stokely, 7 S. & R. 299. 1816] OF THE UNITED STATES. 9 The Samuel : Pierce and Beach, Claimants. Admiralty jurisdiction.—Pleading.—Depositions de hene esse.—Further proof. Prosecutions under the non-importation laws, are causes of admiralty and maritime jurisdiction and the proceeding may be by libel in the admiralty.1 Technical nicety is not required in such proceedings; it is sufficient, if the offence be described in the words of the law, and so set forth, that, if the allegation be true, the case must be within the statute.2 That the deponent is a seaman on board a gun-boat, in a certain harbor, and liable to be ordered to some other place, and not to be able to attend the court, at the time of its sitting, is not a sufficient reason for taking his deposition de bene esse, under the judiciary act of 1789. Where the evidence is so contradictory and ambiguous as to render a decision difficult, the court will order further proof, in a revenue or instance cause. Appeal from the Circuit Court for the Rhode Island district. The brig Samuel sailed from St. Bartholomews, an island belonging to his majesty the king of Sweden, in the month of November 1811, with a cargo consisting of rum, molasses and some other articles, and arrived in Newport, Rhode Island, on the 8th of the following December, where the vessel and cargo were seized and libelled in the district court, as being forfeited to the United States, under the act of congress prohibiting the importation *of articles the growth, produce or manufacture of Great Britain or 1 France, their colonies or dependencies. The vessel and cargo were claimed by John Pierce and George Beach, both citizens of the United States. The district court condemned both vessel and cargo. The circuit court condemned the vessel and the rum, but restored the residue of the cargo. From the sentence of the circuit court, both the libellants and the claimants appealed to this court. Daggett, for the claimants, made three points: 1st. The proceedings ought to‘ have been at common law, and not in the admiralty. 2d. The information is insufficient. 3d. The testimony was insufficient to warrant a condemnation. , 1. The act of the 1st of March 1809, on which this libel is founded, directs, that the penalties and forfeitures “ shall be sued for, prosecuted and recovered, with the costs of suit, by action of debt, indictment or information.” The cases under the authority of which this proceeding was brought are The Vengeance, 3 Dall. 297 ; The Sally, 2 Cr. 406, and The Betsey and Charlotte, 4 Ibid. 443. But the act under which the Vengeance was prosecuted was the same with the collection law of the 2d of March 1799, § 89, which prescribed a proceeding in the admiralty; the Sally was prosecuted under the slave-trade act of the 23d of March 1794, which indicates no particular proceeding ; * whilst the Betsey and Charlotte was prosecuted ' under the act of non-intercourse with St. Domingo, of the 28th of L February 1806, wherein no method of recovering the penalties was specified. Supposing this to be a civil cause of admiralty and maritime jurisdiction, and that the district court has jurisdiction of it as such, the proceedings may still be by information, as in the exchequer. Where a statute prescribes a 1 The Sarah, 8 Wheat. 391. 391; The Palmyra, 12 Id. 12; The Caroline, 1 2 The Emily, 9 Wheat. 381; The Merino, Id. Brock. 884. 5 11 ’ SUPREME COURT [Feb’y The Samuel. particular remedy, or particular remedies, no other can be pursued. Rex v. Robinson, 2 Burr. 803. 2. The statute is penal, and requires strictly accurate proceedings. The libel alleges, generally, that the cargo was laden on board in some foreign port. The cargo was stated to have belonged, in the alternative or disjunctive, to Pierce and Beach, or to one Stillman, or some other citizen, or consigned to one of said parties ; and it was alleged that the offence was committed with “ the knowledge of the owner or of the master.” The Rolina, 1 Gallis. 85. 3. The testimony of Oldham, a witness in the cause, was taken irregularly, and not used in the court below. The vessel and cargo were condemned upon the testimony of tasters only, against all the oral and documentary evidence. This testimony is novel; professional men and artists are credible witnesses in their own peculiar science or art ; but this is matter of speculative opinion only, not of known art or c,ertain science. The witnesses can never be made responsible for perjury. Their evidence is contradicted. * The Attorney-General, for the libellants.—1. The *cargo could -* not have been the produce of St. Bartholomews, a sterile and unproductive island, used as St. Eustatius was, during the war of the American revolution. It is more likely it was transshipped from a British than a Spanish colony; and therefore, the claim is clouded with improbability. The case of The Odin, 1 Rob. 217, may be invoked from the law of prize, to show how little the fairest documentary evidence is to be regarded, in comparison with the evidentia rei. Strip off this veil, and the onus is thrown upon the claimants, from which they cannot relieve themselves but by the strongest positive testimony. As to the evidence of the tasters, all our knowledge is derived through the senses. It is not unerring, but weighty ; and the revenue laws rely upon it, in collecting the duties on wines. The spirit and equity of the judiciary act of the 24th of September 1789, were pursued in taking the deposition of Oldham ; he was a seaman serving in the flotilla of gun-boats, at Newport, and liable to be ordered to some other place. 2. It is novel doctrine, that this is a libel, as contra-distinguished from an information. It is a libel in the nature of an information ; and the process of information is used in the admiralty as well as in the exchequer. In alleging the offence, reasonable certainty only was necessary : the charge is sufficiently specific to have put the claimants on their guard ; and to require more, would be to prevent the conviction of offenders. The case of The Rolina does not apply to the present question. *13i ^Daggett, in reply.—The deposition of Oldham cannot be admitted, unless it be authorized by statute or common law ; prize proceedings are peculiar : soldiers and sailors are not excepted by the letter of the judiciary act, and a class of exceptions cannot be implied. The burden of proof, in fiscal causes, is not thrown on the claimants, unless by positive law. There can be no difficulty in convicting offenders, as these proceedings are amendable. Anon., 1 Gallis. 22. (a) (a) The decision cited by the counsel applies only to the power of the circuit court 6 1816] OF THE UNITED STATES. 13 The Samuel. February 12th, 1816. Marshall, Ch. J., delivered the opinion of the court :—On the part of the claimants, it is contended, 1st. That the proceedings ought to have been at common law, and not in the admiralty. 2d. That the information, if it be one, is insufficient; 3d. That the testimony is wholly insufficient to warrant a condemnation. 1. In arguing the first point, the counsel for the claimants endeavored to take this case out of the *principle laid down in The Vengeance, r*. . and in other cases resting on the authority of that decision, by urg- L ing a difference of phraseology in the acts of congress. In that part of the act on which this prosecution is founded, which gives the remedy, it is enacted, “ that all penalties and forfeitures, arising under, or incurred by virtue of, this act, may be sued for, prosecuted and recovered, with costs of suit, by action of debt, in the name of the United States of America, or by indictment or information, in any court having competent jurisdiction to try the same.” Debt, indictment and information, are said to be technical terms, designating common-law remedies, and consequently, marking out the courts of common law as the tribunals in which alone prosecutions under this act can be sustained. There would be much force in this argument, if the term “ information ” were exclusively applicable to a proceeding at common law; but the court is of opinion, that it has no such exclusive application. A libel, on a seizure, in its terms and in its essence, is an information. Consequently, where the cause is of admiralty jurisdiction, and the proceeding is by information, the suit is not withdrawn, by the nature of the remedy, from the jurisdiction to which it otherwise belongs. 2. The second objection made by the claimants to these proceedings, is, that though the words of the act may be satisfied by a libel in the nature of an information, yet the same strictness which is required in an information at common law, will be necessary to sustain a libel in the nature of an information in the court of admiralty; and that, testing the libel by this rule, it is totally insufficient. The court *is not of opinion, that all those technical niceties which the astuteness of ancient judges and L lawyers has introduced into criminal proceedings at common law, and which time and long usage have sanctioned, are to be engrafted into proceedings in the courts of admiralty. These niceties are not already established, and the principles of justice do not require their establishment. It is deemed sufficient, that the offence be described in the words of the law, and be so described, that if the allegation be true, the case must be within the statute. This libel does so describe the offence, and is, therefore, deemed sufficient. to allow amendments in revenue causes or proceedings in rem, before appeal to the supreme court. But it may be interesting to the reader to be informed, that the supreme court may remand the cause to the court below, with instructions to amend the proceedings. Thus, in the cases of The Caroline and The Emily, at February term 1813 (7 Cr. 496, 500), which were informations in rem, on the slave-trade act of the 22d of March 1794, the opinion of the court was, that the evidence was sufficient to show a breach of the law, but that the libel was not sufficiently certain to authorize a decree of condemnation. The following decree was, therefore, entered: “It is the opinion of the court, that the libel is too imperfectly drawn to found a sentence of condemnation thereon. The sentence of the circuit court is, therefore, reversed, and the cause remanded to the said circuit court, with directions to admit the libel to be amended.” See The Edward, infra, p. 261. 7 15 SUPREME COURT [Feb’y The Samuel. 3. The third and material inquiry respects the evidence. Is this cargo of British origin ? In the examination of this question, the first point to be decided is, the admissibility of the deposition of Thomas Oldham. That deposition is found in the record of the circuit court, with a certificate annexed to it, in these words : “ N. B. The deposition of Thomas Oldham was filed, after the trial of the case, by order of the court.” Some of the judges are of opinion, that this certificate of the clerk is to be disregarded, and that the deposition, being inserted in the record, must be considered as a part of it, and must be supposed to have formed a part of the evidence, when the decree was made : but the majority of the court is of a different opinion. The certificate of the clerk to the deposition is thought of equal validity, as if forming a part of his general certificate. It shows, that this deposition formed no part of the cause in the circuit court, and is, therefore, liable to *every exception which could be made to it, if it was not found in the record, and was now offered for the first time to this -court. On inspection, it appears to be a deposition, taken before a single magis-trate, not on order of court, on a commission, with notice to the attorney of the claimant, who did not attend. It must be sustained by the act of congress, or it is inadmissible. The reason assigned for taking it is, “ that the deponent is a seaman on board a gun-boat of the United States, in the harbor of Newport, and liable to be ordered to some other place, and not to be able to attend the court at the time of its sitting.” The 30th section of the judiciary act directs, that “the mode of proof by oral testimony, and the examination of witnesses in open court, shall be the same in all the courts of the United States.” The act then proceeds to enumerate cases in which depositions may be taken de bene esse. The liability of the witness to be ordered out of the reach of the court, is not one of the causes deemed -sufficient by the law for taking a deposition de bene esse. In such case, there would seem to be a propriety in applying to the court for its aid. But supposing this objection not to be so fatal as some of the judges think it, »till the deposition is taken de bene esse, not in chief ; and a deposition so taken can be read, only when the witness himself is unattainable. It does not appear in this case, that the witness was not within the reach of the court, and might not have given his testimony in open court, as is Tequired by law. Had this deposition been offered in court, before or at the time of the trial, and used without objection, the inference *that the requisites of the law were complied with or waived, might have been justifiably drawn. But the party is not necessarily in court, after his cause is decided, and is not bound to know the fact that this deposition was ordered to be filed. For these reasons, it is the opinion of a majority of the court, that the deposition of Thomas Oldham ought not to be considered as forming any part of the testimony in this cause. The deposition of Oldham being excluded, the prosecution rests chiefly ■ on the depositions of Benjamin Fry and William S. Allen. These witnesses are both experienced dealers in rum; have both tasted and examined the rum of this cargo, are both of the opinion, that it is of British origin. In the opinion of all the judges, this testimony is entitled to great respect. .The witnesses say, that there is a clear difference between the flavor of rum of the British and the Spanish islands, though they do not attempt to 8 1816] OF THE UNITED STATES. 17 The Samuel. describe that difference; and that their opinion is positive, that this is British rum. To weaken the force of this testimony, the claimants have produced the depositions of several witnesses, also dealers in rum, who declare, that the difference in the flavor of the best Spanish rum, and that of the British islands, is inconsiderable, and that they cannot distinguish the one from the other ; that they believe the best judges find great difficulty in making the discrimination. This testimony would, perhaps, have been entitled to more influence, had the persons giving it tasted the rum imported in the Samuel, and declared themselves incapable of deciding *on its origin : for although, in some cases, the difference may be nearly imperceptible, L in others, it may be considerable. The testimony, however, on which the claimants most rely is found in the deposition of Samuel Marshall and of Andrew Furntrad. Samuel Marshall, the brother of John and Joseph Marshall, merchants, of St. Bartholomews, from whom the rum in question was purchased, deposes, that he has lived with them for two years, and had, at the time of giving his deposition, they being absent from the island, the care of their business. That the rum and molasses constituting the cargo of the Samuel were imported into St. Bartholomews from Laguayra, in vessels which he names, and are of the growth and produce of that place. Andrew Furntrad is the collector of the port of Gustavia, in St. Bartholomews, and deposes, that the quantity of rum and molasses which were laden on board the Samuel, and which cleared out regularly for New London, were regularly imported from Laguayra, in two vessels, which he names, whose masters he also names. They are the same that are mentioned by Samuel Marshall. On this conflicting testimony, much contrariety of opinion has taken place. The omission of the claimants to furnish other testimony, supposed to have been within their reach, and of which the necessity would seem to have been suggested by the nature of the prosecution, impairs, in the opinion of several of the judges, the weight to which their positive testimony might otherwise be entitled. The court finds it very difficult to form an opinion satisfactory to itself. *So situated, and under the peculiar circum-stances attending Oldham’s deposition, the majority of the court is L of opinion, that the cause be continued to the next term for further proof, which each party is at liberty to produce. Further proof ordered, (a) (a) Revenue causes are, in their nature, causes of admiralty and maritime jurisdiction. In Great Britain, all appeals from the vice-admiralty courts, in those causes, are within the jurisdiction of the high court of admiralty, and not of the privy council, which is the appellate tribunal in other plantation causes. This point was determined so long ago as the year 1754, in the case of The Vrouw Dorothea, decided before the high court of delegates, which was an appeal from the vice-admiralty judge of South Carolina, to the high court of admiralty, and thence to the delegates. The appellate jurisdiction was contested, upon the ground that prosecutions for the breach of the navigation and other revenue laws were not, in their nature, causes civil and maritime, and under the~ordinary jurisdiction of the court of admiralty, but that it was a jurisdiction specially given to the vice-admiralty courts by stat. 7 & 8 Wm. III., c. 22, § 6, which did not take any notice of the appellate jurisdiction of the high court of admiralty in such cases. The objection, however, was overruled by the delegates, and the determination has since received the unanimous concurrence of all the common-law judges, 9 *20 SUPREME COURT [Feb’y *The Ship Octavia : Nicholls et al., Claimants. Bv/rden of proof . A question of fact under the non-intercourse act of the 28th June 1809. On an information for a forfeiture, where the claimants assume the onus probandi, the rule is, not to acquit, unless the defence be proved beyond a reasonable doubt. Appeal from the decree of the Circuit Court for the Massachusetts dis- • trict, affirming the decree of the district court, condemning said vessel. This ship was seized in the port of Boston, in October 1810 ; and the information alleged, that the ship, in March 1810, departed from Charleston, South Carolina, bound for a foreign port, to wit, Liverpool, in Great Britain, with a cargo of merchandise on board, without a clearance, and without having given the bond required by the non-intercourse act of the 28th of. June 1809, ch. 9, § 3. The claimants admitted, that the ship proceeded with her cargo (which consisted of cotton and rice) to Liverpool; but they alleged, that the ship originally sailed from Charleston, bound to Wiscasset, in the district of Maine, with an intention there to remain, until the nonintercourse act should be repealed, and then to proceed to Liverpool. That by reason of bad winds and weather, the ship was retarded in her voyage, and on the 10th of May 1810, while still bound to Wiscasset, she spoke with a ship from New York, and was informed of the expiration of the non-#„,1 intercourse act, and thereupon, changed her course, and *proceeded J to Liverpool. The manifest stated the cargo to have been shipped by sundries, consigned to Mr. P. Grant, Boston. The Attorney- General and Lavo argued the case for the appellees, on the facts, and cited the case of The Wasp, 1 Gallis. 140, which was an information under the same section of the same act. They contended, that the burden of proof was thrown upon the claimant, inasmuch as the law requires a bond to be given, if the ship was bound to a port then permitted, conditioned that she should not go to a prohibited port. Dexter, for the appellants and claimants, stated, that the suit was not founded on the same act with that in the case of The Samuel {ante, p. 9); but that the same objection existed as to the form of the process. It is true, the judiciary act of the 24th of September 1789, c. 20, § 9, has declared, that certain causes shall be causes of admiralty and maritime jurisdiction, but it does not, therefore, follow, that a forfeiture created by a new statute shall be enforced by the same process. The arguments urged against it in the cases subsequent to that of The Vengeance, 3 Dall. 297, have always been answered by the mere authority of that case. But the decision in that case ought to be re-examined, because it affects the right of trial by jury, and because the argument was very imperfect. The word “ including,” in the judiciary act, ought to be construed cumulatively. It *921 provides, that the district *courts shall “have exclusive original cog- J nisance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United on a reference to them from the privy council. The proceeding in this case is called “a libel of information;” showing, that libel and information in the admiralty are synonomous terms. The Fabius, 2 Rob. 245. 10 1816] OF THE UNITED STATES. 22 The Octavia. States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas,” &c. The presumption arising from the collective use of debt, information and indictment, in the non-intercourse act, is, that they relate to a common-law jurisdiction. The word information cannot be synonymous with libel, because the first is a common-law, the second a civil-law proceeding. A common-law proceeding may be applied by statute to admiralty suits. The statute, 28 Hen. VIII., c. 15, prescribes a common-law process (indictment) for offences triable in the admiralty. Story, J.—That was the high commission court. Dexter answered, that he was aware of it ; but that a suit may be a cause of admiralty and maritime jurisdiction, and yet triable by common-law process, (a) *Story, J., delivered the opinion of the court.—This case depends r<8 on a mere question of fact. After a careful examination of the evi- L dence, the majority of the court are of opinion, that the decree of the circuit court ought to be affirmed. It is deemed unnecessary to enter into a formal statement of the grounds of this opinion, as it is principally founded upon the same reasoning which was adopted by the circuit court, in the decree which is spread before us in the transcript of the record. Decree affirmed, with costs. (&) (a) Before the statute 28 Hen. VIII,, c. 15, the admiralty had a very extensive criminal jurisdiction, which seems to have been coeval with the very existence of the tribunal, in which it proceeded, not according to the civil law, and other its own peculiar codes, but by the process of indictment, found by a grand jury, and a capias thereupon delivered by the admiral or his lieutenant, to the marshal of the court or the sheriff. See Clerke’s Praxis, Roughton’s Articles, cited therein, 122, note c. 16, 17; Exton 32; Selden de Dominio Maris, lib. 2, c. 24, p. 209; The Rucker, 4 Rob. 73, note a. This criminal jurisdiction, independent of statutes, still exists; and all offences within it, which are not otherwise provided for by positive law, are punishable by fine and imprisonment. See 4 Black. Com. 263 ; Browne’s Civ. & Adm. Law, App’x, No. 111. The Statute 28 Hen. VIIL, c. 15, provides, that all treasons, felonies, &c., on the seas, or where the admiral hath jurisdiction, &c., shall be tried, &c., in the realm, as if done on land; and commissions under the great seal shall be directed to the admiral, or his lieutenant, and three or four others, &c., to hear and determine such offences, after the course of the laws of this land for like offences done in the realm. And the jury shall be of the shire within the commission. Stat. 33 Geo. III., c. 66. Under this provision, the sessions at the Old Bailey are now held, at which the judge of the High Court of Admiralty presides, and common-law judges are included in the commission. But it is held, that this statute does not alter the nature of the offence, which shall still be determined by the civil law, but the manner of trial only. (Hale’s P. C.; 3 Inst. 112.) (&) As the opinion of the court below is referred to, for the grounds upon which its decree was affirmed, it may seem fit here to insert so much of that opinion as devel-opes the principles and rules of evidence applied by the court in cases of this nature. After stating the facts of this case, the learned judge proceeds: “Since I have had the honor to sit in this court I have prescribed to myself certain rules, by the application of which, my judgment, in cases of this nature, has been *uniformly governed. 1st. Where the claimants assume the onus prdba/ndi (as . they do in this case), not to acquit the property, unless the defence be proved *• 11 *25 SUPREME COURT [Feb’y *The Mart and Susan : G. & H. Van Wagenen, Claimants. Capture as prize of war. Goods, the property of merchants actually domiciled in the enemy’s country at the breaking out of a war, are subject to capture and confiscation as prize. The fact, that the commander of a private armed vessel was an alien enemy, at the time of the capture made by him, does not invalidate such capture. The President’s instructions of the 26th August 1812, prohibiting the interruption of vessels coming from Great Britain, in consequence of the supposed repeal of the British orders in council, must have been actually known to the commanders of vessels of war, at or before the seizure, in order to invalidate captures made contrary to the letter and spirit of the instructions. Appeal from the Circuit Court for the district of New York. The goods in question were part of the cargo of the ship Mary and Susan, a merchant vessel of the United States, which was captured, on the 3d of September 1812, by the Tickler, a private armed vessel of the United States. The cargo was libelled as prize of war; this portion was claimed by Messrs G. & H. Van Wagenen, and condemned in the district court. In the circuit court, this sentence was reversed, and restitution to the claimants was ordered ; from which decree, the captors appealed to this court. The cause having been heard in both the courts below, on the documen-* _ tarY evidence found on board, the original order for the goods did J not appear. That they were shipped in consequence of *orders, was however, sufficiently proved, by the letters addressed to the claimants, and the other papers which accompanied them. , These were, 1. An invoice headed in the words following : “ Birmingham, 8th July 1812 : say, 15th March 1811. “ Invoice of fourteen casks and four baskets of hardware, bought by beyond a reasonable doubt. 2d. If the evidence of the claimants be clear and precisely in point, not to indulge in vague and indeterminate suspicions, but to pronounce an acquittal, unless that evidence be clouded with incredibility, or encountered by strong presumptions of malafides, from the other circumstances of the case.” He also alludes to the absence of documentary evidence to support the defence set up by the clamants, as affording an example of the application of these rules, as well as of another rule equally important. “What strikes me as decisive against the defence, is the entire absence of all documents respecting the cargo. Bills of lading, letters of advice, or general orders must have existed. If the cargo had been destined for Boston only, there would not have been so much difficulty. But the defence shows its destination ultimately for Liverpool. Where, then, is the contract of affreightment, the bills of lading, the letters of advice, and the correspondence of the shippers, or of Mr. P. Grant? Can it be credible, that without any authority, the master, or part-owner of the ship, should, on their own responsibility, have gone to Liverpool, without orders or consignment? That from a mere vague knowledge of the wishes of the shippers, they should place at imminent risk the whole property, without written authority to color their proceedings? There must have been papers: they are not produced. The affidavits of the shippers, of Mr. Grant, of the consignees in England, are not produced. What must be the conclusion from this general silence ? It must be, that if produced, they would not support the asserted defence. At least, such is the judgment that both the common law and the admiralty law pronounces, in cases of suppression of evidence.”1 1 For a further decision in this case, see 1 Mason 149. 12 1816] OF THE UNITED STATES. 26 The Mary and Susan. Daniel Cross & Co., by order, and for account and risk, of G. & H. Van Wagenen, merchants, New York, marked and numbered as per margin, and forwarded on the 4th March 1811, to care of Martin, Hope & Thornley, Liverpool, and by them afterwards transferred to the care of T. & W. Earle & Co., of Liverpool; which goods are now the property of Messrs. Spooner, Attwood & Co., bankers, of Birmingham, to whom you will please to remit the amount of this invoice.” And containing at the foot, after the enumeration of the articles and their prices, in the usual form, the following charges : Amount of invoice, £1041 0 11£ Commission, 5 per cent. 52 1 0| 1093 2 0 Freight to Liverpool...........................£12 18 0 Entry and town dues................................. 6 0 Cartage, porterage and cooperage.................. 415 0 Bill of lading. .................................. 3 6 Export duty, 4 per cent........................ 40 4 0 Broker’s commission, forwarding................. 4 3 0 62 9 6 Commission, 5 per cent....................,. . 3 2 6 -------- 65 12 0 Insurance on the Mary and Susan. Amount and premium covered by £1300, at 2£ guineas per cent, and policy 78 shillings................ 38 0 6 Commission for effecting insurance at £ per cent. 6 10 0 -------- 44 10 6 *Canal insurance to Liverpool, | per cent. on £1041 0 11|................................... 5 4 0 L 27 Insurance against fire.......................... 6 15 0 Warehouse rent in Liverpool.................... 15 0 0 Twelve months’ interest on £1041 0 11|, at 5 per cent........................................... 52 1 0 -------- 79 0 0 £1282 4 6 2. A bill of lading, in the usual form, stating that the goods were shipped by Thomas & William Earle & Co., of Liverpool, to be delivered to the claimants, or to their assigns, in New-York. 3. The two following letters : “Birmingham, 8th July 1812. “Messrs. G. & H. Van Wagenen. “ Gentlemen :—In consequence of the revocation of the British orders in council, on the first day of August next, we have lost no time in shipping the goods sent to Liverpool so long since, agreeable to your kind order. They are in the Mary and Susan, a most beautiful new vessel, to sail in all this week ; the freights are very high, 70s. for measurement, to New-York, and 80s. to Philadelphia, and at this moment nothing less will be taken. 13 27 SUPREME COURT [Feb’y The Mary and Susan. We, therefore, thought you would prefer to have the goods at this rate, rather than wait for a reduction in the freight, which, we doubt not, will soon take place. By the letter of our friends, Messrs. Spooner, Attwood & Co., herewith, you will perceive the interruption to commerce has been an inconvenience to us as young merchants ; but the unneighborly conduct of the old house will only serve to prompt us to new exertion for our friends in the States, for whose interest nothing shall be omitted within our power. We shall certainly serve them as well, if not on better terms, than heretofore. We will not be undersold. In a few days, we shall send Mr. Oakley, for the use of our friends, a new and complete set of patterns, which, we trust, will meet with their approbation. Mr. O., and Messrs. B. W. Rogers & Co. will be able to give you more particulars respecting what has passed on this side. The amount of invoice herewith to your debt is 820?. 2s. 1 and might be asserted, instead of aiding his enemy, it is doing ° J an act exclusively resulting to the benefit of the British claimant.” A salvage *of 60 1816] OF THE UNITED STATES. 130 Matson v. Hobd. Lctnd-law of Kentucky. The law of Kentucky requires, in the location of warrants for land, some general description, designating the place where the particular object is to be found, and a description of the particular object itself. The general description must be such as will enable a person intending to locate the adjacent residuum, and using reasonable care and diligence, to find the object mentioned in that particular place, and avoid the land already located ; if the description will fit another place better, or equally well, it is defective. “ The Hunter’s trace, leading from Bryant’s station over to the waters of Hinkston, on the dividing ridge between the waters of Hinkston and the waters of Elkhorn,” is a defective description, and will not sustain the entry. Appeal from a decree in chancery in the Circuit Court of Kentucky. This cause was argued by Huyhes and Talbot, for the appellants, and Kardin, for the respondents. It was, principally, a question of fact, arising under the local laws of real property in Kentucky, for an outline of which the general reader is referred to the Appendix, note 1, where *will be found an exposition of the elementary principles applicable to this •-class of causes. March 5th, 1816. Marshall, Ch. J., delivered the opinion of the court, as follows :—This is an appeal from a decree of the circuit court of Kentucky, by which the plaintiff’s bill was dismissed. The object of the suit is to enjoin the proceedings of the defendant at law, and to obtain from him a conveyance for so much of the land contained in his patent, as interferes with the entry and survey made by the plaintiff. The plaintiff claims by virtue of an entry, made on the 17th of January 1784, the material part of which is set forth in the bill in these words : “Richard Masterson enters 22,277 and a half acres of land, on treasury warrant No. 19,455, to be laid off in a parallelogram, twice as long as wide, to include a mulberry tree marked thus, ‘ F,’ and two hickories, with four chops in each, to include the said three marked trees, near the centre thereof ; the said trees standing near the Hunter’s trace, leading from Bryant’s station over to the waters of Hinkston, on the dividing ridge between the waters of Hinkston and the waters of Elkhorn.” This entry has been surveyed, he states, according to location, and that part of it which covers the land in controversy has been assigned to him. The validity of this entry constitutes the most essential point in the present controversy. If it cannot be sustained, there is an end to the plaintiff’s title; *if it can, other points arise in the case, which must be decided. This question depends on the construction of that clause in the land-law which requires that warrants shall be located so specially and precisely, as that others may be enabled, with certainty, to locate other warrants on the adjacent residuum. In the construction of an act so interesting to the peo- one-half was allowed by the court, and as to the residue, it was determined, that it must stand on the same footing with other property found within the territory at the declaration of war, and might be claimed, upon the termination of war, unless previously confiscated by the sovereign power. The court, therefore, made such order respecting it, as would preserve it, subject to the will of the court, to be disposed of as future circumstances might render proper. 61 132 SUPREME COURT Matson v. Hord. [Feb’y pie of Kentucky, it is of vital importance, that principles be adhered to, with care, and that as much uniformity as is practicable be observed in judicial decisions. This court has ever sought, with solicitude, for the true spirit of the law, as settled in the state tribunals; and has conformed its judgments to the rules of those tribunals, whenever it has been able to find them established. In the cases which have been, on different occasions, examined, that absolute certainty which would remove every doubt from the mind of a subsequent locator, appears never to have been required. The courts of Kentucky have viewed locations with that indulgence which the state of the country, and the general character of those who first explored and settled it, would seem to justify ; and have required only that reasonable certainty which was attainable in such a country, and might be expected from such men as were necessarily employed. The effort has been to sustain, rather than to avoid entries ; and although the motives which led to this course of adjudication are inapplicable to late entries, made on land supposed to be *1331 Previ°us^y appropriated, yet it is not understood, that different rules J of construction *have ever been applied to entries of different dates. By these rules, a certainty to a common intent, a description which will not mislead a subsequent locator, which will conduct him, if he uses reasonable care and diligence, to the place where the objects are to be found, will satisfy the law, and sustain the entry ; but such a certainty must exist, or the entry cannot be sustained. A location usually consists of some 'general description, which designates the place in which the particular object is to be found, and of a description of the particular object itself. The general description must be such as would enable a man intending to locate the adjacent residuum, by making those inquiries which would be in his power, and which he would naturally make, to know the place in which ho was to search for the particular or locative call, so nearly, that, by a reasonable search, he might find the object mentioned in that particular or locative call, and avoid the land located. If the description will fit a different place better, or equally well, it is too defective, because, if it does not mislead the subsequent locator, it leaves him in doubt where to search. The general description in this case is, “ the Hunter’s trace, leading from Bryant’s station over to the waters of Hinkston, on the dividing ridge between the waters of Hinkston and the waters of Elkhorn.” W ill this description designate the place in which the trees called for in the location _ are to be found ? *Bryant’s station is a fixed place of public noto-J riety. It is on the great road leading from Lexington to Limestone, on the Ohio, which road crosses the dividing ridge between the waters of Elkhorn and Licking, which is the ridge mentioned in Masterson’s entry. This road had been travelled by hunters, but seems to have been known by the name of the Blue Lick, or Buffalo trace, and not by the name of the Hunter’s trace. A trace which was, at that time, called the Hunter’s trace, leaves this great road, at Bryant’s station, and proceeds in a direction west of north, -until it crosses North Elkhorn, where it divides : the left-hand, or more western trace, after entering a road leading from Lexington to Riddle’s station, on Licking, or that branch of Licking called Hinkston, crosses the dividing ridge, about the head-waters of a creek now called Townsend, which empties into the stream, running by Riddle’s station, a little above 62 1816] OF THE UNITED STATES. 134 Matson v. Hord. that station. This creek was, in the year 1784, known by the name of Hinkston creek, or, perhaps, Hinkston’s mill creek. The right, or more eastern fork, again divides, nearly two miles before it reaches the dividing ridge. Each of these traces crosses the dividing ridge to the head-waters of Cooper’s run, which empties into Stoner’s fork. The more eastern of them crosses Stoner’s fork, and passing Mastin’s station, terminates very near that place. Cooper’s run empties into Stoner’s fork, which either empties into Hinkston, and then passing by Riddle’s station, empties into Licking ; or, uniting with Hinkston, forms the *south fork of Linking, r* and passes Riddle’s station, with that name. The river, from the 5 junction between Stoner and Hinkston, seems to have been known both by the name of the South Fork and of Hinkston’s Fork. All these traces were, in fact, hunters’ traces ; but each of them, except that leading to Mastin’s station, was distinguished by some name peculiar to itself, generally, by the station or place to which it led, as Riddle’s trace, the Blue Lick trace, &c.; and no one of them, except that leading to Mastin’s, was notoriously and pre-eminently called “ the Hunter’s trace.” There is some testimony that this was also known by the name of Mastin’s trace ; but the great mass of testimony in the cause proves, incontrovertibly, that this trace was known and distinguished, generally, by the peculiar appellation of “ the Hunter’s trace.” It is on this trace that the location was made. The Hunter’s trace, then, used in such a manner as to satisfy those interested in the inquiry, that it was intended to be employed as the name of some particular trace, would have been considered as designating the trace leading from Bryant’s to Mastin’s station, and would have been sufficient to show that the lands located by Masterson were on that trace. Had no further description of it been attempted, but the trees called for had been said to stand on “ the Hunter’s trace,” where it crosses the dividing ridge between the waters of Hinkston and Elkhorn, it would have been clear, that the trace was referred to by its name of greatest notoriety, by a name p* *which no other trace received ; and, both the trace and the part of the trace where the objects specially called for must be found, would have been designated with sufficient certainty. There is no evidence in this cause, nor is the court apprised that any other trace, distinguished as “ the Hunter’s trace,” led from any other place than Bryant’s station, over the dividing ridge between the waters of Elkhorn and Hinkston, and consequently, a reference to this trace, by its name, was all that was necessary for its designation, and would have designated it most unequivocally. But a further description has been attempted, and this has produced the difficulty felt in deciding this cause. It will not be pretended, that the locator was confined to this reference to the name, or might not add to the description, and make it more minute ; but if, in doing so, he has destroyed its certainty, if be has created doubts with respect to the trace intended, which may mislead subsequent locators, the validity of his location becomes questionable. The words added to “the Hunter’s trace” are, “leading from Bryant’s station over to the waters of Hinkston.” These words are not unmeaning, nor does the court feel itself authorized to reject them as surplusage ; nor do they form any part of the name of the trace. Why, then, are they introduced ? Subsequent locators might consider’ them as explanatory of the words “ the Hunter’s trace.” If they are so explanatory, there 63 136 SUPREME COURT [Feb’y Matson v. Hord. is, certainly, much plausibility afforded to the conclusion, that the locator did not *mean to refer to the trace by its name ; for if such was his -1 intention (there being no other trace of the same name), a further description would be unnecessary, and a more particular description would be impossible. Perplexity and confusion may be introduced, but an object cannot be rendered more certain than by bestowing on it its particular and appropriate name, if that name be one of general notoriety. The court felt the force of the argument, that “the Hunter’s trace,” leading from Bryant’s station over to the waters of Hinkston, might be understood in the same sense with the words “ the Hunter’s trace,” or “ that Hunter’s trace which leads from Bryant’s station over to the waters of Hinkston.” Understood in that sense, the additional and explanatory part of the description might be considered as its essential part, and might control the words “ the Hunter’s trace,” which, connected as they are in this description, are not incapable of application to other hunter’s traces, though not usually designated by that particular name. If this were to be received as the true construction, there are so many other traces leading across this dividing ridge, from Bryant’s station to the waters of Hinkston, that all pretension to certainty, in this location, must be surrendered. On this part of the case, the court has felt considerable difficulty ; and it is not without hesitation, that it has finally adopted the opinion, that “ the Hunter’s trace ” is to be considered as referred to by its name; and that the additional words, “leading from Bryant’s station over to the waters of Hinkston,” *are merely an affirmation that “the Hunter’s trace” J does lead from that station to those waters. It leads to Stoner’s fork, which empties into, or unites with, Hinkston’s fork, which afterwards empties into the main Licking. These branches are, all of them, called forks of Licking, and therefore, it would seem to the court reasonable (as is indeed indicated by much of the testimony), that this ridge was rather considered as dividing the waters of Elkhorn from those of Licking, than from those of Hinkston. But Stoner’s fork, to which this trace leads, may, without impropriety, be denominated, as it sometimes has been denominated, “ the waters of Hinkston.” It cannot escape notice, that if this trace had been designated as that leading to Mastin’s station, it would have been freed from all ambiguity. But it has been decided in Kentucky, and necessarily so decided, that a locator ought not to be held to the most certain description of which the place is susceptible. A description which distinguishes it from any other, although a better or still more certain description might be given, is all that is required. Having, with much difficulty, ascertained the trace, the next inquiry is, on what part of this trace the land entered by Masterson ought to lie. The location says, generally, “on the dividing ridge between the waters of Hinkston and the waters of Elkhorn.” It has been objected, that neither the side of the ridge nor the side of the trace, is specified ; and that, to search both sides of the ridge and of the trace, is imposing an unreasonable *1391 labor on subsequent locators. The court does not think so. *The J ridge is not of such breadth as to render the search on both sides the trace, from the foot of the ridge on one side to the foot of the ridge on the other, a very unreasonable one. But the trees must be found on the ridge, 64 1816] OF THE UNITED STATES. Matson v. Hord. 139' and a subsequent locator is not bound to search for them elsewhere. The trees having in themselves no notoriety, it is the more necessary that the place on which they stand should be correctly described, and so described, that persons interested in discovering them, might know how to find them. Let us then examine the testimony to this point. Richard Masterson, who made the location, proves the place where the trees stood. They are now cut down, but a mulberry stump remains, which is the stump of the tree he marked, as No. 33, west three poles from a white oak, now standing. He gives no description of the place. Henry Lee was with Masterson, when he marked the trees, and saw him mark them. They had been hunting on the trace on Cooper’s run ; and on their return, he says, “ on the aforesaid trace or path, after crossing the dividing ridge, near* a small branch waters of Elkhorn, Richard Masterson marked,” &c. This testimony would rather indicate that, in the opinion of the witness, the trees did not stand on the ridge. Simon Kenton describes the crooked oak mentioned by Masterson and Jay : that both houses are composed of the same persons, ■* viz., William S. Burnett, who is domiciled at London, and William Ivens, who is domiciled at St. Michael’s ; and that the documentary evidence, and private correspondence, showed, that the shipment was made on account of the hostile house. If the fact of the identity of the two houses were material to a decision of the cause, it might furnish a proper ground for an order for further proof. But admitting the fact to be as the captors contend, we are satisfied, that it can be of no avail to them. It is clear, from the whole documentary evidence, that this shipment was not made on the account and risk of the hostile house, but bond fide on the account and risk of the neutral house. It does not, therefore, present a case for the application of the principle, that the property of a house of trade in the enemy’s country is condemnable as prize, notwithstanding the neutral domicil of one of its partners. On the contrary, it presents a case for the application of the ordinary principle which subjects to confiscation, Jure belli., the share of a partner in a neutral house, where his own domicil is in a hostile country. And on this view, the decision of the circuit court is entirely correct, and is consistent with the doctrines established in the cases cited at the argument. The next inquiry is,- as to the freight decreed to the master. As no appeal was interposed to the decree of the district court, allowing the whole freight, for the whole voyage, the question, whether more than a pro rata freight was due (a question which would otherwise have deserved Srave consideration), Moes.not properly arise. The only discussion 'J which can now be entertained, is, whether the freight so decreed ought not to have been charged upon the whole cargo, instead of being charged upon a portion of it. And we are all of opinion, that it was properly a charge upon the whole cargo. Although capture be deemed, in the prize courts, in many cases, equivalent to delivery, yet the captors cannot be liable for more than the freight of the goods actually received by them. The capture of a neutral ship, having enemy’s property on board, is a strictly justifiable exercise of the rights of war. It is no wrong done to the neutral, even though the voyage be thereby defeated. The captors are not, therefore, answerable in p^nam to the neutral, for the losses which he may sustain by a lawful exercise of belligerent rights. It is the misfortune of the neutral, and not the fault of the belligerent. By the capture, the cap-tors are substituted in lieu of the original owners, and they take the property cum onere. They are, therefore, responsible for the freight which then attached upon the property, of which the sentence of condemnation ascertains them to be the rightful owners, succeeding to the former proprietors. 78 1816] OF THE UNITED STATES. 169 The Nereide. So far the rule seems perfectly equitable ; but to press it further, and charge them with the freight of goods which they have never received, or with the burden of a charter-party into which they have never entered, would be unreasonable in itself, and inconsistent with the admitted principles of prize law. It might, in a case of justifiable capture, by the condemnation of a single bale of goods, *lead the captors to their ruin, by loading them with the stipulated freight of a whole cdrgo. On the whole, we are all of opinion, that the decree of the circuit court ought to be afiirmed, except so far as it charges the freight upon the property condemned, and the moiety claimed by Messrs. Ivens & Burnett; and as to this, it ought to be reversed, and that the freight should be decreed to be a charge upon the whole cargo, to be paid by each parcel thereof, in proportion to its value. Decree affirmed, except as to the freight, (a) *The Nereide : Pinto, Claimant. [*171 Duties on prize goods. Under the prize act of June 26th, 1812, and the act of the 2d of August 1813, allowing a deduction of thirty-three and one-third per centum on “ all goods captured from the enemy, and made good and lawful prize of war, &c., and brought into the United States,” are not included goods captured and brought in for adjudication, sold by order of court, and ultimately restored to a neutral claimant as his property ; but such goods are chargeable with the same rate of duties as goods imported in foreign bottoms. The Concord, 9 Cr. 887, re-affirmed. This cause was originally brought into the Circuit Court, by appeal from the district court for the southern district of New York, in which the property, claimed by Mr. Pinto had been condemned as prize of war. The decree of the district court was affirmed in the circuit court, September term 1814, pro formât for the purpose of taking the cause, by appeal, before the supreme court, for its final determination ; which was accordingly done, and the decree of the circuit court reversed, February term 1815, except as to the undivided fourth part which Mr. Pinto claimed of certain goods, part of the cargo, his claim to which was relinquished by his counsel, on the argument of the cause before the supreme court. All the other property claimed by Mr. Pinto, for himself and others, was ordered to be restored to him. (9 Crunch 388.) The cause was then remanded to the circuit court, with directions to carry the decree *of the supreme court into effect ; L * (a) It has been held, that the charter-party is not the measure by which the captor is, in all cases, bound, even where no fraud is imputed to the contract itself. When, by the events of war, navigation is rendered so hazardous as to raise the price of freight to an extraordinary height, captors are not, necessarily, bound to that inflamed rate of freight. When no such circumstances exist, when a ship is carrying on an ordinary trade, the charter-party is undoubtedly the rule of valuation, unless impeached ; the captor puts himself in the place of the owner of the cargo, and takes with that specific lien upon it. But a very different rule is to be applied, when the trade is subjected to very extraordinary risk and hazard, from its connection with the events of war, and the redoubled activity and success of the belligerent cruiser^. The Twilling Riget, 5 Rob. 82. 79 172 SUPREME COURT [Feb’y The Nereide. and the mandate for that purpose was filed in the circuit court, April term 1815, and an order made in pursuance of the mandate. It was then stated, and made to appear to the satisfaction of the circuit court, that after the Nereide and her cargo had been libelled hy. the cap-tors, as prize of war, in the district court, and after the condemnation thereof, except the parts of the cargo which were claimed by Mr. Pinto, and during the pendency of such claim, Peter H. Schenck, the prize-agent of the Governor Tompkins, entered the whole of the cargo of the Nereide at the custom-house of the city of New York, and secured the duties thereon ; Mr. Pinto having consented that the goods which he claimed should be entered with the others, and be subject to the payment of such duties as they were by law liable to, without prejudice to his rights under his claim ; that the prize-agent did enter the goods, so condemned (as also the said goods of which Mr. Pinto claimed the one-fourth), as prize goods, and bonded therefor for prize duties ; but was required by the collector of the customs, and did enter all the residue of the goods, claimed by Mr. Pinto, as neutral property, subject to the full duties payable on goods regularly imported in foreign bottoms, and bonded for the same accordingly. The goods claimed by Mr. Pinto were, afterwards, and before condemnation, sold by the marshal of the district, together with the goods condemned, in pursuance of an order of the district court, to which Mr. Pinto also consented, subject to the *1731 same reservation of his rights ; and the proceeds of the sales of the J goods claimed by Mr. Pinto, after deducting the duties, were paid into court; the amount of the said duties having been paid by the marshal to the prize-agent, with the consent of Mr. Pinto, for the prize-agent’s indemnity. The difference between the duties thus secured to be paid by the prize-agent on the goods finally restored to Mr. Pinto, according to the decision of the supreme court, and those which would have been payable on them, as prize goods, under the act of the 2d of August 1813, entitled, “an act for reducing the duties payable on prize goods captured by the private armed vessels of the United States,” amounted to 811,079.59. After the mandate and decree of the supreme court, respecting the restitution of the goods claimed by Mr. Pinto, was carried into effect by the circuit court, there remained in the district court the sum of 818,771.63, being the amount of the net proceeds of the fourth part of the goods, Mr. Pinto’s claim to which had been relinquished. A motion was made in the circuit ceurt, on behalf of Mr. Pinto, that the prize-agent should be ordered to pay to him, out of any of the proceeds of the sales of the condemned part of the Nereide and cargo, and which were in, or might come to, his hands, the said sum. of 811,079.59, the difference between the two rates of duties on the goods finally restored to Mr. Pinto, as before mentioned. It then appeared to this court, that three bonds had been given by the prize-agent, for the duties on those goods, which were thus ordered to be # restored *to Mr. Pinto ; that the two of those bonds which first J became due, had been paid by the prize-agent; but that the last, which became payable on the 9th of February 1815, and which was for the sum of 88782.97, the collector had suffered, as he said, to remain unpaid, until it should be ascertained whether the property, on which said duties 80 1816] OF THE UNITED STATES. 174 The Nereide. were thus secured, was condemned to the captors, or restored to the claimant. That after the mandate of the supreme court was returned to the circuit court, the collector required the prize-agent to pay this bond, and he paid the same accordingly, on the 7th of April 1815. The court were divided in opinion on the point respecting the rates of duties chargeable on the goods so restored to Mr. Pinto ; whereupon, it was ordered, that the said sum of $11,079.59 should remain subject to the opinion of the supreme court, and that the residue of the $18,771.65 be paid to Mr. Schenck, as the prize-agent. And that the point on which the disagreement of the judges of the circuit court took place should be certified to the supreme court for their final decision thereon. Hoffman, for the appellant and claimant.—The statutes on this subject are, 1st, The prize act of the 26th of June 1812, § 14, which repeals the nonimportation . act, so far as' respects goods “ captured from the enemy, and made good and lawful prize of war; ” and declares, that such goods, “ when imported and brought into the United States, shall pay the same duties as goods imported *in American vessels, in the ordinary course of trade,” &c. 2d. The act of the 2d of August 1813, which provides “that all *-goods captured from the enemy, and made good and lawful prize of war, &c., and brought into the United States, shall be allowed a deduction of thirty-three and one-third per centum.” 3d. The acts of non-importation, prohibiting the importation of British goods. 1. The goods in question, being of British manufacture, could only be imported under the prize act, and the act of the 2d of August 1813. They were captured from the enemy, for they were on board an enemy’s vessel ; they were taken as enemy’s property ; they were captured and brought in,, as good and lawful prize of war. 2. The character of the goods is determined at the time they were brought in ; it is not to be determined by subsequent events : duties are payable on goods, on their being first imported or brought in ; and the prize act puts these goods on the same footing with other importations, and of course, makes the duties on them payable at the same time. 3. The words “ good and lawful prize of war,” refer to the time of capture, and not of condemnation. By the very act of capture, the goods became prize ; and being captured by a lawfully-commissioned vessel, were good and lawful prize. The expression “ such goods,” refers to goods so captured. They are to pay, when brought in, and not subsequently, upon condemnation. 4. The condemnation does not make the goods prize of war ; it merely puts an end to thejws recuperandi of the former owner, and gives a new title to the purchaser. The character of prize is, *then, either con-firmed by condemnation, or lost by restitution. If the property is restored, it is released from the character it had before borne, from the time of capture, and ceases to be prize of war, but being captured and brought in as such, is to pay the prize duties. Pinkney, for the respondents and captors.—The question now raised seemed to be settled by the d.ecision in the case of The Concord, at the last ’ term. (9 Cranch 387.) But, independently of authority, the question is manifestly against the claimant. 1 Wheat.—6 81 176 SUPREME COURT Thé Nereide. [Feb’y 1. The goods were not entered under the prize act, and the act of the 2d of August 1813 ; but, as neutral property imported in a foreign bottom, and having been sold, are evidently liable to the full duties on such goods, unless these acts authorize a diminution of them. 2. These acts do not authorize such diminution ; the goods were not captured from the enemy, and have never been made good and lawful prize. They were taken from Mr. Pinto, who was no enemy, either in fact or constructively, according to the judgment of the court. If anything, then, has made them lawful prize, how has it happened that they have been restored ? The claimant’s counsel, to avoid the appearance of too bold a paradox, mitigates his conclusion on this head, in such a way as proves nothing for the purpose of his argument. He ends with saying, that these goods were captured and brought into the United States, as good and lawful prize. He can scarcely, however, have intended to stop here ; for if his conclusion goes no further, it surrenders the *whole argument, unless it can be J shown, that to seize and bring in as prize, that which is not good and lawful prize, and never can become so, makes good- and lawful prize of the thing so seized and brought in ; or, in other words, that a seizure and ¿bringing in, as prize, of neutral property, makes it, ipso jure, good prize, .although the owner is, nevertheless, entitled to have it again, as not being good prize, and has, in fact, got it again, accordingly. 3. The character of these goods, with reference to their liability to duty, was not determined at the time they were brought in. If they had been .specifically restored, and withdrawn from the United States by the claimant, .they would have been liable to no duty. 4. The words “ made good and lawful prize,” do not refer to the capture .merely : the act speaks of the capture first, and then adds, “ and made good .and lawful prize.” The capture, too, must be of enemy’s goods, either in fact, or in contemplation of law. To say, that the goods are, by the act of • capture, made good and lawful prize, because the capture is made by a lawfully-commissioned cruiser, is to drop more than a moiety of the definition • of good and lawful prize, or, rather, to insist on that which is not an essential part of its definition. Prize may be made (as a droit') by a non-commissioned captor ; but good and lawful prize cannot be made by any captor, unless the goods be liable to condemnation. It is the formula of a sentence of condemnation, to condemn the thing taken as “good and lawful prize,” to the captors ; and this, not because it was taken by a lawfully-commis- Hni sioned cruiser, but because, being so taken, it *was, under all the cir- -* cumstances, subject to confiscation. 5. Capture gives possession ; but it is the condemnation which ascertains that the things taken are good prize of war : until condemnation, it cannot be known, whether they are good prize or not. But, certainly, it is sClf-evident, that after restitution, it must be held, that they were not good prize. The condemnation does more than destroy the jus recuperandi; it establishes, what nothing else can establish, that the goods were lawful prize. Restitution, on the other hand, establishes, conclusively, that they never were lawful prize, although they might be justifiably seized, upon probable cause, as such. March 6th, 1816. Marshall, Ch. J., delivered the opinion of the court, 82 18161 OF THE UNITED STATES. 178 Hepburn v. Dunlop. that the goods were chargeable with the same rate of duties as goods imported in foreign bottoms, according to the decision in the case of The Concord, at the last term. (9 Cr. 387.) *Hepburn & Dundas’s Heirs and Executors v. Dunlop & [*179 Company. Dunlop & Company v. Hepburn & Dundas’s Heirs and Executors. Specific performance.—liescission.—Interest. A court of equity will decree a specific performance of a contract for the sale of land, if the vendor is able to make a good title, at any time before the decree is pronounced;1 but the dismissal of a bill to enforce a specific performance, in such a case, is a bar to a new bill for the same object. The inability of the vendor to make a good title, at the time the decree is pronounced, though it forms a sufficient ground for refusing a specific performance, will not authorize a court of equity to rescind the agreement, in a case where the parties have an adequate remedy at law for its breach. The alienage of the vendee is an insufficient ground to entitle the vendor to a decree for rescinding a contract for the sale of lands, though it may afford a reason for refusing a specific performance, as against the vendee. But if the parties have not an adequate remedy at law, the vendor may be considered as a trustee for whoever may become purchasers, under a sale by order of the court, for the benefit of the vendee. Where the vendor is indebted to the vendee, and the sale is made in order to pay the debt, the vendor must pay interest from the time the debt is liquidated, until he makes a good title, and the vendee is accountable for the rents and profits, from the time the title is perfected, until the contract is specifically performed.2 Hepburn v. Dundas, 2 Cr. C. C. 86, reversed. These causes were appeals from the chancery side of the Circuit Court of the district of Columbia, for the county of Alexandria. The facts are stated in the opinion of the court, and the controversy is the *same as in the suits between the same parties reported in 1 Cranch 321, and 5 Ibid. 262. • The causes were argued by Taylor and Swann, for Hepburn & Dundas, and by Jones and Lee, for Dunlop & Company. March 9th, 1816. Washington, J., delivered the opinion of the court.— These causes come before the court uppon appeals from the circuit court of the district of Columbia, for the county of Alexandria. The material facts upon which the questions now to be decided arise, are as follows : Hepburn & Dundas, being indebted to John Dunlop & Co., of Great Britain, on account of certain mercantile dealings which had taken place between' those parties, the precise amount whereof was disputed, an agreement in writing was entered into, on the 27th of September 1799, between the said Hepburn & Dundas, and Colin Auld, the attorney in fact of John Dunlop & Co.; whereby it was stipulated, that the parties mutually agreed to submit all matters in dispute respecting the demand of Dunlop & Co., to certain arbitrators named in the agreement, whose award should be made on or before the 1st day of January following. That Auld, as the agent of 1 Seymour v. Delaney, 3 Cow. 445; Browne v. Haff, 5 Paige 235 ; Tompkins v. Hyatt, 28 N. Y. 347. 2 See s. c. 3 Wheat. 231. 83 180 SUPREME COURT [Feb’y Hepburn v. Dunlop. Dunlop & Co., would, on the next day, to wit, the 2d day of January 1800, accept from Hepburn & Dundas, the sum which should be awarded to Dunlop & Co., in bills of exchange, or in Virginia currency, at the par of exchange ; and upon such payment being made in either way, that Auld * oil would give to Hepburn & Dundas a full receipt and *discharge of all J the claims and demands of Dunlop & Co. against them ; .that in case Hepburn & Dundas should not, on the said 2d day of January, pay the amount of the said award, either in bills of exchange or in money, they should, on that day, assign to Auld, as attorney of Dunlop & Co., in the fullest manner, a contract, entered into in the year 1796, by Hepburn & Dundas, with a certain William Graham, for the sale of 6000 acres of land, lying on the river Ohio, for the recovery of which, on account of the non-payment of the purchase-money by Graham, Hepburn & Dundas had brought an ejectment, which was then depending ; that this assignment should be accompanied by a power of attorney, irrevocable, to enable the said Auld to pursue all legal means to recover the possession of the land, or to enforce the payment of $18,000, the amount of the purchase-money, whichever of these measures Auld might prefer. Hepburn & Dundas further stipulated, not to interfere with the measures which Auld might choose to pursue for the recovery of the land, or the purchase-money, and further, that whenever any suit brought, or to be brought, for the land, should be judicially determined, or otherwise settled by an amicable compromise, Hepburn & Dundas would convey-the same to the person who, by such determination or compromise, should be acknowledged to be entitled to it, in the manner expressed in the contract with Graham. It was also stipulated, that if the purchase-money for the said land, with interest thereon to the 2d of January 1800, should be insuffi-* , c^en^ to discharge the sum which might be *awarded to Dunlop & -* Co., Hepburn & Dundas should, on that day, pay to Auld as much money as should make up the deficiency ; and if, on the other hand, the said purchase-money and interest should fall short of the sum awarded, that Auld would, on the same day, pay to Hepburn & Dundas the excess over and above the sum awarded. Lastly, it was stipulated, that if Auld should recover the land, and be enabled to sell the same for more than was allowed to Hepburn & Dundas, by the said agreement, together with the costs and expenses attending the recovery, Auld should pay to Hepburn & Dundas the expenses incurred in prosecuting the suit commenced by them for the recovery of this land. In pursuance of these articles, an award was made, by the day mentioned in the submission, which award stated, that the sum of 4379?. 9s. Q^d., sterling, including interest, would be due to Dunlop & Co. on the 1st day of January 1800. This sum fell short of the purchase-money and interest, due by Graham to the same period, the sum of 494?. 6s. Sd.,»Virginia currency. Hepburn & Dundas having prepared a deed of assignment of Graham’s contract, and a power of attorney, as stipulated in the above-mentioned agreement, offered to deliver the same to Auld, on the 2d of January .1800, which he refused to accept, because the deed recited, as a part of the consideration, that a release had been executed by Auld, of all the claims and demands whatsoever of Dunlop & Co. against Hepburn & Dundas, *1 sqI an^ because> as is asserted by Auld, Hepburn & Dundas required J Auld to execute such a release, prior to the *delivery of the deed of assignment. The suit of Hepburn & Dundas against Graham, for the recov- 84 1816] OF THE UNITED STATES. 183 Hepburn v. Dunlop. ery of the 6000 acres of land, was prosecuted against his heirs ; and in May 1801, by a compromise between Hepburn & Dundas, and the defendants in the ejectment, judgment was rendered in favor of Hepburn & Dundas. Without noticing, particularly, the conduct of those parties, subsequent to the transactions of the 2d of January 1800, as well as on that day, it may be sufficient to say, that if the tender made by Hepburn & Dundas was, upon the condition asserted by Auld, to have been annexed to it, and if, in consequence thereof, any legal advantage accrued to him, it was waived by his subsequent conduct. As late as February 1807, Auld made a tender of the difference between the sum awarded to Dunlop & Co., and the pur-chase-money and interest due upon Graham’s contract, and demanded a deed ; but this demand was made in a manner, and under circumstances, which this court, upon a former occasion, deemed unreasonable. Things remained in this situation, until some time about April 1801, when Hepburn & Dundas instituted a suit at law against Auld, for the difference between the sum awarded to Dunlop & Co. and the amount of the purchasemoney and interest due by Graham’s contract, on the 2d of January 1800. About the same time, a suit at law was commenced by Auld, against Hepburn & Dundas, upon the agreement of the 27th of September 1799, to recover the whole sum awarded. In the first case, *this court, upon a writ of error, decided upon the pleadings (which were so drawn as L to present the point), that Hepburn & Dundas had no right to demand of Auld a release of all claims and demands against Dunlop & Co., to be executed as a precedent act to the assignment of Graham’s contract, and the delivery of the power of attorney ; and on that ground, judgment was rendered against Hepburn & Dundas. (1 Cranch 321.) In the other case, the pleadings presented the question, whether the recital of such a release in the deed of assignment offered to be delivered by Hepburn & Dundas, invalidated the tender ? Upon a writ of error, it was decided by this court, that the recital of the release could not impair the rights of Dunlop & Co., under the agreement of September 1799, and that it formed no objection to the assignment; consequently, that the tender and refusal amounted to a performance, in like manner as if Auld had accepted the assignment; but that Hepburn & Dundas would still be obliged to execute a proper deed of assignment, and a conveyance of the land, whenever they should be required to do so. Judgment was, accordingly, rendered in this suit against Auld. (5 Cranch 262.) Hepburn & Dundas having been thus defeated in their attempt at law, to enforce a performance of the agreement, filed a bill in equity, praying for a specific performance. The answer of Auld contained, amongst other objections to a specific performance, an allegation that the title of Hepburn & Dundas *to the land was defective. Hepburn & Dundas then set r*ig5 forth their title in a supplemental bill. This suit came on to be heard, L upon an appeal to this court, at the same time that Auld’s suit at law against Hepburn & Dundas, above mentioned, was decided. This court determined, 1st. That since Auld had, by his conduct subsequent to the 2d of January 1800, waived all objections to the tender of the assignment of Graham’s contract on that day, and did not refuse to receive a conveyance which was offered to be made by Hepburn & Dundas, in June 1801, on account of any defect in the title, but for other reasons which would equally have operated 85 185 SUPREME COURT [Feb’y Hepburn v. Dunlop. with him, had there been no such defect, Hepburn & Dundas would still be entitled to a specific performance, if they could then make a good title. 2d. That the title appeared by the bills to be defective as to 208 acres, being Thomas West’s part of Mrs. Bronaugh’s 1000 acres, and also his part of Francina Turner’s interest in the same tract, and also on account of the failure to record Thomas West’s deed to Hepburn & Dundas for 1000 acres. For these defects in the title, the bill was dismissed. (5 Cranch 262.) Presuming that this decree, which seemed to close for ever the doors of a court of equity against Hepburn & Dundas, opened them to Dunlop & Co., to get rid of the contract altogether, Auld filed the bill which is now under consideration, stating, amongst other things, the previous and present *.„„1 inability of Hepburn & Dundas, to make a good title to this *land ; J and praying that the agreement may be set aside, and the debt awarded to Dunlop & Co., with the interest thereon, be decreed ; or that, if the court should consider Dunlop & Co. under an obligation to accept of the land, that only- the reasonable value of the land, at the time when Hepburn & Dundas’s title to it was perfected, should be allowed. The bill, also, contains the general prayer for such relief as is consistent with equity. Hepburn & Dundas seem to have given a very different construction to the above decree, and supposing that if, within a reasonable time after it was pronounced, they could remove the objections to their title, which were pointed out in the decree, they might still call for a specific performance, they soon obtained a conveyance from the heirs of Thomas West, of all their right, title and interest in and to this land, and oh the 27th of March 1809, less than a month after the decree of dismissal by this court, they offered to convey to Auld a good and sufficient title. This offer being refused, Hepburn & Dundas filed a bill against Colin Auld, as attorney of Dunlop & Co., setting forth their ability and readiness to convey an unexceptionable title to this land, and praying that Auld, or Dunlop & Co., might be compelled to accept of a conveyance, and to pay the difference between the agreed value of the land and the sum awarded. These suits came on to be heard at the same time. In the suit brought by Dunlop & Co., against Hepburn & Dundas, it was decreed by the court below, that Hepburn and the heirs of Dundas should pay to Dunlop & Co., or their agent, the sum of $33,060.37, being the amount of the sum awarded, *1871 interest thereon, at five per cent., from the 1st January 1800, J to the time of rendering the decree ; but that the sum of $21,112, part thereof, might be discharged by a conveyance, within a certain time, of the above land to Auld, in trust for Dunlop & Co. From this decree, an appeal was prayed by both parties. In the other suit, brought by Hepburn & Dundas against Auld, a decree was made, that upon the complainant’s paying to Auld, as attorney of Dunlop & Co., the sum of $11,966.37, and conveying to the said Auld, in trust for Dunlop & Co., on or before a certain day, the above-mentioned land, the said Auld, as attorney of said Dunlop & Co., should execute and deliver to Hepburn & Dundas such a receipt and dicharge of all the claims and demands of Dunlop & Co. against them, as the court might approve. From this decree, both sides again appealed. Against so much of these decrees as compel Auld to accept of a conveyance in trust for Dunlop & Co., in part discharge of the debt decreed to be 86 1816] OF THE UNITED STATES. 187 Hepburn v. Dunlop. paid by Hepburn & Dundas, to Dunlop & Co., the following objections have been made, and are now to be considered. 1st. That Hepburn & Dundas were guilty of a fraudulent misrepresentation of the value of this land ; and also of a wilful concealment of the defects in the title, whereby Auld was induced to enter into the agreement of September 1799. 2d. A want of authority in Colin Auld to enter into an agreement for taking a conveyance of land in discharge of the debt due to Dunlop & Co. *3d. The refusal of r*. „„ Hepburn & Dundas to assign Graham’s contract, on the 2d of Janu-ary 1800, except upon a condition which they had no right to exact, and their interference in the suit with Graham’s heirs, and the compromise made with them, whereby (it is contended) they disabled themselves from executing the agreement of September 1799. 4th. That the title to the land is yet defective. 5th. That the former decree, dismissing Hepburn & Dundas’s bill for a specific performance, is a perpetual bar to the relief sought by their present bill. 6th. That Dunlop & Co., being aliens, and incapable of holding lands in Virginia, a court of equity will not compel them to execute their agreement, even if Hepburn & Dundas had been always in a condition to perform it on their part. I. The first objection appears to be unsupported by the evidence. In respect to the value of the land, the representations made of it in the letters of Hepburn & Dundas, to Dunlop & Co., and to Colin Auld, affirm no fact which is proved to be untrue. Those letters contain expressions of the opinion of Hepburn & Dundas, that the land was an ample security for the debt due to Dunlop & Co.; and it must be admitted, that in their letter to Colin Auld, of the 6th of September 1799, they seem to have indulged themselves in very extravagant notions of its value. But it is to be remarked, that the grounds of this calculation are fairly stated in the letter, and an opportunity is afforded to Auld to inquire into them and to judge for himself : besides which, it should be recollected, that Auld having agreed, in his letter *of the 4th of September, two days before the date of this letter, to submit to the award of arbitrators, and to receive an assignment of Graham’s contract, at the stipulated sum to be paid by Graham, Hepburn & Dundas could have had no motive, at that time, to make an untrue representation of the value of the land. At no antecedent period, does it appear, that they have made an uncandid statement, upon this subject, to Dunlop & Co., or to Auld. Their opinion of the real value of the property might be incorrect; but a mistaken opinion of the value of the property, if honestly entertained, and stated as opinion merely, unaccompanied by an assertion or statement, untrue in fact, can never be considered as a fraudulent misrepresentation. That Hepburn & Dundas intended no deception, is evident from the following considerations: 1. That the offer made by them, to Colin Auld, of this land, was that of a security only, for the debt due to Dunlop & Co., which was declined by Auld, upon the ground, that if payment of the debt to Dunlop & Co. was to be postponed until the suit with Graham sould be concluded, Dunlop & Co. ought to be entitled to all the benefit of the contract with Graham, and for this reason, a proposition was made by him to accept an assignment of that contract, and to pay the difference between the purchase-money and interest thereon, and the sum which might be awarded, in case the latter should fall short of the former. 2. That Hepburn & Dundas had, in the year 1796, sold this land to Graham for the 87 189 . SUPREME COURT fFeb’y Hepburn v. Dunlop. sum at which. Auld agreed to take it, and as evidence of their opinion, that the *land had, since that sale, risen in value, they had instituted a y -I suit at law against Graham in order to avoid the sale, and to recover back the land. If any farther answer to this objection be necessary, it may be sufficient to add, that the fraud now charged against Hepburn & Dundas was not thought of, and certainly not imputed to them, when the former suit of Hepburn & Dundas, for a specific performance, was depending. As to the alleged concealment by Hepburn & Dundas, of defects in their title, there is every reason to believe, that they were unknown to them until some time in the year 1805, when they endeavored to remove them, and supposed they had done so. The only objection suggested by the special verdict in the ejectment, was the want of a partition deed between the original grantees of this land, which objection this court has declared to be insufficient to bai' Hepburn & Dundas from asking for a specific performance of the agreement. II. The next objection to the decree below is, that Auld had no authority, in virtue of the power of attorney from Dunlop & Co., to enter into an agreement to receive land in discharge of the debt due by Hepburn & Dundas. This, like the former, is a new objection, not thought of, or argued as a reason against a specific performance, in the former suit. It is unnecessary to examine, with critical nicety, the import of the expressions used in the power of attorney to Auld. He was empowered to sue for, and to compound and agree for, all debts due to Dunlop & Co., and, in *1911 *Senera^ t0 do all other lawful acts needful for those purposes, as J as fully as Dunlop & Co. could do. Under this authority, he entered into the agreement with Hepburn & Dundas, which, there is no reason to doubt, he communicated in due time to his constituents, and it is perfectly fair, to consider their acquiescence in that agreement as amounting to a ratification of it. It would be most inequitable, to permit Dunlop & Co., at the distance of many years after this agreement was made, to controvert the authority of their agent, and to say, they are not bound to perform it, although it must be admitted, that during all that time, it was in their power to enforce it against Hepburn & Dundas, had it been their wish or interest to do so. III. The third objection to the decrees below, is the refusal of Hepburn & Dundas to assign Graham’s contract, on the 2nd January 1800, except upon a condition which he had no right to exact, and their interference in the suit with Graham’s heirs, and their compromise made with them. In answer to the different parts of this objection, it might be sufficient to remark, that they were urged by Colin Auld, in his answer to Hepburn & Dundas’s former bill; that they were considered by this court, and decided to be insufficient to deprive Hepburn & Dundas of the relief prayed for. However true the allegation may.be, that HepburnDundas refused to assign Graham’s contract, and to deliver the power of attorney to Auld on the 2d of January 1800, unless Auld would first execute a release of all t claims and demands of Dnnlop & Co. against Hepburn & Dundas, yet the * -J subsequent *conduct of Auld amounted to a waiver of all objections J on that account: his, and his counsel’s, letters to Edward Graham, in which, he was asserted to be the assignee of the contract with Graham ; his instructions to Cook to atted to the ejectment, and to get it brought to a 88 1816] OF THE UNITED STATES. 192 Hepburn v. Dunlop. speedy decision ; his engaging counsel in that suit ; and in short, his whole conduct, throughout the year 1800, all tend to prove, that the transaction of the 2d of January 1800, had not, in any manner, impaired the rights of the parties under the agreement now alleged to have been violated by Hepburn & Dundas. As to the compromise said to have been made by Hepburn & Dundas with the claimants under Graham, their conduct, upon that occasion, appears to have been unexceptionable. That a judgment against those claimants, at an early day, was anxiously desired by Auld, and the assistance of Hepburn & Dundas, to effect that object, was expected and required by him, is apparent, from the above letters from him to Edward Graham, and from many other facts proved in the former suit. The endeavors of Auld to hasten the decision of the ejectment, and to obtain a judgment for the land, seem to have been unremitting, until some time in December 1800, when he declined interfering any further in the business ; but neither then, nor at any subsequent period, did he express to Hebpurn & Dundas a disinclination to obtain a judgment, nor did he forbid them from proceeding to effect it. It is objected, under this head, that Hepburn & Dundas, contrary to an express stipulation in the agreement with Auld, released *to the ^*^93 defendants in the ejectment the right which, as trustee for Auld, they had to demand mesne profits, during the time that Hepburn and Dundas had been out of possession of the land ; and further, that they consented to permit those defendants to retain possession of the premises for a year after the judgment was rendered. Neither of these allegations are supported by the evidence in the cause. The agreement made by Hepburn & Dundas with the heirs of Graham, in relation to the costs of the suit and the mesne profits, disavows, in the most explicit terms, all power in them, and all intention to release either of those claims, but stipulates to indemnify those defendants against these claims, in case they should be made and enforced by Auld, who is declared to be alone entitled to make them. This contract of indemnity, therefore, did not amount to a release, nor did it impair the rights of Dunlop & Co., under their agreement with Hepburn & Dundas. As to the remainder of this objection, it is founded altogether upon the deposition of Mr. Sheffey, the counsel for Graham s. heirs, which, as it is explained by the same witness, in a subsequent deposition, proves no more, than that such a proposition had been made by Edward Graham to Mr. Hepburn. That it was not accepted by him, is manifest by the ' judgment itself, which is unconditional, as well as by an agreement made between Hepburn & Dundas and Edward Graham, the day after thè judgment was entered. IV. The next objection is, that the title of Hepburn *& Dundas to this land, or to some part thereof, is still defective. In the opinion given by this court, at February term 1809 (5 Cr. 262), in the suit brought by Hepburn & Dundas, for a specific performance, the title was declared to be unexceptionable, except, 1st. As to 208 acres, being the part of Sarah Bronaugh’s 1000 acres, to which Thomas AVest was entitled as one of the heirs of Mrs. Bronaugh, and of Francina Turner ; and 2d. As to 1000 acres, the original share of Thomas West, which had been conveyed by him to Hepburn & Dundas, by a deed which had not been recorded. These defects have since been cured by a conveyance to Hepburn & Dundas, by 89 194 SUPREME COURT [Feb’y Hepburn v. Dunlop. the heirs of Thomas West, bearing date the 20th of March 1809, of all their title to the aforesaid parcels of land. It is, nevertheless, contended, that this conveyance is insufficient to pass a clear and undisputed title ; inasmuch as the land may be bound by the claims of creditors, or of purchasers subsequent to the deed from Thomas West to Hepburn & Dundas. The answer given at the bar to these suggestions is entirely satisfactory to the court. If the land be exposed to the claims of subsequent purchasers or mortgagees under West, to be effectual against Hepburn & Dundas, the deeds must have been recorded within eight months after the death of West, at the latest period, either in the general court, or in the district or county court where the land lies. Had any such deeds been So recorded, it was in the power of Auld to have proved the fact, *1951 by the records *of some one of those courts, and the want of such J proof destroys all presumption that any such conveyances were made. As to judgments against West, they too must be of record ; and after a lapse of ten years since his death, the court cannot presume the existence of such judgments. As to specialties in which the heirs of West are bound, if there be such, which is not proved, they cannot affect this land in the hands of a bond fide purchaser undei’ those heirs. V. The next objection made to the decrees below is, that the dismissal of the former bill of Hepburn & Dundas, for a specific performance, is a bar to their present bill for the same object. This objection is well founded. If a bill, by the vendor of land, seeking a specific performance of the contract, be dismissed on account of a defect in the title, the doors of a court of equity are, and ought to be, for ever closed against him, notwithstanding he should, afterwards, have it in his power to make a good title ; unless, perhaps, in a case where an original bill, in the nature of a bill of review, might be entertained. But the present bill is not founded upon new matter, discovered since the hearing of the former cause, and which it was not in the power of Hepburn & Dundas to produce at that time. It is not pretended, that he was ignorant who were the heirs of Thomas West, or that he could not as well have procured a deed from them before, as after the former decree. His ignorance was not of a matter of fact, but of law : he erroneously supposed that his title was good, and on account of the defects existing *in it, at the time of the decree, his bill was dismissed. The J rule of the court of equity to decree a specific performance, if the vendor is able to make a good title, before the decree is pronounced, is an indulgence which he is not entitled to by the terms of his contract. A majority of this court approves of the rule, as a general one, but is not disposed to extend it as such.. If, in a case peculiarly circumstanced, an extension of the time for completing the title would be proposed, and should be intended to be granted, the court would either continue the cause, in order to give the vendor time to perfect his title, or would dismiss the bill without prejudice. The questions, then, which remain to be decided, are, 1st. Whether Dunlop & Co. are entitled to the relief for which they specifically prayed? and if not, then, 2d. Are they entitled to any other, and what relief, under the general prayer in their bill ? 1. The relief specifically prayed for consists of two parts : 1st. That the agreement of September 1799, may be rescinded, and the sum awarded, 90 1816] OF THE UNITED STATES. 196 Hepburn v. Dunlop. with interest, decreed to. be paid. If this should be denied, and Dunlop & Co. be compelled to receive a conveyance of the land—then, 2d. That the reasonable value only of the land, at the time when the title was perfected, should be allowed. As to the first. Most of the objections which have been urged against the decree of the court below, for a specific performance, were relied upon by the counsel for Dunlop & Co., as sufficient to set aside the contract. These have already been considered, and the result has been shown to be, that, if the bill *of Hepburn & Dundas, for a specific performance, were unaffected by the dismissal of their former bill, none of these L objections would be sufficient to preclude them from the relief sought by their present bill. If so, they are insufficient to enable Dunlop & Co. to obtain a decree to rescind the contract. There are many cases in which a court of equity, although it would not decree a specific performance, will yet refuse to order a contract to be cancelled. The inability of the vendor to make a good title, at the time the decree is to be pronounced, furnishes a very good reason for excluding him from relief in a court of equity ; and yet it does not follow, that the court will, for this reason merely, set aside the contract. Generally speaking, a court of law is competent to afford an adequate remedy to either party, for a breach of the contract by the other, from whatever cause it may have proceeded ; and whenever this is the case, a resort to a court of equity is improper. But if the contract ought not, in conscience, to bind one of the parties, as, if he had acted under a mistake, or was imposed upon by the other party, or the like, a court of equity will interpose and afford a relief, which a court of common law cannot, by setting aside the contract; and having thus obtained jurisdiction of the principal question, that court will proceed to make such other decree as the justice and equity of the case may require. Whether inability in the vendor to make a title, is, of itself, unattended by some peculiar circumstances of hardship, sufficient to justify the court in setting aside *the contract, need not now be decided. This is certainly r*jgg not a case where the exercise of this branch of equity jurisdiction can L be fairly demanded by Dunlop & Co. Within a month after the recovery of the judgment against the heirs of Graham, Hepburn & Dundas tendered to Colin Auld a conveyance of the land, which was refused, not on account of any defect in the title, but for reasons which would equally have operated with him, had there been no such defect. Immediately after the defects in the title were pointed out by this court, they were removed, and the conveyance of an unexceptionable title was tendered and refused. Had Hepburn and Dundas been in a condition to make such a title, a month sooner, this court, instead of dismissing their bill, would have decreed a specific performance. Under such circumstances, it would be inequitable to set aside the contract. The alienage of the complainants is urged as an additional reason for setting aside this contract. Although the incapacity of the purchaser to hold land might afford a reason for denying a specific performance upon the prayer of Hepburn & Dundas (a point, however, not intended to be decided), it is certainly insufficient to entitle the vendor, under the circumstances of this case, to a decree to rescind the contract. But the court does not mean to intimate an opinion, that the terms of this contract did expose this land 91 198 SUPREME COURT [Feb’y Hepburn v. Dunlop. to the dangei’ which is apprehended. It appears by the contract, and the previous correspondence between these parties, that they contemplated a sale of this land, in the event of the contract *with Graham being J rescinded, and that the proceeds thereof should be paid over to Auld, in discharge of so much of the debt due by Hepburn & Dundas, to Dunlop & Co., as the purchase-money due by Graham, with interest thereon to the 1st of January 1800, would amount to ; and this, whether the land should sell for more or less than that sum. In this view of the case, the land was considered as a security for a stipulated sum, and Hepburn & Dundas were constituted trustees for whoever might become the purchasers of it. A conveyance to Auld, or to Dunlop & Co., does not appear to have been contemplated. But if, in point of law, it should be true, that Auld, by neglecting to proceed against Graham’s representatives for the recovery of the land, in the name of Hepburn & Dundas, separated the interests of his constituents, this can surely afford no sound reason for setting aside the contract. It is sufficient, if Hepburn & Dundas are able and ready to make a conveyance, when they shall be required to do so. 2. The other specific relief prayed for, is, that Hepburn & Dundas may be credited on account of the land for no more than its real value in March 1809, when a conveyance was tendered and refused. A decree of this sort would be an anomaly in the jurisprudence of a court of equity. It would be an affectation of decreeing a specific performance, contrary to the terms of the contract upon which the decree is to operate. It would be, in fact, to make a contract for the parties, altogether different from *9Anl w^a^ they bad made for themselves, and then to decree *an execution J of it. There is no precedent, and certainly, no principle of equity, to sanction such a decree. Either the contract of the parties must be executed, according to the terms of it, or it cannot be executed at all. The only remaining question, then, is, whether, under the general prayer, the court can grant any, and what relief ? There can be no question, but that that is competent to Dunlop & Co. to ask for a specific performance of the agreement, so far as it can now be performed, although the court cannot listen to a similar prayer from Hepburn & Dundas. But this is not the relief specifically stated in this bill; and it is supposed to be unreasonable, to compel a specific performance under the general prayer for relief, in opposition to the specific prayer that the contract may be set aside. To this objection, it may well be answered, that if it be improper to rescind, or to modify, the contract, nothing remains to be done, under the general prayer, but to dismiss the bill, or to decree an execution of the contract. But as the former cannot be presumed to be the object of the general prayer, it would seem to follow, that an execution of the contract was intended to be asked for, in case the specific relief should be denied. For these reasons, the court will decree a specific performance, so far as it is practicable, and considering Hepburn & Dundas as trustees for the person or persons to whom this land may be sold, the conveyance will be decreed to be made sucb Persons *as may become the purchasers of the land under the J decree of this court. The residue of the decree below, which allows to the complainants, Dunlop & Co., interest upon the sum awarded, from the 1st of January 1800, to the time of the decree, is objected to by Hepburn & Dundas, upon the 92 1816] OF THE UNITED STATES. 201 Hepburn v. Dunlop. ground, that the purchaser of land, to whom neither a conveyance has been made, or possession delivered, is to be considered in equity as the owner, and of course, entitled to the rents and profits; and that the right of the vendor to the purchase-money draws after it a corresponding right to demand interest upon the same, until it is paid. This, it must be acknowledged, is the general principle which prevails in the courts of equity. But it would seem to be inequitable, to apply it to a case like the present. Here, the purchase-money was in the hands of the vendor, at the time the contract was made. It consisted of a debt due by the vendor to the purchaser, which the former bound himself, by his agreement, to discharge by bills of exchange or cash, or by. an assignment of a contract for land, and a conveyance of a good title to it, and with money to make up any deficiency which might arise, by the agreed price of the land falling short of the debt. Neither bills nor cash were paid, nor was the contract assigned, nor a conveyance made, for it turned out, that the vendor could pot make a good title to the whole of the land, until March 1809. They have always retained possession, and the land is, in reality, unproductive of profits in any measure equal to the interest on the *debt. This debt, unques-tionably, bore interest, from the moment it was ascertained and agreed 1 to be paid ; and not having been paid, nor a tender of a good title to the land made, until March 1809, it would be highly unjust, to stop interest on the debt, until that period. The written arguments of the counsel, which have been sent to the court, present two questions in relation to interest, which remain to be noticed. It is contended by the counsel for Dunlop & Co., that interest ought to be calculated upon the sum composed of principal and interest, stated, by the arbitrators, to be due on the 1st of January 1800, at the rate of six per cent, per annum, from that day. On the other side, it is insisted, that no more than five per cent, per annum should be allowed, and this not on the sum found by the arbitrators to be due, but upon the principal sum only. The court is of opinion, that, although the award does not direct the sum which is found to be due by Hepburn & Dundas to be paid to Dunlop & Co., yet it ascertains the sum which was due on the 1st of January 1800, and the agreement upon which the submission was made bound Hepburn & Dundas to pay that sum, when it should be so ascertained. The two instruments, taken together, amount to a contract to pay a specific sum, and are clearly within the words, as well as the fair interpretation of the law of Virginia, passed in the year 1796, which fixed the rate of interest at six per cent, per annum. This principle being settled, it follows, that the interest must be calculated upon the sum *ascertained by the award to be due on the 1st of January 1810. To separate the principal from the interest, L even if the award furnished materials for such an operation, would be, in effect, to set aside the award, and to vary the agreement with which it is intimately connected. It is, therefore, the opinion of the court, that Hepburn & Dundas ought to pay interest upon the sum awarded by the arbitrators, after the rate of six per cent, per annum, from the 1st of January 1800, to the 27th of March 1809, when they were able to make, and did, in fact, tender, a good and and sufficient conveyance to the agent of Dunlop & Co. From the 27th of 93 203 SUPREME COURT [Feb’y Hepburn v. Dunlop. March 1809, interest ought to stop ; but Hepburn & Dundas ought to account with Dunlap and Co., for the rents and profits of the 6000 acres of land, from that period to the time of rendering this decree, (a) (a) fn the progress of society, the defects of the common law to answer the exigencies of a civilized and commercial age, became manifest. It was particularly in not furnishing an adequate remedy for the breach of contracts, where the spirit of the agreement required a specific performance, that these defects were disclosed. For, except in real actions and ejectment, where the proceedings are in rem, and the actions of detinue and replevin, where the thing sued for is specifically recovered, a court of Common law uniformly gives a compensation in money, for civil injuries, whether arising ex contractu or ex delicto. This remedy is frequently insufficient to repair the injury sustained by the parties, and to place them in the same situation they were in before the breach of the contract. Hence, the origin of that .jurisdiction, which, although it was long contested by the courts of common law, has at length been firmly established, and matured into a regular system. This system, is, however, remarkably subject to the exercise of discretion, according to the peculiar circumstances of each particular case. But few inflexible rules can, therefore, be laid down concerning it Among those admitting of the fewest exceptions are the following: 1st. This equitable jurisdiction extends to all cases where either the res in dispute, or the party, is within the jurisdiction of the court; for it proceeds in personam as well as in rem, and wherever the land or other thing in controversy is not within its reach, it will compel the specific performance of an agreement, by means of its appropriate process acting on the parties. 1 Ves. 447, 454. 2d. A specific performance will not be decreed of an agreement, whereupon damages could not be recovered by law. But if an action at law cannot be maintained, on account of a mere formal defect of the instrument, the agreement will be enforced in equity. 1 Ves. 256 ; 1 P. Wms. 243. And there are also several other cases of exception to this general rule,where, although the agreement was void at law, a specific performance has been decreed, there being a clear ground for the interference of equity, according to the general rules of the court. 2 Eq. Cas. Abr. 32, pl. 43; 2 Vern. 480; -2 P. Wms. 243; 2 Vern. 24; 3 P. Wms. 187. 3d. A specific performance will not be decreed, where the parties have an adequate remedy at law. 8 Ves. jr. 163; 2 Sch. & Lef. 553. And the court will exercise its discretion, and leave the contract at law, rather than compel a purchaser to take a doubtful title. 1 Ves. jr. 565 ; 2 P. Wms. 198; 2 Ves. 679; 1 Bro. C. C. 74; 4 Ibid. 80; 4 Ves. jr. 97; 5 Ibid. 186. 4th. If the vendor can make a good title, at the time the conveyance is to be made under the decree of the court, a’ specific performance will be decreed. 2 P. Wms. 630; 1 Atk. 12; 10 Ves. jr. 315; 5 Cranch 262; 8 Ves. jr. 655; 7 Ibid. 202. Sth. In the construction of a contract, it is considered as executed, from the time of its being entered into, uhless some other time be stipulated for its execution. And so powerful is this rule, that by an equitable fiction, it is held to alter the very nature of things, to make land money, and, on the contrary, to make money land. Upon this principle, land which is sold is considered in equity as the property of the vendee, from the making of the contract, and descendible and devisable as such. 2 Vern. 536 ; 1 P. Wms. 872; 3 Ibid. 215; 7 Ves. jr. 294. 6th. In decreeing the specific performance of an agreement, time may be dispensed with, if it be not of the essence of the contract. 1 Atk. 12; 2 P. Wms. 630; 5 Cranch 262; 7 Ves. jr. 273; 12 Ibid. 326 ; 4 Bro. 0. C. 329; 1 Ves. 450. But where there has been gross laches on the part of the plaintiff, a bill for specific performance will be dismissed. 5 Ves. jr. 145, 736, 818; 4 Ibid. 667, 686; 1 Bro. P. C. 27; 2 Eq. Cas. Abr. 686, pl. 5. 7th. Fraud will vitiate a contract in equity, as well as at law, and consequently, a fraudulent agreement will not be specifically enforced. And the morality of a court of equity, if the expression may be allowed, is even more strict than that of a court of law', in this particular, for suppres-sio neri, as well as suggestio falsi, is a ground for refusing to carry an agreement into effect. 3 Atk. 383 ; 2 Ibid. 271; 1 Bro. C. C. 440; Ambl. 495 ; 10 Ves. jr. 492. 94 1816] OF THE UNITED STATES. *204 Hepburn v. Dunlop. *Decree.—These causes came on to be heard this 8th day of February 1816, on the transcript of the *records, and were argued ri5 by counsel, whereupon, it is decreed and ordered, that the decree of L the circuit court of the district of Columbia for the county of Alexandria, in the suit of William Hepburn and the heirs and executors of John Dundas against Colin Auld, agent and attorney in fact for John Dunlop & Co., be reversed and annulled, and this court proceeding to give such decree as the said circuit court ought to have given, it is further ordered and decreed, that the said bill be dismissed. And it is further decreed and ordered, that the decree in the suit of John Dunlop & Co., against William Hepburn and the heirs and executors of John Dundas be reversed, each party paying his own costs in this court. And this court proceeding to give such a decree in the said suit as the said circuit court ought to have given, it is decreed and ordered, that the defendants, William Hepburn and the executors and executrix of John Dundas, do, on or before the first day of April next, pay to the complainants, John Dunlop & Co., or to their agent or attorney, duly authorized to receive the *same, the sum of $9143.72, being the difference between the sum r4s of $19,464.24, the value in current money, at the par of exchange, of *■ the sterling debt stated in the award of William Hartshorne, William Herbert and William Hodgson, to be due by Hepburn & Dundas to John Dunlop, with interest thereon after the rate of six per centum per annum, from the first day of January 1800, to the 27th of March 1809, and $21,112, the sum due upon William Graham’s contract on the first day of January, in the year 1800. It is further decreed and ordered, that the 6000 acres of land in the proceedings mentioned, be sold at public auction, to the highest bidder, at such times, in such proportions, and upon such terms as John Dunlop & Co., or their agent or attorney in fact, may direct, and that the proceeds of such sales be paid over to the said John Dunlop & Co., or their agent or attorney as aforesaid ; and upon such sale or sales being made, it is decreed and ordered, that the said William Hepburn, or his legal representatives, and the legal representatives of John Dundas, deceased^ do, by good and sufficient deed or deeds in law, to be prepared at the expense of John Dunlop & Co., convey the aforesaid land to to the purchaser or purchasers thereof, in fee-simple, with a general warranty, and free from all incumbrances. And it is further ordered and decreed, that the sales of the aforesaid land be made under the superintendence *of Colin Auld, the attorney in r4s fact of John Dunlop & Co., or of such other person or persons as the L said circuit court may appoint, in case the said Colin Auld should decline to serve, or the said circuit court should see good cause to make such other appointment. And it is further ordered and decreed, that the defendants, William Hepburn and the executors and executrix of John Dundas, deceased, do make up, state and settle, before a commissioner or commissioners to be appointed by the said circuit court, an account of the rents and profits of the said 6000 acres of land, since the 27th day of March 1809, and that they pay over the same to the complainants, John Dunlop & Co., or to their lawful agent or attorney. -And this cause is remanded to the said circuit court for such proceedings 95 207 SUPREME COURT [Feb’y The St. Joze Indiano. to be had therein, for carrying into execution the decree of this court in the premises, (a) *208] *The St. Joze Indiano : Lizaub, Claimant. Prize.—Enemy's property. Goods were shipped by D. B. & Co., of Liverpool, on board a neutral ship, bound to Rio de Janeiro, which was captured and brought into the United States for adjudication; the invoice was headed, “ consigned to Messrs. D. B. & F., by order and for account of J. L.in a letter accompanying the invoice from the shippers to the consignees, they say, “ for Mr. J. L., we open an account in our books here, and debit him, &c., we cannot yet ascertain the proceeds of his hides, &c., but find his order for goods will far exceed the amount of these shipments; therefore, we consign the whole to you, that you may come to a proper understanding with himIt was held, that the goods were, during their transit, the property, and at the risk of the enemy shippers, and therefore, subject to condemnation.' The San Jose Indiano, 2 Gallis. 268, affirmed. Appeal from the Circuit Court for the district of Massachusetts. The ship St. Joze Indiano, bound from Liverpool to Rio de Janeiro^ was captured and sent into the United States, as prize of war, in the summer of 1814. The ship and most of the cargo were condemned as British property, in the circuit court, and there was no appeal by any of the claimants, except in behalf of Mr. J. Lizaur, of Rio de Janeiro. The right of Mr. J. Lizaur, to have restitution of property belonging to him, at the time of capture, was not contested by the captors ; but it was contended, that the property in question, when captured, was at the risk of the shippers, Messrs. Dyson, Brothers & Co., of Liverpool. The bill of *2091 fading did not specify any order, or account and risk. The invoice J was headed, “ consigned to Messrs. Dyson, Brothers & Finnie, by order, and for account of J. Lizaur.” In a letter accompanying the bill of lading and invoice, of the 4th of May 1814, from Dyson, Brothers & Co., to Dyson, Brothers & Finnie, they say, “ For Mr. Lizaur, we open an account in our books here, and debit him, &c. We cannot yet ascertain the proceeds of his hides, &c., but find his order for goods will far exceed the amount of these shipments, therefore, we consign the whole to you, that you may come to a proper understanding with him.” The house of Dyson, Brothers & Co., of Liverpool, and of Dyson, Brothers & Finnie, of Rio, consist of the same persons; goods claimed in behalf of the latter house were condemned, on the ground, that both firms represented the same parties in interest, and from this decision, there was no appeal. Harper, for the appellant and claimant.—This case may be contrasted with those said to be similar. In the case of Kimmel & Ain ers (The Merrimack, 8 Cr. 317), on the authority of which this portion of the cargo was condemned in the court below, the claimants had ordered the goods shipped, but there was no evidence that they had paid for any part of the goods, or that they were charged to them by the shippers. In that case, the breaking out of the war produced a change in the destination of the goods, and a com-*2101 control over them was retained by the vendor, which control J *was exercised, by his directing his agent not to deliver them with- (a) Mr. Justice Livingston and Mr. Justice Story did not sit in this cause. 96 1816] OF THE UNITED STATES. 210 The St. Joze Indiano. out payment in cash, in case war should have been declared before their arrival. The doctrine in the case of the Messrs. Wilkins (Ibid.) fully bears out the present claim. In that case, the mere right of stoppage in transitu was held to be vested by the shipper in his agent, to be exercised only in the event of insolvency. But in the case now before the court, the power pf Dyson & Co. was limited to an arrangement for the payment of a certain part of the price only which remained unpaid. In the case of the Messrs. Wilkins no part was paid in advance, and the goods were not charged to the claimants, another circumstance which distinguishes it from the present. The case of Magee & Jones (The Venus, 8 Cr. 253), and that of Dunham, & Randolph (TheFrances, 9 Ibid. 183), was a mere offer to sell, not a sale agreed to by the vendee, like that in the present case. Dexter, for the respondents and captors.—The case is clearly within the principles adjudged. Thus, it has been determined, incidentally, at the present term, in the case of Van Wagenen (The Marg and Susan, ante, p. 46), that property is not immediately vested in the correspondent, by a purchase by his agent, by order, whether it be with the money of the former or latter. The case of Messrs. Wilkins was not a unanimous decision of the court, but is clearly distinguishable from the present. *Here, r*911 there was no change of possession from the shippers : the goods were in their possession, during the voyage, by their agent, the master’; had the goods arrived, they would still have been in their possession, by theii’ agents, the consignees. If the goods remained the property of the shippers, at the time of shipment, and during the voyage, then they became the property of the captors, jure belli. They remained the property of the shippers, because they were consigned to their agents, to be delivered, contingently, to the claimant. Therefore, the goods are confiscable as prize of war. The cases of Magee th Jones, and of Dunham cb Randolph, are in point. March 9th, 1816. Story, J., delivered the opinion of the court, and after stating the facts, proceeded as follows :—The single question presented on these facts is, in whom the property was vested at the time of its transit; if in Mr. Lizaur, then it is to be restored; if in the shippers, then it is to be condemned. It is contended, in behalf of the claimant, that the goods having been purchased by the order, and partly with the funds, of Mr. Lizaur, the property vested in him immediately, by the purchase, and the contract being executed by the sale, no delivery was necessary to perfect the legal title: that nothing was reserved to the shippers but a. mere right of stoppage in transitu, and that if they had been burnt before the shipment, or lost during the voyage, the loss must have fallen on Mr. Lizaur. *The doctrine as to the right of stoppage in transitu, cannot apply to this case. That right exists in the single case of insolvency, and L 1 presupposes, not only that the property has passed to the consignee, but that the possession is in a third person, in the transit to the consignee. It cannot, therefore, touch a case where the actual or constructive possession still remains in the shipper, or his exclusive agents. In general, the rules of the prize court, as to the vesting of property, are the same with those of the common law, by which the thing sold, after the completion of the con- 1 Wheat.—7 97 212 SUPREME COURT [Feb’y The St. Joze Indiano. tract, is properly at the risk of the purchaser, (a) But the question still recurs, when is the contract executed ? It is certainly competent for an agent abroad, who purchases in pursuance of orders, to vest the property in his principal, immediately on the purchase. This is the case when he purchases exclusively on the credit of his principal, or makes an absolute appropriation * q1 an<^ designation of the property for his principal. But where a mer-J chant abroad, in pursuance of orders, either sells his own goods, or purchases goods on his own credit (and thereby, in reality, becomes the owner), no property in the goods vests in his correspondent, until he has done some notorious act to divest himself of his title, or has parted with the possession, by an actual and unconditional delivery, for the use of such correspondent. Until that time, he has, in legal contemplation, the exclusive property, as well as possession ; and it is not a wrongful act in him, to convert them to any use which he pleases. He is at liberty to contract upon any new engagements, or substitute any new conditions in relation to the shipment. These principles have been frequently recognised in prize causes, .heretofore decided in this court. (5) In the present case, the delivery to the master was not for the use of Mr. Lizaur, but for the consignees, a house composed of the same persons * , *as the shippers, and acting as their agents. They, therefore, retained -* the constructive possession, as well as right of property, in the shippers ; and it is apparent from the letter, that the shippers meant to reserve to themselves, and to their agents, in relation to the shipment, all those •powers which ownership gives over property. It is material also, in this view, that all the papers respecting the shipment, were addressed to their •own house, or to a house acting as their agents, and the claimants could (a) By the common law, the right of property in the thing sold is completely vested in the purchaser, by the execution of the contract, subject to the equitable right of stoppage in transits, in case of insolvency, and where the bill of lading has not been, >in the mean time, indorsed to a third person. But by the civil law, the right of property was not vested in the purchaser, unless the goods were paid for, or sold on a credit. Inst. lib. 2, tit. 1, § 41 ; Pothier, Traité de Vente, No. 322. But this rule is ■not copied by the Napoleon code, which, on the contrary, adopts a principle similar to that of the common law. Elle (la vente) est parfarite entre les parties, et la propriété est acquise de droit a l'egard du vendeur, des qu'on est convenue de la chose et du prix, quoique la chose n'ait pas encore été livrée ni le prix payé. Code Napoleon, liv. 3, tit. .Ç, c. 1, No. 1583. The French commercial code also subjects the goods sold to the right of stoppage in transitu, by the vendor, upon the same conditions with our own .’law. Code de Commerce, liv. 3, tit. 3, De la (Revendication. (&) In The Venus, at February term 1814 (8 Cr. 253), on the claim of Messrs. Magee & Jones, Mr. Justice Washington, in delivering the opinion of the court, observed: “ To effect a change of property, as between seller and buyer, it is essential, that there should be a contract of sale, agreed to by both parties, and if the thing agreed to be purchased is to be sent by the vendor to the vendee, it is necessary to the perfection of the contract, that it should be delivered to the purchaser, or to his agent, which the master of a ship, to many purposes, is considered to be.” And adverting to the facts of that claim, he further says : “ The delivery of the goods to the master of the vessel was not for the use of Magee & Jones, any more than it was for the shipper solely, and consequently, it amounted to nothing, so as to divest the property out of the shipper, until Magee should elect to take them on joint account, or to act as the agent of Jones.” 98 1816] OF THE UNITED STATES. 214 Renner v. Marshall. have no knowledge or control of the shipment, unless by the consent of the consignees, under future arrangements to be dictated by them. In this view, this case cannot be distinguished from that of Messrs. Kimmell & Alvers; and it steers wide of the distinction upon which Messrs. Wilkins’ claim was sustained. {The Merrimack, 8 Cr. 317.) The authorities also cited at the argument, by the captors, are exceedingly strong to the same effect. The Aurora, 4 Rob. 218, approaches very near to the present case. There, the shipment, by the express agreement of the parties, was, in reality, going for the use, and by the order, of the purchaser, but consigned to other persons, who were to deliver them, if they were satisfied for the payment. And Sir William Scott there quotes a case as having been lately decided, where goods, sent by a merchant in Holland, to A., a person in America, by order, and for account, of B., with directions not to deliver them, unless satisfaction should be given for the payment, were condemned as the property of the Dutch shippers. *On the whole, the court are unanimously of opinion, that the goods included in this shipment were, during their transit, the prop- *• erty, and at the risk, of the shippers, and therefore, subject to condemnation. The claim of Mr. Lizaur must, therefore, be rejected. Sentence affirmed, with costs. Renner & Bussard v. Marshall. Abatement.—Lis pendens.—Assessment of damages. The commencement of another suit, for the same cause of action, in the court of another state since the last continuance, cannot be pleaded in abatement of the original action. If matter in abatement be pleaded puis darrein continuance, the judgment, if against the defendant, is peremptory.1 Where the action is brought for a sum certain, or which may be rendered certain by computation, judgment for the damages may be entered by the court, without a writ of inquiry. Error to the Circuit Court for the district of Columbia, for Washington county. The defendant in error, at June term 1813, declared against the plaintiffs in error, in assumpsit, upon an inland bill of exchange, drawn by one Rootes, on Renner & Bussard, and accepted by them, to which declaration they pleaded non assumpsit, and issue was thereupon joined, and the cause was continued to December term 1813. At that term, the plaintiffs in error appeared, and *pleaded, “ that, _ after the last continuance of the plea aforesaid, to wit, the first Mon-day of June, in .the year 1814, from which day the plea aforesaid was further continued here until this day, to wit, the fourth Monday of December, in the year last aforesaid, and before this day, to wit, on the 19th day of October, in the year last aforesaid, before the superior court of chancery of the commonwealth of Virginia, &c., the plaintiff exhibited his certain bill of complaint against the defendants, &c. ; and also against one Anthony Buck and one Miles Dowson, complaining and alleging in his said bill, that on the 12th day of October, in the year 1812, Thomas R. Rootes drew his bill of exchange upon the defendants, &c. And the said defendants further 1 Harkness v. Harkness, 5 Hill 213. 99 216 SUPREME COURT / [Feb’y The Nereide. say, that the plea aforesaid, for which the said defendants, by the said plaintiff, in the said bill bf complaint mentioned, are impleaded in the said superior court of chancery as aforesaid, is for the same identical matter and cause of action, of and for which the said plaintiff hath now impleaded the said defendants, Renner & Bussard,” &c. To which the plaintiff replied the prior pendency of the suit in the circuit court ; and the defendants rejoined, in substance, the same matters as contained in their plea ; whereupon, the plaintiff demurred specially. Upon which, the court rendered judgment, “that the plea of the said Daniel Renner and Daniel Bussard, by them above pleaded to the writ and declaration of the said Horace Marshall, and the plea of the said Daniel Renner and * Daniel Bussard, by way *of rejoinder to the said replication of the J said Horace Marshall, and the matters therein contained, are not sufficient in law to preclude him, the said Horace Marshall, from maintaining his action aforesaid ; therefore, it is considered by the court here, that the aforesaid Horace Marshall recover against the said Daniel Renner and Daniel Bussard, as well the sum of, &c., his damages,” &c. The cause was argued by Jones and Key, for the plaintiff in error, and by Lee, for the defendant in error. March 11th, 1816. Story, J., delivered the opinion of the court.—The first question in this case is, whether the commencement of another suit, for the same cause of action, in the court of another state, since the last continuance, can be pleaded in abatement of the original suit ? It is very clear, that it cannot. A subsequent suit may be abated, by an allegation of the pendency of a prior suit; but the converse of the proposition is, in personal actions, never true. The decision of the circuit court of the district of Columbia overruling the plea was, therefore, correct, (a) *The next question is, whether the judgment rendered on the J overruling of the plea ought to have been peremptory, or an award of responders ouster. This point is completely settled by authority. If matter in abatement be pleaded puis darrein continuance, the judgment, if against the defendant, is peremptory, as well on demurrer, as on trial. (6) The last question is, whether judgment could be entered up for the plaintiff for the amount of his damages, by the court, without a writ of inquiry ? This also is completely settled by authority, in all cases whether the action is brought for a sum certain, or which may be made certain, by computation, (c) Judgment affirmed, with costs. O 7 (a) The exception reijudicatcR applies only to final or definitive sentences, in another state, or in a foreign court, upon the merits of the case ; and the rule has even been applied to the pendency of a cause in an inferior court in the same state. Bownc ®. Joy, 9 Johns. 221, and the authorities there cited. Sed quœre? if it were alleged that the inferior court had jurisdiction? Fitzg. 314. But whether the suit be pending in a foreign or a domestic court, a prior suit cannot be abated by thé allegation of the pendency of a suit subsequently brought. (5) See Chitt^r on Plead. 636. (c) See Holdipp v. Otway, 2 Wms. Saund. 107, note 2 ; Maunsell v. Lord Massa-reene, 5 T. R. 87 ; Buthen v. Street, 8 Ibid. 326 ; Nelson v. Sheridan, Ibid, 395 ; Byron 100 1816] OF THE UNITED STATES. *219 *Morean v. United States Insurance Company. Marine insurance.—Memorandum articles. The insurer on memorandum articles, is only liable for a total loss, which can never happen where the cargo, or a part of it, has been sent on by the assured, and reaches the original port of its destination.1 Where the ship, being cast on shore, near the port of destination, the agent of the assured employed persons to unlade as much of the cargo (of corn) as could be saved, and nearly one-half was landed, dried and sent on to the port of destination, and sold by the consignees, at about one-quarter the price of sound corn; this was held not to be a total loss, and the insurer not to be liable. Morean v. United States Ins. Co., 3 W. C. C. 256, affirmed. Error to the Circuit Court for the district of Pennsylvania. This was an action commenced by the plaintiff in error, upon a policy of insurance, dated the 14th of December 1812, on goods on board the brig Betsey, at and from Cape Henry to Lisbon, at a premium of six per cent., on which $5000 were underwritten by the defendants, and valued at that sum, declared to be against all risks, except British capture, warranted American property. The jury found a verdict for the plaintiff, subject to the opinion of the court upon the following facts, agreed by the parties : The cargo consisted of 4406 bushels of Indian corn, 100 barrels of navy bread) and 20 barrels of corn-meal. The brig sailed from Baltimore, on the 11th of November 1812 and from Cape Henry, on the 13th of the same month. She experienced, on the voyage, many and severe gales of *wind. On the 18th of December, she passed the rock of Lisbon, L and came to anchor about four miles below Belem Castle. She leaked considerably, in consequence of the injury she had sustained from the severe gales to which she had been exposed. After passing the rock, the wind died away, and the current being adverse, she came to anchor. The master and supercargo landed, went through the customary forms, at Belem, to obtain a permit to pass the castle, and then proceeded to Lisbon. The health-boat visited the brig, and ordered her to get above the castle, as soon as possible. On the 19th, she was again exposed to a heavy and fatal gale, and drove ashore near to Belem Castle, the sea breaking over her, and the crew hanging by the rigging to preserve their lives. The supercargo considered both vessel and cargo as totally lost. By directions of the customhouse, as much of the cargo as could be got out, was unladen by a number of French prisoners, who were employed for that purpose. The cargo was all wet, and the part of it which was then taken out was carried to the fort, where it was spread and dried. From thence, it was carried to Lisbon in lighters, and was sold in the corn-market, by the consignee of the cargo. The quantity so saved and sold amounted to about 1988 bushels, which was sold at 50 cents a bushel, whereas, the price of sound corn was $2.25 a bushel. The supercargo petitioned for liberty, to sell the corn at the place where it v. Johnson, Ibid. 410; Thellusson ®. Fletcher, 1 Doug. 302; Rashleigh v. Salmon, 1 H. Bl. 352; Andrews ®. Blake, Ibid. 529; Longman ®. Fenn, Ibid. 541; Brown®. Van Braam, 3 Dall. 355; Graham ®. Bickham, 1 Ibid. 185; Graham ®. Bickham, 4 Ibid. 149. 1 s. r. Humphreys v. Union Ins. Co., 3 Mason Sumn. 220. And see Insurance Co. v. Fogarty, 429; Robinson v. Commonwealth Ins. Co., 3 19 Wall. 640. 101 220 SUPREME COURT [Feb’y Morean v. United States Insurance Co. - was first deposited and dried, which could not be granted, and he was obliged to submit to the custom of the place, and allow it to be sold at the corn-market. *The brig was so completely wrecked, that she was sold, J with her materials, where she lay, in lots. Had the supercargo been left to the free exercise of his own judgment, he would not have attempted to save any part of the cargo, in consequence of the total damage, and the great expense of saving it. The net proceeds of the cargo were not much more than the expenses of saving it, including those of the supercargo. The port of Lisbon commences above Belem Castle, and the custom of the place is, to discharge cargoes of corn between that castle and Cantara, which latter place is from one to two miles below Lisbon. The vessel never arrived at her port of discharge. On the 22d of December, she was entered at the custom-house, by an American vice-consul, which he said was necessary; but port-dues do not attach to vessels, until they pass the castle. Still, as part of the cargo was carried to Lisbon, the entry was made by the consul, and the dues were paid. On the 11th of March 1813, the plaintiff, having received notice of the shipwreck, offered to abandon, which was refused. Upon these facts, the circuit court gave judgment for the defendants, and the cause was brought by writ of error into this court. Pinkney, for the plaintiff.—By the shipwreck, and breaking up of the voyage, the plaintiff was entitled to abandon; and there is no distinction in law in this respect between memorandum articles and general articles. The wreck disabled the ship from transporting the commodity, and the assured *999i was n0$ *obliged to find another vehicle to carry it on. Here, more J than a moiety of the thing insured was annihilated, to say nothing of the deterioration of the rest. By the contract, it became the duty of the agent of the assured, to labor about the thing ; and if the wreck and consequent damage justified the right of abandonment, what effect can the conduct of the supercargo have ? The subsequent transportation can have no effect on the right of abandonment: the supercargo was compelled to carry it on, by the Portuguese government, for the supply of the capital. The law holds, that the assured shall not abandon, in the case of memorandum articles, upon deterioration merely. This is not a mere technical total loss : it is the same thing as if the waves of the sea had washed this portion of the cargo up to Lisbon. The usage of the government, in compelling a sale in such cases, must have been equally known to both parties, and ought to operate equally on both. Harper, contra.—1. A distinction is here attempted to be taken, on account of the nature of the peril by which the loss was occasioned. But the law prescribes, that the assured must carry on memorandum articles, if possible, in another vehicle. No degree of injury, short of total destruction, will justify the assured in abandoning, without making an effort to carry on the articles ; and their actual arrival at the port of destination, no matter how, prevents abandonment. Marsh, on Ins. (Condy’s ed.) 223, and the cases *99ql ^ere cited- Our policies contain no stipulation similar *to those in J the English, as to “ stranding of the ship,” in the case of memorandum articles. Wreck cannot help the assured, where the consequence is the destruction of the voyage only, without the actual destruction of the thing. The right of abandonment exists, while the peril of total loss exists ; but 102 1816] OF THE UNITED STATES. 223 Moreau v. United States Insurance Co. when the article is saved from that peril, the right no longer exists. Mag-grath n. Churchy 1 Caines 211; Neilson n. Columbian Ins. Co., <3 Ibid. 108 ; Schieffelin v. New York Ins. Co., 9 Johns. 21 ; Wilson x. Hoy al Ins. Co., 3 Camp. 623 ; Anderson v. Royal Ins. Co., 7 East 38. 2. The right of abandonment was not exercised in due time ; not until after the peril had ceased. Memorandum articles may be abandoned, while they are submerged, or the hand of the enemy is upon them ; but here, the loss of the voyage was repaired by other means found to carry on the goods, before the abandonment is made. (Ibid.) They were transported, not by violence, but according to the usage of the country ; and the parties must be considered, in law, as having assented to this usage. Pinkney, in reply.—If the assured was not obliged to carry on the com-moditities, and he would have had a right to abandon, at the time, nothing subsequent has divested it. The sole object of the memorandum clause is, to exempt the insurer from liability for deterioration only, and the reason was, the inherent tendency of these articles to decay. The destruction of the vehicle, and the destruction of the greater part of the things transported, justified *the abandonment. None of the cases cited apply to this [-*994 case ; and the insurer knew of the usage, as well as the assured. If L this case be determined not to be a case justifying abandonment, on account of the saving of so small a part, what case of abandonment of memorandum articles can exist ? The abandonment was in time, because made in good faith, and as soon as the assured knew of the peril. March 11th, 1816. Washington, J., delivered the opinion of the court, and after stating the facts, proceeded as follows :—All considerations connected with the loss of the cargo, in respect to quantity or value, may, at once, be dismissed from the case. As to memorandum articles, the insurer agrees to pay for a total loss only, the assured taking upon himself all partial losses, without exception. If the property arrive at the port of discharge, reduced in quantity or value, to any amount, the loss cannot be said to be total in reality, and the assured cannot treat it as a total, and demand an indemnity for a partial loss. There is no instance where the assured can demand as for a total loss, that he might not have declined an abandonment, and demand a partial loss. But if the property insured be included within the memorandum, he cannot, under any circumstances, call upon the insurer for a partial loss, and consequently, he cannot elect to turn it into a total loss. These principles are. clearly established by the case of Mason x. Skur-ray, at N. P. 1780, Park 116 ; Marsh. (Condy’s ed.) 223 ; Neilson v. * Columbian Insurance Company, 3 Caines 108 ; Cocking n. Fraser, [-*095 Park 114; Marsh. (Condy’s ed.) 227 ; McAndrews v. Vaughan, at N. P. 1793, Park 114 ; Dyson v. Rowcroft, 3 Bos. & Pul. 474 ; and Mag-grath v. Church, 1 Caines 211. The only question that can possibly arise, in relation to memorandum articles, is, whether the loss was total or not ? and this can never happen, where the cargo, or a part of it, has been sent on by the assured, and reaches the original port of its destination. Being there, specifically, the insurer has complied with his engagements ; everything like a promise of indemnity against loss or damage to the cargo being excluded from the policy. If the question turn upon the totality of the loss, unconnected with the subject of loss, by deterioration of the cargo in value, or 108 225 SUPREME COURT [Feb’y Morean v. United States Insurance Co. reduction in quantity, there is no difference between memorandum and other articles. If the loss be total, in reality, or is such as the assured is permitted to treat as such, he is entitled to abandon, and recover as for a total loss, in the case of memorandum articles, but always with this exception, that he is not permitted to turn a partial into a total loss. Keeping this distinction in view, the loss of the voyage by capture, shipwreck or otherwise, may be treated as a total loss. This is the doctrine in the case of Dyson v. Hower oft, in which the right to abandon was placed, not upon the ground of deterioration of the cargo, but upon the justifiable necessity which resulted from it, of throwing the cargo overboard: * *^8 was, in effect, the same thing as if it had, in a storm, been swept J from the deck. Such, too, was the case of Manning v. Newnham, Park 169. In Cocking v. Fraser, no such necessity existed, and the breaking up of the voyage was attempted to be justified by the damaged state of the cargo, which, per se, did not justify the assured in putting an end to the voyage, and thus to turn a partial loss, for which the insurer was not liable, into a partial loss. Maggrath v. Church establishes the same doctrine. Now, what is the present case ? The ship being thrown on shore, within a mile or two from her port of destination, the agent of the assured employs persons to unlade as much of the cargo as could be saved, and nearly one-half was, by his exertions, landed, dried, and sent to the market at Lisbon, and sold by the consignees, at about one-quarter the price of sound corn, leaving a very inconsiderable sum for the owner, after paying the expenses. Is not this precisely the case of Neilson v. Columbian Insurance Conpany, and Anderson v. The Same, 3 Caines 108, with this difference only, that in the first case, the assured declined sending on the corn, when he might have done so, and consequently, he was not permitted to turn a partial into a total loss, by his own neglect; and in the latter case, part of the cargo having been rescued from the wreck, before the offer to abandon waa made, the assured could not claim as for a total loss, either on *22'"! accoun^ the injury * which the corn had sustained, or of his own • act in not sending it forward to its port of destination. In the case now before the court, the cargo which was saved was sent forward, and sold at the port of its destination. In addition to the cases above referred to, the cases of Hays v. -* Chesapeake Insurance Company fl Cranch 415),(a) *and Marcardier (a) This was an insurance on hides, “ warranted by the assured free from average, unless general.” The declaration was for a total loss by perils of the seas; but it appeared in evidence, that 3288 hides (the whole number insured being 14,565) were put on board of a lighter, to be transported from the vessel to their place of destination ; that the lighter, on the passage to the shore, was sunk, by which accident, 789 of the hides, of the value of $4000, were totally lost, and the residue, to the number of 2491, were fished up and saved at the expense of $6000, which was paid by the assured. The hides, thus saved, were delivered to his agent, and sold on his account. The whole sum insured on the cargo was $25,000. In delivering the opinion of the court, it was remarked by Livingston, J., that whatever might have been the motive to the introduction of this clause in policies of insurance, which was done as early as the year 1749, and most probably, with the intention of protecting insurers against losses arising solely from a deterioration of the article, by its own perishable quality, or whatever ambiguity might once have existed, from the term average being used in 104 1816] OF THE UNITED STATES. 228 Morean v. United States Insurance Co. v. The Same, in this court (8 Ibid. 39), (a) are strongly applicable to the present, and seem, in a *great measure, to settle it. But it is con- r*o2Q tended by the counsel for the plaintiff, that if the loss be such L different senses, that is, as signifying a contribution to a general loss, and also a particular or partial injury falling on the subject insured, it was well understood, at the present day, with respect to such articles, that underwriters are free from all partial losses, of every kind, which do not arise from a contribution towards a general average. It only remained, then, to examine (and so the question had been properly treated at the bar), whether the hides which were sunk, and not reclaimed, constituted a total or partial loss, within the meaning of this policy. It had been considered as total, by the counsel for the assured, but the court could not perceive any ground for treating it in that way, inasmuch as out of many thousand hides which were on board, not quite 800 were lost, making in point of value somewhat less than one-sixth part of the sum insured. If there were no memorandum in the way, and the plaintiff had gone on to recover, as in that case he might have done, it was perceived at once, that he must have had judgment only for a partial loss, which would have been equivalent to the injury actually sustained. But without having recourse to any reasoning on the subject, the proposition appeared too self-evident not to command universal assent, that when only part of a cargo, consisting all of the same kind of articles, is lost, in any way whatever, and the residue (which in this case amounted to much the greatest part) arrives in safety at its port of destination, the loss cannot but be partial, and that it must for ever be so, so long as a part continues to be less than the whole. This, then, being a particular loss only, and not resulting from a general average, the court was of opinion that the defendants were not liable for it. (a) This was an action on a policy of insurance for $31,000, upon any kind of lawful goods, on board the brig Betsey, on a voyage from New York to Nantz. The cargo was of the invoice value of $29,889, of which $7439 were in memorandum articles. The brig sailed on the voyage, but was compelled, by stress of weather, and other accidents, to bear away for the West Indies, and arrived at Antigua, where the master applied to the court of vice-admiralty for a survey; upon which the cargo was landed, and ordered by the court to be sold for the benefit of the concerned. Under this sale, the net proceeds of the cargo amounted to $13,767, and of the memorandum articles to $6863. The vessel was repaired, within a reasonable time, and capable of performing the voyage, with the original cargo, but the master abandoned the voyage, at Antigua. Of the cargo, 99 bags of coffee were spoiled and thrown overboard, and the residue greatly damaged by the perils of the seas ; and the whole cargo, including the memorandum articles, sustained a damage during the voyage, exceeding a moiety of its original value. Within a reasonable time after receiving information of the. loss, the plaintiff abandoned the whole cargo to the underwriters. The plaintiff contended that he was entitled to recover as for a total loss of the cargo insured, including the memorandum articles. Story, J., who delivered the opinion of the court, stated, that a technical total loss might arise from the mere deterioration of the cargo, by any of the perils insured against, if the deterioration be ascertained at an intermediate port of necessity, short of the port of destination. In such case, although the ship be in a capacity to perform the voyage, yet, if the voyage be not worth pursuing, or the thing insured be so damaged and spoiled, as to be of little or no value, the assured has a right to abandon the projected adventure, and throw upon the underwriter the unprofitable and disastrous subject of insurance. It had, therefore, been held, that if a cargo be damaged, in the course of the voyage, and it appear, that what has been saved is less in value than the amount of the freight, it is a clear case of a total loss. It did not, however, appear, that the exact quantum of damage which shall authorize an abandonment as for a total loss, had ever become the direct subject of adjudication in the English courts. The celebrated Le Guidon, c. 7, art. 1, considers that a damage exceeding the moiety of the value of the thing insured, is sufficient to authorize an abandonment. 105 *230 SUPREME COURT [Feb’y Moreau v. United States Insurance Co. *as that the insured might at one time have treated it as total, it con-*2^11 ^nues to be so, unless at the time *when the offer to abandon is J made, clear of the .effects of the peril, and in a condition to prosecute the voyage, it is restored to his possession. Now, this is certainly not the condition of property, which, at the time of the offer to abandon, is in the possession of a re-captor, who has a right to retain it, until he is paid his salvage. But in the present case, the corn never was out of the possession of the agents of the assured, who exercised every act of ownership over it, This rule had received some countenance from more recent elementary writers; and from its public convenience and certainty, had been adopted as the governing principle, in some of the more respectable commercial states in the Union, and was now so generally established as not easily to be shaken. 1 Johns. Cas. 141; 1 Johns. 335, 406; Marshall on Insurance 562, note 92 (Condy’s ed.); Park 194 (6th ed.). But this rule has been deemed not to extend to a cargo consisting wholly of memorandum articles. The legal effect of the memorandum is, to protect the underwriters from all partial losses; and if a loss by deterioration, exceeding a moiety in value, would authorize an abandonment, the great object of the stipulation would be completely evaded. It seems, therefore, to be the settled doctrine, that nothing short of a total extinction, either physical, or in value, of memorandum articles, at an intermediate port, would entitle the assured to turn the case into a total loss, where the voyage is capable of being performed. And perhaps, even as to an extinction in value, where the commodity specifically remains, it might yet be deemed not quite settled, whether, under the like circumstances, it would authorize an abandonment for a total loss. The case before the court was of a mixed character. It embraced articles of both descriptions; some within, and some without, the purview of the memorandum. If, in such a case, a deterioration, exceeding a moiety in value, be a proper case of technical total loss, it will follow, that in many cases, the underwriter will indirectly be rendered responsible for partial losses on the memorandum articles. Suppose, in such a case, the damage to the memorandum articles were 40 per cent., and to the other articles 10 per cent., in the whole amounting to half the value of the cargo, the underwriter would be responsible for a technical total loss, and thereby made to bear the whole damage, from which the memorandum meant to exempt him. Indeed, cases might arise, in which the damage might exclusively fall on memorandum articles ; and if it exceeded the moiety in value of the whole cargo, might load him with the burden of a partial loss, in manifest contravention of the intention of the parties. A construction leading to such a consequence could not be admitted, unless it be unavoidable ; and the court were entirely satisfied, that such a construction ought not to prevail. The underwriter is, in all cases of deterioration, entitled to an exemption from partial losses on the memorandum articles ; and in order to effectuate this right, it was necessary, where a technical total loss is sought to be maintained, upon the mere ground of deterioration of the cargo, at an intermediate port, to a moiety of its value, to exclude from that estimate all deterioration of the memorandum articles. Upon this principle, in a cargo of a mixed character, no abandonment for mere deterioration in value, during the voyage, could be valid, unless the damage on the memorandum articles exceeded a moiety of the whole cargo, including the memorandum articles. The case was considered, as to the underwriter, the same as though the memorandum articles should exist in their original sound state. In this way, full effect was given to the contract of the parties. The underwriter would never be made responsible for partial losses on memorandum articles, however great; and the technical total losses for which alone he could be liable, were such as stood unaffected by the perishable nature of the commodity which he insures. Admitting, therefore, the rule to be correct, that the party has a right to abandon, when the depreciation exceeds a moiety of the value, the plaintiff had not brought himself within that rule, as applied to a cargo of a mixed nature, and there was, consequently, no total loss proved, by the perils of the seas. 106 1816] OF THE UNITED STATES. 231 Morean v. United States Insurance Co. subject, nevertheless to the laws and customs of the country to which it was sent, with which the insurer and assured are supposed to have been acquainted at the time they entered into this contract, and to which they impliedly agreed to submit. The cargo which was landed, not only continued in the possession, and under* the direction, of the agents of the assured, but it was relieved from the effects of the peril, as between the insurer and assured, and it was not only in a condition to prosecute the voyage, but it did in reality complete it. Upon the whole, it is the opinion of the court, that this is not such a loss as the defendants engaged to indemnify against, and that judgment should be given in their favor. Judgment affirmed, (a) (a) We are informed by Targa, c. 52, n. 18, p. 230, and Casaregis, Disc. 47, that in the practice of Italy, in order to avoid the difficulty of settling averages on perishable articles, the clause exclus« getto et avaria, as it was called, was introduced. The *French law requires goods, which, by their nature, are subject to particu- L lar detriment or diminution, such as grain, salt or merchandise subject to leakage, to be specified in the policy, otherwise the insurer is not liable for the damages or losses which may happen to these articles, unless the assured was ignorant of the nature of the cargo, at the time the contract was made. Ordonnance de la Marine, 1. 3, tit. 6, des Assurances, art. 31 ; Code de Commerce, liv. 2, tit. 10, art. 355. In the different ports of France, before the revolution, various clauses were inserted in the policy, excluding responsibility for losses not exceeding a certain per-centage on such articles. At Marseilles, the insurers exempted themselves from average losses, on certain voyages, by a clause which was construed to extend both to general and particular average, on vessel or cargo. Under this clause, franc d'avarie, the insurer was held answerable only for an entire loss of the subject insured. It was, however, determined not to extend to any case of technical total loss, which, by the French law, authorizes the assured to abandon—such as capture, stranding, shipwreck, &c. 1 Emerigon, Traité des Assurances, c. 12, §45, 46; Pothier, d'Assurance, No. 166; Valin, sur l’Ordonnance, liv. 3, tit. 6, Des Assurances, art. 47. The origin of the English memorandum is referred by Serjeant Dunning, in the case of Wilson v. Smith, 3 Burr. 1551, to its “ being better calculated to deliver the insurers from small averages, than adapting the premium to the nature of the commodity, as it might happen to be more or less liable to perish or suffer; which method would have made the policy too complicated, and which the Dutch had at first tried, but afterwards altered.” The English formula is as follows: “N. B. Corn, &c., are warranted free from average, &c., unless general, or the ship be stranded.” The last words, “or the ship be stranded,” have been omitted, for several years, in the forms of policies adopted by the English insurance companies, viz., the London Royal Assurance, and the Royal Exchange Assurance. 2 Selwyn’s N. P. 949. They are not inserted in the policies used in the United States. 107 *233 SUPREME COURT [Feb’y * Welch v. Mandeville. Dominus litis. A nominal plaintiff, suing for the benefit of his assignee, cannot, by a dismissal of the suit, under a collusive agreement with the defendant, create a valid bar against any subsequent suit for the same cause of action.1 Welch v. Mandeville, 2 Or. 0. C. 82, reversed. Error to the Circuit Court for the district of Columbia, for Alexandria county. This was an action of covenant, brought in, the name of Welch (for the use of Prior) against Mandeville & Jamieson. The suit abated as to Jamieson, by a return of “no inhabitant.” The defendant, Mandeville, filed two pleas. The second plea, upon which the question in this court arose, stated, that, on the 5th of July 1806, James Welch impleaded Mandeville & Jamieson, in the circuit court of the district of Columbia, for the county of Alexandria, in an action of covenant, in which suit such proceedings were had, that, afterwards, to wit, at a session of the circuit court, on the 31st day of December 1807, “the said James Welch came into court and acknowledged that he would not further prosecute his said suit, and from thence altogether withdraw himself.” The plea then averred, that the said James Welch, in the plea mentioned, was the same person in whose name the present suit was brought, and that the said Mandeville and Jamieson, in the former suit, were the same persons who *2341 are *in this suit, and that the cause of action was the J same in both suits. To this plea the plaintiff filed a special replication, protesting that the said James Welch did not come into court and acknowledge that he would not further prosecute the said suit and from thence altogether withdraw himself ; and averred, that James Welch, being indebted to Prior, in more than $8707.09, and Mandeville & Jamieson being indebted, by virtue of the covenant in the declaration mentioned, in $8707.09, to Welch, he, Welch, on the 7th of September 1799, by an equitable assignment, assigned to Prior, for a full and valuable consideration, the said $8707.09, in discharge of the said debt, of which assignment, the replication averred Mandeville & Jamieson had notice. The replication further averred, that the suit in the plea mentioned was brought in the name of Welch, as the nominal plaintiff, for the use of Prior, and that the defendant, Mandeville, knew that the said suit was brought, and was depending, for the use and benefit of the said Prior ; and that the said suit in the plea mentioned, without the authority, consent or knowledge of the said Prior, or of the attorney prosecuting the said suit, and without any previous application to the court, was “ dismissed, agreed.” The replication further averred, that the said James Welch was not authorized by the said Prior to agree or dismiss the said suit in the plea-mentioned ; and that the said Joseph Mandeville, with whom the suppoesd 1 In such case, the court will not permit the legal plaintiff to arrest the suit ; the cestui qui use has a right to impetrate the writ, and to carry on the suit for his own benefit. Insurance Co. v. Smith, 11 Penn. St. 124. But the court, in a proper case, will search out the actual plaintiff, and fix on him the responsibility of a party, by subjecting him to costs, a plea of set-off, or any other liability that may be necessary to protect the defendant. Armstrong v. Lancaster, 5 Watts 68. 108 1816] OF THE UNITED STATES. 234 Welch v. Mandeville. agreement for the dismissal of thé said suit was made, knew, at the time of making the said supposed agreement, *that the said James Welch had not authority from Prior to agree or dismiss said suit. The *-replication further averred, that the said agreement and dismissal of the said suit were made and procured by the said Joseph Mandeville, with the intent to injure and defraud the said Prior, and deprive him of the benefit of the said suit in the plea mentioned. The replication also averred, that the said Prior did not know that the said suit was dismissed, until after the adjournment of the court at which it was dismissed ; and further, that the supposed entry upon the record of the court in said suit, that the plaintiff voluntarily came into court and acknowledged that he would not further prosecute his said suit, and from thence altogether withdraw himself, and the judgment thereupon was made and entered by covin, collusion and fraud ; and that the said judgment was fraudulent. To this replication, the defendant filed a general demurrer, and the replication was overruled. It appeared by the record of the suit referred to in the plea, that the entry was made in these words : “This suit is dismissed, agreed,” and that this entry was made by the clerk, without the order of the court, and that there was no judgment of dismissal rendered by the court, but only a judgment refusing to reinstate the cause.1 The cause was argued by Zee, for the plaintiff, and Swann, for the defendant. March 11th, 1816. Story, J., delivered the opinion of the court.—The question upon these pleadings comes to this—whether a nominal plaintiff, suing for the benefit of *his assignee, can, by a dismissal of the suit, r*236 under a collusive agreement with the defendant, create a valid bar •-against any subsequent suit for the same cause of action ? Courts of law, following in this respect the rules of ' equity, now take notice of assignments of choses in action, and exert themselves to afford them every support and protection not inconsistent with the established principles and modes of proceeding which govern tribunals acting according to the course of the common law.. They will not, therefore, give effect to a release procured by the defendant, under a co vinous combination with the assignor, in fraud of his assignee, nor permit the assignor injuriously to interfere with the conduct of any suit commenced by his assignee to enforce the rights which passed under the assignment. The dismissal of the former suit, stated in the pleadings in the present case, was certainly not a retraxit ; and if it had been, it would not have availed the parties, since it was procured by fraud. Admitting a dismissal of a suit, by agreement, to be a good bar to a subsequent suit (on which we give no opinion), it can be so only when it is bondfide, and not for the purpose of defeating the rights of third persons. It would be strange, indeed, if parties could be allowed, under the protection of its forms, to defeat the whole objects and purposes of the law itself. It is the unanimous opinion of the court, that the judgment of the cir- 1 See Welch v. Mandeville, 7 Cr. 152. 109 236 SUPREME COURT L’Invincible. [Feb’y cuit court, overruling the replication to the second plea of the defendant, is erroneous, *and the same is reversed, and the cause remanded for J further proceedings. Judgment reversed, (a) *238] *L’Invincible : The Consul ok France and Hill & McCobb, Claimants. Prize jurisdiction. During the late war between the United States and Great Britain, a French privateer, duly commissioned, was captured by a British cruiser, afterwards re-captured by an American privateer; again captured by a squadron of British frigates, and re-captured by another American privateer, and brought into a port of the United States for adjudication: restitution, on payment of salvage, was claimed by the French consul. A claim was also interposed by citizens of the United States, who alleged, that their property had been unlawfully taken by the French vessel, before her first capture, on the high seas, and prayed an indemnification from the proceeds. Restitution to the original French owner was decreed; and it was held, that the courts of this country have no jurisdiction to redress any supposed torts committed on the high seas, upon the property of its citizens, by a cruiser regularly commissioned by a foreign and friendly power, except where such cruiser has been fitted out in violation of our neutrality.1 The Invincible, 2 Gallis. 29, affirmed. Appeal from the Circuit Court for the district of Massachutetts. The French private armed ship L’Invincible, duly commissioned as a cruiser, was, in March 1813, captured by the British brig of war Ea Mutine. In the ‘same month, she was re-captured by the American privateer Alexander ; was again captured, on or about the 10th of May 1813, by a British squadron, consisting of the frigates Shannon and Tenedos; and afterwards, in the * sarae month, again re-captured by the American privateer Young 1 *Teaser, carried into Portland, and libelled in the district court of Maine for adjudication, as prize of war. (a) By the common law, choses in action were not assignable, except to the crown. The civil law considers them as, strictly speaking, not assignable ; but, by the invention of a fiction, the Roman jurisconsults contrived to attain this object. The creditor who wished to transfer his right of action to another person, constituted him his attorney, or procurator in rem suam, as it was called* and it was stipulated, that the action should be brought in the name of the assignor, but for the benefit and at the expense of the assignee. Pothier, de Vente, No. 550. After notice to the debtor, this assignment operated a complete cession of the debt, and invalidated a payment to any other person than the assignee, or a release from any other person than him. Ibid. 110, 554; Code Napoleon, liv. 3, tit. 6, De la Vente, c. 8, § 1690. The court of chancery, imitating, in its usual spirit, the civil law, in this particular, disregarded the rigid strictness of the common law, and protected the rights of the assignee of choses in action. This liberality was at last adopted by the courts of common law, who now consider an assignment of a chose in action as substantially valid, only preserving, in certain cases, the form of an action commenced in the name of the assignor, the beneficial interest and control of the suit being, however, considered as completely vested in the assignee as procurator in rem suam. See Master v. Miller, 4 T. R. 340; Andrews ®. Beecker, 1 Johns. 411; Bates ®. New York Insurance Company, 3 Johns. Ch. 242; Wardell ®. Eden, 1 Johns. 532, innotis; Carver ®. Tracy, 3 Ibid. 426; Raymond v. Squire, 11 Ibid. 47; Van Vechten v. Greves, 4 Ibid. 406; Westor ®. Barker, 12 Ibid. 276. 1 The Bee, 1 Ware 332; The William, 1 Pet. Jur. 131; The Santissima Trinidad, 7 Wheat. Adm. 12. And see Hernandez v. Avery, 1 Journ. 283 ; The South Carolina, Bee 422. 110 1816] OF THE UNITED STATES. 239 L’Invincible. The proceedings, so far as material to be stated, were as follows : At a special term of the district court, held in June 1813, a claim was interposed by the French consul, on behalf of the French owners, alleging the special facts above mentioned, and claiming restitution of the ship and cargo, on payment of salvage. A special claim was also interposed by Mark L. Hill and Thomas McCobb, citizens of the United States, and.owners of the ship Mount Hope, alleging, among other things, that the said ship, having on board a cargo on freight, belonging to citizens of the United States, and bound on a voyage from Charleston, South Carolina, to Cadiz, was, on the high seas, in the latter part of March 1813, in violation of the law of nations and of treaties, captured by L’Invincible, before her capture by La Mutine, and carried to places unknown to the claimants, whereby the said ship Mount Hope and cargo became wholly lost to the owners, and thereupon praying, among other things, that after payment of salvage, the residue of said ship L’Invincible, and cargo, might be condemned and sold for the payment of the damages sustained by the claimants. At the same term, by consent, an interlocutory decree of condemnation to the captors passed against said ship L’Invincible, and she was ordered to be sold, and one moiety of the proceeds, after deducting expenses, was ordered to be paid to the captors, as salvage, and the other moiety to be brought into court, to abide the final decision of the respective claims of *the French consul J.* and Messrs. Hill & McCobb. *■ The cause was then continued for a further hearing unto September term 1813, when Messrs. Maisonarra & Devouet,.of Bayonne, owners of L’Invincible, appeared, under protest, and in answer to the libel and claim of Messrs. Hill & McCobb, alleged, among other things, that the ship Mount Hope was lawfully captured by L’Invincible, on account of having a British license on board, and of other suspicious circumstances, inducing a belief of British interests, and ordered to Bayonne for adjudication ; that (as the protestants believed) on the voyage to Bayonne, the Mount Hope was re-captured, by a British cruiser, sent into some port of Great Britain, and there finally restored, by the court of admiralty, to the owners, after which, she pursued her voyage, and safely arrived, with her cargo, at Cadiz, and the protestants thereupon prayed, that the claim of Messrs. Hill & McCobb might be dismissed. The replication of Messrs. Hill & McCobb denied the legality of the capture, and the having a British license on board the Mount Hope, and alleged embezzlement and spoliation by the crew of L’Invincible, upon the capture ; admitted the re-capture by a British cruiser, and the restitution by the admiralty, upon payment of expenses, and prayed that the protestants might be directed to appear absolutely and without protest. Upon these allegations, the district court overruled the objections to the jurisdiction of the court, and compelled the owners of L’Invincible to appear absolutely, and without protest, and thereupon, the *owners appeared absolutely, and alleged the same matters in defence which >• were stated in their answer under protest, and prayed the court to assign Messrs. Hill & McCobb to answer interrogatories touching the premises, which was ordered by the court. Accordingly, Messrs. Hill & McCobb made answer to the interrogatories proposed, except an interrogatory which required a disclosure of the fact, whether there was a British license on board, which McCobb (who was master of the Mount Hope at the time of the 111 241 SUPREME COURT . [Feb’y L’Invincible. capture) declined answering, upon the ground, that he was not compelled to answer any question, the answer to which would subject him to a penalty, forfeiture or punishment; and this refusal, the district court, on application, allowed. Hill, in answer to the same interrogatory, denied any knowledge of the existence of a British license. The cause was, thereupon, heard on the allegations and evidence of the parties, and the district court decreed, that Messrs. Hill & McCobb should recover against the owners of L’Invincible, the sum of $9000 damages, and the costs of suit. From this decree, the owners appealed to the circuit court, and in that court, their plea to the jurisdiction was sustained, and the claim of Messrs. Hill & McCobb dismissed, with costs. An appeal was, thereupon, entered by them to this court. Dexter, for the appellants.—The sole question is, whether the district court of Maine had jurisdiction ? It is a case, where a citizen, against whose *2421 ProPerty *a tort has been committed on the high seas, appears in his J own natural forum, and the res, which was the instrument of the wrong done, is within the territorial jurisdiction of his own country, and in possession of the court for other (lawful) purposes, when he applies for justice. 1. An injury of this nature is either to be redressed by a process in rem or in personam, and in either case, application must be made where the thing or person is found. The action is transitory in both cases ; where the party proceeds in rem, the possession of the thing gives jurisdiction to the tribunal having that possession. It is said, that in prize proceedings, the/brwm of the captor is the only one having jurisdiction. But what is the extent of the principle, and what are the exceptions to the rule ? The rule is not of a nature peculiar to prize proceedings, but it is rather a corollary from the general principles of admiralty jurisdiction. The locality of the question of prize or no prize must have been originally determined by the fact of the property being carried infra pruesidia of the captor’s country, and in possession of its courts. I agree, that the possession of the thing does not give jurisdiction to a neutral country, and the reason is, because the country is neutral. But this has only been recently settled ; and in the reign of Charles II., the question was referred to the crown lawyers in England (then neutral), whether the property of English subjects, unjustly taken by foreign cruisers, should not be restored to them by the English j «n court. (2 Bro. Civ. & Adm. Law 256.) *It is, however, now deter- J mined, that unless there has been a breach of neutrality in the capturé, the courts of a neutral state cannot restore, much less condemn. But this concession does not shake the position, that local jurisdiction is founded upon the possession of the res, which, in this case, having escaped from the former captor, the action becomes transitory, and follows the thing. There are several decisions of this court, all confirming, either directly or by analogy, the position now taken. Glass v. The Betsey, 3 Dall. 6 ; Talbot v. Jansen, Ibid. 133 ; Del Coly. Arnold, Ibid. 333 ; The Mary Ford, Ibid. 138. In the famous report of Sir George Lee, &c., on the memorial of the king of Prussia’s minister, relative to the non-payment of the Silesian Ipan, which was intended to maintain the strongest maritime pretensions of Great Britain, the only passage that even glances at the doctrine of the exclusive 112 1816] OF THE UNITED STATES. 243 L’Invincible. jurisdiction of the courts of the captor’s country is, that all captors are bound to submit their seizures to adjudication, and that the regular and proper court is that of their own country. But this principle is sustained rather by the authority of usage and treaties, than by elementary writers ; and yet, all the other incidental questions are illustrated by multifarious citations of elementary books, equally respected in Prussia as in England. The reporters do not fairly meet the menace of the Prussian monarch, to set up courts of prize in his own dominions ; but content themselves with asserting that it would be irregular, absurd and impracticable. *Had [*944 it been, at that time, settled by European jurists of authority, the L question would not have been made ; or, if made, would have been satisfactorily answered. The general principle has been rather assumed, than proved : and the practice of one nation, at least, contradicts it ; for the ordinance of Louis XIV. restores the property of French subjects brought into the ports of France, (a) 2. Suppose, the *question of prize or no prize to be exclusively within the jurisdiction of the courts of the capturing power, yet that L (a) Ordonnance de la Marine, liv. 3, tit. 9, Des Prises, art. 15. The same provision is contained in the 16th article of the Spanish ordinance of 1718 ; and Valin considers the restitution of the effects as a just recompense for the benefit rendered to the cap-tor, in granting him an asylum in the ports of the neutral country to whose subjects those effects belong. But Azuni contests this opinion, and maintains, that the obligation to restore in this case is founded on the universal law of nations. Part 2, c. 4, art.. 3, § 18. And it must be confessed, that the reasons on which Valin rests his opinion are by no means satisfactory ; so that the French and Spanish ordinances are evidently mere municipal regulations, which have not been incorporated into the code of public law, and cannot be justified upon sound principles. It is an observation, somewhere made by M. Portalis, that such regulations are not, properly speaking, to be considered laws, but are essentially variable in their nature, pro temporibus et causis, and are to> be tempered and modified by judicial wisdom and equity. These ordinances are,, indeed, supported by the practice of the Italian states, and the theory of certain Italian writers. Among the latter are Galliani and Azuni, both of whom maintain, each upon different grounds, the right of the neutral power, within whose territorial jurisdiction a prize^ brought, to adjudicate upon the question of prize or no prize, so far as the property of its own subjects is concerned. They are, however, opposed by their own countrymen, Lampredi, who, after assigning the reasons for his dissent, concludes thus : “ Egli (the neutra!) dunque dovrà rispettare questo possesso (that of the captor) lasciando che i giudici costituiti dal Sovrano del predatore lo dichiarino 0 legittimo, 0 illegittimo, e cosi 0 liberino la preda, 0 la facciano passare in dominio del predatore, purché questo giudizio si faccia fuori del suo territorio, ove nessuno usurpar può i dirriti spettanti al sommo impero. Efalso adunque in diritto quello, che asserisce il Galiani, ed il progretto, eh'egli propone sul giudizio delle prede non si portrebbe eseguire senza lesione dei diritti sovrani. Lampredi, p. 228. Since the decision of the case to which this note is appended, the following may be considered as the only exceptions to the general rule, that the question of prize or no prize, with all its incidents, is only to be determined in the courts of the captor’s nation, established in his country, or in that of an ally or co-belligerent. 1st. The case of a capture made by the cruisers of the belligerents, within the jurisdiction of a neutral power; and 2d. That of a capture made by armed vessels, fitted out in violation of its neutrality, and where the captured property, or the capturing vessel, is brought into its ports. The obvious foundation of these exceptions is to be discovered in the right and the duty of every neutral state to maintain its neutrality impartially, and neither to do nor suffer any act which might tend to involve it in the war. 1 Wheat.—8 113 245 SUPREME COURT L’Invincible. [Feb’y question does not arise in the present case. This is a question of probable cause. If the commander of L’Invincible took without probable cause, he had no right ; if he took with probable cause, then the claimants have sustained no injury, and ought not to recover damages ; consequently, no injury can result from the court taking cognisance of the suit. As to the spoliation, after the capture, that is still less a question of prize. 3. But be the general principles as they may, the jurisdiction having attached for other purposes, on re-capture, the former owner of a vessel unlawfully taken and despoiled by the prize, comes in and claims damages under the law of nations. *94.61 Pinkney, contrà.—If there be any rule of public *law better estab- -* lished than another, it is, that the question of prize is solely to be determined in the courts of the captor’s country. The report on the memorial of the king of Prussia’s minister, refers to it as the customary law of the whole civilized world. The English courts of prize have recorded it ; ithe French courts have recorded it ; this court has recorded it. It pervades :.all the adjudications on the law of prize, and it lies, as an elementary principle, at the very foundation of that law. The whole question, then, is, •whether this case be an exception to the general rule ? The positive law of nations has ordained the rule ; the natural law of nations has assigned the reasons on which it is founded ; and Rutherforth, in his Institutes (2 Ruth. 594), explains those reasons, which arise from the .amenability of governments to each other. A cruiser is amenable only to the government by whom he is commissioned ; that government is amenable to the power whose subjects are injured by him ; and after the ordinary prize judicature is exhausted, they are to apply to their own sovereign for redress. The principal object of that judicature is the examination into the .conduct.of the captors ; the question of property is merely incidental. But whatever the question may be, it is to be judged exclusively by the courts of the capturing power. It is contended, on the other side, that this jurisdiction must be exerted in rem ; but the jurisdiction to which Rutherforth .refers is much more extensive, not confining it to the question whether the *24.71 ProPerty be translated. If the *thing be within the possession of ‘the J court, then it exerts a jurisdiction in rem, by restitution or condemnation, as the case may be. But if not, then it exerts it on the person, and .inquires into the manner in which the captor has used his commission, and whether any wrong has been done to friends, under color of its authority. It is a gratuitous assumption, that prize jurisdiction is always in rem, as that of the ordinary^ court of admiralty usually is. The commissioned captor cantor cannot be responsible to any but his own sovereign ; from him he receives the law which forms his rule of conduct. Sir William Scott expressly admits, that his king can give him the law, and the judges of other European countries practically admit the same thing : à fortiori, can the sovereign give it to his delegated cruisers ; he being answerable over, in the first instance, diplomatically, and finally by war, to the injured nation. The captor is responsible only through the courts of his own country. 2. Is this case an exception to the general rule ? The reasons of the allowed exceptions do not apply to this case. Thus, the cases are, of violation of neutral territory ; or where a commission is issuçd to subjects of the 114 1816] OF THE UNITED STATES. 247 L’Invincible. neutral country ; or lastly, of a prize brought into its territorial limits with neutral property on board. In the case of Talbot n. Jansen, the commission was null, and captures under it were void; it was equivalent to no commission at all. Here is no pretence that the commission was null; that she had been fitted out here ; or that the thing captured had been brought within the grasp of our municipal law ; or that the capture was made within our limits. In *Del Col v. Arnold the ground of the decision was, that the thing was brought voluntarily into our limits, and the wrong done within *-those limits. The judgment must be supported on that ground, or it cannot be supported at all. As to The Betsey, its authority is doubtful, and it cannot be referred to any intelligible principle, unless it be, that the belligerent captor submits to the neutral jurisdiction, by bringing the property within it. The Cassius (3 Dall. 121), is directly in point for the captors, in the case now before the court. Why was the libellant’s application refused in that case ? Because the thing captured was not brought in; thereby showing that, in the present case, the prize not having been brought in, damages cannot be awarded against the captor. As to the ordinance of Louis XIV., it goes no further than this court did in the case of The Betsey. The same authority has been practically assumed among the Italian states ; but further, no nation, ancient or modern, has gone. The natural, customary and conventional law of nations are all equally adverse to it. The claimants have a remedy, correspondent to the extent of their injury, in the courts of France. The prize jurisdiction is as effectually exerted, when the property is not, as when it is, within its control. The cases are multiplied, where the thing is even lost, of an application compelling the captor to proceed to adjudication ; if he fails to show that the capture is lawful, he is mulcted in costs and damages. The Betsey, 1 Rob. 92. The cruisers of *every nation are bound to obey the instructions of the sovereign power, whether lawful or not. The condemnations under the British orders in council of November 1793, were reversed by the Lords of Appeal, and mere dry restitution decreed, without damages, because the cruisers were justified by the instructions. But the commissioners under the 7th article of the British treaty of 1794, gave damages for what the Lords of Appeal were obliged judicially to refuse them, upon the authority of Rutherforth, and upon the ground, that the British government was answerable over to the injured power. In the present case, if justice should be refused in the courts of France, the French government would be answerable -over to this country. The process, is here, in effect, in personam, and it is as if the captor were here. You go beyond retaining your own property merely, and lay your hand on his ; which is his by the municipal code only : by the law of nations, it is the property of the state. It is certain, he was not originally responsible personally, and the capture and re-capture can have made no difference. The acts exerted over him by the enemy could not have changed his responsibity ; nor can the captors having failed to proceed to adjudication in France, for the claimants may compel him ; nor the bringing in of his vessel, for, as to him, it was involuntary. 3. Probable cause is emphatically a question of prize or no prize ; but it is not always the same by the law of different countries. The law of France must, therefore, be looked into, and applied to the case, which the French courts only are competent to expound. If their *exposition L 115 250 . SUPREME COURT [Feb’y L’Invincible. does injustice to the party, his remedy is by application to his own government. So also, is the question of spoliation, a question of prize ; and the prize court, having jurisdiction of the principal matter, has jurisdiction of all its incidents. Dexter, in reply.—1. There is only one authority produced, to show that the prize jurisdiction is exclusively in the courts of the capturing power. Rutherforth speaks only of cases where the proceeding is to condemn or • restore the captured property. When he, or any other writer, gives the reasons for his opinion, the latter is worth just as much as the former, and no more. What is the reason ? He says, it cannot be known, before trial, that forcible possession was lawful; and if unlawful, it could not give jurisdiction. It may be answered, in every case where jurisdiction is gained by possession, it is unknown, before trial, whether' it was obtained lawfully, or by force or fraud. All right of jurisdiction from possession is thus equally denied. The other party cannot be injured, by submitting to the jurisdiction, while that uncertainty remains. If it shall appear, that the possession was unlawfully acquired, he will be restored to his right, by the exercise of jurisdiction. Rutherforth asserts, that the true ground of prize jurisdiction is, that the state of the captor is responsible to other states for his misconduct. It may be answered, that when the state has only granted a lawful commission, and has not assented to any unlawful act done by color *9*11 suc^ state is not responsible, though the act be unlawful; *for J the naked unauthorized act, then, the state is not accountable. The unjust judgment of a neutral state, condemning the property, might make the latter state answerable, but not the former. The reasoning goes on the supposition, that the state of the captor might relieve itself from responsibility, by doing justice, in restoring the property. This can only be done, where the property can be reached by it. Holding jurisdiction would rather relieve the .state of the captor from responsibility ; for either the injury of the complaining party would be repaired, or the courts of his own country would determine that he had not suffered any. There is no distinction between the property being lawfully brought in, as in this case, or voluntarily, as in the case of The Betsey. The injured party has an election to proceed in personam against the owners, or in rem against the inanimate instrument of the wrong. 2. There may be a jurisdiction to restore, without invading the exclusive prize jurisdiction of the captor’s country. Let the court take jurisdiction, and if it turns out to be a question of prize or no prize, then dismiss the suit. Suppose, the question to be, whether the captor had a commission, must we not proceed further, and see what is the extent of that commission ? And if the act done exceed its limits, has not the neutral state a right to adjudge costs and damages to its citizens, injured without any authority from the captor’s sovereign ? 3. The vessel is in judicature, rightfully and lawfully. The party now protesting against the jurisdiction, had submitted to it for another purpose. *0*oi c^a^ms property, upon the payment of salvage. *The obvious J answer to his demand is, when you, have discharged all liens, you shall have it. The court of admiralty, having jurisdiction for another purpose, like a court of chancery in the case of a mortgage, has a right to do 116 1816] OF THE UNITED STATES. . 252 L’lnvincible. complete equity. Why is restitution decreed in the case of violated territory ? Because the courts of the neutral state, having jurisdiction for the principal purpose of avenging its violated sovereignty, also take jurisdiction of all the incidents. March 11th, 1816. Johnson, J., delivered the opinion of the court.—It would be difficult to distinguish this case, in principle, from those of The Cassius, and The Exchange, 7 Cr. 116, (a) decided in this court. The only circumstance, in fact, in which they differ, is, that in those cases, the vessels were the property of the nation ; in this, it belongs to private adventurers. But' the commission under which they acted was the same ; the same sovereign power which could claim immunities in those cases, equally demands them in this; and although the privateer may be considered a volunteer in the war, it is not less a part of the efficient national force, set in action for the purpose of subduing an enemy. There may be, indeed, one shade of dif-erence between them, and it *is that which is suggested by Ruther-forth in the passage quoted in the argument. The hull, or the owners *-of the privateer, may, perhaps, under some circumstances, be subject to damages in a neutral court, after the courts of the captor have decided that the capture was not sanctioned by his sovereign. But until such a decision, the seizure by a private armed vessel is as much the act of the sovereign, and entitled to the same exemption from scrutiny, as the seizure by a national vessel. In the case of The Cassius, which belonged to the French republic, the vessel was finally prosecuted and condemned on an information qui tam, under the act of congress, for an illegal outfit, and thus had applied to her, under the statute, the principle which dictated the decision in the case of Talbot v. Jansen, with relation to a private armed vessel. As to the restitution of prizes, made in violation of neutrality, there could be no reason suggested, for creating a distinction between the national and the private armed vessels of a belligerent. Whilst a neutral yields td other nations the unobstructed exercise of their sovereign or belligerent rights, her own dignity and security require of her the vindication of her own neutrality, and of her sovereign right to remain the peaceable and impartial spectator of the war. As to her, it is immaterial, in whom the property of the offending vessel is vested. The commission under which the captors act is the same, and that alone communicates the right of capture, even to a vessel which is national property.1 *But it is contended, that, admitting the general principle, that r^n^A the exclusive cognisance of prize questions belongs to the capturing *■ power, still, the peculiar circumstances of this case constitute an exception, inasmuch as the re-capture of the Mount Hope puts it out of the power of the French courts to exercise jurisdiction over the case. This leads us to inquire into the real ground upon which the exclusive cognisance of prize questions is yielded to the courts of the capturing power. For the (a) In this case, it was determined, that a public vessel of war, belonging to the Emperor Napoleon, which was before the property of a citizen of the United States, and as alleged, wrongfully seized by the French, coming into our ports, and demeaning herself in a friendly manner, was exempt from the jurisdiction of this country, and could not be reclaimed by the former owner, in its tribunals. 1 The Estrella, 4 Wheat. 298; Stoughton v. Taylor, 2 Paine 653. 117 254 SUPREME COURT [Feb’y L’Invincible. appellants, it is contended, that it rests upon the possession of the subjectmatter of that jurisdiction ; and as the loss of possession carries with it the loss of capacity to sit in judgment on the question of prize or no prize, it follows, that the right of judging reverts to the state whose citizen has been divested of his property. On the other hand, I presume, by the reference to Rutherforth, we are to understand it to be contended, that it is a right conceded by the customary law of nations, because the captor is responsible to his sovereign, and the sovereign to other nations. But we are of opinion, that it rests upon other grounds ; and that the views of Vattel on the subject are the most reconcilable to reason and the nature of things, and furnish the easiest solution of all the questions which arise under this head. That it is a consequence of the equality and absolute independence of sovereign states, on the one hand, and of the duty to observe uniform impartial neutrality, on the other. Under the former, every sovereign becomes the acknowledged arbiter of his own justice, and cannot, *consistently with his dignity, stoop to appear at the bar of J other nations, to defend the acts of his commissioned agents, much less the justice and legality of those rules of conduct which he prescribes to them. Under the latter, neutrals are bound to withhold their interference between the captor and the captured ; to consider the fact of possession as conclusive evidence of the right. Under this it is, also, that it becomes unlawful to divest a captor of possession, even of the ship of a citizen, when seized under a charge of having trespassed upon belligerent rights. In this case, the capture is not made as of a vessel of the neutral power ; but as of one who, quitting his neutrality, voluntarily arranges himself under the banners of the enemy. On this subject, there appears to be a tacit convention between the neutral and belligerent; that, on the one hand, the neutral state shall not be implicated in the misconduct of the individual; and on the other, that the offender shall be subjected to the exercise of belligerent right. In this view, the situation of a captured ship of a citizen is precisely the same as that of any other captured neutral; or rather, the obligation to abstain from interference between the captor and captured becomes greater, inasmuch as it is purchased by a concession from the belligerent of no little importance to the peace of the world, and particularly of the nation of the offending individual. The belligerent contents himself with cutting up the unneutral commerce, and makes no complaint to the neutral power, not even *where the individual rescues his vessel, and J escapes into his own port, after capture. Testing this case by these principles, it will be found, that, to have sustained the claim of the appellants, the court below would have violated the hospitality which nations have a right to claim from each other, and the immunity which a sovereign commission confers on the vessel which acts under it; that it would have detracted from the dignity and equality of sovereign states, by reducing one to the condition of * suitor in the courts of another, and from the acknowledged right of every belligerent to judge for himself, when his own rights on the ocean have been violated or evaded ; and finally, that it would have been a deviation from that strict line of neutrality which it is the universal duty of neutrals to observe—a duty of the most delicate nature with regard to her own citizens, inasmuch as through their misconduct she may draw upon herself the imputation of secretly sup- 118 1816] OF THE UNITED STATES. 225 L’Invincible. porting one of the contending parties. Under this view of the law of nations on this subject, it is evident, that it becomes immaterial, whether the corpus continue sub potestate of the capturing power, or not. Yet, if the re-capture of the prize necessarily draws after it consequences so fatal to the rights of an unoffending individual, as have been supposed in the argument, it may well be asked, shall he be referred for redress to courts which, by the state of facts, are rendered incompetent to afford redress ? The answer is, that this consequence does not follow from the re-capture. The courts of the captor *are still open for redress. The injured neutral, it is to be [-*9-7 presumed, will there receive indemnity for a wanton or illicit capture ; and if justice be refused him, his own nation is bound to vindicate or indemnify him. Some confusion of idea appears to hang over this doctrine, resulting chiefly from a doubt as to the mode in which the principle of exclusive cog-, nisance is to be applied, in neutral courts, to cases as they arise ; and this obscurity is increased by the apparent bearing of certain cases decided in this court in the years 1794 and 1795. The material questions necessary to be considered, in order to dissipate these doubts, are : 1st. Does this principle properly furnish a plea to the jurisdiction of the admiralty courts ? 2d. If not, then, does not jurisdiction over the subject-matter draw after it every incidental or resulting question relative to the disposal of the proceeds of the res subjecta ? The first of these questions was the only one settled in the case of Glass x. The Betsey, and the case was sent back, with a view that the district court should exercise jurisdiction, subject, however, to the law of nations on this subject, as the rule to govern its decision. And this is certainly the correct course. Every violent dispossession of property on the ocean is, primd facie, a maritime tort; as such, it belongs to the admiralty jurisdiction. But sitting and judging, as such courts do, by the law of nations, the moment it is ascertained to be a seizure by a commissioned cruiser, made in the legitimate exercise of the rights *of war, their progress is arrested ; r*9~o for this circumstance is, in those courts, a sufficient evidence of ■ right. That the mere fact of seizure as prize does not, of itself, oust the neutral admiralty court of its jurisdiction, is evident, from this fact, that there are acknowledged cases in which the courts of a neutral may interfere to divest possession ; to wit, those in which her own right to stand neutral is invaded : and there is no case in which the court of a neutral may not claim the right of determining whether the capturing vessel be, in fact, the commissioned cruiser of a belligerent power. Without the exercise of jurisdiction thus far, in all cases, the power .of the admiralty would be inadequate to afford protection from piratical capture. The case of Talbot v. Jansen, as well in the reasoning of the judges, as in the final decision of the case, is fully up to the support of this doctrine. But it is supposed, that the case of Mary Ford supports the idea, that as the court had acknowledged jurisdiction over the question of salvage, its jurisdiction extended over the whole subject-matter, and authorized it to proceed finally to dispose of the residue between the parties litigant. That case certainly will not support the doctrine, to the extent contended for in this case. It is true, that the court there lay down a principle, which, in its 119 258 SUPREME COURT L’Invincible. [Feb’y general application, is unquestionably correct, and which, considered in the abstract, might be supposed applicable to the present case. But this pre-* sents only one of innumerable cases which occur in *our books, to J prove how apt we are to misconceive and misapply the decisions of a court, by detaching those decisions from the case which the court propose to decide. The decision of the supreme court in that case is in strict conformity with that of the circuit court in the present case. For when the court come to apply their principle, they do not enter into the question of prize, between the belligerents, but decree the residue to the last possessor : thus making the fact of possession, as between the parties litigant, the criterion of right ; and this is, unquestionably, consistent with the law of nations. Those points, which can be disposed of without any reference to the legal exercise of the rights of war, the court proceeds to decide ; but those which necessarily involve the question of prize or no prize, they remit to another tribunal. It would afford us much satisfaction, could we, with equal facility, vindicate the consistency of this court in the case of Del Col n. Arnold. To say the least of that case, it certainly requires an apology. We are, however, induced to believe, from several circumstances, that we have transmitted to us but an imperfect sketch of the decision in that case. The brevity with which the case is reported, which we are informed had been argued successively at two terms, by men of the first legal talents, necessarily suggests this opinion ; and when we refer to the case of The Cassius, decided but the term preceding, and observe the correctness with which the law *2601 to this case, in principle, is laid down in *the recital to the J prohibitions, we are confirmed in that opinion. But the ease itself furnishes additional confirmation. There is one view of it, in which it is reconcilable to every legal principle. It appears, that, when pursued by the Terpsichore, the Grand Sachem was wholly abandoned by the prize-crew, and left in possession of one of the original American crew, and a passenger ; that, in their possession, she was driven within our territorial limits, and was actually on shore, when the prize-crew resumed their possession, and plundered and scuttled her. Supposing this to have been a case of total dereliction (an opinion which, if incorrect, was only so on a point of fact, and one in support of which much might be said, as the prize-crew had no proprietary interest, but only a right founded on the fact of possession), it .would follow, that the subsequent resumption of possession was tortious, and subjected the parties to damages. On the propriety of the seizure of the Industry, to satisfy those damages, the court give no opinion, but place the application of the proceeds of the sale of this vessel, on the ground of consent ; a principle, on the correctness of the application of which to that case, the report affords no ground to decide. But, admitting that the case of The Grand Sachem was decided under the idea that the courts of the neutral can take cognisance of the legality of belligerent seizure, it is glaringly inconsistent with the acknowleged doctrine in the case of The Cassius, and of Talbot v. Jansen, decided the term *2611 nex^ Receding ; and in The Mary Ford, decided at the same term J with that of The Grand Sachem. The subject has frequently, since that term, been submitted to the consideration of this court, and the-decis- 120 1816] OF THE UNITED STATES. 261 The Edward. ion has uniformly been, that it is a question exclusively proper for the courts of the capturing power. Sentence affirmed. The Edward : Scott, Claimant. Admiralty practice.—Embargo. In revenue or instance causes, the circuit court may, upon appeal, allow the introduction of a new allegation into the information, by way of amendment. Under the 3d section of the act of congress of the 28th of June 1809, every vessel bound to a foreign permitted port, was obliged to give a bond, with condition not to proceed to any port with which commercial intercourse was not permitted, nor to trade with such port. Where the evidence is sufficient to show a breach of the law, but the information is not sufficiently certain to authorize a decree, the supreme court will remand the cause to the circuit court, with directions to allow the information to be amended.1 Appeal from the Circuit Court for the district of Massachusetts. The offence charged in the information filed in this case, in the district court of Massachusetts,- was, that the ship Edward, on the 12th day of February 1810, departed from the port of Savannah, *with a cargo, bound to a for-eign port with which commercial intercourse was not permitted, *• without a clearance, and without giving a bond in conformity with the provisions of the act of congress of the 28th of June 1809. A claim was interposed by George Scott, of Savannah, in which he alleged, that the ship did not depart from Savannah, bound to a foreign port, in manner and form as stated in the information. The district court condemned the ship ; from which sentence, an appeal was taken to the circuit court, where the district-attorney was permitted by the court to amend the information, by filing a new allegation, that Liverpool, in Great Britain, was the foreign port to which the ship was bound, when she departed from Savannah, and that she did so depart, without having a clearance, agreeable to law. The circuit court affirmed the sentence, and the cause was brought before this court upon an appeal. Harper, for the appellants and claimants.—1. The object of the 3d section of the act of the 2d of June 1809, was, to prevent the going to prohibited ports. When this supposed offence was committed, there were no prohibited ports, and the legislature could never mean tb attach the penalty to ports permitted temporarily. If Liverpool was not, at the time, a prohibited port, and there were no other prohibited ports, the vessel was not obliged to give bond. Before the voyage was undertaken, it had become impossible to commit the offence with which the vessel is charged. 2. The information charges the vessel *with going to a forbidden p263 port, without a clearance. But Liverpool was not a forbidden port, and therefore, the information cannot stand. 3, . The allegation was, that the vessel proceeded from Savannah ; but the .proof was, that the voyage was undertaken from Charleston. The prosecutor could not lawfully prove a proceeding from any other port than that alleged in the information. 1 The Divina Pastora, 4 Wheat. 52; The Palmyra, 12 Id. 1; The Sarah Ann, 2 Sumn. 206. 121 263 SUPREME COURT [Feb’y The Edward. The Attorney-General and Law, for the respondents, argued : 1. That the laws under which the supposed offence was committed, were in force at the time. [But as the argument is fully stated in the opinions of the judges, it is omitted here.] 2. Common-law strictness is not required in these proceedings, and it is unreasonable, to insist on the particular foreign port being named. The prosecutor had a right to prove a voyage from Charleston. It has been decided in this court, that it is sufficient, if the offence be laid in the words of the act. Even the rules of the common law, applicable to indictments, do not require time and place to be proved as stated ; and the only case where a variance is fatal is, where it affects the jurisdiction of the court, as where criminal proceedings are required to be local. (2 Hawk. ch. 25, §83 ; ch. 23, § 88, 91 ; 2 Hale P. C. 179, 180.) In no case, in civil proceedings, does the common law consider the venue as matter of substance, except where both the proceedings are in rem, and the effect of the judgment could not be obtained, if the offence were laid in a wrong place. Cowp. 176. * , The circuit court had a *right to amend the proceedings, but the -* practice of this court is, to remand the cause to the circuit court, with directions to amend. March 15th, 1816. Washington, J., delivered the opinion of the court, and after stating the facts, proceeded as follows :—Three questions have been made and discussed by the counsel, 1st. Whether the circuit court could, upon the appeal, allow the introduction of a new allegation into the information, by way of amendment ? 2d. Whether the omission to give the bond required by the 3d section of the act of the 28th of June 1809, subjected the vessel to forfeiture ? and if it did, then, 3d. Whether the information, which alleges the voyage to Liverpool to have commenced at Savannah, is supported by the evidence in the cause, and whether the sentence below ought not to be reversed for this reason, although the court should be satisfied that the ship departed from Charleston for Liverpool, without giving the bond required ? Upon the first question, it is contended for the claimant, that the circuit court has only appellate jurisdiction, in cases of this nature, and that to allow the introduction of a new allegation, would be, in fact, to originate the cause in the circuit court. This question appears to be fully decided by the cases of the Caroline and Emily, determined in this court. These were informations in rem, under the slave-trade act, and the opinion of this court was, that the evidence was sufficient to show a breach of the law; but that the informations were not sufficiently certain *to authorize a decree. 0 J The sentence of the circuit court was, therefore, reversed, and the cause remanded to that court, with directions to allow the informations to be amended. But even if an amendment would be improper, if it stated a different case from that which was presented to the district court, the objection would not apply to this case, in which the offence, though more definitely laid in the second allegation than it was in the first, is yet substantially the •same. In both of them, the charge is, departing from Savannah to a foreign interdicted port, without giving bond, and the amendment, in substance, merely states the particular foreign port to which the vessel was destined. The next question is, whether the omission to give the bond required by 122 1816] OF THE UNITED STATES. 265 The Edward. the third section of the act of the 28th of June 1809, subjected the vessel to forfeiture ? It is contended by the claimant’s counsel, that after the end of the session of congress in which this law passed, there were no foreign ports either permitted or interdicted by law, inasmuch as the embargo laws which prohibited exportations from the United States to foreign countries, would then stand repealed, by force of the 19th section of the act of the 1st of March 1809, to interdict the commercial intercourse with Great Britain and France, and the 2d section of the above act of the 28th of June. That all the ports of the world being thus permitted to the commerce of the United States, no subject would remain on which the 3d section would operate ; and consequently, there could be no necessity for giving a bond not to go to an interdicted port. *An attentive consideration, however, of the two acts above men-tioned, will show, that the argument is not well founded. The 3d L section of the act of the 28th of June 1809, declares, that during the continuance of that act, no vessel, not within the exceptions therein stated, shall be permitted to depart for a foreign port, with which commercial intercourse has not been, or may not be, permitted by virtue of this act, or the act of the 1st of March 1809. And if bound to a foreign port with which commercial intercourse has been, or may be, permitted, still, she shall not be allowed to depart, without bond being given, with condition not to proceed to any port with which commercial intercourse is not thus permitted, nor be directly or indirectly engaged, during the voyage, in any trade with such port. This law was in full force, at the time the offence charged in this information is alleged to have been committed. If, then, there was any country with which commercial intercourse was interdicted, and would continue to be so, after the end of the session, during which this law was passed, it seems to be admitted in the argument, that a vessel destined to a foreign permitted port would be liable to forfeiture, unless the above bond had been given. To ascertain whether there was any such country, it will be necessary to inquire, what is the true meaning of the term, commercial intercourse ? No higher or more satisfactory authority upon this subject need be resorted to than the legislature itself, by which this act was passed. The act of the first of March 1809, which is entitled, “an act to interdict the commercial intercourse *between the United States and Great Britain,” &c., contains nineteen sections. The first ten (exclusive of the L first, which denies to the vessels of those countries the privilege of entering the ports and harbors of the United States) forbid the importation into the United States of the products and manufactures of Great Britain and France, or of any other part of the world, if brought from the ports of either of those countries. The 12th section repeals, after the 15th of March 1809, all the embargo laws, except as they relate to Great Britain and France ; and the 19th section repeals them, after the end of the succeeding session of congress, as to all the world. The 13th, 14th, 15th, 16th and 18th sections are intended to provide securities for enforcing the non-importation system established by this law ; and the 17th section repeals the former non-importation law of April 1806. Hence, it appears, that the commercial intercourse which this law was intended to interdict, consisted of importations from Great Britain and 267 SUPREME COURT The Edward. [Feb’y France, and of the products and manufactures of those countries, and of exportations to them. In the 11th section, it is called the trade of the United States, suspended by that act and the embargo laws, which trade the president is authorized to renew, by his proclamation, upon a certain contingency, and in pursuance of this power, he did, accordingly, renew it with Great Britain, in April 1809. Thus stood the commercial intercourse of the United States with foreign nations, at the commencement of the extraordinary session of congress, *2681 *commenced in May 1809 ; permitted by the above law, both J as to exportations and importations with all the world, except Great Britain and France, and their dependencies ; and as to them, interdicted in both respects as to France, and permitted with Great Britain, by virtue of the president’s proclamation. But as the law of the 1st of March would expire, by its own limitation, after the end of the May session, whereby, not only exportations, but the importations forbidden by that act, in relation to France, would become lawful; the 1st section of the act of the 28th of June 1809, revives the whole non-importation system, except so far as it had been permitted to Great Britain by the proclamation ; and the 2d section declares, in effect, that the embargo laws, which were repealed by the 12th and 19th sections of the act of the 1st of March, shall be and remain repealed, notwithstanding the expiration of that law by its own limitation. From this view of the subject, it appears, that the non-importation system of the 1st of March was to continue in force, until the end of the session of congress, which would succeed that of May 1809, except as to Great Britain ; and that, after the end of that session, the embargo laws would cease to operate against any nation. If, then, importation be a branch of commercial intercourse, in the avowed meaning of congress, and if, on the 28th of June, and from thence until the end of the next session of congress, it was to continue in force, as to France (unless the president should declare, by proclamation, the revocation of *her offensive edicts), but were inoperative as to Great Britain, it follows, inevitably, that in February or March 1810, when the offence is charged to have been committed by this vessel, there were foreign ports permitted, and others interdicted, to the commerce of the United States ; and consequently, that the destination of this vessel being to Liverpool, a bond ought to have been given, such as the 3d section of the act of the 28th of June required, not to go to an interdicted port. This construction of the law has frequently been given to it by this court: but the serious opposition made to it, by the counsel for the claimant, will account for the deliberate examination of the question which is contained in this opinion. As to the last question, a majority of the court being of opinion, upon a view of the whole evidence, that the voyage to Liverpool had its inception at Savannah, the objection as to the form of the information, in this respect, has nothing to stand upon. Were the evidence, on this point, more doubtful than it is, the court would remand the cause, with directions to the circuit court to allow an amendment, by inserting Charleston instead of Savannah, from which the claimant could derive no benefit, since it is not denied, that the ship departed from Charleston directly for Liverpool, without giving bond. 124 1816] OF THE UNITED STATES, 269 The Edward. Livingston, J., {dissenting.)—This ship was proceeded against under the 3d section of the act of the 28th of June 1809, for sailing from the United States to a foreign port with which commercial intercourse had not *been, nor was then, permitted, by virtue of that act, or of the act p2Ho to interdict commercial intercourse between the United States and L Great Britain and France, without a clearance, and without a bond having been given, in conformity to the provisions of the said act, not to proceed to any port with which commercial intercourse was not then, by law, permitted, nor be directly or indirectly engaged, during the voyage, in any trade or traffic with such place. The only question, on this part of the case, is, whether, at the time of the departure of the Edward from Savannah, which was in February 1810, there existed any law subjecting her to forfeiture, if the owner omitted giving the bond prescribed by the 3d section of the act above mentioned ? By the claimant, it is contended, that after the end of the session of congress, in which this act passed, which occurred on the 28th of June 1809, there ceased to exist in the United States any distinction between prohibited and permitted ports, within the meaning of the restrictive system ; that the embargo laws, which alone restricted exportations to foreign countries, had, at that time, become repealed by the operation of the last section of the act of the 1st of March 1809, as well as by that of the 2d section of the act of the 28th of June, of the same year ; that by this repeal, the whole world, so far as could depend on our own laws, was open to the vessels of the United States, and consequently, that it could not be illegal, to neglect giving a bond not to go to an interdicted port, if, at the time of sailing, r*27i there was *no port in the world to which that interdiction could apply. L In examining this question, my attention will be confined to a consideration of the two acts which have just been mentioned ; because, if the interdiction which is supposed to have existed, when the Edward left Savanah, is not to be found in either of these laws, no other has been referred to as creating it. Let us, then, see what has been done, and if there be no ambiguity in the provisions of these two acts on the subject before us, it will be safer, in a case so highly penal, to adhere to the letter of them, than to incur the danger of falling into error, by indulging in a mode of interpretation which was adopted at the bar, and which was too conjectural to be in any degree satisfactory. By the 12th section of the act of the 1st of March 1809, the embargo law was repealed as to all nations, except Great Britian and France, and their dependencies. This repeal, necessarily and immediately, created a distinction between ports with which commercial intercourse was permitted, and those to which it was interdicted ; and we accordingly find congress, in the very next section of this act, providing for this new state of things, by requiring bonds to be given, when vessels were going to ports which had now become permitted ports, not to proceed to any port or place in Great Britain or France, &c. No such regulation had been prescribed, in consequence merely of the non-importation law, and for the plainest reason ; for, while they prohibited an introduction into the United *States, ^272 from any part of the world, of the produce and manufactures of L France and England, our vessels were allowed to go to those countries, and thus continue a commercial intercourse with either or both of them, limited. 125 272 SUPREME COURT [Feb’y The Edward. it is true, as to the articles which might be brought from thence, but uncontrolled as to the commodities which might be carried thither, or as to the port to which they might go. This partial trade between the two countries, whether originating in the acts of the one government or the other, may frequently take place; but cannot, when it does, with any propriety, be termed an interdiction or suspension of commercial intercourse, which, ex vi termini, means an entire cessation, for the time being, of all trade whatever. It was under the embargo laws alone, that intercourse was interdicted between this country and Great Britain and France, as it was also with the rest of the world ; which interdiction, as it arose out of those laws, so it is expressly continued, as it regards those two kingdoms, by excepting them out of the operation of the 12th section of the act of the 1st of March 1809, which repealed the embargo laws as to all other parts of the world. It would seem, then, that after this, no other inquiry would remain, than to ascertain whether the commercial intercourse thus interdicted by the act laying an embargo, and continued, or rather not repealed, as it respected Great Britain and France, by the 12th section just mentioned, was still in force at the time this offence is alleged to have been committed. Without leaving the act now under consideration, we find, that it was *27^1 *^° continue in force only until the end of the next session of con-J gress, and that the act itself, which lays the embargo, was to expire at the same time. This event took place on the 28th of June 1809. Now, unless some law were passed, before that time, to continue the embargo longer, or, after that period, to revive it, how can it be said, that, after that day, a distinction could still continue between prohibited and permitted ports ? This brings us to see whether anything was done by congress at the extraordinary session which commenced in May 1809. By an act which they passed on the 28th of June of that year, they continued in force, until the end of the next session, which happened on the 1st of May 1810, the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 17th and 18th sections of the act of March 1809, and they declare, that all the acts repealed by the said act, shall remain repealed, notwithstanding any part of that act might expire by its own limitation. Now, if we return to the sections which are revived, we find them containing nothing more than an interdiction of the harbors and waters of the United States to vessels sailing under the flag of Great Britian or France, or owned by subjects of either, accompanied with a prohibition to import from any foreign port whatever, into the United States, any goods, &c., being of the growth, produce or manufacture of those countries, or their dependencies. In not one of them is found a prohibition to oui’ citizens against trading with eithei’ of those countries. Their revival, then, does not operate so as to create a single interdicted port *974-1 in the whole commercial world. *Such interdiction, as has already J been said, was a creature of, and owed its existence solely and exclusively to, the embargo laws. If it be said, that such prohibition necessarily flowed from the revival of these sections, notwithstanding their entire silence on the subject, then would our vessels have been under a disability of going to any port of the world, because they were no more at liberty to bring British and French goods from other countries than from Great Britain and France; and yet the 12th section of this act, by only taking the embargo out of their way, 126 1816] OF THE UNITED STATES. 274 The Edward. permitted them to go to any port of the world, except to Great Britain and France. But in availing themselves of this permission, they were still under a restraint not to bring to this country any British or French goods. The 11th section of the act of March 1809, which is continued by that of June, of the same year, authorizes the president, in certain eases, to issue his proclamation ; after which, the trade of the United States, suspended by that act, and by the embargo law, may be renewed with Great Britain or with France, as the case may be. In this section we are presented with a distinction, taken by the legislature themselves, and which, indeed, pervades the whole system between the suspension of trade created by that act, and by the embargo laws. The two systems were entirely different, and enforced by different and distinct penalties. By the one, our vessels were at liberty to go where they pleased ; by the other, they were prevented from going to any foreign port whatever. The revival, then, of these sections, did not preclude *our vessels from going to any part of the world, but only [■*2'75 forbid their bringing to this country the articles whose importation L was prohibited. If the 12th section had also been revived, then, no vessel of the United States could have gone to Great Britain or France, and the distinction of permitted and forbidden ports would have continued until the 1st of May 1810. But as the whole embargo system expired in June 1809, not only by the 19th section of thb act of March 1809, but also by the express provision of the act of June, of the same year, the conclusion is inevitable, that when the Edward sailed, there was no law in force by which any distinction of prohibited and permitted ports existed ; and that, therefore, the not giving the bond in question was no violation of law. No notice has been taken of either of the proclamations of the president, because, if the view here presented be correct, neither of them has any bearing on the question. Admitting the validity of both of them, the latter would not make the ports of England prohibited ports, if the laws which created the distinction had done it away, by opening to the citizens of the United States the ports of every nation on the globe. The president’s power could only exist, while such a state of things continued, as suggested the necessity of, and would render, an interference on his part proper and useful, and no longer. It may be, and has been said, that the opinion here expressed is at variance with the public opinion on this subject, as well as with the understanding *of the collectors and some other officers of government; and r*2?6 that even this court has, at its present term, condemned property for L the same offence with which the Edward is charged. The answer to all this is, that the condemation alluded to passed sub silentio, without bringing the point distinctly to our view, and is, therefore, no precedent; and that, as to public opinion, or that of the officers of government, however respectable they may be, it can furnish no good grouds for enforcing so heavy a penalty, unless, on investigation, it shall appear to have been correctly formed. It was also urged, that congress must have supposed the law to be as it is now contended for by the attorney-general, or they would not have passed the 3d section of the act of the 28th June 1809, when there was no state of things to which its provisions could apply. To this, the answer which? was given at the bar is satisfactory. At the time of the bringing in of that bill, the embargo laws were still in force, and would continue so, until 127 276 SUPREME COURT [Feb’y The Edward. the end of that session. Now, as it could not then be foreseen, that the bill would not become a law, until the last day of the session, a prohibition not to go to prohibited ports was necessary, but became nugatory, by the law not passing until the time prescribed for the extinction of the whole system. Upon the whole, it appears to me clear, that there was no law in force, when the Edward left Savannah, interdicting her from going to any foreign port whatever, or requiring from her owners any bond not to go to such *2'7'71 Port ’ an^ un^er this persuasion, *1 have thought it a duty to express J my dissent from the judgment which has been just rendered. But were the case doubtful, I should still arrive at the same conclusion, rather than execute a law so excessively penal, about whose existence and meaning, such various opinions have been entertained. To satisfy ourselves that great difficulties must exist, in relation to this law, we have only to look at the progress of the case now before us. The offence with which the Edward is charged in the information, is going, without giving bond, to a prohibited foreign port. The condemnation in the circuit court, however, proceeded on the ground of all the ports of Great Britain (to one of which it was alleged she was going) being permitted ports. In the very able argument which was made here, in support of the prosecution, it was attempted to be shown, that Liverpool was not a permitted, but an interdicted, port. This state of uncertainty, which, it would seem, could hardly exist, if the legislature had expressed themselves with that precision and perspicuity which are always expected in criminal cases, would, with me, independent of my own convictions that there was no such prohibiting law, have been a sufficient reason for restoring this property to the claimants. Sentence of the circuit court affirmed, (a) (a) In order to enable the reader the better to understand this case, the following account of the dates and substance of the British orders in council, the French decrees, and the consequent acts of the United States government, has been subjoined. *9'7«! *^n 16th of May 1806, the British government issued an order in council, J declaring the coast, included between the Elbe and Brest, in a state of blockade. On the 21st of November 1806, the French emperor issued his Berlin decree, declaring Great Britain and her dependencies in a state of blockade. On the 7th of January 1807, the British government issued an order in council, prohibiting neutral ships from carrying on trade from one enemy’s port to another, including France and her allies. On the 11th of November 1807, the British orders in council were issued, which declared the continental ports, from which British ships were excluded, in a state of blockade (except in case of ships cleared out from Great Britain whose cargoes had paid a transit duty), and rendered liable to condemnation, all neutral ships, with their cargoes, trading to or from the ports of France, or her allies, and their dependencies, or having on board certificates of origin. On the 7th of December 1807, the French emperor issued his Milan decree, declaring that any neutral ships which should have touched at a British port, or paid a transit duty to the British government, or submitted to be searched by British cruisers, should be liable to condemnation. On the 22d of December 1807, the American embargo took place. On the 1st of March 1809, the embargo was removed, and a non-intercourse substituted with both France and England. On the 19th of April 1809, a negotiation was concluded by Mr. Erskine, in consequence of which the trade with Great Britain was renewed, on the 10th of June. On the 26th of April 1809, a British order in council was issued, modifying the former blockade, which was henceforth to be confined to ports under the governments 128 1816] OF THE UNITED STATES. *279 ^Mutual Assurance Society v. Watts’s Executor. Mutual insurance company. Under the 6th and 8th sections of the act of assembly of Virginia, of the 22d of December 17 94, property pledged to the Mutual Assurance Society, &c., continues liable for assessments, on account of the losses insured against, in the hands of a bond fide purchaser, without notice. A mere change of sovereignty produces no change in the state of rights existing in the soil; and the cession of the district of Columbia to the national government, did not affect the lien created by the above act, on real property situate in the town of Alexandria, though the personal character or liability of a member of the society could not be thereby forced on a purchaser of such property. Appeal from the Circuit Court in the district of Columbia for Alexandria county. The cause was argued by Swann, for the appellants, and by Taylor and Lee, for the respondents. March 16th, 1816. Johnson, J., delivered the opinion of the court, as follows :—*This is a bill in chancery, filed by the complainants, to J-* charge certain premises, in the possession of the defendant, situate in the town of Alexandria, with the payment of a sum of money, assessed in pursuance of the laws establishing the Mutual Assurance Society, for quotas becoming due, after his testator acquired possession. The executor has, in fact, sold the premises, under a power given him by the testator, but the money remains in his hands ; and it is conceded, that the sole object now contended for is, to charge the money arising from the sale of the land in question, with the assessment to which, it is contended, that the land was liable. The insurance was made in 1799, and the property sold to the defendant’s testator in 1807, long after the town of Alexandria ceased to be subject to the laws of Virginia. It is admitted, that the sale was made without notice of this incumbrance (if it was one), and the quota demanded was assessed on the premises, for a loss which happened subsequent to the transfer. The points made in the case arise out of the construction of the 6th and 8th sections of the act of Virginia, passed the 22d of December 1794. The 6th section is in these words : “ If the funds should not be sufficient, a repartition among the whole of the persons insured shall be made, and each shall pay, on demand of the cashier, his, her or their share, according to the of Holland (as far north as the river Ems) and France, together with the colonies of both, and all ports of Italy, included between Orbitello and Pesaro. On the 10th of August 1809, the non-intercourse with Great Britain again took place, in consequence of Mr. Erskine’s arrangement not being ratified. On the 1st of May 1810, the trade with both Great Britain and France was opened, under a law of congress, that whenever either power should rescind its orders or decrees, the president should issue a proclamation to that effect; and in case the other party should not, within three months, equally withdraw its orders or decrees, that the non-importation act should go into effect, with respect to that power. On the 2d of November 1810, the president issued his proclamation, declaring the Berlin and Milan decrees to be so far withdrawn, as no longer to affect the neutral rights of America; and the orders in council not being rescinded. On the 2d of February 1811, the importation of British goods, and the admission of British ships into America, were prohibited. On the 4th of April 1812, an embargo was laid in the United States, and on the 18th of June following, war was declared against Great Britain. 1 Wheat.—9 129 280 SUPREME COURT [Feb’y Mutual Assurance Society v. Watts. sum insured, and rate of hazard at which the building stands, agreeably to the rate of premium, for which purpose it is hereby declared, that the sub-' scribers, as soon as they shall insure their property in the Assurance Society *o i aforesaid, do mutually, for themselves, *thejr heirs, executors, admin--* istrators and assigns, engage their property insured, as security, and subject the same to be sold, if necessary, for the payment of such quotas.” And the 8th section is in these words: “ To the end that purchasers or mortgagees of any property insured by virtue of this act, may not become losers thereby, the subscriber selling, mortgaging or otherwise transferring such property, shall, at the time, apprise the purchaser or mortgagee of such assurance ; and indorse to him or them the policy thereof. And in every case of such change, the purchaser or mortgagee shall be considered as a subscriber, in the room of the original, and the property so sold, mortgaged or otherwise transferred, shall still remain liable for the payment of the quotas, in Ahe same manner as if the. right thereof had remained in the original owner.” In the argument, two points were made, 1st, That property pledged .to the society remained liable for the quotas to a purchaser without notice. .2d. That the purchaser, by the purchase of such property, although without ¿notice, became, by virtue of the 8th section, a member of the society, aud liable, in all respects, as such. The second of these questions is now withdrawn from the consideration .of this court, by an agreement entered on record. And it must be admitted, that whatever may be the strict construction of the 8th section, and its -operation in the state of Virginia, so far as it intended to force on the pur--chaser a personal character or liability, it could have no operation in the town of Alexandria, at the date of this transfer. *The laws of ° J Virginia had then ceased to be the laws pf Alexandria, and it could ¡only be under an actually existing law, operating at the time of the transfer, that the character of membership in the Virginia company would be forced ¿upon the purchaser. This is not one of those cases in which tenure attaches to an individual a particular characteristic or obligation; such cases arise exclusively between the occupant of the soil, and the sovereignty which presides immediately over the territory. The transfer, therefore, of the district of Alexandria to the national government, put an end to the operation of the 8th section, so far as it operated, by mere force of law, independ-■ ent of his own consent, to fasten on the purchaser the characteristics of a member. But it is otherwise with regard to the soil. The idea is now exploded, that a mere change of sovereignty produced any change in the -state of rights existing in the soil. In this respect, everything remains in .the actual state, whether the interest was acquired by law, under a grant, or rby individual contract. (See Korn v. Mutual Assurance Society, 6 Cr. 199.) We consider thfe question, then, as reduced to this : Does property pledged to the society, continue liable for assessments, in the hands of a bond fide purchaser, without notice, notwithstanding that he does not become a member by the transfer ? Here, we give no opinion on the extent or meaning of the words “ property insured,” how far they will operate to charge the lands on which buildings stand. The question was not made in the argument, and is *probably of no consequence in this or any other case. We only notice it, in order that such a construction may not be supposed 130 1816] OF THE UNITED STATES. 283 Mutual Assurance Society v. Watts. admitted, as is too often concluded, because a court passes over a question sub silent io. Whatever be the property thus pledged, it is very clear, that the words of the 6th section are abundantly sufficient, to create in it a common-law lien, not only in the hands of the original subscriber, but by express words, in those of his assignee. If the case rested here, there would be no doubt or difficulty ; but every law, and every contract, must be construed with a reference to the subject of that law or contract, and which it is designed to answer. In this view, we readily concede, that the duration of the lien could not extend beyond the duration of the liability of the subscriber to pay the premium ; nor could the liability of the subscriber extend beyond the liability of the company to indemnify him. On the other hand, it would seem, that as long as the company could exact of the subscriber the premium, they ought to be held liable to indemnify him. It will, then, be conceded, that the liability of the subscriber, and of the company, are mutual, correlative and co-extensive, and it remains to be examined, how this concession affects the case. It is very clear, that there are but three ways by which a subscriber can cease to be a member : 1st. By the consumption of the buildings insured, which results from the nature of the contract. 2d. By complying with the stipulations of the 9th article of the rules and regulations of the society. *3d. By substituting a vendee in his place, in conformity with the 8th _ section of the act of the 22d December 1794. If, then, a subscriber L has not become discharged in one of these three ways, what is to prevent the society from pursuing their summary remedy against him ? They are not bound to search for his vendee, or to raise the money by a sale of the property pledged ; much less are they bound to prosecute their remedy against a purchaser whose name is unknown to them, or who may be absent from the state, or from the United States, or insolvent, or protected, at the time, by some legal privilege. Their contract is with the original subscriber; their rules point out the mode in which he is to extricate himself from this liability, and if he has not pursued it, what defence is left him against a suit instituted by the society ? The court cannot imagine one, that could avail him. He cannot urge, that he has parted with the property. The rules point out to him the conduct that he is to pursue in that event. He may give notice to the vendee of the insurance, and tender an assignment. If the vendee refuse to receive it, he is bound to remain but six weeks longer under the obligation to pay his quotas and indemnify the vendee, at the end of which time, he will be entitled to a discharge, upon giving due notice, and complying with the other requisitions of the 9th section. Nor can he urge, that he has no longer any interest in the thing insured ; this, if any plea at all, is none in his lips. It belongs to the insurer, to avail himself of it, if it belongs to any one. But it is a plea not true in fact; for he continues *to r4. indemnify his vendee against the quotas that may be assessed, which, *• ° by possibility may reach to the value of the whole property sold or insured ; and, if correct in principle or fact, still, this plea could not avail him, since it is in consequence of his own folly or laches, that he continues liable to pay the premium of insurance for another’s property. And should it be urged, that this would be converting an actual insurance into a wager policy, two answers may be given to it, either of which is sufficient; that there is noth- 131 285 . SUPREME COURT [Feb’y Mutual Assurance Society v. Watts. ing illegal in a wager policy, in itself, and if there were, it is no objection in this case, when it results from the constitution and laws of the society. But it may be contended, that the insurer is discharged, and therefore, the liability for the quotas ceases. It is unquestionably true, as a general principle, that where an insurer runs no risk, equity does not consider him entitled to a premium ; and although there exist some reasons in policy and constitution of this society to apply it, in its fullest extent, to this case, yet, to give the argument its utmost weight, we are disposed to concede it. But what has occurred in this case, to discharge the underwriters from their contract ? The subscriber was clearly not discharged from his liability to them, and this single consideration furnishes a strong reason for holding them still bound under their contract. What has the subscriber done, inconsistent with that contract ? The only act he can be charged with, is alienating, without horsing th® policy. But alienation *alone is perfectly consistent with J the contract, for the policy issues to him and his assigns ; and so far from interposing any obstruction to alienation, provision is made for that very case, and unlimited discretion vested in the subscriber, to indorse his policy to whom he pleases. Nor is alienation, without indorsing the policy, considered in any more offensive light; inasmuch as the 8th section, which enforces the assignment, declares expressly, that it is for the benefit of purchasers and mortgagees, “ to the intent that they may not become losers thereby.” It is not pretended, that it is for the society’s own security; nor do they ever require notice to be given them, in case of such transfer of the policy. As to them, therefore, it is an innocent act, and we see no ground on which the society can be discharged, either to the vendor or vendee—they certainly remain liable, and although it may be a question to which of them equity would deeree the money, yet, to one or the other, it certainly would be adjudged ; but it is not material to this argument which, as it is a question between the vendor and vendee. If, then, the case presents no legal ground for discharging either insurer or assured from the contract, and the lien created by the 6th section be commensurate with the liability of the assured, it will follow, that the plaintiffs, in this case, ought to have a decree in their favor. But we will examine, at a closer view, the liability of the property in the hands of the vendee. That he is not liable to the summary remedy, is evi-♦orvI dent, from a variety of considerations. He must, then, be *brought J into chancery, to have his property subjected to the consequences of the lien, whenever a loss happens and a quota is assessed. In that case, his defence will always be just what it is in this—that he purchased without notice. But this was never held, to be a defence to a bill to foreclose a mortgage, which is precisely a similar case to this. Nor is it any better defence, to urge that he could derive no benefit under the policy, in case of a loss ; for this is precisely the same defence, a little varied, as will be seen, by supposing that the vendee of a mortgagor should plead, to a bill of foreclosure, that the money borrowed did not come to his use. But his case is not as good as that of the vendee of the mortgagor in the case supposed ; for the 8th section makes provision for his relief. That section says, “ to the end that purchasers or mortgagees of any property insured, may not become losers thereby,” the vendor shall give them notice, and indorse the policy over. In what manner shall the purchasers or mortgagees become 132 1816] OF THE UNITED STATES. 287 Mutual Assurance Society v. Watts. losers, unless the lien is to continue on the property in their hands ? If the vendor be guilty of the folly of paying the quotas, and the vendee never receives notice of the lien, through a demand from the society, there is no damage sustained. If he should be assailed with such a demand, he has a right to require of the vendee an assignment of the policy ; and as there existed an original duty to make such an assignment, it may well be held to operate, nunc pro tunc, and carry with it all the benefits of an original assignment. *But it is contended, that the 8th section explains and limits the rS;ooo „ , . • 1 . n . t • I iOO 6th section, in such a manner as to restrict the duration of the lien, in L the hands of the vendee, to those cases only in which the transfer of the policy also takes place. This consequence cannot .be logically maintained. The argument is, that the words “ such change,” mean only a change of the property, attended with an assignment of the policy, and that if the legislature had supposed that the property sold would, in the hands of the vendee, remain subject to the lien, they would not expressly have subjected it in such a case. But this section will, with philological correctness, admit of a different construction, and a construction more consistent with legal principles, inasmuch as it will not admit of an implication inconsistent with the preceding section, and even with other parts of the same section. Nor, if the construction on which this argument is founded were unavoidable, would the conclusion follow which the argument asserts. The question is, what is the meaning of the words “ in every change,” in the section under consideration ? The solution is only to be found, by referring to the preceding and only other clause of the same section ; and there we find, that a general provision is inevitably to be made for every possible change of sale or purchase. The operation of the clause will, then, be only to confirm and support the general words of the sixth section, and if it left any doubt with regard to the duration of the lien, in the hands of the vendee, to remove those doubts by express provision. This construction is also the most consistent with the recital *in the first clause of the same section, which, as has been before observed, with another view, is founded altogether on the idea, that property sold remained pledged to the society, in the hands of the vendee, whether with or without notice; as, in that case alone, could vendees or mortgagees need the protection held out to them in that clause. But if a different construction could legally be given to that section, so as to restrict the words “ every such case,’r to mean those cases only which were attended with an assignment of the policy, it would not follow, that the lien ceased its operation in all others. To apply to this case the maxim, expressio unius est exclusio alterius, would be a glaring sophism. For, the only principle on which such a conclusion could be founded would be, that the repetition of a legal provision, included, with many others, in another law, produced a repeal of all others, by necessary implication. Such an implication may be resorted to, in order to determine the intention of the legislature, in a case of doubtful import, but cannot operate to destroy the effect of clear and unequivocal expressions. An obvious and unanswerable objection to giving this effect to this clause, is, that it puts it in the power of the subscriber to exonerate the property from the lien, by the single act of sale, not even sustaining it for the term of six weeks after the notice given of his intention to withdraw ; an effect, glaringly inconsistent, no less 133 289 SUPREME COURT [Feb’y Mutual Assurance Society v. Watts. with the express words, than with the general view of the law on the subject. For there is nothing in the act which obliges the vendee to accept an *2001 assignment. *A tender to him, therefore, cannot subject him to any J onerous consequences. He does no more than what he may lawfully do. If, then, the lien ceases, unless he accepts the assignment, and it is legally at his option to accept or refuse, the subscriber, in having the right to sell to whom he pleases, has also the duration of the lien submitted to his will. Some difficulty has also existed in the minds of some of the court, on the contingent nature of this lien, whether the lien was complete to all purposes, at any period before the assessment of a quota. But on this subject, the majority are of opinion, that, as to legal incumbrancy, or duration of a lien, it makes no difference, whether its object is to secure an existing debt, or a contingent indemnity. In the case of Shirr as v. Caig, 7 Cr. 34, this court sustained a mortgage, given to secure an indorser against notes which he might indorse, where he had entered into no stipulation to indorse for the mortgagor. And in the case of bonds given for the discharge of duties, offices or annuities, it never was maintained as an objection, that the object of the lien was future, contingent or uncertain. In this case, the mutual stipulation to indemnify each other against losses, operates as a purchase of the lien, and places the parties on strong equitable grounds as to each other. Some cases were cited in the argument, from the reports of decisions which have been made in the courts of Virginia. This court uniformly acts under the influence of a desire to conform its decisions to those of the state courts on their local laws ; and *would not hesitate to pay great re--* spect to those decisions, if they had appeared to reach the question now under consideration. But they are pursuaded, that those cases do not come up to the present. In the case of Greenhow v. Barton (1 Munf. 598), it is true, that the decision of the district court, which was finally confirmed, was in favor of the purchaser, without notice. But it was solely on the question, whether he was liable to the summary remedy, or, in other words, liable generally, as a? member. And the Case of Anna Byrd, reported in the cases of the general court (1 Virg. Cas. 170), was likewise the case of a motion for a summary judgment. In the latter case, the court went much further in charging the vendee, than this court is called upon to proceed in the present case. But in neither of those cases, was a bill filed to charge the vendee, as in the present; nor was the question brought up in either, detached from that of his general liability as a member. The decree below will be reversed, and a decree ordered to be entered for the complainants. Livingston, J., and Stoey, J., dissented. Decree reversed. 134 1816] OF THE UNITED STATES. *292 * Walden v. Heirs of Geatz. • Maintenance.—Limitation. Under the act of assembly of Kentucky, of 1798, entitled, “an act concerning champerty and maintenance,” a deed will pass the title to lands, notwithstanding an adverse possession. The statute of limitations of Kentucky does not differ essentially from the English statute of 21 James I., c. 1, and is.to be construed as that statute, and all other acts of limitation founded upon it, have been construed. The whole possession must be taken together; when the statute has once begun to run, it continues; and an adverse possession under a survey, previous to its being carried into grant, may be connected with a subsequent possession.1 Eeeor to the Circuit Court for the district of Kentucky. This was an action of ejectment, in which the defendants in error were the lessors of the plaintiff in the court below. The declaration in ejectment was returned to the November term of that court, 1813. At the May term 1814, the suit was abated as to one defendant; judgment by default was entered against Joseph Day, another defendant; and the defendants were admitted to defend, instead of the casual ejector. The lessors of the plaintiff claimed under a patent issued to John Craig, in November 1784. On the 20th of April 1791, John Craig conveyed the lands mentioned in the declaration, in trust, to Robert Johnson, Elijah Craig and the survivor of them. On the 11th of February 1813, Robert Johnson, styling himself surviving *trustee, conveyed to the lessors of the r*9qo plaintiff. The defendants below, now plaintiffs in error, claimed under a patent issued to John Coburn, in September 1795, founded on a survey made for Benjamin Netherland, in May 1782. John Coburn, claiming under the said survey, entered thereon, about the year 1790, and dwelt in a house, within the limits of said survey, but without the lines of Craig’s patent. On the trial, the counsel for the defendants below moved the court to instruct the jury : 1st. That if the defendants, and those under whom they claim, were in the actual adverse possession of the lands in question, at the making of the deed by Craig’s trustee, to the lessors of the plaintiff, that deed did not pass such title as would enable them to recover in this suit. 2d. That if the defendants, and those under whom they claim, were in the actual adverse possession of the lands in question, at the making of the deed by Craig’s trustee to the lessors of the plaintiff, and had held such adverse possession for twenty years next before said time, that said deed did not pass such title as would enable the plaintiffs to recover in this suit. 3d. That if the defendants, and those under whom they claim, have had possession of the land in question, or any part thereof, for twenty years next before the commencement of, this suit, that the plaintiff cannot recover the lands so possessed for twenty years. On the first two points, the court instructed the jury, that, according to the principles of the common law, the deed from Craig’s trustee to the lessors of *the plaintiff, would not pass the title to the lessors of the r*2q4 plaintiff ; but that, under the operation of the act of assembly of the state of Kentucky, of 1798, the said deed was valid, and did pass the title to the lessors of the plaintiffs, notwithstanding the adverse possession of the defendants. The court refused to give the last instruction applied for, but Harris v. McGovern, 99 U. S. 161. 135 294 SUPREME COURT [Feb’y Walden v. Gratz’s Heirs. did instruct the jury, that if Coburn entered upon the land in controversy, under the survey on which his patent was founded, and he, and those holding under him, held the said lands for twenty years and upwards, prior to the commencement of this suit, yet, as the patent to Coburn did not issue until 1795, such possession could not avail the defendants, claiming under the said Coburn, but that the plaintiffs could recover, notwithstanding such possession. To these opinions and instructions, given by the court, the counsel for the defendants below excepted, and the cause was brought by writ of error into this court. Hardin, for the plaintiff in error, and defendant in ejectment.—1. No person out of possession can grant : First, because, at common law, there must be livery of seisin. Secondly, because the grantee could not purchase a mere right of action. Coburn was in possession adversely ; therefore, the deed from Craig’s trustee to the lessors of the plaintiffs was void. 2. The limitation of twenty years’ possession by the defendant, before notice of the ejectment, was a complete bar. 3. - The deed of trust was joint, and it was incumbent upon the plaintiff to prove that one of the trustees was deed. The recital in the deed of con-*2951 veyance *that E. Craig was dead, was no sufficient evidence of that J fact, except as between the grantor and grantee, 4. There is error in the judgment by default against Day. Hughes and Talbot, contra.—1. Before the act of 1798, “concerning champerty and maintenance,” no title could pass, without an actual possession of the grantor ; but this statute has abrogated the commoh law in that particular. But, in fact, Coburn was not in possession adversely, and a grant from the commonwealth of vacant lands, gives the patentee a right to convey. 2. A person leaving it equivocal what his possession was, cannot have an instruction in his favor. It does not appear, what part the defendant possessed, nor was the instruction asked under an adverse possession. Twenty years’ possession was no bar : the local courts adhere to the English principle, that when the statute has once begun to run, it continues ; but the act of assembly differs materially from the English act of 21 James I., c. 1 ; and after the statute has begun to run, it stops, if the title passes to a person under any legal disability, and recommences after the disability is removed. March 18th, 1816. Marshall, Ch. J., delivered the opinion of the court, and after stating the facts, proceeded as follows :—The act of assembly, on which the opinion of the court below, on the first question, was given, is entitled, “an act concerning champerty and maintenance.” It *9QR1 enacts, “that no person purchasing, or *procuring an interest in any J legal or equitable claim to land held, &c., shall be precluded from prosecuting or defending said claim, under such purchase or contract; neither shall any suit or suits, brought to establish such purchase, or make good the title to such claim, be considered as coming within the provisions, either at common law, or by statute against champerty or maintenance,” &c. This court is of opinion, that this statute enabled the lessors of the plaintiff to maintain a suit in their own name, for the lands conveyed to them, and that there is no error in this instruction of the circuit court. 136 1816] OF THE UNITED STATES. 296 Walden v. Gratz’s Heirs. On the third question, the circuit court instructed the jury, that an adverse possession under a survey, previous to its being carried into grant, could not be connected with a subsequent possession, but that the computation must commence from the date of the patent. In giving this opinion, the court unquestionably erred. No principle can be better settled, than that the whole possession must be taken together. The counsel for the defendants in error have endeavored to sustain this opinion, by a construction of the statute of limitations of Kentucky. They contend, that after the statute has begun to run, it stops, if the title passes to a person under any legal disability, and recommences after such disability shall be removed. This construction, in the opinion of this court, is not justified by the words of the statute. Its language does not vary essentially from the language of the statute of James, the construction of which has been well settled ; and it is to be construed, as that statute, and all other acts of limitation *founded on it, have been construed. This court is, therefore, of opinion, that there is error in the instruction given *-by the circuit court to the jury on the third prayer of the plaintiff in error. (Durowe v. Jones, 4 T. R. 300.) It has been contended by the counsel for the plaintiff, that there is also error in the judgment rendered against Joseph Day by default; but of his case the court can take no notice, as he is not one of the plaintiffs in error, and the judgment rendered against him is not before us. The judgment must be reversed for error in the directions of the court to the jury, on the third point, on which instructions were given. Judgment.—This cause came on to be heard on the transcript of the record, from the circuit court for the district of Kentucky, and was argued by counsel; on consideration whereof, this court is of opinion, that there is error in the proceedings and judgment of the circuit court in this, that the judge thereof directed the jury, that the tenants in possession could not connect their adverse possession, previous to the date of the patent under which they claimed, with their adverse possession subsequent thereto, but in the length of time which would bar the action could compute that only which had passed subsequent to the emanation of their grant. Wherefore, it is considered by the court, that the judgment of the circuit *court be r*9qs reversed and annulled, and that the cause be remanded to the circuit *-court, with directions to award a new trial therein. Judgment reversed.1 1 See Barr v. Gratz, 4 Wheat. 213. 137 298 SUPREME COURT [Feb’y The Haeeison : Herbert, Claimant. Prize.—Practice. If the national character of property, captured and brought in for adjudication, appears ambiguous or neutral, and no claim is interposed, the cause is postponed for a year and a day, after the prize proceedings are commenced; and if no claimant appears within that time, the property is condemned to the captors.1 In prize causes, this court has an appellate jurisdiction only, and a claim cannot, for the first time, be interposed here; but where the court below had proceeded to adjudication, before the above period had elapsed, the Cause was remanded to that court, with directions to allow a claim to be filed therein, and the libel to be amended, &c. Appeal from the Circuit Court for the district of Maryland. The libel filed by the captors, in this case, in the district court, alleged, that the goods for which condemnation was sought, were captured and taken out of a Spanish vessel. No claim was filed for the goods in either of the courts below. But, upon the hearing, the district court dismissed the libel, upon the ground, that the property, to whomsoever belonging, was protected by *9qq1 fhe 15th article *of the treaty of 1795 with Spain, by which, free J ships make free goods ; and this decree was affirmed, upon the same principle, in the circuit court. The captors brought the cause, by appeal, to this court ; and a motion was made by Winder, in behalf of Elry Herbert, an asserted claimant, to be admitted to file a claim in this court. March 18th, 1816. Story, J., delivered the opinion of the court.—We have considered this question, with a view to the general rules of practice. Whenever a prize is brought to adjudication in the admiralty, if, upon the hearing of the cause, upon the ship’s papers, and the evidence taken in preparatory, the property appears to belong to enemies, it is immediately condemned. If its national character appear doubtful, or even neutral, and no claim is interposed, the court do not proceed to a final decree, but the cause is postponed, with a view to enable any person, having title, to assert it, within a reasonable time, before the court. This reasonable time has been, by the general usage of nations, fixed at a year and a day after the institution of the prize proceedings ; and if no claim be interposed within that period, the property is deemed to be abandoned, and is condemned to the captors, for contumacy and default of the supposed owner. In the present case, the prescribed period had not elapsed, at the time when the district court proceeded to decree a dismissal of the libel. A claim cannot, by the practice of this court, be for the first time interposed here. In prize causes, this court can exercise only an appellate jurisdiction, and between *parties who have litigated in the court below. Weare J all, therefore, of opinion, that this cause ought to be remanded to the circuit court, with directions to allow the claim to be filed in that court; and also to allow the libel to be amended, so as to conform to the general allegation of prize, and enable the captors to obtain condemnation of the property, if the asserted claim shall not be sustained, and the property shall not appear entitled to the protection of the Spanish treaty. Case remanded, (a) (a) See Appendix, note 2. 1 The Avery, 2 Gallis. 386. 138 1816] OF THE UNITED STATES. 300 * Harden v. Fisher et al. Burden of proof. Under the 9th article of the treaty of 1794, between the United States and Great Britain, by which it is provided that British subjects, holding lands in the United States, and their heirs, so far as respects those lands, and the remedies incident thereto, should not be considered as aliens ; the parties must show that the title to the land for which the suit was commenced was in them, or their ancestors, at the time the treaty was made.1 Fisher v. Harnden, 1 Paine 55, reversed. Error to the Circuit Court for the district of New York. This case was argued, with great learning and ability, by Hoffman, for the plaintiff in error, and defendant in ejectment, and by Stockton, for the *de- rt„„. fendants in error, and plaintiffs in ejectment. But, as the court L gave no judgment upon the points discussed, the argument has been omitted. March 18th, 1816. Marshall, Ch. J., delivered the opinion of the court.—This is an action of ejectment, brought by the defendants in error, in the circuit court for the district of New York, to recover certain lands, which they claim as the heirs of Donald Fisher, deceased. A special verdict was found in the case, which shows, that Donald Fisher was a British subject, residing in the city of New York, and departed this life, in the year 1798, leaving the lessors of the plaintiffs‘in ejectment his heirs-at-law, who are also British subjects. The plaintiffs, being thus found to be British subjects, are incapable of maintaining an action for real estate in the state of New York, unless they are enabled to do so by the 9th article of the treaty between the United States and Great Britain, made in the year 1794, which provides, that British subjects, holding lands in the United States, and their heirs, so far as respects those lands, a„d the legal remedies incident thereto, should not be considered as aliens. To avail themselves of this treaty, the lessors of the plaintiff below must show that their ancestors held the lands for which this suit was instituted, at the time when it was made. The court does not mean to say, that they must show a seisin in fact, or an actual possession of the land, but that the title was in him at the time. This must be *shown, in order to bring the case r*on9 within the protection afforded by the treaty. The jurors find that Donald Fishei’ was, on the first day of January, in the year 1777, seised in his demesne, as of fee, of the lands and tenements in the declaration mentioned, and was in the actual possession thereof, and continued so seised and possessed, until the rendering the judgment hereinafter mentioned. On the 17th day of April, in the year 1780, the grand jury for the county of Charlotte, in the state of New York, found an indictment, stating that Donald Fisher (who is the ancestor under whom the lessors of the plaintiffs claim) did, on the 14th day of July, in the year 1777, voluntarily, with force and arms, adhere to the enemies of the state. The record proceeds to state, that “ the said Donald Fisher having, according to the form of the act of the legislature, entitled ‘ an act for the forfeiture and sale of the estates of persons who have adhered to the enemies of the state,’ &c., been 1 Blight v. Rochester, 7 Wheat. 535. 139 302 SUPREME COURT [Feb’y Harden v. Fisher. notified to appear and traverse the said indictment, and not having appeared and traversed, within the time, and in the manner in and by the said act limited and required, it is, therefore, considered, that the said Donald Fisher do forfeit all and singular the estate, both real and personal, whether in possession, reversion or remainder, had or claimed by him, in this state.” This judgment was signed on the 29th day of December 1783, and is the judgment referred to in the special verdict, as hereinbefore mentioned. Under these proceedings, the lands in the declaration mentioned *were sold, J and the defendants, in the court below, hold under that sale. There are other points raised in the special verdict, and urged by counsel; but .it will be unnecessary to notice them, and the court does not mean to give any opinion on them. The court gave judgment for the plaintiffs below, and that judgment is now before this court on a writ of error. It is contended by the defendants in error, that this judgment, having been rendered subsequent to the treaty of peace of 1783, and in direct repugnance thereto, is not merely voidable, but absolutely void. By the plaintiffs, it is alleged to be voidable only. This court, cannot now decide that question. The verdict does not find that Donald Fisher held his title, until the treaty of 1794 was made, and although nothing is found to show that he has parted with it, yet the court cannot presume that he did not part with it. The verdict ought to have shown, that the title was in Donald Fisher, when the treaty was made, and continued in him to the time of his death. For this essential defect, the verdict is too imperfect to enable the court to decide on the case. The judgment of the circuit court must, therefore, be reversed, and the cause remanded to that court, with directions to award a venire facias de novo. Judgment.—This cause came on to be heard on the transcript of the record of the circuit court for the district of New York, and was argued by counsel; *all which being considered, this court is of opinion, that ■J there is error in the judgment of the circuit court for the district of New York, in this, that the said court ought not to have rendered judgment on the said verdict in favor of the plaintiffs in ejectment, because it does not appear certainly, in the said verdict, that the ancestor, under whom they claim, held, in law or in fact, the lands mentioned in the declaration, when the treaty of 1794, between the United States and Great Britain, was made ; therefore, it is considered by this court, that the said judgment be reversed and annulled, and that the cause be remanded to the circuit court, for the district of New York, with directions to award a venire faceas novo. Judgment reversed, (a) (a) See Jackson v. Decker, 11 Johns. 418. 140 1816] OF THE UNITED STATES. 304 Martin, Heir-at-law and Devisee of Fairfax, v. Hunter’s Lessee. Constitutional law.—Error to state court.—Practice in error. The appellate jurisdiction of the supreme court of the United States extends to a final judgment or decree, in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United r^gg^ *States, and the decision is against their validity; or where is drawn in question the 1 validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity; or the construction of a treaty, or statute of, or commission held under, the United St'ates, and the decision is against the title, right, privilege or exemption specially set up qr claimed, by either party, under such clause of the constitution, treaty, statute or commission.1 Such judgment or decree may be re-examined by writ of error, in the same manner as if rendered in a circuit court. . ■ If the cause has been once remanded before, and the state court decline or refuse to carry into effect the mandate of the supreme court thereon, this court will proceed to a final decision of 1 the same, and award execution thereon.2 If the validity or construction of a treaty of the United States be drawn in question, and the decision is against its validity, or the title specially set up by either party, under the treaty, this , court has jurisdiction to ascertain that title, and determine its legal validity, and is not confined to the abstract construction of the treaty itself. The return of a copy of the record, under the seal of the court, certified by the clerk, and annexed to the writ of error, is a sufficient return in such a case. It need not appear, that the judge who granted the writ of error did, upon issuing the citation, take a bond, as required by the 22d section of the judiciary act. That provision is merely directory to the judge, and the presumption of law is, until the contrary appears, that every judge who signs a citation has obeyed the injunctions of the act. Hunter v. Martin, 4 Munf. 1, reversed. This was a writ of error to the Court of Appeals of the state of Virginia, founded upon the refusal of that court to obey the mandate of this court, requiring the judgment rendered in this same cause, at February term 1813, to be carried into due execution. The following is the judgment of the court of appeals, rendered on the mandate : “ The court is unanimously of opinion, that the appellate power of the supreme court of the United States does not *extend to this court, under a sbund construction of the constitution of the United States ; that so much of the 25th section of the act of congress, to establish the judicial courts of the United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the United States. That the writ of error in this cause was improvidently allowed, under the authority of that act ; that the proceedings thereon in the supreme court were coram non judice^ in relation to this court, and that obedience to its mandate be declined by the court.” The original suit was an action of ejectment, brought by the defendant 1 Cohens v. Virginia, 6 Wheat. 264; Ableman v. Booth, 21 How. 206 ; Williams v. Bruffy, 102 U. 8. 248. In the latter case, Judge Field says, that the appellate jurisdiction over the judgments of the state courts, in such cases, passed beyond the region of discussion in that court, more than half a century ago; and that no doctrine rests upon more solid foundations, or is more fully valued and cherished, than that which sustains its appellate power over state courts, when the constitution, laws and treaties of the United States are drawn in question, and their authority is denied or evaded, or where any right is asserted under a state law or authority, in conflict with them. 2 Tyler v. Magwire, 17 Wall. 253; Williams v. Bruffy, 102 U. S. 248. 141 306 SUPREME COURT [Feb’y Martin v. Hunter. in error, in one of the district courts of Virginia, holden at Winchester, for the recovery of a parcel of land, situate within that tiact, called the Northern Neck of Virginia, and part and parcel thereof. A declaration in ejectment was served (April 1791) on the tenants in possession ; whereupon, Denny Fairfax (laje Denny Martin), a British subject, holding the land in question, under the devise of the late Thomas Lord Fairfax, was admitted to defend the suit, and plead the general issue, upon the usual terms of confessing lease, entry and ouster, &c., and agreeing to insist, at the trial, on the title only, &c. The facts being settled in the form of a case agreed to be taken and considered as a special verdict, the court, on consideration thereof, gave judgment (24th of April, 1794), in favor of the defendant in ejectment. From that judgment, the plaintiff in ejectment (now defendant * , «in error) appealed to the court of appeals, *being the highest court J of law of Virginia. At April term 1810, the court of appeals reversed the judgment of the district court, and gave judgment for the then appellant, now defendant in error, and thereupon, the case was removed into this court. State of the facts as settled by the case agreed. 1st. The title of the. late Lord Fairfax to all that entire territory and tract of land, called the Northern Neck of Virginia, the nature of his estate in the same, as he inherited it, and the purport of the several charters and grants from the kings Charles II. and James IL, under which his ancestor held, are agreed to be truly recited in an act of the assembly of Virginia, passed in the year 1736 ( Vide Rev. Code, vol. 1, ch. 3, p. 5), “ for the confirming and better securing the titles to lands in the Northern Neck, held under the Rt. Hon. Thomas Lord Fairfax,” &c. From the recitals of the act, it appears, that the first letters-patent (1 Car. II.), granting the land in question to Ralph Lord Hopton and others, being surrendered, in order to have the grant renewed, with alterations, the Earl of St. Albans and others (partly survivors of, and partly purchasers under, the first patentees) obtained new letters-patent (2 Car. II.) for the same land and appurtenances, and by the same description, but with additional privileges and reservations, &c. The estate granted is described to be, “ All that entire tract, territory or parcel of land, situate, &c., and bounded by, and within the heads of, the rivers Tappahannock, &c., together with the rivers themselves, and all the islands, &c., and all woods, under-*3081 wo°ds> timber, &c., *mines of gold and silver, lead, tin, &c., and J quarries of stone and coal, &c., to have hold and enjoy the said tract of land, &c., to the said patentees, their heirs and assigns for ever, to their only use and behoof, and to no other use, intent or purpose whatsoever.” There is reserved to the crown the annual rent of 64 13s. 4c?., “in lieu of all services and demands whatsoeveralso one-fifth part of all gold, and one-tenth part of all silver mines. To the absolute title and seisin in fee of the land and its appurtenances, and the beneficial use and enjoyment of the same, assured to the patentees, as tenants in capite, by the most direct and abundant terms of conveyancing, there are superadded certain collateral powers of baronial dominion ; reserving, however, to the governor, council and assembly of Virginia, the exclusive authority in all the military concerns of the granted territory, and the power to impose taxes on the persons and property of its inhabitants for the 142 1816] OF THE UNITED STATES. 308 Martin v. Hunter. public and common defence of the colony, as well as a general jurisdiction over the patentees, their heirs and assigns, and all other inhabitants of the said territory. In the enumeration of privileges specifically granted to the patentees, their heirs and assigns, is that “ freely and without molestation of the king, to give, grant, or by any ways or means, sell or alien all and singular the granted premises, and every part and parcel thereof, to any person or persons being willing to contract for, or buy, the same. There is also a condition to avoid the grant, as to so much of the granted premises as should not be* possessed, inhabited or planted, by the means or procurement r*o0q of the patentees, their heirs or assigns, in the space of twenty-one L years. The third and last of the letters-patent referred to (4 Jac. IL), after reciting a sale and conveyance of the granted premises by the former patentees, to Thomas Lord Culpepper, “ who was thereby become sole owner and proprietor thereof, in fee-simple,” proceeds to confirm the same to Lord Culpepper, in fee-simple, and to release him from the said condition, for having the lands inhabited or planted as aforesaid. The said act of assembly then recites, that Thomas Lord Fairfax, heir-at-law of Lord Culpepper, had become “ sole proprietor of the said territory, with the appurtenances, and the above-recited letters-patent.” By another act of assembly, passed in the year 1748 (Rev. Code, vol. 1, ch. 4, p, 10), certain grants from the crown, made while the exact boundaries of the Northern Neck were doubtful, for lands which proved to be within those boundaries, as then recently settled and determined, were, with the express consent of Lord Fairfax, confirmed to the grantees ; to be held, nevertheless, of him, and all the rents, services, profits and emoluments (reserved by such grants) to be paid and performed to him. In another act of assembly, passed May 1779, for establishing a landoffice, and ascertaining the terms and manner of granting waste and unappropriated lands, there is the following clause, viz. (yide Ch. Rev. of 1783, ch. 13, § 6, p. 98) : “ And that the *proprietors of land within this commonwealth may no longer be subject to any servile, feudal or precarious tenure, and to prevent the danger to a free state from perpetual revenue, be it enacted, that the royal mines, quit-rents, and all other reservations and conditions in the patents or grants of land from the crown of England, under the former government, shall be and are hereby declared null and void ; and that all lands thereby respectively granted shall be held in absolute and unconditional property, to all intents and purposes whatsoever, in the same manner with the lands hereafter granted by the common wealth, by virtue of this act. 2d. As respects the actual exercise of his proprietary rights by Lord Fairfax. It is agreed, that he did, in the year 1748, open and conduct, at his own expense, an office within the Northern Neck, for granting and conveying what he described and called, the waste and ungranted lands therein, upon certain terms, and according to certain rules by him established and published ; that he did, from time to time, grant parcels of such lands in fee (the deeds being registered at his said office, in books kept for that purpose, by his own clerks and agents) ; that according to the uniform tenor of such-grants, he did, styling himself proprietor of the Northern Neck, &c., in 143 310 SUPREME COURT [Feb’y Martin v. Hunter. consideration of a certain composition to him paid, and of certain annual rents therein reserved, grant, &c., with a clause of re-entry for non-payment of the rent, &c. ; that he also demised, for lives and terms of years, parcels of the same description of lands, also reserving annual *rents; that 311J he kept his said office open for the purposes aforesaid, from the year 1748 until his death, in December 1781 ; during the whole of which period, and before, he exercised the right of granting in fee, and demising for lives and terms of years, as aforesaid, and received and enjoyed the rents, annually, as they accrued, as well under the grants in fee, as under the leases for lives and years. It is also agreed, that Lord Fairfax died seised of lands in the Northern Neck, equal to about 300,000 acres, which had been granted by him in fee, to one T. B. Martin, upon the same terms and conditions, and in the same form, as the other grants in fee before described ; which lands were, soon after being so granted, reconveyed to Lord Fairfax in fee. 3d. Lord Fairfax, being a citizen and inhabitant of Virginia, died in the month of December 1781, and, by his last will and testament, duly made and published, devised the whole of his lands, &c., called, or known by the name of the Northern Neck of Virgiuia, in fee, to Denny Fairfax (the original defendant in ejectment), by the name and description of the Reverend Denny Martin, &c., upon condition of his taking the name and arms of Fairfax, &c. ; and it is admitted, that he fully complied with the conditions of the demise. 4th. It is agreed, that Denny Fairfax, the devisee, was a native-born British subject, and never became a citizen of the United States, nor any one of them, but always resided in England, as well during the revolutionary war, as from his birth, about the year 1750, to his death, which happened some time between *the years 1796 and 1803, as appears from the *312] record of the proceedings in the court of appeals. It is also admitted, that Lord Fairfax left, at his death, a nephew named Thomas Bryan Martin, who was always a citizen of Virginia, being the younger brother of the said devisee, and the second son of a sister of the said Lord Fairfax ; which sister was still living, and had always been a British subject. 5th. The land demanded by this ejectment being agreed to be part and parcel of the said territory and tract of land, called the Northern Neck, and to be a part of that description of lands, within the Northern Neck, called and described by Lord Fairfax as “ waste and ungranted,” and being also agreed never to have been escheated and seised into the hands of the commonwealth of Virginia, pursuant to certain acts of asembly concerning escheators, and never to have been the subject of any inquest of office, was contained and included in a certain patent, bearing date the 3 Oth of April 1789, under the hand of the then governor, and the seal of the commonwealth of Virginia, purporting that the land in question is granted by the said commonwealth unto David Hunter (the lessor of the plaintiff in ejectment) and his heirs for ever, by virtue and in consideration of a land-office treasurywarrant, issued the 23d of January 1788. The said lessor of the plaintiff in ejectment is, and always has been, a citizen of Virginia ; and in pursuance of his said patent, entered into the land in question, and was thereof possessed, prior to the institution of the said action of ejectment. *6th. The definitive treaty of peace, concluded in the year 1783, *313] between the United States of America and Great Britain, and also 144 1816] OF THE UNITED STATES. 313 Martin v. Hunter. the several acts of the assembly of Virginia, concerning the premises, are referred to, as making a part of the case agreed. Upon this state of facts, the judgment of the court of appeals of Virginia was reversed by this court, at February term 1813 (7 Cr. 603), and thereupon, the mandate above mentioned was issued to the court of appeals, which being disobeyed, the cause was again brought before this court. Jones, for the plaintiffs in error.—There are two questions in the cause, 1st. Whether this court has jurisdiction? 2d. Whether it has been rightly exercised in the present case ? 1. Contemporaneous construction, and the uniform practice since the constitution was adopted, confirms the jurisdiction of the court. The authority of all the popular writers who were friendly to it, is to the same effect; and the letters of Publius show that it was agreed, both by its friends and foes, that the judiciary power extends to this claims of cases. In the conventions by which the constitution was adopted, it was never denied by its friends, that its powers extended so far as its enemies alleged. It was admitted, and justified, as expedient and necessary. Ascending from these popular and parliamentary authorities, to the more judicial evidence of what is the supreme law of the land, we find a concurrence of opinion. This government *is not a mere confederacy, like the Grecian leagues, or the Germanic constitution, or the old continentalcon-federa- L tion. In its legislative, executive and judicial authorities, it is a national government, to every purpose, within the scope of the objects enumerated in the constitution. Its judicial authority is analogous to its legislative : it alone has the power of making treaties ; those treaties are declared to be the law of the land; and the judiciary of the United States is exclusively vested with the power of construing them. The 2d section, article 3d, of the constitution provides, that the judicial power “ shall extend to all cases in law or equity, arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority,” &c. The word shall, is a sign of the future tense, and implies an imperative mandate, obligatory upon those to whom it is addressed. The verb extend? is said to mean nothing more than may extend; but the neuter verb, and not the verb active, is used, and imports that the power shall extend—it shall reach to, or over. “AH'cases,” is an emphatic expression, and shows that it cannot extend to a limited number of cases. The state legislatures cannot make treaties.' Why should the state judicatures be offended at being excluded from the authority of expounding them? 2. Has congress exercised the power vested in it, according to the constitution ? If the jurisdiction be exclusive and paramount, it must be exercised according to the discretion of congress, the constitution having prescribed no specific mode ; it must operate upon the people of the United States *in their personal and aggregate capacities, upon them and all their magistrates and tribunals. Congress must establish a supreme L court. They may establish inferior courts. The supreme court must have the appellate jurisdiction vested in them by the constitution, and congress cannot denude them of it, by failing to establish inferior tribunals. Those tribunals may not exist; and therefore, the appellate jurisdiction must extend beyond appeals from the courts of the United States only. The state 1 Wheat.—10 145 315 SUPREME COURT Martin v. Hunter. [Feb’y courts are to adjudicate under the supreme law of the land, as a rule binding upon them. They do not act upon it, as judges determining by a foreign law, in a case of lex loci, for example ; they act upon it as a municipal law of the state where they sit, but derived from the government of the United States. 3. As to the remedy of the plaintiffs in error. This court is not limited to a mandate, as the only remedy. The judiciary act provides (§ 24), that when a cause has been once remanded, this court may award a writ of execution upon its own judgment. The cause is now before the court, so as to enable it to do this ; the record is well certified, according to the law and practice of Virginia, and of every other state, under the seal of the court and signature of the clerk. Even supposing it necessary to take a retrospective view, and look at the former record, it originated, and still remains, in this forum, and it is unnecessary to send to the court of appeals for it. Tucker, contnl.—1. At common law, the writ of error must be returned * i by ^be court itself. It is imperfect *in this case, and therefore, we -* have a right to a certiorari, or writ of diminution. But there is no terror ; the court of appeals have done nothing; and therefore, there is no error in their proceedings. It is a mere omission to do what they ought to .have done, and no judgment can be rendered here, to reverse what they have not done. This court cannot award execution upon the judgment in :the original cause. That judgment is final; it functus officio, and nothing more can be done with it. The original cause is not brought here again .completely, and therefore, the provision in the 24th section of the judiciary .act does not apply. 2. Is the judiciary act constitutional ? This court, undoubtedly, has all the incidental powers necessary to carry into effect the powers expressly -given by the constitution. But this cannot extend to the exercise of any power inconsistent with but also for the protection, of defendants who might be entitled to try their rights, or assert their privileges, before the same forum. Yet, if the construction contended for be correct, it will follow, that as the plaintiff may always elect the state court, the defendant *may be deprived of all the security which the constitution intended r*o4q in aid of his rights. Such a state of things can, in no respect, be con- L sidered as giving equal rights. To obviate this difficulty, we are referred to the power which, it is admitted, congress possesses to remove suits from state courts to the national courts ; and this forms the second ground upon which the argument we are considering has been attempted to be sustained. This power of removal is not to be found in express terms in any part of the constitution ; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not, in strictness of language, an exercise of original jurisdiction ; it presupposes an exercise of original jurisdiction to have attached elsewhere. The existence of this power of removal is familiar in courts acting according to the course of the common law, in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is always deemed, in both cases, an exercise of appellate, and not of original jurisdiction. If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising that power, and as congress is not limited by the constitution to any particular mode, or time, of exercising it, it may authorize a removal, either before or after judgment. The time, the process and the manner must be subject to its absolute legislative control. A writ of error is, indeed, but a process which removes the record of one court to the possession of another court, *and enables the latter to inspect the proceedings, and give such judgment as its own opinion L of the law and justice of the case may warrant. There is nothing in the nature of the process, which forbids it from being applied by the legislature to interlocutory as well as final judgments. And if the right of removal from state courts exist, before judgment, because it is included in the appellate power, it must, for the same reason, exist, after judgment. And if the appellate power, by the constitution, does not include cases pending in state courts, the right of removal, which is but a mode of exercising that power, 1 Wheat.—11 161 350 SUPREME COURT [Feb’y Martin v. Hunter. cannot be applied to them. Precisely the same objections, therefore, exist as to the right of removal before judgment, as after, and both must stand or fall together. Nor, indeed, would the force of the arguments on either side 'materially vary, if the right of removal were an exercise of original jurisdiction. It would equally trench upon the jurisdiction and independence of state tribunals. The remedy, too, of removal of suits, would be utterly inadequate to the purposes of the constitution, if it could act only on the parties, and not upon the state courts. In respect to criminal prosecutions, the difficulty seems admitted to be insurmountable ; and in respect to civil suits, there would, in many cases, be rights, without corresponding remedies. If state courts should deny the constitutionality of the authority to remove suits from their cognisance, in what manner could they be compelled to relinquish the jurisdiction ? In respect to criminal cases, there would at once be an end of _ all control, and the *state decisions would be paramount to the consti--* tution ; and though, in civil suits, the courts of the United States anight act upon the parties, yet the state courts might act in the same way ; ;and this conflict of jurisdictions would not only jeopardize private rights, but bring into imminent peril the public interests. On the whole, the court are of opinion, that the appellate power of the United States does extend to cases pending in the state courts ; and that the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the constitution. We find no clause in that instrument which -limits this power ; and we dare not interpose a limitation, where the people ihave not been disposed to create one. Strong as this conclusion stands, upon the general language of the con-rStitution, it may still derive support from other sources. It is an historical fact, that this exposition of the constitution, extending its appellate power to state courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reasonings, both in and out of the state conventions. It is an historical fact, that at the time when the judiciary act was submitted to the deliberations . of the first congress, composed, as it was, not only of men of great learning . and ability, but of men who had acted a principal part in framing, supporting or opposing that constitution, the same exposition was explicitly declared ;and admitted "by the friends and by the opponents of that system. It **8 an historical fact, that the supreme conrt of the United States -1 have, from time to time, sustained this appellate jurisdiction, in a great variety of cases, brought from the tribunals of many of the most important states in the Union, and that no state tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the supreme court, until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence of enlightened state courts, and these judicial decisions of the supreme court, through so long a period, do, as we think, place the doctrine upon a foundation of authority which cannot be shaken, without delivering over the subject to perpetual and irremediable doubts. The next question which has been argued, is, whether the case at bar be within the purview of the 25th section of the judiciary act, so that this 162 1816] OF THE UNITED STATES. 352 Martin v. Hunter. court may rightfully sustain the present writ of error? This section, stripped of passages unimportant in this inquiry, enacts, in substance, that a final judgment or decree, in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity ; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity; or of the constitution, or of a treaty or statute of, or commission held under, the United *States, and the decision is against the title, right, privilege or exemption *-specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission, may be re-examined, and reversed or affirmed, in the supreme court of the United States, upon a writ of error, in the same manner, and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the supreme court, instead of remanding the cause for a final decision, as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears upon the face of the record, and immediately respects the beforementioned question of validity or construction of the said constitution, treaties, statutes, commissions or authorities in dispute. That the present writ of error is founded upon a judgment of the court below, which drew in question and denied the validity of a statute of the United States, is incontrovertible, for it is apparent upon the face of the record. That this judgment is final upon the rights of the parties, is equally true ; for if well founded, the former judgment of that court was of conclusive authority, and the former judgment of this court utterly void. The decision was, therefore, equivalent to a perpetual stay of proceedings upon *the mandate, and a perpetual denial of all the rights acquired under it. The case, then, falls directly within the terms of the act. It is a *■ final judgment in a suit in a state court, denying the validity of a statue of the United States ; and unless a distinction can be made between proceedings under a mandate, and proceedings in an original suit, a writ of error is the proper remedy to revise that judgment. In our opinion, no legal distinction exists between the cases. In causes remanded to the circuit courts, if the mandate be not correctly executed, a writ of error or appeal has always been supposed to be a proper remedy, and has been recognised as such, in the former decisions of this court. The statute gives the same effect to writs of error from the judgments of state courts as of the circuit courts; and in its terms provides for proceedings where the same cause may be a second time brought up on writ of error before the supreme court. There is no limitation or description of the cases to which the second writ of error may be applied ; and it ought, therefore, to be co-extensive with the cases which fall within the mischiefs of the statute. It will hardly be denied, that this cause stands in that pre- 163 354 SUPREME COURT [Feb’y Martin v. Hunter. dicament; and if so, then the appellate jurisdiction of this court has rightfully attached. But it is contended, that the former judgment of this court was rendered upon a case, not within the purview of this section of the judicial act, and that, as it was pronounced by an incompetent jurisdiction, it was utterly void, *35and cannot be a sufficient foundation *to sustain any subsequent pro- J ceedings. To this argument, several answers may be given. In the first place, it is not admitted, that, upon this writ of error, the former record is before us. The error now assigned is not in the former proceedings, but in the judgment rendered upon the mandate issued after the former judgment. The question now litigated is not upon the construction of a treaty, but upon the constitutionality of a statute of the United States, which is clearly within our jurisdiction. In the next place, in ordinary cases, a second writ of error has never been supposed to draw in question the propriety of the first judgment, and it is difficult to perceive how such a proceeding could be sustained, upon principle. A final judgment of this court is supposed to be conclusive upon the rights which it decides, and no statute has provided any process by which this court can revise its own judgments. In several cases which have been formerly adjudged in this court, the same point was argued by counsel, and expressly overruled. It was solemnly held, that a final judgment of this court was conclusive upon the parties, and could not be re-examined. In this case, however, from motives of a public nature, we are entirely willing to waive all objections, and to go back and re-examine the question of jurisdiction, as it stood upon the record formerly in judgment. We have great confidence, that our jurisdiction will, on a careful examination, stand confirmed, as well upon principle as authority. It will be recollected, that the action was an ejectment for a parcel of land in the Northern Neck, for-merly belonging to *Lord Fairfax. The original plaintiff claimed the J land under a patent granted to him by the state of Virginia, in 1789, under a title supposed to be vested in that state by escheat or forfeiture. The original defendant claimed the land as devisee under the will of Lord Fairfax. The parties agreed to a special statement of facts, in the nature of a special verdict, upon which the district court of Winchester, in 1793, gave a general judgment for the defendant, which judgment was afterwards reversed in 1810, by the court of appeals, and a general judgment was rendered for the plaintiff ; and from this last judgment, a writ of error was brought to the supreme court. The statement of facts contained a regular deduction of the title of Lord Fairfax, until his death, in 1781, and also the title of his devisee. It also contained a regular deduction of the title of the plaintiff, under the state of Virginia, and further referred to the treaty of peace of 1783, and to the acts of Virginia respecting the lands of Lord Fairfax, and the supposed escheat or forfeiture thereof, as component parts of the case. No facts disconnected with the titles thus set up by the parties were alleged on either side. It is apparent, from this summary explanation, that the title thus set up by the plaintiff might be open to other objections ; but the title of the defendant was perfect and complete, if it was protected by the treaty of 1783. If, therefore, this court had authority to examine into the whole record, and to decide upon the legal validity of the title of the defendant, as well as its application to the 164 1816] OF THE UNITED STATES. *357 Martin v. Hunter. treaty of peace, it would be a case within the express purview *of the 25th section of the act ; for there was nothing in the record upon which the court below could have decided, but upon the title as connected with the treaty ; and if the title was otherwise good, its sufficiency must have depended altogether upon its protection under the treaty. Under such circumstances, it was strictly a suit where was drawn in question the construction of a treaty, and the decision was against the title specially set up or claimed by the defendant. It would fall, then, within the very terms of the act. The objection urged at the bar is, that this court cannot inquire into the title, but simply into the correctness of the construction put upon the treaty by the court of appeals ; and that their judgment is not re-examinable here, unless it appear on the face of the record, that some construction was put upon the treaty. If, therefore, that court might have decided the case upon the invalidity of the title (and non constat, that they did not), independent of the treaty, there is an end of the appellate jurisdiction of this court. In support of this objection, much stress is laid upon the last clause of the section, which declares, that no other cause shall be regarded as a ground of reversal than such as appears on the face of the record and immediately respects the construction of the treaty, &c., in dispute. If this be the true construction of the section, it will be wholly inadequate for the purposes which it professes to have in view, and may be evaded at pleasure. But we see no reason for adopting this narrow construction ; and there are the strongest *reasons against it, founded upon the words as well as the intent of the legislature. What is the ■-case for which the body of the section provides a remedy by writ of error ? The answer must be, in the words of the section, a suit where is drawn in question the construction of a treaty, and the decision is against the title set up by the party. It is, therefore, the decision against the title set up, with reference to the treaty, and not the mere abstract construction of the treaty itself, upon which the statute intends to found the appellate jurisdiction. How, indeed, can it be possible to decide, whether a title be within the protection of a treaty, until it is ascertained what that title is, and whether it have a legal validity ? From the very necessity of the case, there must be a preliminary inquiry into the existence and structure of the title, before the court can construe the treaty in reference to that title. If the court below should decide, that the title was bad, and therefore, not protected by the treaty, must not this court have a power to decide the title to be good, and therefore, protected by the treaty ? Is not the treaty, in both instances, equally construed, and the title of the party, in reference to the treaty, equally ascertained and decided? Nor does the clause relied on in the objection, impugn this construction. It requires, that the error upon which the appellate court is to decide, shall appear on the face of the record, and immediately respect the questions before mentioned in the section. One of the questions is, as to the construction of a treaty, upon a title specially set up by a party, and every error that immediately respects *that question must, of course, be within the cognisance of the court, The title set up in this case is apparent upon the face of the record, *■ and immediately respects the decision of that question ; any error, therefore, 165 359 SUPREME COURT [Feb’y Martin v. Hunter. in respect to that title must be re-examinable, or the case could never be presented to the court. The restraining clause was manifestly intended for a very different purpose. It was foreseen, that the parties might claim under various titles, and might assert various defences, altogether independent of each other. The court might admit or reject evidence applicable to one particular title, and not to all, and in such cases, it was the intention of congress, to limit what would otherwise have unquestionably attached to the court, the right of revising all the points involved in the cause. It, therefore, restrains this right to such errors as respect the questions specified in the section ; and in this view, it has an appropriate sense, consistent with the preceding clauses. We are, therefore, satisfied, that, upon principle, the case was rightfully before us, and if the point were perfectly new, we should not hesitate to assert the jurisdiction. But the point has been already decided by this court upon solemn argument. In Smith n. State of Maryland (6 Cranch 286)? precisely the same objection was taken by counsel, and overruled by the unanimous opinion of the court. That case was, in some respects, stronger than the present ; for the court below decided, expressly, that the party had no title, and there-^oreJ the treaty could not operate *upon it. This court entered into -* an examination of that question, and being of the same opinion, affirmed the judgment. There cannot, then, be an authority which could more completely govern the present question. It has been asserted at the bar, that, in point of fact, the court of appeals did not decide either upon the treaty, or the title apparent upon the record, but upon a compromise made under an act of the legislature of Virginia. If it be true (as we are informed), that this was a private act, to take effect only upon a certain condition, viz., the execution of a deed of release of certain lands, which was matter in pais, it is somewhat difficult to understand, how the court could take judicial cognisance of the act, or of the performance of the condition, unless spread upon the record. At all events, we are bound to consider, that the court did decide upon the facts actually before them. The treaty of peace was not necessary to have been stated, for it was the supreme law of the land, of which all courts must take notice. And at the time of the decision in the court of appeals, and in this court, another treaty had intervened, which attached itself to the title in controversy, and of course, must have been the supreme law to govern the decision, if it should be found applicable to the case. It was in this view that this court did not deem it necessary to rest its former decision upon the treaty of peace, believing that the title of the defendant was, at all events, perfect, under the treaty of 1794. * «ii *The remaining questions respect more the practice than the prin- J ciples of this court. The forms of process, and the modes of proceeding in the exercise of jurisdiction, are, with few exceptions, left by the legislature, to be regulated and changed, as this court may, in its discretion, deem expedient. By a rule of this court, the return of a copy of a record of the proper court, under the seal of that court, annexed to the writ of error, is declared to be “ a sufficient compliance with the mandate of the writ.” The record, in this case, is duly certified by the clerk of the court of 166 1816] OF THE UNITED STATES. Martin v. Hunter. 361 appeals, and annexed to the writ of error. The objection, therefore, which has been urged to the sufficiency of the return, cannot prevail. Another objection is, that it does not appear that the judge who granted the writ of error did, upon issuing the citation, take the bond required by the 22d section of the judiciary act. We consider that provision as merely directory to the judge; and that an omission does not avoid the writ of error. If any party be prejudiced by the omission, this court can grant him summary relief, by imposing such terms on the other party as, under all. the circumstances, may be legal and proper. But there is nothing in the record, by which we can judicially know whether a bond has been taken or not; for the statute does not require the bond to be returned to this court, and it might, with equal propriety, be lodged in the court below, who would ordinarily execute the judgment to be rendered on the writ. And the presumption of the law is, until the contrary *appears, that every judge who signs r^9i!Q a citation has obeyed the injunctions of the act. L We have thus gone over all the principal questions in the cause, and we deliver our judgment with entire confidence, that it is consistent with the constitution and laws of the land. We have not thought it incumbent on us to give any opinion upon the question, whether this court have authority to issue a writ of mandamus to the court of appeals, to enforce the former judgments, as we did not think it necessarily involved in the decision of this cause. It is the opinion of the whole court, that the judgment of the court of appeals of Virginia, rendered on the mandate in this cause, be reversed, and the judgment of the district court, held at Winchester, be, and the same is hereby affirmed. Johnson, J.—It will be observed, in this case, that the court disavows all intention to decide on the right to issue compulsory process to the state courts; thus leaving us, in my opinion, where the constitution and laws place us—supreme over persons and cases, sq far as our judicial powers extend, but not asserting any compulsory control over the state tribunals. In this view, I acquiesce in their opinion, but not altogether in the reasoning or opinion of my brother who delivered it. Few minds are accustomed tothe same habit of thinking, and our conclusions are most satisfactory to ourselves, when arrived at in our own way. *1 have another reason for expressing my opinion on this occasion. >•*„»„ I view this question as one of the most momentous importance ; as *■ one which may affect, in its consequences, the permanence of the American Union. It presents an instance of collision between the judicial powers of the Union and one of the greatest states in the Union, on a point the most delicate and difficult to be adjusted. On the one hand, the general government must cease to exist, whenever it loses the power of protecting itself in the exercise of its constitutional powers. Force, which acts upon the physical powers of man, or judicial process, which addresses itself to his moral principles or his fears, are the only means to which governments can resort in the exercise of their authority. The former is happily unknown to the genius of our constitution, except as far as it shall be sanctioned by the latter; but let the latter be obstructed in its progress, by .an opposition 167 363 SUPREME COURT [Feb’y Martin v. Hunter. which it cannot overcome or put by, and the resort must be to the former, or government is no more. On the other hand, so firmly am I persuaded that the American people can no longer enjoy the blessings of a free government, whenever the state sovereignties shall be prostrated at the feet of the general government, nor the proud consciousness of equality and security, any longer than the independence of judicial power shall be maintained, consecrated and intangible, that I could borrow the language of a celebrated orator, and exclaim, “ I rejoice that Virginia has resisted.” *364] Yet, here, I must claim the privilege of expressing *my regret, that the opposition of the high and truly respected tribunal of that state had not been marked with a little more moderation. The only point necessary to be decided in the case then before them was, tl Whether they were bound to obey the mandate emanating from this court ? ” But in the judgment entered on their minutes, they have affirmed that the case was, in this court, coram non judice, or, in other words, that this court had not jurisdiction over it. This is assuming a truly alarming latitude of judicial power. Where is it to end ? It is an acknowledged principle of, I believe, every court in the world, that not only the decisions, but everything done under the judicial process of courts, not having jurisdiction are, ipso facto, void. Are, then, the judgments of this court to be reviewed in every court of the Union ? And is every recovery of money, every change of property, that has taken place under our process, to be considered as null, void and tortious ? We pretend not to more infallibility than other courts composed of the same frail materials which compose this. It would be the height of affectation, to close our minds upon the recollection that we have been extracted from the same seminaries in which originated the learned men who preside over the state tribunals. But there is one claim which we can with confidence assert in our own name, upon those tribunals—the profound, uniform and unaffected respect which this court has always exhibited for state decisions, give us strong pretensions to judicial comity. And another claim I may assert, in the name of the American people ; in this court, *365] every in *the Union is represented ; we are constituted by the voice of the Union, and when decisions take place, which nothing but a spirit to give ground and harmonize can reconcile, ours is the superior claim upon the comity of the state tribunals. It is the nature of the human mind, to press a favorite hypothesis too far, but magnanimity will always be ready to sacrifice the pride of opinion to public welfare. In the case before us, the collision has been, on our part, wholly unsolicited. The exercise of this appellate jurisdiction over the state decisions has long been acquiesced in, and when the writ of error, in this case, was was allowed by the president of the court of appeals of Virginia, we were sanctioned in supposing, that we were to meet with the same acquiescence there. Had that court refused to grant the writ, in the first instance, or had the question of jurisdiction, or on the mode of exercising jurisdiction, been made here, originally, we should have been put on our guard, and might have so modelled the process of the court, as to strip it of the offensive form of a mandate. In this case, it might have been brought down to what probably the 25th section of the judiciary act meant it should be, to wit, an 168 1816] OF THE UNITED STATES. 365 Martin v. Hunter. alternative judgment, either that the state court may finally proceed, at its option, to carry into effect the judgment of this court, or, if it declined doing so, that then this court would proceed itself to execute it. The language, sense and operation of the 25th section on this subject, merit particular attention. In the preceding section, which has relation to causes brought up by writ of error from the circuit courts *of the United States, this court is instructed not to issue .executions, but to send a L special mandate to the circuit court to award execution thereupon. In case of the circuit court’s refusal to obey such mandate, there could be no doubt as to the ulterior measures ; compulsory process might, unquestionably, be resorted to. Nor, indeed, was there any reason to suppose, that they ever would refuse ; and therefore, there is no provision made for authorizing this court to execute its own judgment in cases of that description. But not so, in cases brought up from the state courts ; the framers of that law plainly foresaw that the state courts might refuse ; and not being willing to leave ground for the implication, that compulsory process must be resorted to, because no specific provision was made, they have provided the means, by authorizing this court, in case of reversal of the state decision, to execute its own judgment. In case of reversal only, was this necessary ; for, in case of affirmance, this collision could not arise. It is true, that the words of this section are, that this court may, in their discretion, proceed to execute its own judgment. But these words were very properly put in, that it might not be made imperative upon this court to proceed indiscriminately in this way ; as it could only be necessary, in case of the refusal of the state courts ; and this idea is fully confirmed by the words of the 13th section, which restrict this court in issuing the writ of mandamus, so as to confine it expressly to those courts which are constituted by the United States. *In this point of view the legislature is completely vindicated from * all intention- to violate the independence of the state judiciaries. *-Nor can this court, with any more correctness, have imputed to it similar intentions. The form of the mandate issued in this ease is that known to appellate tribunals, and used in the ordinary cases of writs of error from the courts of the United States. It will, perhaps, not be too much, in such cases to expect of those who are conversant in the forms, fictions and technicality of the law, not to give the process of courts too literal a construction. They should be considered with a view to the ends they are intended to answer, and the law and practice in which they originate. In this view, the mandate was no more than a mode of submitting to that court the option which the 25th section holds out to them. Had the decision of the court of Virginia been confined to the point of their legal obligation to carry the judgment of this court into effect, I should have thought it unnecessary to make any further observations in this cause. But we are called upon to vindicate oui’ general revising power, and its due exercise in this particular case. Here, that I may not be charged with arguing upon a hypothetical case, it is necessary to ascertain what the real question is which this court is now called to decide on. In doing this, it is necessary to do what, although, in the abstract, of very questionable propriety, appears to be generally acquiesced in, to wit, to review the case, as it originally came up to this court *ou the former writ of error. The cause, then, came up upon a L 169 368 SUPREME COURT [Feb’y Martin v. Hunter. case stated between the parties, and under the practice of that state, having the effect of a special verdict. The case stated brings into view the treaty of peace with Great Britain, and then proceeds to present the various laws of Virginia, and the facts upon which the parties found their respective titles. It then presents no particular question, but refers generally to the law arising out of the case. The original decision was obtained prior to the treaty of 1794, but before the case was adjudicated in this court, the treaty of 1794 had been concluded. The difficulties of the case arise under the construction of the 25th section above alluded to, which, as far as it relates to this case, is in these words : “ A final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had,” “ where is drawn in question the construction of any clause of the constitution or of a treaty,” “ and the decision is against the title set up or claimed by either party under such clause, may be re-examined, and reversed or affirmed.” “ But no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said treaties,” &c. The first point decided under this state of the case was, that the judgment being a part of the record, if that judgment was not such as, upon * that case, it ought to have been, it was an error apparent on the *face J of the record. But it was contended, that the case there stated presented a number of points upon which the decision below may have been founded, and that it did not, therefore, necessarily appear to have been an error immediately respecting a question on the construction of a treaty. But the court held, that as the reference was general to the law arising out of the case, if one question arose, which called for the construction of a treaty, and the decision negatived the right set up under it, this court will reverse that decision, and that it is the duty of the party who would avoid the inconvenience of this principle, so to mould the case as to obviate the ambiguity. And under this point, arises the question, whether this court can inquire into the title of the party, or whether they are so restricted in their judicial powers, as to be confined to decide on the operation of a treaty upon a title previously ascertained to exist. If there is any one point in the case on which an opinion may be given with confidence, it is this : whether we consider the letter of statute, or the spirit, intent or meaning of the constitution and of the legislature, as expressed in the 27th section, it is equally clear, that the title is the primary object to which the attention of the court is called in every such case. The words are, “ and the decision be against the title,” so set up, not against the construction of the treaty contended for by the party setting up the title. And how could it be otherwise ? The title may exist, notwithstanding the , decision of the state courts to the contrary; and in that case, the -• *party is entitled to the benefits intended to be secured by the treaty. The decision to his prejudice may have been the result of those very errors, partialities or defects in state jurisprudence against which the constitution intended to protect the individual. And if the contrary doctrine be assumed, what is the consequence ? This court may then be called upon to decide on a mere hypothetical case—to give a construction to a treaty, 170 1816] OF THE UNITED STATES. Martin v. Hunter. 370 without first deciding whether there was any interest on which that treaty, whatever be its proper construction, would operate. This difficulty was felt and weighed in the case of Smith v. State of Maryland, and that decision was founded upon the idea, that this court was not thus restricted. But another difficulty presented itself : the treaty of 1794 had become the supreme law of the land, since the jndgment rendered in the court below. The defendant, who was, at that time, an alien, had now become confirmed in his rights under that treaty. This would have been no objection to the correctness of the original judgment. Were we, then, at liberty to notice that treaty, in rendering the judgment of this court ? Having dissented from the opinion of this court in the original case, on the question of title, this difficulty did not present itself in my way, in the view I then took of the case. But the majority of this court determined, that, as a public law, the treaty was a part of the law of every case depending in this court ; that as such, it was not necessary that it should be spread upon the record, and that it was obligatory *upon this court, in rendering judgment upon this writ of error, notwithstanding the original L judgment may have been otherwise unimpeachable. And to this opinion, I yielded my hearty consent ; for it cannot be maintained, that this court is bound to give a judgment, unlawful at the time of rendering it, in consideration that the same judgment would have been lawful, at any prior time. What judgment can now be lawfully rendered between the parties, is the question to which the attention of the court is called. And if the law which sanctioned the original judgment expire, pending an appeal, this court has repeatedly reversed the judgment below, although rendered whilst the law existed. So too, if the plaintiff in error die, pending suit, and his land descend on an alien, it cannot be contended, that this court will maintain the suit, in right of the judgment, in favor of his.ancestor, notwithstanding his present disability. It must here be recollected, that this is an action of ejectment. If the term formally declared upon, expires, pending the action, the court will permit the plaintiff to amend, by extending the term—why ? Because, although the right may have been in him at the commencement of the suit, it has ceased, before judgment, and without this amendment, he could not have judgment. But suppose, the suit were really instituted to obtain possession of a leasehold and the lease expire, before judgment, would the court permit the party to amend, in opposition to the right of the case ? On the contrary, if the term formally declared on were more extensive than the *lease in which the legal title was founded, could they give judg- «-ment for more than costs ? It must be recollected, that under this judgment, a writ of restitution is the fruit of the law. • This, in its very nature, has relation tq, and must be founded upon, a present existing right, at the time of judgment. And whatever be the cause which takes this right away, the remedy must, in the reason and nature of things, fall with it. When all these incidental points are disposed of, we find the question finally reduced to this—does the judicial power of the United States extend to the revision of decisions of state courts, in cases arising under treaties ? But in order to generalize the question, and present it in the true form in which it presents itself in this case, we will inquire, whether the constitution sanctions the exercise of a revising power over the decisions of state tribu- 171 372 SUPREME COURT [Feb’y Martin v. Hunter. nals in those cases to which the judicial power of the United States extends ? And here it appears to me, that the great difficulty is on the other side. That the real doubt is, whether the state tribunals can constitutionally exercise jurisdiction, in any of the cases to which the judicial power of the United States extends? Some cession of judicial power is contemplated by the third article of the constitution ; that which is ceded, can no longer be retained. In one of the circuit courts of the United States, it has been decided (with what correctness I will not say), that the cession of a power _t0 Pass an unif°rm act of bankruptcy, although not acted on by the ‘ J United States, deprives *the states of the power of passing laws to that effect.1 With regard to the admiralty and maritime jurisdiction, it would be difficult to prove that the states could resume it, if the United States should abolish the courts vested with that jurisdiction ; yet, it is blended with the other cases of jurisdiction, in the second section of the third article, and ceded in the same words. But it is contended, that the second section of the third article contains no express cession of jurisdiction ; that it only vests a power in congress to assume jurisdiction to the extent therein expressed. And under this head, arose the discussion on the construction proper to be given to that article. On this part of the case, I shall not pause long. The rules of construction, where the nature of the instrument is ascertained, are familiar to every one. To me, the constitution appears, in every line of it, to be a contract, which, in legal language, may be denominated tripartite. The parties are the people, the states, and the United States. It is returning in a circle, to contend, that it professes to be the exclusive act of the people, for what have the people done, but to form this compact ? That the states are recognised as parties to it, is evident, from various passages, and particularly, that in which the United States guaranty to each state a republican form of government. The security and happiness of the whole was the object, and, to prevent dissension and collision, each surrendered those powers which might make * _ »them dangerous to each other. Well aware of the sensitive *irrita- J bility of sovereign states, where their wills or interests clash, they placed themselves, with regard to each other, on the footing of sovereigns upon the ocean ; where power is mutually conceded to act upon the individual, but the national vessel must remain unviolated. And to remove all ground for jealousy and complaint, they relinquish the privilege of being any longer the exclusive arbiters of their own justice, where the rights of others come in question, or the great interests of the whole may be affected by those feelings, partialities or prejudices, which they meant to put down for ever. Nor shall I enter into a minute discussion on the meaning of the language of this section. I have seldom found much good result from hypercritical severity, in examining the distinct force of words. Language is essentially defective in precision ; more so, than those are aware of, who are not in the habit of subjecting it to philological analysis. In the case before us, for instance, a rigid construction might be made, which would annihilate 1 Golden v. Prince, 3 W. C. C. 313. 172 1816] OF THE UNITED STATES. 374 Martin v. Hunter. the powers intended to be ceded. The words are, “ shall extend to now that which extends io, does not necessarily include in, so that the circle may enlarge, until it reaches the objects that limit it, and yet not take them in. But the plain and obvious sense and meaning of the word shall, in this sentence, is in the future sense, and has nothing imperative in it. The language of the framers of the constitution is, “ We arc about forming a general government—when that government is formed, its powers shall extend,” &c. I, therefore, see nothing imperative in this clause, and certainly *it would have been very unnecessary to use the word in that sense ; for, as there was no controlling power constituted, it would L only, if used in an imperative sense, have imposed a moral obligation to act. But the same result arises, from using it in a future sense, and the constitution everywhere assumes, as a postulate, that wherever power is given, it will be,used, or at least used, so far as the interests of the American people require it, if not from the natural proneness of man to the exercise of power, at least, from a sense of duty, and the obligation of an oath. Nor can I see any difference in the effect of the words used in this section, as to the scope of the jurisdiction of the United States courts over the cases of the first and second description, comprised in that section. “ Shall extend to controversies,” appears to me as comprehensive in effect, as “ shall extend to all cases.” For, if the judicial power extend “ to controversies between citizen and alien,” &c., to what controversies of that description, does it not extend ? If no case can be pointed out, which is excepted, it then extends to all controversies. But I will assume the construction as a sound one, that the cession of power to the general government, means no more than that they may assume the exercise of it, whenever they think it advisable. It is clear, that congress have hitherto acted under that impression, and my own opinion is in favor of its correctness. But does it not then follow, that the jurisdiction of the state court, within the range ceded to the general government, is permitted, and *may be withdrawn whenever congress think proper to do so? As it is a principle, that every one may renounce a right introduced L ’ z for his benefit, we will admit, that as congress have not assumed such jurisdiction, the state courts may, constitutionally, exercise jurisdiction in such cases. Yet, surely, the general power to withdraw the exercise of it, includes in it the right to modify, limit and restrain that exercise. “This is my domain, put not your foot upon it, if you do, you are subject to my laws, I have a right to exclude you altogether ; I have, then, a right to prescribe the terms of your admission to a participation. As long as you conform to my laws, participate in peace, but I reserve to myself the right of judging how far your acts are conformable to my laws.” Analogy, then, to the ordinary exercise of sovereign authority, would sustain the exercise of this controlling or revising power. But it is argued, that a power to assume jurisdiction to the constitutional extent, does not necessarily carry with it a right to exercise appellate power over the state tribunals. This is a momentous question, and one on which I shall reserve myself uncommitted for each particular case as it shall occur. It is enough, at present, to have shown, that congress have not asserted, and this court has not attempted, to exercise that kind of authority in personam, over the state courts, which would place them in the relation of an inferior 173 376 SUPREME COURT [Feb’y Martin v. Hunter. responsible body, without their own acquiescence. And I have too much confidence in the state tribunals, to believe that a case ever will occur, in * , which it will be necessary *for the general government to assume a -* controlling power over these tribunals. But is it difficult to suppose a case, which will call loudly for some remedy or restraint ? Suppose, a foreign minister, or an officer, acting regularly under authority from the United States, seized to-day, tried to-morrow, and hurried the next day to execution. Such cases may occur, and have occurred, in other countries. The angry, vindictive passions of men have too often made their way into judicial tribunals, and we cannot hope for ever to escape their baleful influence. In the case supposed, there ought to be a power somewhere to restrain or punish, or the Union must be dissolved. At present, the uncontrollable exercise of criminal jurisdiction is most securely confided to the state tribunals. The courts of the United States are vested with no power to scrutinize into the proceedings of the state courts in criminal cases ; on the contrary, the general government has, in more than one instance, exhibited their confidence, by a wish to vest them with the execution of their own penal law. And extreme, indeed, I flatter myself, must be the case, in which the general government could ever be induced to assert this right. If ever such a case should occur, it will be time enough to decide upon their constitutional power to do so. But we know, that by the 3d article of the constitution, judicial power, to a certain extent, is vested in the general government, and that, by the same instrument, power is given to pass all laws necessary to carry into effect the provisions of the constitution. At present, it is only necessary to *3781 vindicate the *laws which they have passed affecting civil cases pend- J ing in state tribunals. In legislating on this subject, congress, jn the true spirit of the constitution, have proposed to secure to every one the full benefit of the constitution, without forcing any one, necessarily, into the courts of the United States. With this view, in one class of cases, they have not taken away absolutely from the state courts all the cases to which their judicial power extends, but left it to the plaintiff to bring his action there, originally, if he choose, or to the defendant, to force the plaintiff into the courts of the United States, where they have jurisdiction, and the former has instituted his suit in the state courts. In this case, they have not made it legal for the defendant to plead to the jurisdiction ; the effect of which would be, to put an end to the plaintiff’s suit, and oblige him, probably, at great risk or expense, to institute a new action ; but the act has given him a right to obtain an order for a removal, on a petition to the state court, upon which the cause, with all its existing advantages, is transferred to the circuit court of the United States. This, I presume, can be subject to no objection ; as the legislature has an unquestionable right to make the ground of removal, a ground of plea to the jurisdiction, and the court must then do no more than it is now called upon to do, to wit, give an order or a judgment, or call it what we will, in favor of that defendant. And so far from asserting the inferiority of the state tribunal, this act is rather that of a superior, inasmuch as the circuit court *8 Vol States becomes bound, *by that order, to take jurisdic- J tion of the case. This method, so much more unlikely to affect official delicacy than that which is resorted to in the other class of cases, might, 174 1816] OF THE UNITED STATES. 379 Martin v. Hunter. perhaps, have been more happily applied to all the cases which the legislature thought it advisable to remove from the state courts. But the other class of cases, in which the present is included, was proposed to be provided for in a different manner. And here, again, the legislature of the Union evince their confidence in the state tribunals ; for they do not attempt to give original cognisance to their own circuit courts of such cases, or to remove them by petition and order; but still, believing that their decisions will be generally satisfactory, a writ of error is not given immediately, as a question within the jurisdiction of the United States shall occur, but only in case the decision shall finally, in the court of the last resort, be against the title set up under the constitution, treaty, &c. In this act, I can see nothing which amounts to an assertion of the inferiority or dependence of the state tribunals^ The presiding judge of the state court is himself authorized to issue the writ of error, if he will, and thus give jurisdiction to the supreme court : and if he thinks proper to decline it, no compulsory process is provided by law to oblige him. The party who imagines himself aggrieved is then at liberty to apply to a judge of the United States, who issues the writ of error, which (whatever the form) is, in substance, no more than a mode of compelling the opposite party to appear before this court, and maintain the legality of his judgment obtained before the *state tribunal. An exemplification of a record p,. is the common property of every one who chooses to apply and pay for it, and thus the case and the parties are brought before us ; and so far is the court itself from being brought under the revising power of this court, that nothing but the case, as presented by the record and pleadings of the parties, is considered, and the opinions of the court are never resorted to, unless for the purpose of assisting this court in forming their' own opinions. The absolute necessity that there was for congress to exercise something of a revising power over cases and parties in the state courts, will appear from this consideration. Suppose, the whole extent of the judicial power of the United States vested in their own courts, yet such a provision would not answer all the ends of the constitution, for two reasons : 1st. Although the plaintiff may, in such case, have the full benefit of the constitution extended to him, yet the defendant would not; as the plaintiff might force him into the court of the state, at his election. 2d. Supposing it possible so to legislate, as to give the courts of the United States original jurisdiction in all cases arising under the constitution, laws, &c., in the words of the 2d section of the 3d article (a point on which I have some doubt, and which in time might, perhaps, under some quo minus fiction, or a willing construction, greatly accumulate the jurisdiction of those courts), yet a very large class of cases would remain unprovided for. Incidental questions would often arise, and as a court of competent *juris-diction in the principal case must decide all such questions, whatever laws they arise under, endless might be the diversity of decisions throughout the Union upon the constitution, treaties and laws of the United States ; a subject on which the tranquillity of the Union, internally and externally, may materially depend. I should feel the more hesitation in adopting the opinions which I express m this case, were I not firmly convinced, that they are practical, and may be acted upon, without compromitting the harmony of the Union, or bring- 381 SUPREME COURT [Feb’y The Commercen. ing humility upon the state tribunals. God forbid ! that the judicial power in these states should ever, for a moment, even in its humblest departments, feel a doubt of its own independence. Whilst adjudicating on a subject which the laws of the country assign finally to the revising powerof another tribunal, it can feel no such doubt. An anxiety to do justice is ever relieved, by the knowledge that what we do is not final between the parties. And no sense of dependence can be felt, from the knowlege that the parties, not the court, may be summoned before another tribunal. With this view, by means of laws, avoiding judgments obtained in the state courts in cases over which congress has constitutionally assumed jurisdiction, and inflicting penalties on parties who shall contumaciously • persist in infringing the constitutional rights of others—under a liberal extension of the writ of injunction and the habeas corpus ad subjiciendum, I flatter myself, that the full extent of the constitutional revising power may be secured to the United States, and the *3821 *^enefits itto the individual, without ever resorting to compulsory J or restrictive process upon the state tribunals ; a right which, I repeat again, congress has not asserted, nor has this court asserted, nor does there appear any necessity for asserting. The remaining points in the case being mere questions of practice, I shall make no remarks upon them. Judgment affirmed. The Commercen : Lindgren, Claimant. Contraband of war.—Freight. Provisions, neutral property, but the growth of the enemy’s country, and destined for the supply of the enemy’s military or naval forces, are contraband.1 Provisions, neutral property, and the growth of a neutral country, destined for the general supply of human life in the enemy’s country, are not contraband.2 Freight is never due to the neutral carrier of contraband. Quwre ? In what cases, the vehicle of contraband is confiscable ? A neutral ship, laden with provisions, enemy’s property, and the growth of the enemy’s country, specially permitted to be exported for the supply of his forces, is not entitled to freight. It makes no difference, in such a case, that the enemy is carrying on a distinct war, in conjunction with his allies, who are friends of the captor’s country, and that the provisions are intended for the supply of his troops engaged in that war, and that the ship in which they are transported belongs to subjects of one of those allies. The Commercen, 2 Gallis. 261, affirmed. * Appeal from the Circuit Court for the district of Massachusetts. J This was the case of a Swedish *vessel captured on the 16th of April 1814, by the private armed schooner Lawrence, on a voyage from Limerick, in Ireland, to Bilboa, in Spain. The cargo consisted of barley and oats, the property of British subjects, the exportation of which is generally prohibited by the British government; and as well by the official papers of the custom-house, as by the private letters of the shippers, it appeared to have been shipped under the special permission of the government, for the sole use of his Britannic Majesty’s forces then in Spain. Bonds were accordingly given for the fulfilment of this object. 1 Maisonnaire v. Keating, 2 Gallis. 325. 2 The Henry C. Homeyer, 2 Bond 217. See The Peterhoff, 5 Wall. 28. 176 1816] OF THE UNITED STATES. 383 The Commercen. At the hearing in the district court of Maine, the cargo was condemned as enemy’s property, and the vessel restored, with an allowance, among other things, of the freight for the voyage, according to the stipulation of the charter-party. The captors appealed from so much of the sentence as decreed freight to the neutral ship ; and upon the appeal to the- circuit court of Massachusetts, the decree, as to freight, was reversed ; and from this last sentence, an appeal was prosecuted to this court. ^or the appellants and claimants.—1. The general principle of law allows freight to the neutral carrier of enemy’s property. It is incumbent upon the captors, to show, that this case forms an exception to the rule, which they can only do, by alleging this to be an unlawful interposition in the war between the United States and Great Britain ; but an interposition in the Peninsular war, was not necessarily an interposition in the American war. Were it *so, it would follow, that the Spaniards and Swedes p|.„8. might not trade with the United States, they being the allies of Great 384 Britain ; as the prize courts of England decide, that the subjects of an ally cannot lawfully trade with the common enemy. Bynkershoek puts the case of two powers allied, during a truce, but before enemies (Q. J. Pub. lib. 16, p. 125, Du Ponceau’s Translation). W^hat would be the situation of neutrals? If they came to the assistance of either, they might be liable to be treated as enemies by the other. In the present instance, if the British forces had been so situated, as that they might operate against the United States as well as J rance, it would alter the case. But remote and uncertain consequences cannot be held to affect the conduct of neutrals with illegality. There is no proof or presumption, that the master knew the special destination of the cargo. His act cannot be unlawful, unless done knowingly and wilfully, as in the case of carrying enemy’s dispatches, where Sir William Scott, at first, went entirely on the ground of the master’s privity^ afterwards, he adopted a rule more strict and severe ; but still knowledge was held to be necessary, and presumed, wherever there was a want of extraordinary diligence on the part of the master. It is conceded, that the onus is on the claimant, to show his ignorance of the contents of the papers concerning the cargo, which, if the present testimony is not sufficient, may be done upon further proof. *Story, J.—Ignorance of the master was not pretended, in the court below. L 385 Dexter, for the respondents and captors—The rule that the neutral carrier of enemy’s property is entitled to freight, is a mitigated rule, and Bynkershoek argues with much force against its reasonableness. (Q. J. Pub. ch. 14, p. Ill, Du Ponceau’s Translation.) But the master, in the present case, is not entitled to the benefit of it, having, by his conduct, mad$ himself an enemy, pro hdc vice. The principle, as to the nature of the Spanish war, was settled, when the court determined, that to carry goods to Lisbon, under a British license, was cause of confiscation. Can a party in a similar predicament be entitled to freight ? Can a neutral stand on any better ground than a citizen ? Either the British troops in the Peninsula were enemies or friends. If enemies, this is an interposition which cannot be permitted to neutrals. Being at war, the British fleets and armies were 1 Wheat.—12 177 385 SUPREME COURT [Feb’y The Commercen. hostile, in every quarter of the globe. Where shall the line be drawn, to mark when they became our enemies ? At what period, from the time of their landing in Portugal, until their crossing the Pyrennees, and embarking at Bordeaux for the United States ? It is impossible to aid the operations of our enemy, in any part of the world, without strengthening his means of annoying us. The very men fed by this trade came here to fight us on our own soil, and to destroy our capital. It is said, that this involves the con-seQuence> that we were at war *with Spain and Portugal; but it J depends upon the councils of every country, to judge what acts of hostility shall render it expedient to make war; it depended on us, to be at war with the allies of our declared enemy. It is a general rule, that it is not unlawful to. carry provisions to a neutral country ; but if the enemy be there, and the articles are destined for his use, it is unlawful. The whole evidence shows, that the master knew he was carrying provisions for the supply of the British forces, and his ignorance of the law, is immaterial. But even if it were material, the inflamed rate of freight shows that he was (.conscious of the risk he ran. Harper, in reply.—The principle contended for by the captors is stricti Juris, and extreme in its application to this particular case, where there is nothing like moral guilt in the conduct of the master, who did not intend to interfere in our distinct war. There is no adjudged case that comes up to this.; and freight is refused, from analogy to the general principle established by the British prize courts, as to neutral interposition in the war. But .an interference in the coasting and colonial, or other privileged trade •of the enemy, and relief to him, is a direct assistance, and the rule cannot justly be extended to a remote and consequential aid, not contemplated by the party. The license cases, determined by this court, went on the ground ) Strictly speaking, (®) Bynk. Quæst. J. Pub. c. 14 ; The Sarah Christina, 1 Rob. 237 ; The Haase, Id. 288 ; The Emanuel, Id. 296 ; The Immanuel, 2 Id. 101 ; The Atlas, Id. 299 ; The Rising Sun, Id. 104; The Madonna delie Gracie, 4 Id. 161 ; The Neutralität, 3 Id. 295 ; The Welvaart, 2 Id. 128; The Friendship, 6 Id. 420. (J) Articles which are exclusively useful for warlike purposes, are always contraband, when destined for the enemy ; those of promiscuous use, in war and in peace, only become so, under particular circumstances. Grotius, De jure belli ac pacis, lib. 3, c< h § 5; Vattel, lib. 3, c. 7, § 112. Among the latter class, are included naval stores and provisions ; though Vattel considers naval stores as always contraband, whilst he holds that provisions only become so, under peculiar circumstances. “ Les choses qui sont d'un usage particulier pour la guerre, et dont on empêche le transport chez l'ennemi s'appellent marchandises de contrabande. Telles sont les armes, les munitions de guerre, les bois, et tout ce qui sert à la construction, et à l'armement des vaisseaux de guerre, les chevaux, et les vivres mêmes en certaines occasions, ou l'on espere de réduire l'ennemi par la faim." But Bynkershoek reasons against admitting into the list of contraband, articles of promiscuous use, and the materials out of which warlike articles are formed. Q. Jur. Pub. lib. 1, c. 10. He, however, states that materials for building ships may be prohibited under certain circumstances. “ Quandoque tarnen accidit, ut et navium materia prohïbeatur, si hostis ea quam maxime indigeat, et absque ea com- *390 SUPREME COURT [Feb’y The Commercen. however, *this is not a question of contraband ; for that can arise only when *9011 ProPerty belongs to a neutral, *and here the property belonged J to an enemy, and therefore, was liable, at all events, to condemnation. But was the voyage lawful, and such as a neutral could, with good faith, and without a forfeiture, engage in ? It has been solemnly adjudged, that being engaged in the transport service, or in the conveyance of military persons in his employ, are acts of hostility which subject the property to confiscation. The Carolina, 4 Rob. 256 ; The Friendship, 6 Ibid. 420 ; The Orozenbo, Ibid. 430. And the carrying of dispatches from the colony to the mother country of the enemy has subjected the party to the like penalty. The Atalanta, 6 Rob. 440 ; The Constantia, Ibid. 461, note. And in these cases, the fact that the voyage was to a neutral port, was not thought to mode bellum gerere hand possit. Quum ordines generates in § 2, edicti contra Lysitanos, Dec. 31, 1657, iis, quæ communi populorum usu contrabande censentur, Lysitanos juvari vetuissent, specialiter addunt in § 3, ejusdem edicti, quia nihil nisi mari a Lysi-tanos meduebant, ne quis etiam navium materiam iis advehere vellet, palam sic navium a contrabandis distincta, sed db specialem rationèm addita. Ob eandem causam navium materia conjungitur cum instrumentis belli in § 2, d. Edicti contra Anglos, Dec. 5, 1652, et in Edicto ordinum generalium contrd Francos, 9 Mart. 1689. Sed sunt hæc exceptiones quæ regulam confirmant." So also, of provisions, they are not, in general, contraband ; but if the produce of an enemy’s country, and not destined for the ordinary sustenance of human life, but for military or naval use, they become contraband, according to the law of England. And articles, the growth of the neutral exporting country, are not contraband, though carried in the vessels of another country. The Apollo, 4 Rob. 161. And the benefit of the principle is extended to maritime countries, exporting the produce of neighboring interior districts, whose produce those countries are usually employed in exporting, in the ordinary course of their trade. The Evert, Id. 354. But the law of France and Spain does not consider provisions as contraband. Ordonnance de la Marine, lib. 3, tit. 9, des Prises, art. 11 ; D’Habreu, sobre las Presas, part 1, c. 10, p. 136. And Valin states, that, both by the law of France and the common law of nations, provisions are contraband only where destined to besieged or blockaded places. But he asserts, that naval stores were contraband, at the time he wrote (1758), and had been so since the beginning of that century, which they were not formerly. Sur 1’Ord, Ibid. Pothier, commenting on the same article of the ordinance, observes, “A Vegard des munitions de bouche que des sujets des puissances neutres envoient à nos ennemies, elles ne sont point censées de contrabande, ni par conséquent sujettes confiscation; sauf dans un seul cas, qui est lorsqu!elles sont envoyées à une place assiégée ou bloquée." De Propriété, No. 104. By the Swedish Ordinance of 1715, contraband articles are declared to be those iiqui peuvent être employées pour la guerre." The Danish Ordinance of 1659 (provided for the subsisting war with Sweden) contains a long list of contraband articles, among which are included naval stores and provisions. The modern conventional law of nations has generally excluded provisions and naval stores from the list of contraband, and in all the treaties made by the United States, since they were an independent power, except in the treaties with Great Britain, they are excluded ; but the only treaty now subsisting which contains a definition of contraband, is that of 1795, with Spain, which embraces the munitions of war only. The treaty of 1794 with great Britain, declares naval stores, with the exception of unwrought iron and fir planks, to be contraband, and liable to confiscation, and declares, that when provisions and other articles, not generally contraband, shall become such, according to the existing law of nations, they shall be entitled to pre-emption, with freight to the carrier. By the treaty negotiated in 1807, but not ratified, provisions were omitted in the list of-contraband, and tar and pitch (unless destined to a port of naval equipment) were added to the naval stores excepted in the treaty of 1794. 180 1816] . OF THE UNITED STATES. 391 The Commercen. . change the character of the transaction. The principle of these determinations was asserted to be, that the party must be deemed to place himself in the service of the hostile state, and *assist in warding off the pressure of the war, or in favoring its offensive projects. Now, we cannot L 392 distinguish these cases, in principle, from that before the court. Here is a cargo of provisions, exported from the enemy’s country, with the avowed purpose of supplying the army of the enemy. Without this destination, they would not have been permitted to be exported at all. Can a more important or essential service be performed in favor of the enemy ? In what does it differ from the case of a transport in his service ? The property, nominally, belongs to individuals, and is freighted, apparently, on private account, but, in reality, for public use, and under a public contract, implied from the very permission of exportation. It is vain to contend’ that the direct effect of the voyage was not to aid the British hostilities against the United States. It might enable the enemy, indirectly, to operate with more vigor and promptitude against us, aud increase his disposable force. But it is not the effect of the particular transaction that the law regards, it is the general tendency of such transactions to assist the military operations of the enemy, and the temptations which it presents to deviate from a strict neutrality. Nor do we perceive how the destination to a neutral port, can vary the application of this rule ; it is only doing that, indirectly, which is prohibited in direct courses. Would it be contended, that a neutral might lawfully transport provisions for the British fleet and army, while it lay at Bordeaux, preparing for an expedition to the United States ? Would it be contended, that he might lawfully supply a British *fleet stationed on our coast ? We presume, that two opinions could not L 393 be entertained on such questions ; and yet, though the cases put are strong, we do not know that the assistance is more material then might be supplied under cover of a neutral destination like the present. An attempt has been made to distinguish this case from the ordinary cases of employment in the transport service of the enemy, upon the ground, that the war of Great Britain against France was a war distinct from that against the United States ; and that Swedish subjects had a perfect right to assist the British arms, in respect to the former, though not to the latter. Whatever might be the right of the Swedish sovereign, acting under his own authority, we are of opinion, that if a Swedish vessel be engaged in the actual service of Great Britain, or in carrying stores for the exclusive use of the British armies, she must, to all intents and purposes, be deemed a British transport. It is perfectly immaterial, in what particular enterprise those armies might, at the time, be engaged ; for the same important benefits are conferred upon an enemy, who thereby acquires a greater disposable force to bring into action against us. In The Friendship^ 6 Rob. 420, 426, Sir W. Scott, speaking on this subject, declares, “ It signifies nothing, whether the men, so conveyed, are to be put into action, on an immediate expedition, or not. The mere shifting of drafts in detachments, and the conveyance of stores from one place to another, is an ordinary employment of a transport vessel, and it is a distinction totally unimportant, whether this or that case may be connected with the immedate active service of thé enemy. In removing forces from distant settlements, there may be no intention of immediate action, but still, the general impor- 181 394 SUPREME COURT [Feb’y The Commercen. tance of having troops conveyed to places where it is convenient that they should be collected, either for present or future use, is what constitutes the object and employment of transport vessels.” It is obvious, that the learned judge did not deem it material to what places the stores might be destined ; and it must be equally immaterial, what is the immediate occupation of the enemy’s military force. That force is always hostile to us, be it where it may be. To-day it may act against France, to-morrow, against us ; and the better its commissary department is supplied, the more life and activity is communicated to all its motions. It is not, therefore, in our view, material, whether there be another distinct war in which our enemy is engaged, or not; it is sufficient, that his armies are everywhere our enemies, and every assistance offered to them must, directly or indirectly, operate to our injury. On the whole, the court are of opinion, that the voyage, in which this vessel was engaged, was illicit, and inconsistent with the duties of neutrality, and that it is a very lenient administration of justice, to confine the penalty to a mere denial of freight, (a) *Marshall, Ch. J. (dissenting.}—As a principle, which I think new, J and which may certainly, in future, be very interesting to the United States, has been decided in this case, I trust, I may be excused for stating the reasons which have prevented my concurring in the opinion that has been delivered. In argument, this sentence of the circuit court has been sustained on two * , grounds : 18k That the exportation *of grain from Ireland is gener- J ally prohibited, and therefore, that a neutral cannot lawfully engage (d) As to the penalty for the carrying of contraband, see 3 Rob. 182, note a. Freight and expenses are almost always refused by the British prize courts to a carrier of contraband. There is but one case in the books, of an exception to this rule, which was of sail-cloth carried to Amsterdam, the contraband being in a small quantity, amongst a variety of other articles. The Neptunus, 3 Rob. 91. The penalty is carried beyond the refusal of freight and expenses, and is extended to the confiscation of the ship, and innocent parts of the same cargo, 1st. Where the ship and the contraband articles belong to the same person. The Staadt Emden, 1 Rob. 31; The Young Tobias, Id. 330. 2d. Where the cargo is carried with a false destination, false papers, or other circumstances of fraud. The Franklin, 3 Rob. 217; The Edward, 4 Id. 69; The Richmond, 5 Id. 290; The Ranger, 6 Id. 125. 3d. Where the owner of the ship is bound, by the obligation of treaties between his own country and the capturing power, to refrain from carrying contraband to the enemy. The Neutralitet, 3 Rob. 295. By the ancient prize law of France, contraband goods were subject to pre-emption only. Ord-onnance de 1584, art. 69. The ordinance of 1681 subjected the contraband articles only to confiscation ; but by the regulation of 1778, the same penalty was extended to the ship, in case three-fourths of the cargo consisted of contraband articles.. The law of Holland confiscates the contraband articles only, but refuses freight; the principle of of which is vindicated by Bynkershoek. Idque longe verissimum est, nam mercedes non debentur, nisi itinere perfecto, et, ne perficeretur, hostis jure prohibuit. Deinde publicantur contrabanda velex delicto, et ita nihil commiserunt navarchi, quam ipsi mercium vetitarum domini, rel, quod magis est, ex re, ex ipsa nimirum transvectione: quamois enim amico nostro non possimus commercio interdicere cumhoste nostro, possu-mus tamen prohibere, ne in bello Uli prosit in necem nostram. Atque ita, quod publi-catur, publicabitur citra ullum ullius hominis respectum, et habebitur, ac si divina periisset, extincto sic jure pignoris." 182 1816] OF THE UNITED STATES. 396 The Commercen. in it during war. 2d. That the carriage of supplies to the army of the enemy is to take part with him in the war, and consequently, to become the enemy of the United States so far as to forfeit the right to freight. The first point has been maintained, on its supposed analogies to certain principles which have been, at different times, avowed by the great maritime and belligerent powers of Europe respecting the colonial and coasting trade, and which are generally known in England, and in this country, by the appellation of the rule of 1756. Without professing to give any opinion on the correctness of those principles, it is sufficient to observe, that they do not appear to me to apply to this case. The rule of 1756 prohibits a neutral from engaging, in time of war, in a trade in which he was prevented from participating in time of peace, because that trade was, by law, exclusively reserved for the vessels of the hostile state. This prohibition stands upon two grounds. 1st. That a trade, such as the coasting or colonial trade, which, by the permanent policy of a nation, is reserved for its own vessels, if opened to neutrals during war, must be opened under the pressure of the arms of the enemy, and in order to obtain relief from that pressure. The neutral who interposes to relieve the belligerent, under such circumstances, rescues him from the condition to which the arms of his enemy has reduced him, restores to him those resources which have been wrested from him by the *arms of his adversary, and deprives that adversary of the advan-tages which successful war has given him. This, the opposing bellig- •-erent pronounces a departure from neutrality, and an interference in the war, to his prejudice, which he will not tolerate. 2d. If the trade be not opened by law, that a neutral employed in a trade thus reserved by the enemy to his own vessels, identifies himself with that enemy, and by performing functions exclusively appertaining to the enemy character, assumes that character. Neither the one nor the other of these reasons applies to the case under consideration. The trade was not a trade confined to British vessels, during peace, and opened to neutrals, during war, under the pressure created by the arms of the enemy. It was prohibited, for political reasons, entirely unconnected with the interests of navigation, and thrown open from motives equally unconnected with maritime strength. Neither did the neutral employed in it engage in a trade, then, or at any time, reserved for British vessels, and therefore, did not identify himself with them. He was not performing functions exclusively appertaining to the enemy, and consequently, in performing them, did not assume that character. The second point presents a question of much more difficulty. That a neutral carrying supplies to the army of the enemy does, under the mildest interpretation of international law, expose himself to the loss of freight, is a proposition too well settled to be controverted. That it is a general rule, admitting of few, if any, exceptions, is not denied by the counsel *for the appellants. But they contend, that this case is withdrawn from that rule, by its peculiar circumstances. The late war between the United States and Great Britain was declared, at a time when all Europe, including our enemy, was engaged in a war with which ours had no connection, and in which we professed to take,no interest. The allies of our enemy, engaged with him in a common war, the most tremendous and the most vitally interesting to the parties that has ever desolated the earth, were our friends. We kept up with them the mutual interchange of good offices, 183 898 SUPREME COURT JFeb’y The Commercen. and declared our determination to stand aloof from that cause which was common to them and Great Britain. They, too, considered this war as entirely distinct from that in which they were engaged. Although, at a most critical period, we had attacked their ally, they did not view it as an act of hostility to them. They did not ascribe it to a wish to affect, in any manner, the war in Europe, but solely to the desire of asserting our violated rights. They seemed almost to consider the Britain who was our enemy, as a different nation from that Britain who was their ally. How long this extraordinary state of things might have continued, it is impossible to say ; but it certainly existed, when the Commercen was captured. What its effect on that capture ought to be, must depend more on principle than on precedent. It has been said, and truly said, by the counsel for the captors, that we were at war with Great Britain, in every part of the world. We were enemies everywhere. Her troops in Spain, or else-*oqq] where, as *well as her troops in America, were our enemies. It was J a conflict of nation against nation. This is conceded; and therefore, the cargo of the Commercen, being British property, was condemned as prize of war. But, although this must be conceded, the corollary which is drawn from it, that, those who furnish their armies in Spain with provisions, aid them to our prejudice, and therefore, take part in the war, and are guilty of unneutral conduct, must be examined, before it can be admitted. It is not true, that every species of aid given to an enemy, is an act of hostility which will justify our treating him who gives it, or his vessels, as hostile to us. The history of all Europe, and especially of Switzerland, furnishes many examples of the truth of this proposition. Those examples need not be quoted particularly, because they stand on principles not entirely applicable to this case. It is the peculiarity of this war, which requires the adoption of rules peculiar to a new state of things, in adopting which, we must examine the principle on which a nation is justified in treating a neutral as an enemy. That a neutral is friendly to our enemy, and continues to interchange good offices with him, can furnish no subject of complaint; for then, all commerce with one belligerent would be deemed hostile by the other. The effect of commerce is to augment his resources, and enable him the longer to prosecute the war ; but this augmentation is produced by an act entirely innocent on the part of the neutral, and manifesting no hostility to the opposing belligerent. It cannot, therefore, be ^.„1 molested by him, while the same good offices *are allowed to him, J although he may not be enabled to avail himself of them to an equal degree. It would seem, then, that a remote and consequential effect of an act, is not suffiicient to give it a hostile character ; its tendency to aid the enemy in the war, must be direct and immediate. It is also necessary, that it should be injurious to us; for a mere benefit to another, which is not injurious to us, cannot convert a friend into an enemy. If these principles be correct, and they are believed to be so, let us apply them to the present case. When hostilities commenced between the United States and Great Britain, that country was carrying on a war with France, in which the great powers of Europe were combined. We did not expect, and certainly had no right to expect, that our declaration of war against one of the allies, would, in any manner, affect the operations of their common war in Europe. The armies of Portugal and Spain were united to 184 1816] OF THE UNITED STATES. 400 The Commercen. those of Britain, and, unquestionably, aided and assisted our enemy, but they did not aid and assist him against us, and therefore, did not become our enemies. Had any other of the combined powers equipped a military expedition, for the purpose of reinforcing the armies of Britain in any part of Europe, or had a new ally engaged in the war, that would have been no act of hostility against the United States, although it would have aided our enemy. But if a military expedition to the United States had been undertaken, the case would have assumed a different aspect. Such expedition would be hostile to this country, and the power undertaking it would *become our enemy. It would have been an interference operating * directly to our prejudice. The declaration of war against Great *-Britain had, without doubt, a remote and consequential effect on the war in Europe. The force employed against the United States must be subducted from that employed in support of the common cause in Europe, or greater exertions must be made, which might sooner exhaust those resources which enabled her to continue her gigantic efforts in their common war. Consequently, the declaration of war by the United States remotely affected the war in Europe, to the advantage of one party and the injury of the other. Yet no one of the allies considered this declaration as taking part in that war, and placing America in the condition of an enemy. But, had the United States employed their force on the Peninsula against the British troops, or had they interfered in the operations of the common war, it may well be doubted, whether they might not have been rightfully considered as taking part against the allies, and arranging themselves on the side of the common enemy. In answer to arguments of this tendency, made at the bar, it was said, that nations are governed by political considerations, and may choose rather to overlook conduct at which they might justly take offence, than unnecessarily to increase the number of their enemies, or provoke increased hostility ; but that courts of justice are bound by the law, and must inflexibly adhere to its mandate. While this is conceded, it is deemed equally true, that those acts which will justify the condemnation of a *neutral, as an enemy, would also justify the treating his nation as an enemy, if they L were performed or defended by the nation. There is a tacit compact, that the hostile act of the individual shall not be ascribed to his government; and that, in turn, the government will not protect the individual from being treated as an enemy. But if the government adopts the act of the individual, and supports it by force, the government itself may be rightfully treated as hostile. Thus, contraband of war, though belonging to a neutral, is condemned as the property of an enemy, and his government takes no offence at it; but should his government adopt the act, and insist upon the right to carry articles deemed contraband, and support that right, it would furnish just ground of war. The belligerent might choose to overlook this hostile act, but the act would be, in its nature, hostile. The inquiry, then, whether the act in which this individual Swede was employed, would, if performed by his government, have been considered an act of hostility to the United States, and might rightfully be so considered, is material to the decision of the question, whether the act of the individual is to be treated as hostile. Great Britain and Sweden were allies in the war against France. Consequently, the King of Sweden might have ordered 185 402 SUPREME COURT [Feb’y The Commercen. his troops to co-operate with those of Britain, in any place, against the common enemy. He might have ordered a reinforcement to the British army on the Peninsnla, and this reinforcement might have been trarisported by sea. An attempt on the part of the United States to intercept it, because it *4031 was *a^nS their enemy, would certainly have been an interference in J the war of Europe, which would have provoked, and would have justified, the resentment of all the allied powers. It would have been an interference, not to be justified by our war with Britain, because those troops were not to be employed against us. If, instead of a reinforcement of men, a supply of provisions were to be furnished to that part of the allied army which was British, would that alter the case ? Could an American squadron intercept a convoy of provisions, or of military stores, of any description, going to an army engaged in a war common to Great Britain and Sweden, and not against the United States? Could this be done, without interfering in that war, and taking part in it against all the allies ? If it could not, then any supplies furnished by the government of Sweden, promoting the operations of their common war, whether intended for the British or any other division of the allied armies, had a right to pass unmolested by American cruisers. It is not believed, that any act which, if performed by the government, would not be deemed an act of hostility, is to be so deemed, if performed by an individual. Had the provisions then on board the Commercen been Swedish property, the result of this reasoning is, that it would not have been confiscated as prize of war. Being British property, it is confiscable ; but the Swede is guilty of no other offence than carrying, enemy’s property, an offence not enhanced in this particulai’ case by the character of that property, He is, therefore, as much entitled to freight, *404.1 as his cargo had been *of a different description. His trade was J not more illicit, than the carriage of enemy’s goods for common use, would have been. If the cases in which neutrals have been condemned for having on board articles, the transportation of which clothe them with the enemy character, be attentively considered, it is believed, that they will not be found to contravene the reasoning which has been urged. To carry dispatches to the government, has been considered as an act of such complete hostility, as to communicate the hostile character of the vessel carrying them, But this decision was made in a case where the dispatches could only relate to the war between the government of the captors, and that to which the dispatches were addressed. They were communications between a colonial government, in danger of being attacked, and the mother country. In a subsequent case, it was determined, that a neutral vessel might bear dispatches to a hostile government, without assuming the belligerent character, if they were from an ambassador residing in the neutral state. Yet such dispatches might contain intelligence material to the war. But this is a case in which the belligerent right to intercept all communications addressed to the enemy, by the officers of that enemy, is modified and restrained by the neutral right to protect the diplomatic communications which are necessary to the political intercourse between belligerents and neutrals. It is a case, in which the right of the belligerent is narrowed and controlled by the *4051 Pos^ve rights of a neutral; still more reasonably may they *be nar- ■1 rowed and controlled by the positive rights of a belligerent engaged 186 1816] OF THE UNITED STATES. 405 The Commercen. in a war in which we have no concern, and in which we ought not to interfere. To transport troops, or military persons, belonging to the enemy, from one place to another, has also been determined to subject the vessel to condemnation ; but in those cases, the service in which it was supposed the persons, so conveyed, were to be employed, was against the government of the captors. The transportation of these persons was to aid the views of one belligerent against the other, and was therefore, to take part in the war against that other. It is an act, the operation of which is direct and immediate. It may be said, that this reasoning would go to the protection of British troops passing to the Peninsula, and of British supplies transported in British vessels for their use ; that it, therefore, proves too much, and must, consequently, be unsound. It is admitted, that, pressed to its extreme point, the argument would go this extent, an extent which cannot be maintained ; but it does not follow, that it is unsound in every stage of its progress. In every case of conflicting rights, each must yield something to the other. The pretensions of neither party can be carried to the extreme. They meet— they check—they limit each other. The precise line which neither can pass, but to which each may advance, is not easily to be found and marked ; yet such a line must exist, whatever may be the difficulty of discerning it. To attack an enemy, or to take his property, if either can be done, with-out violating the sovereignty *of a friend, is of the very essence of L war. None can be offended at the exercise of this right, who may not be offended at the declaration of war itself. The injury which the allies of our enemy, in a war common to them (but in which we are not engaged), sustain, by this occasional interruption, is incidental, while, on our part, it is the exercise of a direct and essential right. But when we attack a friend, who is carrying on military operations conjointly with our enemy, but not against us, we are not making direct war, but are using those incidental rights which war gives us, against those direct rights which are exercised by a belligerent, not our enemy, and which constitute war itself. In either case, it would seem to me, that the incidental must yield to the direct and essential right. Upon this view of the subject, I have at length, not, it is confessed, without difficulty, come to the conclusion, that the Commercen, being a Swedish vessel, whose nation was engaged in a war, common to Great Britain and Sweden, against France, and to which the United States were not a party, might convey military stores for the use of the British armies engaged in that war, as innocently as she could carry British property of any other description, and is, therefore, as much entitled to freight as she would be, had the property belonged to the enemy, but been destined for ordinary use. Livingston, J.—I concur in the opinion of the chief justice. Considering Sweden an ally of Great Britain, in the war which the latter was j-* carrying on *in the Peninsula, either the king of Sweden himself *• might send transports with provisions for the use of the British army, while engaged in any common enterprise, or his subjects might lawfully aid in such transportation, without a violation of their neutral character, as it regarded the United States. If the American government had asserted the 187 407 SUPREME COURT [Feb’y The George. right of capturing and condemning Swedish vessels, or depriving them of their freight, on the ground on which it has been denied to the Commercen, I am not certain, that Sweden would not have thought it a very serious aggression, and would not have had a right to consider it, if persisted in, as an act of hostility. Johnson, J.—I also concur in the opinion of the chief justice ; and I do it, without the least doubt or hesitation. Sweden was an ally in the war going on in the Peninsula, and her subjects had an indubitable right to transport provisions in aid of their nation, or its allies. The owner, therefore, had a right to his freight ; for he did not act inconsistent with our belligerent rights, while in the direct and ordinary exercise of those rights which a state of war conferred on himself. Sentence of the circuit court affirmed. *408] *The George, The Bothnea, and The Janstaff. Evidence in prize causes. In cases of joint or collusive capture, the usual simplicity of the prize proceedings is necessarily departed from; and where, in these cases, there is the least doubt, other evidence than that arising from the captured vessel, or invoked from other prize causes, may be resorted to. Appeal from the Circuit Court for the district of Massachusetts. These were British vessels captured and brought in by the private armed vessels, the Fly and the Washington, and libelled as prize of war. In each of them, the United States interposed a claim, charging that the capture was collusive and that the whole property ought, on that account, to be forfeited to the Uniied States. In each case, the captors applied for permission to make further proof. In that of the George, it was allowed in the district court, and partially received ; but the application to make still further proof, and to introduce into the record testimony already taken, was rejected in the circuit court, and was again offered in this court. In the last two cases, further proof was refused, both in the district and circuit courts. In all the cases, the vessels and cargoes were condemned to the United States, and from each of these sentences of condemnation, the captors appealed to this court. *4091 *The first case was argued by Dexter and G. Sullivan, for the J appellants and captors, and by the Attorney- General, for the United States. The last two by Winder and Harper, for the appellants and cap-tors, and by Dexter and Pinkney, for the United States. Marshall, Ch. J., delivered the opinion of the court as follows :—The first question to be discussed is, the propriety of allowing further proof. It is certainly a general rule in prize causes, that the decision should be prompt; and should be made, unless some some good reason for departing from it exist, on the papers and testimony afforded by the captured vessel, or which can be invoked from the papers of other vessels in possession of the cotirt. This rule ought to be held sacred, in that whole description of causes to which the reasons on which it is founded are applicable. The usual controversy in prize causes is between the captors and captured. If the cap-188 1816] OF THE UNITED STATES. 409 The George. tured vessel be plainly an enemy, immediate condemnation is certain and proper. But the vessel and cargo may be neutral, and may be captured on suspicion. This is a grievous vexation to the neutral, which ought not to be increased, by prolonging his detention, in the hope that something may be discovered from some other source, which may justify condemnation. If his papers are all clear, and if the examinations in proeparatorio all show his neutrality, he is, and ought to be, immediately discharged. In a fair transaction, this will often be the case. If anything suspicious appears in the papers, which involves the neutrality of the claimant *in doubt, he must blame himself for the circumstance, and cannot complain of L the delay which is necessary for the removal of those doubts. The whole proceedings are calculated for the trial of the question of prize or no prize, and the standing interrogatories on which the preparatory examinations are taken, are framed for the purpose of eliciting the truth on that question. They are intended for the controversy between the captors and the captured ; intended to draw forth everything within the knowledge of the crew of the prize, but cannot be intended to procure testimony respecting facts not within their knowledge. When the question of prize or no prize is decided in the affirmative, the strong motives for an immediate sentence lose somewhat of their force, and the point to which the testimony in proeparatorio is taken, is no longer the question in controversy. If another question arises, for instance, as to the proportions in which the owners and crew of the capturing vessel are entitled, the testimony which will decide this question must be searched for, not among the papers of the prize-vessel, or the depositions of her crew, but elsewhere, and liberty must, therefore, be given to adduce this testimony. The case of a joint capture has been mentioned, and we think, correctly, as an analogous case. Where several cruisers claim a share of the prize, extrinsic testimony is admitted, to establish their rights. They are not, and ought not to be, confined to the testimony which may be extracted from the crew. And yet, the standing interrogatories are, in some degree, adapted to this case. Each individual of the crew is always asked * whether, at the time of capture, any other vessel was in sight. Notwithstand- L ing this, the claimants to a joint interest in the prize, are always permitted to adduce testimony drawn from other sources, to establish their claim. The case before the court is one of much greater strength. The captors are charged with direct and positive fraud, which is to strip them of rights claimed under their commissions. Even if exculpatory testimony could be expected from the prize-crew, the interrogatories are not calculated to draw it from them. Of course, it will rarely happen, that testimony taken for the sole purpose of deciding the question, whether the captured vessel ought to be condemned or restored, should furnish sufficient lights for determining whether the capture has been bond fide or collusive. If circumstances of doubtful appearance occur, justice requires that an opportunity to explain those circumstances should be given ; and that fraud should never be fixed on an individual, until he has been allowed to clear himself form the imputation, if in his power. Under these impressions, the case must be a strong one, indeed; the collusiveness of the capture must be almost confessed, before the court could think a refusal to allow other proof than is furnished by the captured vessel 189 411 SUPREME COURT [Feb’y The George. justifiable. In the cases before the court, there are certainly many circumstances of great suspicion, but none which do not admit of explanation. In the case of the George, captured by the privateer Fly, the circum-*4191 s^ances relie *and the license procured, by Samuel G. Griffith, a citizen of the United States. Separate bills of lading were at first signed by the master, one for each shipper, and separate letters of instruction were given to Patterson Hartshorne, the supercargo. But, in the expectation, as was alleged, that in case of detention, the delay and 1 Daniel v. Mitchell, 1 Story 172. But the from all suspicion. Willett v. Eister, 18 Walt mistake must be established by testimony free 91. 202 1816] OF THE UNITED STATES. 441 The Hiram. expense would be less considerable, if the cargo appeared to be the property of one individual, than if there should be several small claims, one general bill of lading was signed to the owner of the ship, and one general letter of instruction was given, in his name, to the supercargo, so as to make the whole cargo appear to be owned by Mr. Griffith, the owner of the ship, and of a small part of the cargo. At the May term 1814, of the circuit court, the property of the claimants was condemned by that court, upon the ground, that their counsel had, at the preceding term, entered into an agreement with the captors, that the decision of the supreme court, as to Griffith’s claim, should conclude the rest. Of this agreement, the circuit judge had made a memorandum in his minute-book, but it was not entered on the records of the court, until the May term, at which condemnation was pronounced, when it was admitted by the claimants’ counsel to have been made, and was recorded. From this last sentence of condemnation, an appeal was taken to this court. Pinkney, for the appellants and claimants.—1. The claimants of the cargo cannot be concluded by the verbal agreement in the court below, so as to exclude them from further proof. The agreement was, *that r*, the decision of this court, as to the ship, should bind the fate of the *-cargo, and was entered into, upon a mistaken supposition that the question was the same in both cases. The court of chancery will grant a rehearing, though the parties have entered into an order by consent to abide the decree, and not to appeal. Puck v. Turcott, 2 P. Wms. 242 ; 1 Vern. 274 ; and see 2 Ves. 458. If a court of equity will do it, why will not a court of prize, which is still more liberal in its practice, do the same thing ? 2. Although further proof was ordered by the court below, it did not apply to the claimants’ case, as distinguishable from that of the ship-owner, and they may, and ought to, be let in to further proof again. The Harmony, 2 Rob. 322 ; The Franldin, 6 Ibid. 132. 3. The principle on which a court of prize proceeds in confiscating the property of. a citizen, for the offence of sailing with a license from the enemy, has its root in the municipal code. It is but enforcing the rule of municipal law, as to allegiance, in a court of the law of nations. Therefore, the party cannot be liable to a penalty civiliter, unless he would have been liable criminaliter : the presumption of law is, indeed, against the party, but it is a presumption which will bend to fact; and there must be an actual participation, by knowing the fact, or a virtual participation, in neglecting to make the proper inquiries. If the fact of trading with the enemy be a misdemeanor, the scienter must be laid in the indictment; and it must be a misdemeanor, or a court of prize cannot *furnish it. Resistance to the right of search by a neutral, ignorant of the existence of war, does l not import confiscation. The St. Juan Baptista, 5 Rob. 33. Why ? Because there was no intention to commit an offence. Ignorance of one part-owner of a ship, where the owners are not general partners, will exempt his share from the penalty of confiscation, for carrying contraband. The Jonge Tobias, 1 Rob. 330. Spoliation of papers, by the master, does not preclude the owners from further proof, though it does preclude him. 2 Rob. 108. The owner of the cargo is not held responsible for the master’s breach of blockade, unless the blockade was known to exist, before the voyage commenced. 203 443 SUPREME COURT [Feb’y The Hiram. The Adonis, 5 Rob. 262 ; The Shepherdess, Ibid. 267. There must be the intention as well as the act of trading with the enemy, to constitute guilt. The continentiam delicta is here wanting ; the ship-owner was not the agent of the claimants for this purpose ; and supposing the supercargo to have been their agent, where will be found the application of the maxim respondeat superior ? In the prize court, when acting in the sphere of its proper jurisdiction of cases arising under the jus gentium ? but this is the case of the property of a citizen taken in violation of his local allegiance. The court must, therefore, adopt the maxim of domestic jurisprudence, that guilt is never to be presumed, but always to be proved. Dexter, for the respondents and captors, in reply.—The agreement in the $ - court below, that the case of *the present claimants should abide that of the ship-owner in this court, was acknowledged by both parties, and recorded nunc pro tunc. It is impossible, under the circumstances of this case, that it should be a fact, that the owners of the cargo did not know the existence of the license ; and therefore, it is impossible for them to prove their ignorance of it. The claimants are affected with knowledge, by the knowledge of their agents—the ship-owner and the supercargo ; but it is superfluous to discuss the question of law, the facts are so clear. Marshall, Ch. J., delivered the opinion of the court.—When the claimants in this case applied to the circuit court to be let in to further proof, for the purpose of showing their ignorance of the fact, that the Hiram sailed under the protection of a British license, the judge of that court considered the agreement of the parties, that these causes should depend on the fate of Griffith’s claim, under which agreement, the sentence, that would otherwise have been pronounced against them, was suspended, until the decision of the supreme court on that claim should be made, as having the same validity as if that agreement had been entered, at the time, on the records of the court. In that opinion, there having been no doubt respecting the fact, this court concurs. But this court is also of opinion, that if the agreement was made, under a clear mistake, the claimants ought to be relieved from it, where it could be done without injury to the opposite party. If a judgment be confessed *under a clear mistake, a court of law will set that judgment aside, if -I application be made, and the mistake shown, while the judgment is in its power. An agreement, made a rule of court, to confess a judgment, cannot be stronger than a confession itself ; and, of course, a party will not be compelled to execute such an agreement, but will be allowed to show cause against the rule, in a case where it was plainly entered into under a mistake. If the judgment be no longer in the power of a court of law, relief may be obtained in chancery. Still more certainly will an agreement, entered into in a suit originally pending in a court of chancery, be relaxed, or set aside, if it be proved to the court, to have been entered into under a mistake. The case cited from Peere Williams is directly in point. These principles are of universal justice, and of universal obligation. They cannot apply with less force to causes depending in prize courts, than to causes depending in other courts. The propriety, then, of rejecting further proof in this case, and of condemning the property claimed by the appellants, will depend on the clearness with which they show the mistake 204 1816] OF THE UNITED STATES. 445 The Hiram. under which the agreement Was made, and on their ability to support their case, if that agreement be set aside. If a real and substantial difference exists between the case of the present claimants, and that formerly decided by this court, there will not be much difficulty in yielding to the suggestion, supported, as it is, by the proof now offered, that this agreement was made without knowledge of that difference, and consequently, by mistake. *But the question then occurs, whether restitution ought to be decreed to them, if the obligation of the agreement be removed. L The claimants allege, that, in point of fact, they did not know that the Hiram sailed under a British license, and the proof they offer goes far in supporting this allegation. It is admitted, that ignorance of this fact will save from the forfeiture incurred by it, unless the claimants have such constructive notice as will preclude them from showing the want of actual notice. .It has been argued, that the transaction rendered Griffith the agent of the other shippers, so as to infect their claims with his knowledge ; that by consenting that their property should be shipped in his ñamé, it becomes liable to all the risks to which it would have been exposed, had it been actually his. It has been also argued, that the supercargo is clearly the agent of the shippers, and that his knowledge of the license being on board is, constructively, their knowledge. The counsel for the claimants endeavors to rescue his clients from the effect of this constructive notice, by contending, that the principle of respondeat superior can never apply to a case of a criminal nature; that a license works a forfeiture, because it is a breach of allegiance—an offence which cannot be imputed to a person having no knowledge of the criminal act which constitutes the breach of allegiance : and that this principle has, in prize courts, been applied to cases punishable under the law of nations ; not to offences against the government of the captor and captured. *The court considers the sailing, under an enemy’s license, as r* closely connected, in principle, with the offence of trading with the •-enemy; in which case, it is believed to be incontrovertible, that the knowledge of the agent would affect the principal, although he might, in reality, be ignorant of the fact, (a) Upon this ground, the sentence of the circuit court is affirmed, with costs. Sentence affirmed. (a) Thus, where a shipment was made to the enemy, by the partners of a house of trade, resident in a neutral country, without the knowledge or consent of a copartner, resident in the belligerent state, his share was held liable to confiscation. The Franklin, 6 Rob. 129. And it appears, from that case, that even an inactive or sleeping partner (as it is termed) has been held, by the Lords of Appeal, incapable of receiving restitution in a transaction in which he could not lawfully be engaged, as a sole trader. Ibid. 181. 205 447 SUPREME COURT [Feb’y Ammidon v. Smith et al. Insolvent discharge. Under the laws of Rhode Island, a discharge, according to the act for the relief of poor prisoners for debt, although obtained by fraud and perjury, is a lawful discharge, and not an escape; and upon such a discharge, no action can be maintained upon a bond for the liberty of the prison-yard. This was an action of debt, brought by the plaintiff against the defend-*¿¿«1 an^’ Circuit Court of *Rhode Island, on a bond dated the 31st J day of August 1810, with a condition, that if Simon Smith, a prisoner in jail, at the suit of the said Philip Ammidon, shall “ continue and be a true prisoner in the custody, guard and safe-keeping of Roger Allenton, keeper of the said prison, &c., within the limits of the said prison, until he shall be lawfully discharged, without committing any manner of escape or escapes, during the term of his restraint, then this obligation to be void,” &c. The defendants pleaded, severally, two several pleas—1. That said Simon did remain a true prisoner, until lawfully discharged, and made no escape. 2. That, after notifying his creditors, he did take the oath provided by the law of the state of Rhode Island, for the relief of poor prisoners confined for debt, before proper authority, which oath is as follows : “ that he had not any estate, real or personal, in possession, remainder or reversion, over ten dollars, and that he had not, since the commencement of the said suits against him, or at any other time, directly or indirectly, sold, leased, or otherwise conveyed or disposed of, to, or intrusted any person or persons whomsoever with, all, or any part, of the estate, real or personal, whereof he hath been the lawful owner or possessor, with any intent or design to secure the same, or to receive, or to expect any profit or advantage therefrom, for himself or any of his family, nor had he caused, or suffered to be done anything whatsoever whereby any of his creditors may be defrauded.” # - *To the first plea, the plaintiff replied, that he did not remain a -> true prisoner, until lawfully discharged, &c. To the second, he replied, that, after the commencement of the action, on which he was imprisoned, and after the contracting of the debt on which the action was brought, the said Simon was seised and possessed of real estate to the value of 840,000, and that, fraudulently contriving with his sons, Darius and Simon, jun., his sureties in said bond, to defraud him of his said debt, did lease, sell and convey to said Darius and Simon, jun., and his other children, all his said real estate, and did intrust them with it, for his and their benefit, with intent to defraud the plaintiff, and that he might be admitted to the benefit of the oath mentioned in said plea ; that said Simon did intrust with said Darius and Simon, jun., and his other children, all his estate, both real and personal, of the value of $50,000, with the advice, counsel and assistance, and under the direction of said Darius and Simon, jun., and his other children, with an intent and design to secure the same to the said Darius and Simon, jun., and his family, to defraud the plaintiff of his said debt ; and he avers, that the said Simon did falsely and fraudulently take said oath, with intent wilfully, falsely and fraudulently to hinder, delay and defraud the plaintiff of his just debt aforesaid, and avoid the payment thereof, and thereby hinder, delay and defraud the other creditors of the said Simon of 206 1816] OF THE UNITED STATES. 449 Ammidon. v. Smith. their just debts. And this he is ready to verify, wherefore, he prays judgment, &c. In his replication to *the pleas of the two sureties, the plaintiff added an averment, that the said Simon took the said oath, l u they, the defendants, well knowing that the same was false and fraudulent; and that the said Simon did wilfully, falsely and fraudulently take the said oath, with intent thereby to hinder, delay and defraud the plaintiff of his just debt aforesaid, and avoid the payment thereof, and thereby hinder and defraud the other creditors of the said Simon of their just debts. To this replication, the defendants demurred, and the plaintiff joined. On the argument of this demurrer, the judges of the circuit court were divided in opinion, whether the replication was sufficient to avoid the plea, which division of opinion was certified to this court. Pitkin, for the plaintiff.—The question is, whether the fraudulent conduct of the defendants, as stated in the pleadings, can be taken advantage of in a suit on the bond ? The laws of Rhode Island allow persons imprisoned for debt on mesne process, or execution, the limits of the prison, on giving a bond to the creditor, to remain true prisoners, until lawfully discharged. Debtors, having no estate, who take an oath that they have not any estate over $10, and that they have not disposed of any part of the estate of which they were possessed, for their own benefit, or that of their families, or with intent to defraud their creditors, may be discharged from jail; but if confined on execution, the debtor must leave with the keeper, to be delivered to his creditor, his *promissory note, payable to such * creditor, for the amount of the debt, in two years, with interest. *- . (Digest, p. 227 ; Supplement, p. 73.) In this case, the debtor was released from prison by the forms of law; but this discharge being obtained by fraud and perjury, is wholly inoperative, and a departure from the limits, under color of such a discharge, is, in law, an escape, and a breach of the condition of the bond. Fraud vitiates every act; and this axiom of jurisprudence is consecrated by the laws of Rhode Island, which provide, “ That if any such prisoner aforesaid shall be convicted of having sold, leased or otherwise disposed of, or intrusted his or her estate, or any part thereof, directly or indirectly, contrary to his or Tier aforegoing oath or affirmation, he or she shall not only be liable to the pains and penalties of wilful perjury, but shall receive no benefit from said oath or affirmation.” (Digest, p. 231.) The word “convicted,” could not have been used here technically, but merely to declare, that if any person should swear falsely as to the disposition of his property, he should not only be liable for perjury, but should receive no benefit from such false swearing. Any other construction would defeat the object of the statute. The laws of the state contain a similar provision respecting debtors obtaining the benefit of the insolvent act; yet it has never been held, that the fraudulent debtor must be first criminally convicted, in order to give effect to this provision. Hunter, contra.—1. The discharge was obtained *by a court of competent jurisdiction, and is, therefore, of complete obligation, l The decision in the present case was not only that of a court of competent jurisdiction, and therefore, conclusive, but it was, in terms and effect, a decision upon the very point now in controversy, and between the same parties. The statute is solicitous to prevent fraud, and for that purpose 207 452 SUPREME COURT Ammidon. v. Smith. [Feb’y allows to the party creditors a right to show the probability that a perjury is intended, and by that means a fraud may be perpetrated, and applying to the conscience of the debtor, imposes on him an oath of detailed, explicit and unequivocal purgation. The present plaintiff has no right to complain ; though duly summoned, he did not appear, and his contumacy has forfeited his right of action. There is no principle of our jurisprudence more firmly settled, more reasonable and salutary, than that a party shall not be permitted to turn his own omissions into a charge upon another. Even a court of chancery will refuse relief against fraud, if it be obvious, that it might have been urged by the complainant, as matter of defence in a previous suit at law. Ie G-uen n. G-overneurt 1 Johns. Cas. 392 ; 2 Burr. 1009 ; 7 T. R. 269 ; 2 H. Black. 414. The discharge of the defendant is said to be invalidated by conveyances previously made by him. But of these conveyances the plaintiff had notice ; the law requiring them to be recorded, and the plaintiff admitting that he had actual notice. If, then, these deeds constituted the fraud, the defendant * _ had notice of the fraud, and ought to have appeared *to oppose the J discharge. Knowing the defendant not to be entitled to it, he stands by, and permits him to obtain it, with an intention to convert a bond, meant as a substitution for the prison walls, into a pecuniary security for his debt, and thirty per cent, in addition. The plaintiff’s conduct is thus analogous to a permissive escape at common law, where neither the creditor nor the sheriff can retake the prisoner, even in a fresh suit. 2. Considering this as a question upon the construction of the bond, no breach of its condition can be inferred. Such a breach imports an actual wrongful escape ; such as, at common law, would give the sheriff a right of recaption—such as would subject him to an action, and the prisoner to an indictment. The phraseology of the bond is that of the common law, and the definition of the correlative phrases “ escape ” and “ true prisoner,” are exact, invariable and immemorial. That can never be an escape, where the prison-doors are opened by the hand of the law. He must have remained a true prisoner, whose remaining a single moment longer, by restraint, would have subjected his keeper to an action for false imprisonment. Escape, according to the definition as ancient as Rastel, in his Termes de la ley, and adopted by Staundf. P. C. cap. 26, and all the subsequent writers, means a violent or privy evasion of some lawful restraint. It is a solecism in language, to say, that a discharge and enlargement by a court, is an escape; for, if the court has jurisdiction, the sheriff cannot judge of the validity of * , the process and other proceedings of such *court, but must obey. J Moor 274 ; 1 Dyer 66. By the ancient common law, prison-breaking, either in a criminal or civil suit, was felony, and it .is still an indictable offence. 2 Inst. 509 ; Cro. Car. 210. Can it be pretended, that the prisoner could be convicted of this offence ? or that our jurisprudence is so inconsistent, as to present a different result on the same question, merely because the forms are conducted by a civil and not a criminal procedure ? 3. The plaintiff has mistaken his remedy, and the mistake proceeds upon a violent attempt to convert a contract that a man shall not escape, into a guarantee for the payment of money. Undoubtedly, the general policy of the law is, to compel payment from the debtor, by the imprisonment of his body; but its rigor has been mitigated by statute, which permits him to 208 1816] OF THE UNITED STATES. 454 Ammidon v. Smith. see the light of heaven, and breathe its genial air, upon giving security that he will not abuse this privilege, by a forcible or privy escape. This is all the sureties engage for ; their contract is prospective only ; and if the prisoner has previously made himself poor, by voluntary conveyances, it has no relation with their obligation. In this case, the creditor’s remedy is not upon the bond, for the original debt remains ; the contract is unimpaired. There is a renewal—a novation, as the civil law terms it, of• the debt. The prisoner is obliged to give his promissory note for the amount of the execution, with interest; and his enlargement may, even then, be prevented by the creditor, by paying one dollar a week for his support in prison. In order *to extinguish the original debt, and create a remedy upon the bond, _ the prisoner must be convicted of the fraud, by a criminal process. Until that is done, his oath is taken for truth ; it is the medium of proof, and its substitute, as in cases of usury, or in the action of book-account, or book debt, which prevails in the eastern states, where the oath of the party to his original entries is prima facie evidence to enable him to recover. If the prisoner be convicted of perjury, the sentence would proceed to vacate all the proceedings consequent upon the fraud. Hubert'1 s Case, Cro. Eliz. 531 ; 12 Co. 123. All the cases under the stat. 27 Eliz. c. 4, § 7, and other like statutes, from Twyn^s Case, soon after the enactment of the statute, down to the case of Hewn v. Howell, 4 East 1, exhibit the same combination of civil and criminal procedure. The insolvent law of Rhode Island of 1756, and the statute under which this bond was taken, are alike. That law is mostly a transcript of an English statute passed the year before, which act was one of those temporary insolvent laws which have been passed, from time to time, since the original act of Charles II., made, principally, in consequence of the great fire of London. It is not probable, then, that the word “ conviction,” in this law, was used in any other than its technical and correct signification of a conviction in a court of criminal judicature. Such a conviction would be conclusive evidence of the fact, if it afterwards came in question in a court of civil jurisdiction. The plaintiff may pursue his remedy in a court of common *law, or in chancery; or he may resort to the legislature of . Rhode Island, which, by the peculiar institutions and usages of that *■ state, possessed the power of nullifying the proceedings of the ordinary courts of justice. There being no written constitution, its sovereignty is limited by nothing but its federal compact with the United States ; and in the exercise of its residuary sovereignty, it is like the British parliament, in a legal sense, omnipotent, (a) 4. But this case is settled by that of Simms cfi Wise v. Slacum, 3 Cranch 307, which is undistinguishable in point of principle, and the minute differences between the law of Virginia and that of Rhode Island strengthen and illustrate the main principle of decision. Pitkin, in reply.—The discharge cannot be conclusive, because the proceedings are summary, and founded entirely on the debtor’s oath ; from the determination of the magistrates, no appeal lies, nor can they grant a new (a) As to the power of parliament, see Lords’ Journals, vol. 1, p. 191; Commons’ Journals, vol. 8, p. 344, Sir Edward Powell’s case. 1 Wheat.—14 . 209 456 SUPREME COURT [Feb’y Ammidon v. Smith. trial. The prison-doors were not opened by the hand of the law, but by a fraud upon the law. In the case of Simms v. Slacum, the court held, that if the surety had combined with the magistrate, in order to procure the discharge, he could not set it up by way of defence, to an action on the bond. By the laws of the state, perjury is punishable by three years’ imprison-*. -h-| ment; but this punishment could not be inflicted, if a civil sentence J *is at the same time, to be pronounced, that the party shall return to the debtor’s prison. Neither an action at law, nor a suit in chancery, can enforce the plaintiff’s just rights upon the lands conveyed, in the hands of bond fide purchasers. Nor can the case of Simms v. Slacum be considered as decisive of the present, since the provisions of the two statutes are so different, and the point did not come up directly in that case ; but when it was again brought before the court, upon a special verdict, the principles settled were favorable to the present plaintiff. (5 Cranch 363.) March 21st, 1816. Marshall, Ch. J., delivered the opinion of the court, and after stating the facts, proceeded as follows :—The act of the legislature of Rhode Island, on which this case depends, enacts, “ That it shall and may be lawful for the sheriffs of the several counties to grant to any person imprisoned for debt, a chamber in any of the houses or apartments belonging to such prison, and liberty of the yard within the limits thereof, on his giving bond to the creditor, with two sufficient sureties, in double the amount of the debt, with condition to jemain a true prisoner, until lawfully discharged, and not to escape. And in case the creditor shall put the bond in suit, and recover judgment thereon, for breach of the condition, he is to recover his debt, with thirty per centum on the principal sum, for his damages and the Principal an^ h*8 sureties shall be committed to close *jail until the J judgment be paid. The law then prescribes the manner in which a poor prisoner may obtain his discharge. On application to any judge of the court of common pleas, or justice of the peace in the county, notice is to be given to the creditor, to appear at such time and place as the judge or justice shall appoint, to show cause why the prisoner should not have the benefit of the act. Any one judge of the court of common pleas, and any one disinterested justice, are then authorized to administer the oath prescribed in the law ; “if, after fully examining and hearing the parties, the said justices shall think proper so to do.” A certificate being given to the jailer, the prisoner is to be discharged, on leaving with the jail-keeper, to be delivered to his creditor, his note, payable to the creditor, in two years, with interest, for the amount of the execution. It is then enacted, that if any such prisoner shall be convicted of having sold, leased or otherwise concealed or disposed of, or intrusted, his or her estate, or any part thereof, directly or indirectly, contrary to his or her oath or affirmation, he or she shall not only be liable to the pains and penalties of wilful perjury, but shall receive no benefit from said oath or affirmation. The question to be decided by this court is, whether a prisoner obtaining a discharge according to the forms of law, by means of fraud and falsehood, has broken the condition of this bond ? There is so much turpitude in the act confessed by the demurrer, such reluctance to allow any man *4591 ava^ bimself of so flagitious a defence, that it is *not without some J difficulty, this question can be considered as a naked point of law. 210 1816] OF THE UNITED STATES. 459 Ammidon v. Smith. It is, however, the duty of the court so to consider it; and this has been attempted. The object for which this • bond was given is of decisive importance, in the inquiry respecting the extent of the obligation it imposes. It is certainly, not given for the purpose of improving the security of the creditor, but simply for the purpose of allowing the debtor the benefit of the prisonyard, without impairing the right of the creditor to the custody of his person. The yard, and a comfortable chamber, are substituted for the walls of a jail; but as this substitution would facilitate an escape, it was deemed reasonable, to secure the creditor against the abuse of an indulgence which the humanity of the law afforded. This consideration would suggest the propriety of provisions against an actual escape, the means for making which were furnished by allowing the use of the prison-yard ; but not againt the employment of fraud or artifice to obtain a discharge, in the manner prescribed by law, which may be employed in jail, as well as in the yard, and the means of employing which are not in any degree facilitated by substituting the yard for the walls of the jail. The condition of the bond is, to remain “ a true prisoner, until lawfully discharged, without committing any escape or escapes, during the term of his restraint,” and the certificate is a mode of discharge prescribed by law, which terminates “ his restraint.” If, as is conceived, this bond was intended to guard against the dangers created *by allowing the prisoner the liberty of the prison-yard, not against r*.™ a fraud already committed, which is entirely unconnected with the *• bond, and the enlargement of his limits ; then it is not broken by the practice of such fraud. The persons perpetrating it are, in a high degree, criminal, and ought not to be permitted to avail themselves of such conveyances. The jurisprudence of Rhode Island must be defective, indeed, if it does not furnish a remedy for such a mischief. The replication charges these conveyances to have been executed by the defendant, pending the suit, for the purpose of defrauding the plaintiff, of defrauding his creditors generally, and of enabling himself to take the oath of an insolvent debtor. It further charges, that after the execution of the bond, the false oath was taken, with the knowledge of the sureties. However criminal this act may be, it cannot be punished, by extending the obligation of the bond, on which this suit was instituted. The judgment rendered by the magistrates was obtained by perjury, but the discharge of the prisoner, which was the consequence of that judgment, was in the course of law, and is not deemed an escape. This question appears to have been considered by the court in the case of Simms et al. v. Slacum ; and although the question was not there decided, because in that case the sureties alone were sued, and did not appear to be concerned in the fraud of their principal, yet the reasoning of the court certainly applies to this case. The decision in the case of Simms et al. v. Slacum has been revised, and the court feels no disposition to depart r*461 from it. The reasoning it contains need not be repeated, but is con- L sidered as applicable to this case. There is some difference in the provisions of the two statutes, but not enough to induce a different construction as to the extent of the obligation of the bond for keeping the prison-rules. The law of Rhode Island enacts, that if any prisoner shall be convicted of having disposed of any part of his 211 461 SUPREME COURT [Feb’y Jones v. Shore. estate, contrary to his oath or affirmation, “he shall not only he liable to the pains and penalties of wilful perjury, but shall receive no benefit from said oath or affirmation.” Conviction is a technical term, applicable to a judgment on a criminal prosecution, not to a proceeding on this bond. The act contemplates a prosecution on which the party may be adjudged to suffer the penalties of perjury, in addition to which he is to be deprived of all benefit from the oath or affirmation. If this section has any influence, it would be to show that, in the contemplation of the legislature, such conviction is necessary, previous to the establishment of the absolute nullity of the oath or affirmation. The court, however, does not mean to indicate that the effect of the oath and of the discharge granted by the magistrates might not be controverted, in any proceeding against the parties, either in law or equity, other than in a suit on the bond for keeping the prison-rules. Certificate.—This cause came on to be heard on the transcript of the record from the circuit court for the district of Rhode Island, containing the *4621 P0^8 *on which the judges of that court were divided in opinion, J and was argued by counsel. On consideration whereof, this court is of opinion, that the replication of the plaintiff is insufficient to avoid the plea of the defendant. All which is ordered to be certified to the said circuit court. Certificate for the defendant. Jones et al. v. Shore’s Executor et al. United States v. Jones et al. Distribution of penalties. A bond was given to T. S., the collector of the district of Petersburg, under the 2d section of the embargo act of the 22d of December 1807, and a suit was afterwards brought by him, on the same bond, in the district court, and pending the proceedings, to wit, on the 30th of October 1811, J. S., the collector, died; and judgment was recovered in favor of the United States, on the 30th of November 1811. On the 26th of the same November, J. J. was appointed collector of the same district, and entered on the duties of his office, on the 14th of December 1811; until which time T. S., who was deputy-collector under J. S., at his decease, continued, as such, to discharge the duties of the office. The judgment of the district court was subsequently affirmed by the circuit court. When the bond was taken, A. T. was surveyor of the district, and continued in that office, until his death, which was after the commencement of the suit on the bond, and before judgment thereon, and was succeeded by J. H. P., who was appointed on *4631 ^arc^ 1811» aud entered on the duties of his office, on the 16th of the same -I *month. It was held, that the personal representatives of the deceased collector and surveyor, and not their successors in office, were entitled to that portion of the penalty which is, by law, to be distributed among the revenue-officers of the district where it was incurred. There being no naval officer in the district, the division was adjudged to be made in equal proportions between the collector and surveyor. United States v. Jones, 1 Brock. 285, affirmed. The material facts of these cases are as follows:—On the 23d of November 1808, a bond was executed at the custom-house of Petersburg, in Virginia, to the United States, by Thomas Pearse, master of the ship Sally, of Philadelphia, and Robert McAdam, Daniel Filton and George Pegram, jun., in the penal sum of $46,300, upon condition, that if the cargo of said vessel, consisting of 830 hogsheads of tobacco, intended to be transported in said vessel from the port of Petersburg to the port of Boston, in Massachusetts, 212 1816] OF THE UNITED STATES. 463 Jones v. Shore. should be re-landed in the United States, the danger of the seas excepted, then the obligation to be void, otherwise, to remain in full force. The bond was, in fact, given to John Shore, the collector of the district of Petersburg, in pursuance of the second section of the embargo act of the 22d December 1807, ch. 5. 1 A suit was afterwards brought by the said collector, on the same bond, in the district court for the district of Virginia, and pending the proceedings in said court, to wit, on or about the 30th of October 1811, John Shore, the collector, died ; and judgment was finally recovered on the same bond, in favor of the United States, on the 30th of November 1811. On the 26th of the same November, John Jones was duly appointed and commissioned by the president as collector of the *same district, and he qualified as such, and took upon himself the discharge of the duties of the office, on L the 14th of December 1811 ; until which time, Thomas Shore, who was deputy'collector under John Shore, at the time of his decease, continued, as such deputy-collector, tp discharge the duties of the office. .Mr. Pegram sued out a writ of error from the said judgment, to the circuit court for thé district of Virginia, and Mr. Pegram having died, pending the proceedings, the suit was revived by his administrator, and the judgment of the district court was, at May term 1814, affirmed by the circuit court. At the time when the bond was taken by the collector, Andrew Torborn was the surveyor of said district for the port of City Point, and continued in that office until his death, which happened after the commencement of the suit on said bond, and before the rendition of judgment thereon, and was succeeded in his office by John H. Peterson, who was appointed and commissioned, on the 3d of March 1811, and qualified and entered upon the discharge of the duties of that office, on the 16th of the same month. At the May term of the circuit court 1814, the whole debt and costs recovered by the judgment, were paid into court by the administrator of Mr. Pegram. Cross-petitions were thereupon filed by the district-attorney, in behalf of the United States, praying the whole sum to be paid to him, or deposited in the bank of Virginia, to the credit of the treasurer of the United States, by the present collector and surveyor of the district of Petersburg, and by the representatives of the deceased collector and surveyor, *praying a payment over, and distri-bution of, the sum so recovered, according to the rights respectively L claimed by them. A bill was also filed on the chancery side of the circuit court, by the representatives of the deceased collector and surveyor, against the present collector and surveyor, and the clerk of the court, praying a moiety to be paid over to them, or such other portion as they were entitled to by law, and also for general relief. Upon the hearing of the cross-petitions, the circuit court overruled the prayer of the motion of the district-attorney ; the court being of opinion, that the United States were entitled only to a moiety of the money, and that the same ought to be paid to the collector of the district, and ordered the clerk of the court, accordingly, to pay the same to John Jones, the present collector, after deducting therefrom one-half of one per centum for his commission. And the court being divided in opinion, whether the other moiety should be paid to the said collector, to be distributed by him according to law, as this court should direct, or without any direction on the subject, certified the same question to the supreme court. Upon the hearing of the 213 465 SUPREME COURT [Feb’y Jones v. Shore. suit in chancery, on the bill, answer and proofs, in which none of the facts were controverted, a question occurred before the court, whether the representative of the late surveyor, in right of his intestate, was entitled to receive the moiety of that portion of the penalty which is, by law, to be distributed among the several revenue-officers of the district wherein the penalty was * -| incurred ; upon which *question the court was divided, and the same J question was certified to this court. Swann, for Jones et al.—The whole body of embargo laws shows, that the collector is, ex officio, to receive penalties and forfeitures ; and that he who is to receive, is to have his distributive share, as his property, of right, and to make the division among the other persons entitled. The term collector means the officer of the law, invested with legal immortality. Official obligations do not attach to the person of the individual, but to the office. Streshley v. United States, 4 Or. 171. The penalty may be released by the treasury, at any time before the collector receives it. Wirt, for Shore’s executor et al.—The question is, whether, of these two officers, he who supports all the labor and inconvenience shall be entitled to the reward. The death of Mr. Shore did not discontinue his office; his deputy exercised the duties, as by law he was authorized to do, until the rendition of the judgment. The reason of the law is its soul; the intention of the legislature must be regarded; it must have been their motive to stimulate the zeal and exertions of the officers of the customs by an adequate incentive. Policy rendered it more essential in the embargo laws, than in the ordinary revenue laws, and the reward was, therefore, attached to the incumbent who detected the offence, and prosecuted. The question is stricti *¿«*71 jur^st and m,18t be determined *by the letter of the law. It does not -* require the collector to live on, till the reward is reaped, but the right descends to his representatives. If there be a private information, the common informer gets half the moiety of the officers. If there be no informer, they are entitled, upon the ground of like merit. The title of the informer vests upon the information, and the collector takes his place. The law provides that a person entitled to a share, who shall desire to become a witness, must release ; he must renounce and lay down his title, in order to qualify himself as a witness. Where the forfeitures are recovered, in consequence of information by the officers of a revenue-cutter, a share is given to them, but nobody pretends, that their successors would take. It is conceded, that the title may be defeated, by a remission of the penalty ; but that is a condition originally attached by law. The collector dies ; but he lives in his deputy, for whose conduct his estate is responsible. Pinkney, in reply.—The argument drawn from an equitable construction, according to relative merit, is unsatisfactory. The law holds out a contingent prospective reward ; if the officer dies, it is gone, and the policy of the law is sufficiently satisfied. But the letter of the law is clear and peremptory ; the penalty is given to the officer, where it was incurred, and not to the seizing officer. At what epoch will you stop, in fixing the character of the person entitled ? At the seizure ? the prosecution ? or the rendition of the *4681 iu^ment ? At neither: for the word *“ recovered ” is the emphatic J expression, and it is recovered, when adjudged and received. Every 214 1816] OF THE UNITED STATES. 468 Jones v. Shore. other construction is arbitrary and fictitious. The president’s power of pardoning is a conclusive argument; if the right vested, it could not be thereby divested. The provision, as to officers wishing to become witnesses, „ signifies nothing. They have an interest; not a vested and absolute interest, but contingent upon the recovery, and if they think fit to sacrifice it, they may be witnesses. The collector did not live in his deputy ; the law merely casts the responsibility upon his estate as to the acts of the deputy. Story, J., delivered the opinion of the court, and after stating the facts, proceeded as follows :—As the United States have not asserted any claim, the first question for the decision of the court is, whether the present collector and surveyor, the actual incumbents in office, or the representatives of the late collector and surveyor, in right of their testator and intestate, are entitled to the moiety of the money received in satisfaction of the judgment above stated, and now in the custody of the circuit court. By the express provisions of law, all penalties and forfeitures accruing under the embargo acts, with a few exceptions, not applicable to this case, are to be distributed and accounted for in the manner prescribed by the collection law of the 2d of March 1799, ch. 122. To this latter act, therefore, the arguments of counsel have been chiefly directed ; and upon the true construction of the 89th section of the act, the decision of this cause must principally rest. *The 89th section enjoins the collector, within whose district a seizure shall be made, or forfeiture incurred, to cause *■ suits for the same to be commenced, without delay, and prosecuted to effect; and authorizes him to receive from the court, within which a trial is had, or from the proper officer thereof, the sums so recovered, after deducting the proper charges, and on receipt thereof, requires him to pay and distribute the same, without delay, according to law, and to transmit, quarter-yearly, to the treasury, an account of all the moneys received by him for fines, penalties and forfeitures, during such quarter. The 91st section declares that all fines, penalties and forfeitures, recovered by virtue of the act,, and not otherwise appropriated, shall, after deducting all proper costs and charges, be disposed as follows, viz : “ one moiety shall be for the use of the United States, and be paid into the treasury thereof, by the collector receiving the same ; the other moiety shall be divided between, and paid, in equal proportions, to the collector and naval officer of the district, and surveyor of the port, wherein the same shall have been incurred, or to such of the said officers as there may be within the same district; and in districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer.” Then follow provisions referring to the distribution, in cases where the recovery has been had in pursuance of information given by any informer, or by any officer of a revenue-cutter. It is argued on behalf of the present collector and surveyor, that upon> , the true construction of these *clauses, no title to a distributive share of penalties and forfeitures vests, until the money has been actually received by the collector from the officer of the court; and that upon such receipt, it vests in the proper officers of the customs who are then in office. And in support of this argument, it is further asserted, that until this epoch, the claim is a mere expectancy and not a right, the interest being in abeyance, uncertain and contingent. An attempt has been made, to press the 215 470 SUPREME COURT Jones v. Shore. [Feb’y language of the act into the service of this argument. But it certainly will not support it : the language of the act, in its most obvious import, does not seem to have contemplated any change in the officers of the customs, between the time of the accruing and the receipt of the penalty or forfeiture. It seems principally to have been adapted to cases of the most ordinary occurrence, and it is only by an equitable construction, that it can, in -aid of the legislative intention, be brought to reach the present case. The act must receive the same construction in relation to forfeitures in rem, as in relation to personal penalties. Both are distributable in the same manner, and subject to the same rules. The case, therefore, will be first considered, in reference to forfeitures in rem. Whenever a forfeiture in rem accrues, it is, by the act, made the duty of the collector, to seize the thing, and to prosecute a suit therefor to final judgment. The law contemplates that he may seize, upon probable cause of seizure, not simply in cases of personal knowledge, but upon the infor-■mation of others. He seizes, however, at his peril, and if the act be not -i justifiable, he is subject to a personal responsibility *for all damages. J He is placed, therefore, in a situation in which he is bound to act, and yet is not protected against the legal consequences of his acts. It is, unquestionably, with a view to stimulate his vigilance, and reward his exertions, that the law has given him a share of the forfeitures recovered by his enterprise and activity. And yet it would follow, upon the argument which has been stated, that the collector who seizes might be liable to all the responsibility of the act, in case of a failure, without receiving any of the fruits of bis toil, if crowned with success. This certainly would seem to be against the policy of the legislature, as well as against the plainest rules of equity. It is a maxim of natural justice, qui sentit commodum sentire débet et onus ; and the words of a statute ought to be very clear, that should lead to a different determination. But the case is not left to the result of general reasoning upon the intent and policy of the legislature. It is not true, that the right of a seizing officer to a distributive share, is a mere expectancy. By the common law, a party entitled to a share of a thing forfeited, acquires by the seizure an . inchoate right, which is consummated by a decree of condemnation, and when so consummated, it relates back to the time of the seizure. This principle is familiarly applied to many cases of forfeitures to the crown ; and even in respect to private persons entitled to forfeitures, the interest which iis acquired by seizure has been deemed a sufficient title to sustain an action *. * , of detinue for the property. And it is very clear, that the legisla- J ture steadily kept in view this principle of the *common law ; for the ; act has expressly provided, that any officer entitled to a part of the forfeiture may be a witness at the trial ; and in such a case, he shall lose his share in the forfeiture. The law, therefore, deems him a party having a real substantial interest in the cause, and not a mere expectancy—“ a fleeting hope that only keeps its promise to the ear, but breaks it to the sense.” It is true, that the act, in making distribution of forfeitures, speaks of the parties entitled to them, by the description of their office ; but it cannot with any color of reason, be argued that this designation of office meant to exclude a désignât™ personœ. On the contrary, it is most manifest, that the act meant to point out the person entitled, by a description of his office. 216 1816] OF THE UNITED STATES. Jones v. Shore. 472 The question then recurs, who is the person meant under this description of office? Is it the person who happens to be in office when the forfeiture is received ? Oj the person who was in office when the seizure was made, and who thereby acquires an inchoate right, which the subsequent judgment ascertained and fixed ? The words may be literally applied indifferently to either ; but in point of law, they can be properly applied only to him who has, under the same description of office, already acquired a vested title inchoate or consummate, in the forfeiture. This construction is fortified by a recurrence to other provisions in the 91st section of the act. It is, in the first place, provided, that in all cases of forfeitures, recovered in pursuance of information given to such collector (pointing to the collector entitled to a distributive share), a moiety of the moiety shall be given to the *informer. The grammatical connection of the words, as well as the ■-obvious exposition of the clause, supposes, that the collector who receives the information, and commences the suit, is the person entitled to the distributive share of the forfeiture. In the next place, it is provided, that when the forfeitures are recovered, in consequence of any information given by any officer of the revenue-cutter, one moiety thereof shall be distributed among the officers of such cutter. Can there be a doubt, that the persons who were officers, at the time of the information, and not those who were officers at the time of the receipt of the forfeitures, are the parties entitled to this moiety ? Yet the same reasoning applies here, with equal force, as in the case of the collector. So, by the embargo act of the 9th January 1809, ch. 72, § 12, forfeitures recovered, in consequence of any seizure made by the commander of any public armed vessel of the.United States, are to be distributed according to the rules of the navy prize act of the 22d April 1800, ch. 33 ; and it is clear, beyond all doubt, that the parties so entitled are the officers and crew, at the time of the seizure. The analogous rule, in cases of captures, jure belli, is here expressly alluded to, and adopted by the legislature, and that rule stands on the same general foundation with that of the common law. The right of captors to prizes is but an inchoate right, and until a condemnation, no absolute title attaches. But when condemnation has passed upon the property, it relates back to the capture, and although the parties have died in the *intermediate time, the title vests in propria rig ore in their representatives. Much stress has been laid upon the clauses in the 89th and 91st sections of the collection law of the 2d March 1799, which authorize the collector to receive from the proper officer of the court the moneys recovered in suits for penalties and forfeitures, and which require him to pay and distribute the same, according to law, among the officers of the customs, and other parties entitled thereto. But these provisions are merely directory to the collector, and do not vest in him any personal right to the money received, which he did not before possess ; much less do they authorize the supposition that, until the receipt, no title vested in any person. It might, with as much force and propriety, be urged, that, until the same epoch, no right to the other moiety vested in the United States ; for the statute is equally mandatory and precise in this case as in the other. It would, however, be quite impossible to contend, upon any legal principles, that the title of the United States was not, to all intents and purposes, consummated by the judgment. The same reasoning which has been used in respect to forfeitures in rem* 217 474 SUPREME COURT Patton v. Easton. [Feb’y applies to personal penalties ; and it is unnecessary to repeat it. The court are clearly of opinion, that the right of the collector to forfeitures in rem attaches on seizure, and to personal penalties on suits brought, and in each case it is ascertained and consummated by the judgment; and it is wholly immaterial, whether the collector die before or after the judgment. And * they are further *of opinion, that the case of the surveyor is not, in -1 this respect, distinguishable, in any manner, from that of the collector. They are, therefore, of opinion, that the representatives of the deceased collector and surveyor, and not the present incumbents in office, are entitled to the distributive shares of the moiety of the money now in the registry of the circuit court. The next question is, as to the proportions in which this moiety is to be divided between the representatives of the collector and surveyor. Whatever may have been the practice in the district of Petersburg, the words of the act admit of no reasonable doubt. The moiety is to be divided in equal proportions between the collector, naval officer and surveyor, or between such of the said officers as there may be in the district. There was no naval officer in the district of Petersburg, and consequently, the division must be, in equal proportions, between the .collector and surveyor. It is the unanimous opinion of this court, that it be certified to the circuit court, that it is the opinion of this court: 1st. In the case of the United States against Joseph Jones and others, that the moiety of the money now remaining in the custody of the circuit court, in the proceedings in the case of the United States, appellants, against Joseph Jones and others, mentioned, should be paid to the said Joseph Jones, collector of the district of Petersburg, to be, by him, dividedin equal proportions between Thomas Shore, as he is executor of the last will and *4'781 ^estament *John Shore, deceased, and Reuben M. Gillian, as he is J administrator of the goods and effects of Andrew Tarbone, deceased. 2d. In the case of Thomas Shore and another against Joseph Jones and others, that the representative of the late surveyor, in right of his intestate, was entitled to receive one moiety of that portion of the penalty in the proceedings mentioned, which is by law to be distributed among the several revenue officers of the district wherein the penalty was incurred. Patton’s Lessee v. Easton. Statute of limitations. Under the act of the legislature of Tennessee, passed in 1797, to explain an act of the legislature of North Carolina, of 1715, a possession of seven years is a bar, only when held under a grant, or a deed founded on a grant. The act of assembly yesting lands in the trustees of the town of Nashville, is a grant of those lands, and when the defendant showed no title under the trustees, nor under any other grant, his possession of seven years was held insufficient to protect his title, or bar that of the plainttiff, under a conveyance from the trustees. Error to the Circuit Court for the district of West Tennessee. This was an ejectment for one moiety of a lot of land lying in Nashville. The cause was argued at February term 1815, by Humphries and * Jones, for the plaintiff in error, and by P. P. Key, and Swann, for -* the defendant, and was continued for advisement to the present term. 218 1816] OF THE UNITED STATES. 477 Patton v. Easton. March 21st, 1816. Marshall, Ch. J., delivered the opinion of the court.—The legislature of North Carolina, while Tennessee was a part of that state, passed an act establishing the town of Nashville, and vesting 200 acres of land in trustees, to be laid off in lots, and sold and conveyed in the manner prescribed by the act. On the 1st of July 1784, subsequent to the passage of the act establishing the town, the trustees executed a deed, regularly conveying the lot, fqr a moiety of which this suit was brought, to Abednigo Lewellin. On the 1st of April 1810, Shadrack Lewellin, heir-at-law of Abednigo, who had then attained his full age of twenty-one years, for seven years and upwards, executed a deed conveying the land in controversy to Francis May; after which, and previous to the institution of this suit, Francis May conveyed the same land to the lessor of the plaintiff. The defendant produced a deed, dated the 2d of February 1793, executed by a certain Josiah Love, and purporting to convey the land in controversy to William T. Lewis. It appeared in evidence, that Lewis had purchased the land fairly, and paid a valuable consideration for it, and that at the time, no person was in possession of it. Immediately after this conveyance, Lewis entered into, and took full possession of, the premises, made valuable improvements thereon, and continued so possessed, until the 14th of February *1810, when he sold and conveyed the same to William Easton, r*^g the defendant, who entered into and took possession, and continued *-peaceably possessed thereof, until the 12th of November 1810, when this suit was instituted. Upon this testimony, the defendant’s counsel moved the court to instruct the jury, that the defendant was protected in his possession of the premises, by the laws of the land, and that by virtue of the said laws, the plaintiff was barred from recovering the said parcel of ground and premises. On this question, the judges were divided in opinion, which question and division have been certified to this court, as prescribed by law. The evidence is not so stated on the record, as to present any point for the consideration of this court, other than the question whether a possession of seven years is, in this case, a bar to the plaintiff’s action. This question depends on the construction of an act of the legislature of Tennessee, passed in the year 1797, to explain an act of the legislature of North Carolina, passed in the year 1715. The act of 1715, after affirming, in the first and second sections, certain irregular deeds, previously made, under which possession had been held for seven years, enacts, in the third section, “ that no person or persons, or their heirs, which hereafter shall have any right or title to any lands, tenements or hereditaments, shall thereunto enter or make claim, but within seven years after his, her or their right or title shall descend or accrue; and in *default thereof, such person or persons so not entering or making * default, shall be utterly excluded and disabled from any entry or L claim thereafter to be made.” The fourth section contains the usual savings in favor of infants, &c., who are authorized within three years after their disabilities shall cease, “ to commence his or her suit, or make his or her entry.’’ Persons beyond sea are allowed eight years after their return ; “ but that all possessions held without suing such claim as aforesaid, shall be a perpetual bar against all and all manner of persons whatever, that the expectation of heirs may not, in a short time, leave much land unpossessed, 219 479 SUPREME COURT [Feb’y Patton v. Easton. and titles so perplexed that no man will know from whom to take or buy land.” The judges and lawyers of the state of North Carolina have been much divided on the construction of this act; some maintaining, that like other acts of limitation, it protects mere naked possession ; others, that the first and second sections (which are retrospective) have such an influence on the third and fourth (which are prospective), as to limit their operation to a possession acquired and held by color of title. This court is. relieved from an investigation of these doubts, by a case decided in the supreme court of North Carolina, in which it was finally determined that the act of 1715 afforded protection to those only who held by color of title. This contest was maintained as strenuously in Tennessee, after its separation from North Carolina, as in the parent state. Anterior to the decision of the supreme court of North Carolina, which *4ro1 has been mentioned, *the legislature passed an act to settle “ the true -* construction of the existing laws respecting seven years’ possession,” in which it is enacted, “ that in all cases, wherever any person or persons, shall have had seven years’ peaceable possession of any land, by virtue of a grant, or deed of conveyance founded upon a grant, and no legal claim, by suit in law, by such, set up to said land, within the above term, that then, and in that case, the person or persons, so holding possession as aforesaid, shall be entitled to hold possession, in preference to all other claimants, such quantity of land as shall be specified in his, her or their said grant or deed of conveyance, founded on a grant as aforesaid.” The act then proceeds to bar the claim of those who shall neglect, for the term of seven years, to avail themselves of any title they may have. As not unfrequently happens, this explanatory law generated as many doubts as the law it was intended to explain. On the one part, it was contended, that being designed for the sole purpose of removing all uncertainty respecting the construction of the act of 1715, its provisions ought to be limited to its avowed object, and a doubt had never existed, whether it was necessary for a person in possession to show more than a color of title, a deed, acquired in good faith,, in order to protect himself under that act; so, nothing further ought to be required, in order to enable him to avail himself of the act of 1797. That if it should be necessary to trace a title up to a grant, the act of 1797, instead of quieting possession, would, in process of *4« 11 strip a very long possession of that protecting *quality which the policy of all other countries bestowed upon it; that the act of 1797 was obviously drawn with so much carelessness as, in some of its parts, to exclude the possibility of a literal construction; and for this reason, a more liberal construction would, be admissible, in order to effect its intent. It was, therefore, insisted, not to be necessary for the defendant, holding possession under a bond fide conveyance of lands which had been actually granted, to deduce his title from the grant; but that it was sufficient, to show that the land had been granted, and that he held a peaceable possession of seven years under a deed. On the other part, it was contended, that, on this point, there is no ambiguity in the words of the act. The seven years’ possession, to be available, must be “ by virtue of a grant, or of a deed founded on a grant.” It is as essential that the deed should be founded on a grant, as that a deed should exist. A possession of seven years does no 220 1816] OF THE UNITED STATES. 481 Ross v. Reed. more, in the one case than in the other, bar a legal title. The words of the act being perfectly clear; they must be understood in their natural sense. When confined to different deeds, founded on the same patent, or to deeds founded on different patents, for the same land, although some cases of fair possession may be excluded from their operation, yet they will apply to the great mass of cases arising in the country. This question, too, has, at length, been decided in the supreme court of the state. Subsequent to the division of opinion on this question, in the circuit court, two cases have been decided in the supreme *court for rHe the state of Tennessee, which have settled the construction of the L act of 1797. It has been decided, that a possession of seven years is a bar only when held “ under a grant, or a deed founded on a grant.” The deed must be connected with the grant. This court concurs in that opinion. A deed cannot be “ founded on a grant ” which gives a title not derived in law or equity from that grant; and the words founded on a grant, are too important to be discarded. The act of assembly vesting lands in the trustees of the town of Nashville, is a grant of those lands, and as the defendant shows no title under the trustees, nor under any other grant, his possession of seven years cannot protect his title, nor bar that of the plaintiff. And this is to be certified to the circuit court for the district of West Tennessee. Certificate for the plaintiff. Ross and Moeeison v. Reed. Land-law of Tennessee. Where the plaintiff in ejectment claimed title to lands in the state of Tennessee, under a grant from said state, dated the 26th of April 1809, founded on an entry taken in the entry-taker’s office, of Washington county, dated the 2d of January 1779, in the name of J. McDowell, on which a warrant issued on the 17th of May 1779, to the plaintiff, as the assignee of J. McDowell, and the defendants claimed under a grant from the state of North Carolina, dated the *9th of August 1787, it was determined, that the prior entry might be attached to a junior grant, so as to overreach an elder grant, and that a survey having been made, *■ and a grant issued upon McDowell’s entry, in the name of the plaintiff, calling him assignee of McDowell, was primA fade evidence that the entry was the plaintiff’s property; and that a warrant is sufficiently certain to be sustained, if the objects called for are identified by the tes timony, or unless the calls would equally well suit more than one place. Eeeoe to the Circuit Court for the district of East Tennessee. The defendant in error, who was plaintiff in the court below, claimed title under a grant from the state of Tennessee, bearing date the 26th day of April 1809, founded on an entry made in the entry-taker’s office of Washington county, No. 975, dated on the 2d day of January 1779, in the name of John McDowell, for 500 acres of land, on which a warrant issued on the 17th day of May 1779. The defendants in the court below, now plaintiffs in error, claim under a grant from the state of North Carolina to John Henderson, dated the 9th of August 1787, and a deed of conveyance from John Henderson to the defendant, Ross, duly executed and registered. Morrison held as tenant under Ross. At the trial of the cause, a bill of exceptions was taken by the defendants, in which was stated a transcript taken from the book procured from the office of the secretary of state of the United States, which contains 221 483 SUPREME COURT Ross V. Reed.- [Feb’y reports of the lands entered in Sullivan and Washington counties ; also a copy of the warrant issued to John McDowell for 500 acres of land, both of which are certified by the clerk to the commissioner of East Tennessee. * , Also the grants under *which each party claims, the deed of convey- J ance from Henderson to Ross, together with the vivd voce testimony of the witnesses produced. It then proceeded to state,“ that the defendants contended.” “ 1st, That having the eldest grant, the plaintiff could not recover, unless he had shown a prior entry, which the law would consider special for the place now claimed, and produced satisfactory evidence that the right was vested in him. That as no proof had been given, that Reed had ever purchased or paid any consideration for McDowell’s entry, he could not, in virtue of that entry, entitle himself to a verdict. That the mere statement in the survey and grant, that Reed was assignee of McDowell, was no evidence whatever of that fact. “2d. That if such proof had been given, still, he could not recover, because the proof shows that the objects called for in the entry existed at two places, some distance from each other; and therefore, the entry was ambiguous and doubtful. “But the court charged and instructed the jury, that the circumstance of a survey having been made, and a grant issued upon McDowell’s entry, in the name of Reed, calling him assignee of McDowell, was priv^d facie evidence that the entry was the property of Reed. And that it was true, if the calls in an entry would equally well suit more than one place, it would not be considered special for either place ; but it was for the jury to determine, from the evidence, whether the place spoken of, on the south side of Holston, would as well suit the calls of the entry as the one on the north side ; and that, except for James King’s testimony, he had hardly i. -, *ever heard an entry better established than the one now under con- 4S51 sideration.” There was a verdict and iudgment in favor of the plaintiff, and the cause was brought up to this court by writ of error. March 21st, 1816. Todd, J., delivered the opinion of the court.—It is now objected by the plaintiffs in error, that the transcript first mentioned contains nothing but a naked designation of number, date, person’s name, and number of acres, but no description of the land whatever ; not even specifying the county where situate. To this objection, it may be answered, that it is a fact, which will appear from the reports of cases decided in the courts of Tennessee, that the books containing entries for land in the counties of Sullivan and Washington have been lost or destroyed. It is also a fact, that the original of the transcript under consideration was directed, by a statute of Tennessee, to be procured and deposited in the commissioner’s office ; and copies therefrom, certified by the clerk, are declared to be evidence in the courts of that state ; but a conclusive answer is furnished by an examination of the bill of exeeptions : it was not objected to in the court below. The same answers may also be given to the objection taken to the copy of the warrant. Under the laws of North Carolina, for appropriating the vacant lands, an entry is made with the entry-taker, before a warrant 222 1816] OF THE UNITED STATES. Ross v. Reed. *486 issues : the warrant describes *the land specified in the entry: the special or locative calls for appropriation of the land can be seen and examined as well from a view of the warrant as from the entry. In consequence of various frauds respecting warrants, they were by law to be submitted to a board of commissioners, and if decided to be valid, the original was deposited with the commissioner, and copies, certified by the clerk, were to be received in evidence. The copy of the warrant, in this case, corresponds with these regulations, and was properly received, nor was it objected to in the court below. The practice in the courts of Tennessee, of attaching a prior entry to a junior grant, to everreach an elder grant in an action of ejectment, was brought into the view of, and recognised by, this court, in the case of Polk v. Hill et al. (9 Cr. 87) ; it is, therefore, not now to be departed from. The location in this case, upon the face of the warrant, appears to be sufficiently certain to be sustained, if the objects called for are identified by the testimony, or unless the calls would equally well suit more than one place. These were questions properly submitted to the jury ; there was, therefore, no error in the charge and instruction given on this point. Nor was there error in the residue of the instruction. It is a general principle, to presume that public officers act correctly, until the contrary be shown. It must, therefore, be presumed, that the officer, when he surveyed McDowell’s entry, in Reed’s name, had sufficient evidence produced to *satisfy him that Reed was the owner of it, and this presumption is r4. increased by the act of another officer in issuing the grant; these L circumstances furnished ptim^ facie evidence, at least, that he was the owner. Judgment affirmed. 223 APPENDIX. NOTE L Extract from the Preface to Bibb’s Reports of Cases in the Court of Appeals of Kentucky. “The rules of landed property in Kentucky are, in an eminent degree, the creatures of the court—a species of judicial legislation. The disputes between claimants under the laws of Virginia have grown, principally, out of two requisitions in the statute of 1779. The one requiring of those claiming rights of settlement, or of pre-emption, to obtain certificates from the commissioners appointed for that purpose, mentioning the cause of the claim, the number of acres, and ‘ describing, as near as may be, the particular location(a) the other, requiring the holders of land-warrants to lodge them with the surveyor, and in a book to be kept for that purpose, to ‘ direct the location thereof so specially and precisely, as that others may be enabled, with certainty, to locate warrants on the adjacent residuum.'(b) The text was short and novel: the commentary was left to the direction of the judges. The ancient depositories of the law gave but little light to guide the exercise of this discretion. The rules for construction of deeds gave some aid; but this was far short of what was wanted. For a time, unfettered by precedent, undirected by rule, each decision was but fact—multiplication of facts gave precedents, and precedents have grown into doctrine. The statute requires-first, a description *of the particular tract, specially and precisely; that is to say, r that the description shall apply, certainly, to one identical tract, and not uncertainly,' or equally to two, or divers. Next, that this description shall enable others to find and know the identical tract intended. The statute intends the entry in the surveyor’s book, to be notice to all persons of the appropriation. The question arising out of the entry is, does it contain that description which was sufficient to operate as notice of an appropriation of a particular tract ? This question is analyzed into the identity and notoriety of the objects referred to in the location. That is to-say, the entry must contain proper allusion and reference to known and certain objects,, which shall serve as indices to the particular tract of land intended to be appropriated. . “ Identity is absolutely necessary in the investigation .of every question of meum el tuum. The propriety of making identity one subject of inquiry in testing entries, needs no explanation. But in deciding upon what description is sufficient to give identity or individuality to the location,, various rules have been established, whereby entries, apparently admitting of diversity or figures, have been helped, and rendered identical by construction. A location, “to include his cabin,” in matter of facts, admits (a) LL. V Chan. Rev. 93; 1 Litt. E. L. K. 402-3. (5) Chan. Rev. 95; 1 Litt. 410. 1 Wheat.—15 225 490 APPENDIX. Land law of Kentucky. of divers surveys, each of which may inclose the cabin, and yet not have an acre in common. If the locator could take any one of these circumjacent tracts, as whim or fancy may direct, it is evident, that, until this choice was made known, by some act posterior to his entry, others could not know the adjacent residuum, nor appropriate it with certainty. But, as matter of law, the courts have established as a rule, in such cases, that the survey shall be in a square, with lines due north or south, east and west, the cabin at the intersection of the diagonals. Thus (the quantity being expressed), when the particular cabin is ascertained, the location is reduced to mathematical certainty, appropriate to one precise identical tract. This is one example, among many, of which you will read in these reports. “ The identity of the tract being ascertained, the inquiry is, whether the description was, at the date of the location, with the surveyor, sufficient to enable others to find and know it? *This branch of the subject has called forth many decisions, and 491J embraces the doctrine of notoriety, so frequently recurring in questions upon conflicting claims,. “ This rule is, that the location must contain such expressions and allusions to objects, natural or artificial, as would enable others, using reasonable diligence of inquiry, to ascertain the particular tract intended to be appropriated. A reference to ¿obscure objects, known to the locator only, without proper directions for finding them, could not satisfy the requisitions of the statute, although the figure of the land could be precisely described, if the beginning could be ascertained. For such reference to obscure objects, although it might enable the locator himself to appropriate the adjacent residuum, would not enable others to do it. This required reference to known objects ;by their known appellations, or other distinguishing characteristics, is essential to every geographical description, and is founded in the very constitution of language, as the medium of communicating the ideas of one man to another. The geographer must draw his equator, and establish and make known his first meridian, before he can describe, intelligibly, the relative positions of the different parts of the earth, and of ’the countries he describes. The surveyor must have his first positions, from whence ito take his bearings and distances, his latitude and departure. In language, the sign and the thing signified by articulate sounds, must be agreed upon, and mutually made known, before men can converse intelligibly one with another. The substances must be pointed out, and the names repeated, before the child, or the foreigner, understands what we mean by land, water and cabin. There is no natural connection between ■words and the ideas they are intended to stand for ; otherwise, there would be but one ■language among all men. But sounds, as the representatives of ideas, are of mere : arbitrary imposition; therefore, language is properly defined ‘ a system of articulate sounds, significant by compact.’ This compact is established by common consent, use and custom, in every country. It is this established use, custom and common consent which makes names, words and terms, mark and signify particular ideas. All men, therefore, who speak intelligibly *to others, must use words which stand for *492] ^eaS) an(j employ those words according to their common use and acceptation in ithe language of the country. A man who would use three to signify eight would (deceive his hearers. He who would speak to others of substances and objects, by sounds never before used to signify those things, without any explanation to make known his meaning, would be guilty of an abuse of language, by uttering empty sounds and nothing else. From known ideas, the mind may be conducted to the knowledge of things new, and before unknown. But from things unknown, to attempt to describe things more unknown, so far from helping us to knowledge, serves only the more to perplex and bewilder the mind. A locator using words which stand for ideas in his own mind, but which do not convey the same ideas, or no certain ideas, to the mind of others, has not complied with the requisitions of the statute. . Should he allude to a water-course only, by a name unheard of by others, and arbitrarily imposed by himself, he does not write intelligibly to others. So, ‘ to include a tree in a forest, whereon he has marked the initials of his name,’ may identify the land in his own mind, but does not Communicate to others a competent idea of the intended appropria- 226 APPENDIX. Land law of Kentucky. 491 tion. Locators must have reference to objects known to others by their usual names, or by terms in common use and acceptation, describe and make known the objects intended. “ Notoriety is either absolute or relative. Absolute, as where the object is known so generally that, according to the usual courtesies and intercourse among men, thej presumption is irresistible, that any one using ordinary inquiry might have been conducted to the place, as Lexington, Bryant’s Station, the Lower Blue Licks, &c. Relative, as where the particular object is not actually known, but is ascertainable by reasonable diligence—as one mile east of the Lower Blue Licks &c. ‘ ‘ As the record in the books of entries is to have the effect of general notice to all holders of warrants, the entry must contain apt reference to objects known to the generality of persons acquainted in the neighborhood of the intended appropriation. Neither will the proof, that the particular conflicting claimant had knowledge of the appropriation intended, suffice to *help out an entry in a controversy with him, A as is adjudged in several cases, and, I think, very properly. 1st. That *■ would be to make the entry valid as to some, and invalid as to others, as is more fully explained in Craig v. Pelham, Sneed, 286-7. 2d. That would be to test the entry, not by the record, but by matters out of the scope of the record. 3d. It would put men’s estates upon a tenure too slender and uncertain, without any sufficient safeguard against the perjury or mistakes of a solitary witness ; whereas, evidence of notoriety, being an appeal to general understanding and knowledge of the people of the neighborhood, is capable of being rebutted and disproved, if untrue, by calling upon other men who had equal opportunities of information on the subject. 4th. To admit proof that a particular person understood the entry, would be to test the significa-tion and propriety of the language of the entry, not by the standard of general use and common acceptation, but by the particular ideas of two individuals. “ Notoriety must have been co-existent with the entry. The location, when made, if valid, is to stand for notice of appropriation from that time. Words conveying to others no precise idea of appropriation, at the time used, because they were not conformable to objects then in existence ; or, because the names an^ terms employed had not then been annexed, in common use and understanding of the neighborhood, to any individual object, being signs without anything signified, cannot, without abuse of language and of truth, be made to apply to after-made objects, or after-acquired names. ‘ A. enters for 400 acres, to include his cabin;’ at the time, he had no cabin, and therefore, his entry was null, appropriating no land: one year afterwards, A. builds a cabin. Ought he to be permitted to hold land around it, by virtue of his entry before the fact ? If so, A. has had one year to make hfe choice of the country. To suffer him to hold by relation to the time of his entry, would be a fraud upon intermediate purchasers. To suffer him to hold against after purchasers, would be, 1st. To make the same entry valid and invalid; good against some persons, and null as to others, of which enough has been said before. 2d. To refer his claim, not to the the truth of the recorded entry, but to mere occupancy. 3d. To make an act not valid in the *beginning, grow valid and legal in the lapse, which is contrary to a maxim in law. Quod [*^94 ab initio non valet, in tractu temporis non convalescit.\a) Noy’s Max. 9. In illustration of the maxim, Noy putteth the case of A. ‘remainder limited to A., the son of A. B. Having no such son, and afterwards a son is born to him, whose name is A., during the particular estate,’ the remainder is void, whether the entry alluded to objects not then existing, or employed names or terms, not then standing for signs of the existing objects, or signs of ideas among the generality of those acquainted in the neighborhood, the reason is the same for denying validity to the entry by means of after notoriety. To test the entry by any other standard ¿han the significancy or insignificancy, of the words at its date, would produce an inconstancy and shifting of locations. Objects lose their old names and acquire new ones. Names of streams are transposed (a) 4 Co. 61; 10 Ibid. 62; Plowd. 344. 227 494 APPENDIX. Practice in Prize Causes. in the progress of time, and of the settlement of the country. Upon the doctrine that after notoriety should apply to a previous entry, the identity and validity of entries would be referred, not to one uniform standard expressed in the face of each entry, but to perplexed and different standards, according to the dates of the entries happening to conflict. Thus, the date of a subsequent conflicting entry, would make a part of a prior entry, and affect its validity or invalidity.” NOTE II. On the Practice in Prize Causes. In Some of the district courts of the United States (to which courts the exclusive *4951 jurisdiction in the first instance belongs) *great irregularities have crept into the ■J practice in prize causes. These irregularities have been censured at the bar, and occasionally noticed, with expressions of regret, by the supreme court. It is hoped, therefore, that an attempt to sketch an outline of the regular practice of prize courts, in some of the more important particulars, may not be without use to the profession. This outline will be principally copied from the rules of the British courts, which, so far as cases have arisen to which they could apply, have been recognised and enforced by the supreme court of the United States and for the most part, are conformable with the prize practice of France, and other European countries, as will appear by a reference to the laws and treaties quoted in the margin. The letter of Sir William Scott, and Sir John Nicholl, to Mr. Jay, written in September 1794, which is printed in the appendix to Chitty’s Law of Nations (American edition), and Wheaton on Captures, affords, so far as it goes, a very satisfactory and luminous view of the subject. Something more in detail, however, may be desirable to those who are not familiar with the admiralty practce. As soon as a vessel or other thing captured as prize, arrives in our ports, notice should be given thereof by the captors to the district judge, or to the commissioners appointed by him, that the examinations of the captured crew, who are brought in, may be regularly taken in writing, upon oath, in answer to the standing interrogatories. These are usually prepared under the direction of the district judge, and should contain sifting inquiries upon all points which can affect the question of prize. The standing interrogatories used in the English high court of admiralty (1 Rob. 381), have been drawn up with great care, precision and accuracy, and are an excellent model for other courts. They were generally adopted during the late war, by the district judges in the principal states, with a few additions, and scarcely any variations. The examinations upon these interrogatories are rarely taken by the district judge in person, for in almost all the principal ports within his district, he appoints standing commissioners for prize proceedings, upon which this duty devolves. It is also the duty of the prize-master, to deliver up to the district judge all the 4961 PaPers an^ documents found on board and, *at the same time, to make an affidavit J that they are delivered up as taken without fraud, addition, seduction or embezzlement. (a) In general, the master and principal officers, and some of the crew of the captured («) Aussi tôt que la prise aura été amenée en quelques rades ou ports de notre .royaume, le capitaine qui l’aura faite, s’il y est on personne, sinon celui qu’il en aura chargé, sera tenu de faire son rapport aux officiers de l’amirauté ; de leur represénter et mettre entre les mains les papiers et prisioniers ; et de leur déclarer le jour et l’heure que le vaisseau aura été pris ; en quel 228 lieu ou à quelle hauteur ; si le capitaine a fait refus d’amener les voiles, ou de faire voir sa com-missipn.ou son congé, s’il attaque ou s’il s’est défendu ; quel pavillon il portait, et les autres circonstances de la prise et de son voyage. Ordonnance de la Marine 1681, tit. 9, art. 21 ; Declaration du 24 Juin 1778, art. 42. See also the Swedish Ordinance of 1715, Coll. Mar. 168. APPENDIX. 496 Practice in Prize Causes. vessel, should be brought in for exJamination. This is a settled rule of the prize courts/®) and was, during the^late war, enforced by the express instructions of the president. The examination must be confined to persons on board at the time of the capture, unless the special permission of the court is obtained for the examination of others. (The Eliza and Katy, 6 Rob. 185 ; The Henrick and Maria, 4 Ibid. 43, 57.) In order to guard as much as possible against frauds * and mis-statements from after rHc.Q/7 contrivances, the examinations should take place as soon as possible after the L arrival of the vessel, and the witnesses are not allowed to have communication with, or to be instructed by counsel. The captors should also introduce all their witnesses in succession ; for if the commissioners have taken the despositions of some of the crew, and transmitted them to the judge, they will not be at liberty, without a special order, to examine others who are afterwards brought by the captors before them. (The Speculation, 2'Rob. 243.) On the other hand, an equal strictness is held over the conduct of the claimants. If they keep back any one of the captured crew, for two or three days after the vessel comes into port, and then offer him, together with papers in his possession, the commissioners will be justified in not examining him. (1 Rob. 331 : and see The William and Mary, 4 Ibid. 381.) The ship’s papers, and other documents found on board, which are *not delivered up to the district judge, or the com- n missioners, before, or at the time of, the examinations, will not be admitted as L evidence. (Ibid.) Although the examinations are to be on standing interrogatories, without the instructions of counsel, yet the witnesses are produced in the presence of the agents of the parties, before the comissioners, whose duty it is to superintend the regularity of the proceedings, and protect the witnesses from surprise or misrepresentation. When the deposition is taken, each sheet is afterwards read over to the witness, and separately signed by him. (The Apollo, 5 Rob. 286.) And the commissioner should be careful, that the various answers are taken fully and perfectly, so as to meet the stress of every question, and should not suffer the witness to evade a sifting inquiry, by vague and obscure statements. If the witness refuse to answer at all, or to (a) Thus, in a treaty of amity and commerce between Charles VIII., king of France, and Henry VII., of England, concluded at Boulogne, the 24th of May 1497, and which may be considered as evidence of the prize practice of Europe at that period, is contained the following article: “Simili quoque juramento solemniter præstando promittent, quod de qualibet præda, captura, manubiis, sive spoliis, adducent duos aut tres viros in capto ñavi praecipuum locum obtinentes, ut magistrum, submagistrum, patronum, aut hujusmodi con-ditionis, quos admiraldo, vice-admiraldo, aut .eorum officiariis exhibebunt, ut per eosdem, aut eorum alterum, debite examinetur ubi, super quibus, et qualiter, navis sive bona capta sint ; nec facient aut fieri permittent aliquas præda-rum, spoliorum, mercium, aut bonorum, per eos capiendorum divisiones, patitiones, traditiones, permutationes, alienationesve, ptwsquam se viros captos, bona et merces, integre dominis, admiraldo, vice-admiraldo, aut eorum vices gerentibus repræsentaverint ; qui de illis dis-poni, si æquum putabunt, permittent, alias nihil hujusmodi permissuri. Coll. Mar. 95. De toutes les prises qui se feront en mer, soit par nos subjects, ou autres tenans nostre party, et tant soubs ombre et couleur de la geurre q’autrement, les prisonniers ou pour les moins deux ou trois des plus apparentes d’iceux seront amenez à terre, devers nostre dit admirai, ou son vis-admiral, ou lieutenant, pour, au plustost que faire se pourra, estre par lui examinez et ouys, avant qu’aucune chose des dits prises soit descendue; a fin de savoir le pays delà où ils seronLà qui appartiennent les navires et biens d’iceux, pour si la prise se trouve avoir esté bien faite, telle la déclarer, si non, et ou il se trouveroit mal faite, la restituer a qui elle appartiendra, &c. Ordonnance de 1584, art. 33; Ord. de 1400, art 4; de 1543, art. 20; Déclaration du premier Févoier, 1650, art. 9 ; Les officiers de l’amirauté entendront sur le faite de la prise, le maître ou commandant du vaisseau pris, même quelques officiers et matelots du vaisseau preneur, s’il est besoin. .Ordonnance de la Marine 1681, tit. 9, art. 24. Si le vaisseau est amené sans prisonniers, charte-parties ni connaisemens, les officiers, soldats et équipages de celui qui l’aura pris, seront séparément examinés sur les circonstances de la prise, et pourquoi le navire a été amene sans prisonniers, et seront, le vaisseau et les marchandises visités par experts, pour connoître, s’il se peut, sur qui la prise aura été faite. Ibid. art. 25. 229 498 APPENDIX. » Practice in Prize Causes. answer fully, the commissioners are to certify the fact to the court, and, in addition to the other penal consequences to the owners of the shi]^ and cargo, from a suppression of evidence, he will be liable to close imprisonment for the contempt. The witnesses should be examined separately, and not in presence of each other, so as to prevent any fraudulent concert between them. As soon as the examinations are completed, they are to be sealed up and directed to the proper district court, together with all the ship’s papers, which have not been already lodged by the eaptors in the registry of the court. It is upon the ship’s papers, and depositions thus taken and transmitted, that the eause is, in the first instance, to be heard and tried. The Vigilantia, 1 Rob. l.(a) This is not a mere *matter of practice or form : it is of the very essence of the •* administration of prize law; and it is a great mistake, to admit the common-law notions, in respect to evidence, to prevail in proceedings which have no analogy to those at common law. In some few of the district courts, it was not unusual, during the late war, to allow the witnesses to be examined, orally, at the bar of the court, long after their preparatory examinations had been taken, and full opportunities had been given to enable the parties to shape any new defence, or explain away any asserted facts. This was, unquestionably, a great irregularity, and, in many instances, must have been attended with great public mischiefs. By the law of prize, the evidence to acquit or condemn, must, in the first instance, come from the papers and crew of the captured vessel. The captors are not, unless under peculiar circumstances, entitled to adduce any extrinsic testimony. It is, therefore, of the last importance, to preserve the most rigid exactness as to the admission of evidence, since temptations would otherwise be held out to the captured crew, to defeat the just rights of the captors, by subsequent contrivances, explanations and frauds. There can be no honest reason why the whole truth should not be told by the captured persons, at the first examination; and if they then prevaricate, or suppress important facts, it must be from motives which would materially impair the credibility of their subsequent statements. Where the justice of the case requires the admission of new evidence, that may always be obtained, except where, by the rules of law, or the misconduct of the parties, the right to further proof has been forfeited. But whether such further proof be necessary or admissible, can never be ascertained, until the cause has been fully heard upon the facts, and the law arising out of the facts, already in evidence. And in the supreme court, during the whole of the late war, no further proof was ever admitted, until the cause had been first heard upon the original evidence, although varions applications were made to procure a relaxation of the rule. We shall have occasion hereafter to state some of the cases in which further proof is allowed or denied. ♦’wm a Person wishes to procure the restitution of any property captured as J prize, it is necessary that he should, after the prize libel is filed, and at or before the return of the monition thereon, or time assigned for the trial, enter his claim for such property before the proper court. And if the captors omit, or unreasonably delay to institute prize proceedings, any person claiming an interest in the captured property may obtain a monition against them, citing them to proceed to adjudication; which if they omit to do, or show cause why the property should be condemned, it will be restored to the claimants, proving an interest therein. And the same process is often resorted to, where the property is lost or destroyed, through the fault or negligence of the captors, in order to obtain a compensation in damages for the unjust (a) Il est ordonné, &c. que pleine et entière qfoi sera ajoutée aux dépositions des capitaines, matelots et officiers des vaisseaux pris, s’il n’y a contre eux aucun reproche valable proposé par les réclamateurs, ou quelque preuve de subornation et de séduction. Réglement du 26 Octobre 1692. Veut que dans aucun cas, les pièces qui pourraient être rapportées, après la prise des bâtimens, puissent faire aucune foi, ni être d’aucune utilité, tant aux propriétaires desdits bâtimens q’uâ ceux des marchandises qui pourraient avoir été chargées : Voulant qu’en tout occasions l’on n’ait égard qu’aux seules pièces trouvées abord. Réglement du 26 Juillet 1778. See also the Swedish Ordinance of 1715, art. 7, Coll. Mar. 169. 230 APPENDIX. Practice in Prize Causes. 500 seizure and detention. (The Betsey, 1 Rob. 93; The Mentor, Ibid 181; The Huldah, 3 Ibid. 239; The Der Mohr, Ibid. 129; The George, Ibid. 212; The William, 4 Ibid. 215; The Susanna, 6 Ibid. 48.) The claim should be made by the parties interested, if present, or, in their absence, by the master of the ship, or some agent of the owners. A mere stranger will not be permitted to interpose a claim merely to speculate on the chances of an acquittal, (a) The claim must be accompanied by an affidavit, stating briefly the facts respecting the claim and its verity. This affidavit should be sworn to by the parties themselves, if they are within the jurisdiction. But if they are absent from the country, or at a very great distance from the place where the court is held, the affidavit may be sworn to by an agent. Before a claim is made, and affidavit put in (which should always be special, if the case stands on peculiar grounds), it is not permitted to the parties to examine the ship’s papers, and the preparatory examinations, in order to shape their claims; for this might lead to great abuses. *But if it be necessary to ascertain the particulars of a claim, the court will, upon a special L application, suffer so many of the papers to be examined as directly relate to such claim ; but a sufficient reason is always expected to be shown, on affidavit, to sustain such an application. (The Port Mary, 3 Rob. 233.) It is a general rule, that no claim is to be admitted, which stands in entire opposition to the ship’s papers and to the preparatory examinations. (The Vrow Anna Catharina, 5 Rob. 15, 19; La Flora, 6 Ibid. 1.) But this only applies to cases arising during the war, and not to cases arising before the war. (The Anna Catharina, 5 Rob. 15.) And it is not so inflexible as to exclude the interest of a citizen or subject, where there is an absolute necessity to simulate papers, as in the case of a trade with the enemy licensed by the state. (La Flora, 6 Rob. 1.) It is also a general principle, that no citizen or subject can be admitted to claim in a prize court, where the transaction, in which he is engaged, is in violation of the municipal laws of his own country. (The Walsingham Packet, 2 Rob. 77; The Etrusco, 4 Ibid. 262, note; The Cornelis and Maria, 5 Ibid. 23; The Abby, Ibid. 251; The Recovery, 6 Ibid. 341.) Nor can a person be admitted to claim, where the trade in which he is taken is forbidden by the law of nations, and by the municipal law of his own country, and that where the court is sitting. (The Amedie, Edinb. Review, vol. 16, No. 21, p. 426.) Nor can an enemy interpose a claim, unless under the protection of a flag of truce, a cartel, license, pass, treaty, or some other act of the public authority suspending his hostile character. (The Hoop, 1 Rob. 196.) And, even in the case where the capture has been made in violation of the territorial jurisdiction of a neutral country, the claim for restitution must be made, not by the enemy proprietor, but the neutral government. (The Vrow Anna Catharina, 5 Rob. 15; 3 Ibid. 162^ note.) Where no claim is interposed, it is not now usual to condemn the goods for want of a claim, until a year and a day has elapsed from the time of the return of the monition, except in cases where there is a strong presumption, and reasonable proof, that the property actually belongs to an enemy. (The Staadt Embden, 1 Rob. 26, 29. And see The Henriok and Maria, 4 Ibid. 43 ; Coll. Mar. 88, note.) But after a year *and a day has elapsed, condemnation goes, of course, if there be no claim interposed. (&) L After a claim is once put in, it is not amendable, of course; but if an amendment (a) Il est fait très expresses inhibitions et défenses à toutes sortes de personnes de réclamer aucunes des prises faites par ses vaisseaux de guerre ou ceux des armateurs particuliers, ni faire aucune procédure, en l’amirauté, sans être au préalable, parieurs de procurations en bonne forme de ceux pour qui ils feront les réclamations, et lés avoir présentées aux officiers de l’amirauté des ports ou les prises auront été conduites, à peine de six cents livres d’amende. Ordonnance du 30 Janvier 1692. Réglement du 19 Juillet 1778. (b) Si par la déposition de l’equipage et la vente du vaisseau et des marchandises, on ne peut eécouvrir sur qui la prise aura été faite, le tout sera inventorié et apprécié, et mis sous bonne et sûre garde, pour être restitué à qu’il appartiendra, s’il est réclamé dans l’an et jour ; sinon, partagé comme épave de la mer, également entre nous, l’amiral et les armateurs. Ordonnance de la Marine de 1681, tit. 9, art. 26. 231 502 APPENDIX. Practice in Prize Causes. is wanted, to correct the generality of the original claim, it will not be allowed, unless a proper case is made out, and sufficient reasons given for the admission in the first instance. (The Graaf Bernstoff, 3 Rob. 109; and see The Sally, Ibid. 179.) It often happens, that persons whose property has been captured apply to the court for a delivery upon bail, and under a mistaken notion, that such a delivery, after an appraisement, was a matter of course, or was to be governed by the same rules as are prescribed in the case of municipal forfeitures under the act of the 2d of March 1799, c. 128. Some of the district courts have allowed such applications, before any hearing of the cause ; and parties have thereby, sometimes, fraudulently obtained possession of goods at an under-valuation, where their title was totally defective, or grossly illegal. It is a settled rule of the prize court, not to deliver a cargo on bail, before the cause has been fully heard, unless by the consent of all parties; and if any inconvenience should result from this rule, as if the property be perishable, it may easily be avoided by an interlocutory sale. (The Copenhagen, 3 Rob. 178.) After the hearing, if the claimant obtain a decree in his favor, or an order for further proof, the court will listen to an application for a delivery on bail; but if his claim be rejected, or be affected with the imputation of fraudulent or unlawful con-*^e application will not be allowed, notwithstanding an appeal is inter- -■ posed. Where there is a decree of condemnation, the captors are, in general, entitled to a delivery of the property, or the proceeds thereof, upon bail. On an appeal to the circuit court, the property follows the appeal into that courts and is no longer subject to the interlocutory orders of the district court. It is otherwise with regard to the supreme court, whose decrees are always remanded to the circuit court for execution; and therefore, the property always remains in the custody of the latter. In cases of delivery on bail, a stipulation, according to the course of the admiralty, and not a bond, should be taken, (a) , * Where further proof is admissible, it may, in the discretion of the court, be J by affidavits and other papers introduced without any formal allegations, or by way of plea and proof, where formal allegations are made by each party, in the nature of special pleadings; and it may be opened to the claimants only, or to the captors as well as claimants. Upon a simple order for further proof, the captors are not entitled to adduce any new evidence, unless by the special direction of the court; but upon plea and proof, both parties are at liberty to introduce new evidence to support their respective allegations, and the points put in issue. (The Adriana, 1 Rob. 313.) The court is, in no case, concluded by the original evidence, but may order further proof on a doubt arising from any cause or quarter (The Romeo, 6 Rob. 351); and it will sometimes direct it, where suspicion is produced by extrinsic evidence. (Ibid.) But (a) Et si ab interiocutoriis dictorum judi-cum partes appellare contigerit, nihilominus super principale usque ad sententiam definitivam inclusive, appellationibus illis non obstantibus, procedere poterunt. Sed si sententia super bonorum restitutione seù principali feratur, illa executioni demandibitur, tractatum pacis inseguendo, appellationibus etiam quibuscumque non obstantibus. Poterit tamen supplicar! ad consilia principum, modo supradicta, scilicet cautione præstita ab ea parte, contra quam sup-plicabitur, de bonis captis restituendis, in even-tum contrari» sententi», et a parte supplicante, de expensis damnis et interesse, si in causa succumbunt. Traité de Paix et de Commerce, entre Charles Vili., Roi de France et de Navarre, et Henry VII., Roi d’Angleterre, 1497. Coll. Mar. 101. Les marchandises qui no pourront être con- 232 servées, seront vendues sur la requisition des parties intéressées, et adjudgées au plus offrant, &c. Ordonnance de la Marine de 1681, tit. 9, art. 28. Le prix de la vente sera mis entre les mains d’un bourgeois solvable, pour être délivrée après le jugement de la prise, à qui il appartiendra. Ibid. art. 29. Lorsque la vente ne se fait qu’après que la prise a été déclarée bonne, c’est toujours entre les mains de l’armateur que les deniers en provenans son remis, à la charge d’en compter; & afin qu’il en fût autrement, il faudroit que sa solvabilité fût bien suspecte. Valin, sur l’Ordonnance, Ibid. And according to the French practice, where restitution is decreed by the council of prizes on the original hearing, the claimants are entitled to a delivery of the property on bail, notwithstanding an appeal to the council of state, on the part of the captors. 2 Valin 335. APPENDIX. Practice in Prize Causes. 504 this is rarely done, unless there be something in the original evidence which lays a suggestion for prosecuting the inquiry further. (The Sarah, 3 Rob. 330.) And where the case is perfectly clear, and not liable to any just suspicion, the disposition of the court leans strongly against the introduction of extraneous matter, and against permit-ting the captors to enter upon further inquiry. (The Romeo, 6 Rob. 351.) The most ordinary cases of further proof are, where the cause appears doubtful upon the original papers, and the answers to the standing interrogatories; and in such cases, if the parties have conducted themselves with good faith, and the error or deficiency may be referred to honest ignorance or mistake, the court will indulge them with time to supply the defects, by the introduction of new evidence. But further proof is, in no case, a matter of right, and rests to the sound discretion of the court. Further proof is, in all cases, necessary, where the master does not swear to, or give any account of he property. (The Eenroom, 2 Rob. 1; The Juno, Ibid. 1241; The Convenientia, 4 Ibid, 201.) Where the shipment, though stated to be on neutral account, is not stated to be on account of any particular person. (The Jonge Pieter, 4 Roh. 79.) Where the ship has been purchased in the enemy’s country. (The Welvaart, 1 Ibid. 122.) Where there has been any loss or suppression of material papers. (The Polly, 2 Ibid. 361.) *And indeed, in all cases where the defects of the papers, the conduct of * the parties, the nature of the voyage, or the original evidence, in general, in- ■-duces any doubt of the proprietary interest, the legality of the trade, or the integrity of the transactions. But it is not in every case where further proof is necessary, that the parties will be permitted to introduce it; for the privilege maybe forfeited by fraud or gross misconduct. And in cases where further proof is necessary, if it is not allowed, the penal consequences are as fatal, as if the property were originally hostile, since a condemnation certainly follows the denial. (The Welvaart, 1 Rob. 122; The Juffrow Anna, Ibid. 124 ; The Graaf Bernstorf, 3 Ibid. 109 ; The Eenroom, 2 Ibid. 1.) Further proof is never allowed to the claimants, where fraudulent papers have been used. (The Welvaart, 1 Rob. 122 ; The Juffrow Anna, Ibid. 124; The Juffrow El-brecht, Ibid. 126.) Where there has been a spoliation of papers. (The Rising Sun, 2 Ibid. 104.) Where there has been a fraudulent covering or suppression of an enemy’s interest. (The Graaf Bernstorf, 3 Ibid. 109.) (a) Where there is a false destination, and false papers. (The Nancy, 3 Ibid. 122; The Mars, 6 Ibid. 79.) Nor, in general, where the case appears incapable of fair explanation. (The Vrow Hermina, 1 Ibid. 163.) Or where *there has been gross prevarication, or an attempt to rj(t impose spurious claims upon the court, or such a want of good faith as shows •-that the parties cannot safely be trusted with an order for further proof. If, upon further proof ordered, no proof is adduced, or the proof be defective, or the parties refuse to swear, or swear evasively, it is deemed conclusive evidence of hostile interests, or of such misconduct as authorizes condemnation. And it is a general rule of the prize court, that the onus probandi that the property is neutral rests upon the claimant; and if he fails to show it, condemnation ensues. (The Walsingham Packet, 2 Rob. 77 ; The Rosalie & Betty, Ibid. 343; The Countess of Lauderdale, 4 Ibid. 283.) In cases where further proof is admitted on behalf of the captors, they may introduce papers taken on board of another ship, if they are properly verified by affidavit. (a) Et pour ce qu’il pourroit advenir, qu’aucuns de nosdits alliez et confederez, voudroy-ent porter plus grande faveur à nosdits ennemis, et adversaires, que à nous, et a nosdits subjets, et à ceste cause, voudroyent dire et soustenir contre vérité, que les navires pris en mer par nosdits subjets leur appartiendroyent, ensemble la marchandise, pour en frauder nosdits subjets ; voulons et ordonnons, qu’incontinent après la prise et abordement de navire, nosdits subjets facent diligence de recouvrer la charte-partie, et autres lettres concernant la charge du navire ; et incontinent a leur arriv-ement à terre, les mettre par devers le lieutenant de nostredit admirai, afin de cognoistre à qui le navire et marchandises appartiennent ; et où ne seroit trouvée charte dedans lesdits navires, ou que le maistre et compagnons l’eussent jettée en la mer, pour en celer le vérité, voulons que lés dits navires ainsi pris, avec les dits bien et marchandises estans dedans soyent déclarez de bonne prise. Ordonnance de 1584, art. 70, du 5 Septembre 1708, du 21 Octobre 1744, art. 6. 233 506 APPENDIX. Rule of War of 1766. The Romeo, 6 Rob. 351 ; The Maria, 1 Ibid. 340.) And they may also invoke papers from another prize cause. (The Romeo, 6 Rob. 350 ; The Sarah, 3 Ibid. 330 ; The Vriendschap, 4 Ibid. 166.) It has even been permitted to the captors, to invoke the depositions of the claimant, given in another cause, to prove his domicil, at the first hearing, and without an order for further proof. (The Vriendschap, 4 Rob. 166.) And upon an order for further proof, the affidavits of the captors, as to facts within their own knowledge, are admissible evidence. (The Maria, 1 Rob. 340 ; The Resolution, 6 Ibid. 13.) It is time to draw this note to a close, and in so doing, it is proper to inform the reader, that, although authorities are cited to support some of the positions, they will not always be found to support them in their full extent. Much of what is stated, as the general practice of prize courts, is to be gathered from lights scattered here and there in the books, and more frequently and accurately, by attendance on the arguments of prize causes, where the points are discussed by counsel, or ruled incidentally by the court. *507] ' ♦NOTE III. On the Rule of the War of 1756. The rule, commonly called the rule of 1756, has acquired this denomination, from its having been first judicially applied by the courts of prize, in the war of that period. The French (then at war with Great Britain), finding the trade with their colonies almost entirely shut off by the maritime superiority of the British, relaxed their monopoly of that trade, and allowed the Dutch (then neutral) to carry on the trade between the mother country and her colonies, under special licenses or passes, granted to Dutch ships for this special purpose, excluding at the same time, all other neutrals from the same trade. Many Dutch vessels so employed, were captured by the British cruisers, and, together with their cargoes, were condemned by the prize courts, upon the just and true principle that, by such employment, they were, In effect, incorporated into the French navigation, having adopted the character and trade of the enemy and identified themselves with his interests and purposes. They were, in the opinion of these courts, to be considered like transports in the enemy’s service, and hence liable to capture and condemnation, upon the same principle as property condemned by way of penalty for resistance to search, for breach of blockade, for carrying military "persons or dispatches, or as contraband of war. In all these cases, the property is considered, pro Tide vice, as enemy’s property, as so completely identified with his interests, as to acquire a hostile character. So, where a neutral is engaged in a trade which is exclusively confined to the subjects of a country, in peace and in war, and is interdicted to all others, and cannot be avowedly carried on in the name of a foreigner, such a trade js considered so entirely national, that it must follow the hostile situation of the country, (a) There is all *the difference between this principle and the -* modern British doctrine, which interdicts to neutrals, during war, all trade not open to them in time of peace, that there is between the granting by the enemy of special licenses to the subjects of the belligerent state, protecting their property from capture in a particular trade, which the policy of the enemy induces him to tolerate, and a general exemption of such trade from capture. The former is clearly cause of confiscation, whilst the latter has no such effect.(&) The rule of the war of 1756 was (a) The Princessa, 2 Rob. 52; The Anna Catharina, 4 Ibid. 118; The Rendsborg, Ibid. 121 ; The Vrow Anna Catharina, 5 Ibid. 150. In this last case, Sir William Scott distinguishes from the ordinary colonial trade, “ the strict exclusive colonial trade from the colony to the mother country, where the trade is lim- ited to native subjects, by the fundamental regulations of the state; and the national character is required to be established by oath, as in the case of the Spanish register ships. (6) See the opinion of Mr. J. Story, in the case of The Liverpool Packet, 1 Gallis. 513, 524. 234 APPENDIX. Rule of War of 1756. 608 founded upon the former principle, and likewise upon a construction of the treaties between Great Britain and Holland, in which, the former power contended, was conceded to the latter a freedom of commerce only as to her accustomed trade in time of peace. The rule lay dormant through the war of the American revolution; but was afterwards revived, during the war of the French revolution, and extended to the prohibition of all neutral traffic whatsoever with the colonies, and upon the coasts of an enemy. That this is a correct representation of the nature, origin and subsequent application, of this celebrated rule of the British prize courts, will appear from its history. It cannot be pretended, that its origin can be traced, in judicial records, to an earlier source than that war from which it derives its name. It has, indeed, been attempted to seek, by the aid of historical lights, for earlier instances of the application of the rule. But it is evident, that the property of the pretended neutrals, who according to M. Arnould, were employed by the French administration to carry on the colonial trade, during the war which ended with the peace of Utrecht, and that of 1744, (a) must have been condemned as enemy’s property; *because, with all the advantages possessed by the advocates for the British doctrine, of access to the records of the pro- [*$9$ ceedings of the prize courts, during those wars, no trace can be found in them, of condemnations under the rule as applicable to the colonial trade, and because that trade was expressly adjudged to be lawful, by the Lords of Appeal, during the war of 1744.(5) It has also been asserted, that the treaty of 1668, renewed in 1674, between Great Britain and Holland, relaxed the primitive rigor of the law of nations in this particular, and that this relaxation was gradually extended by similar treaties to other nations, (c) But this treaty was contended by Great Britain to be a declaration of the original and pre-existing law of nations on this subject; and the explanatory article, signed on the 30th of December 1675, was itself declaratory of the meaning of the treaty, and was drawn up at the request of the British minister, Sir William Temple, (d) It is true, it contains a proviso, “ that this declaration shall not be alleged by either party for matters which happened before the late peace, February 1673-4.” But before that peace, the two parties were at war with one another, and could not claim the rights of neutrality against each other, and previous to that war, they were at peace with all the world ; so that this reservation could not imply that vessels had been recently drawn into judgment on a different understanding of the principle. Nor does the letter of Sir Leoline Jenkins, of the 6th of February 1667, imply, that at that time, a vessel carrying enemy’s goods, between ports of an enemy, was held liable to condemnation. It is admitted, that the preceding letter of the Swedish resident adverted only to the circumstance of the vessel’s having carried enemy’s goods, on her outward voyage, as the ground on which she was seized on her return-voyage; and it will be seen, by quoting the whole of Sir Leoline Jenkins’s letter, that he does not lay any stress whatever on the circumstance of the former voyage being a coasting voyage: “ The question which I am, in obedience to his majesty’s most gracious *pleasure, to answer unto, being a matter of fact, I thought it my duty not to rely wholly on my own memory or observation, but further to inquire of Sir Robert AV iseman, his majesty’s advocate-general; Sir William Turner, his royal highness, the lord high admiral’s, advocate; Mr. Alexander Check, his majesty’s proctor; Mr. Roger How, principal actuary and register in the high court of admiralty in England whether they, or any of them, had observed, or could call to mind, that, in the late war against the Dutch, any one ship, otherwise free, as belonging to some of his majesty’s allies, having carried goods belonging to his majesty’s enemies, from one enemy’s port, to another, and being seized, after it had discharged the said goods, laden with the proceeds of that freight which it had carried, and received of the enemy upon the account of the ship’s owners, had been adjudged prize to his majesty ; they all unani- (a) 6 Rob. 474, Appendix, note I. (a) Rob. 146. (6) See the argument of Drs. Arnold and (c) 6 Rob. 74, n. (a.) Laurence, in the case of The Providentia, 2 (d) 2 Sir W. Temple’s Works, 313. 235 510 APPENDIX. Rule of War of 1756. mously resolved, that they had not observed, nor could call to mind, that any such judgment or condemnation ever passed in the said court; and to this, their testimony, I must, as far as, my experience reaches, concur; and if my opinion be, as it seems to be, required, I do not, with submission to better judgment, know anything, either in the statutes of this realm, or in his majesty’s declarations upon occassion of the late war, nor yet in the laws and customs of the seas, that can (supposing the property of the said proceeds to be bond fide vested in the ship-owners of his majesty’s allies) give sufficient ground for a condemnation in this case. And the said advocates, upon the debate I had with them, did declare themselves positively of the same opinion. Written with my hand, this 6th day of February 1667.” (a) So that there does not appear to be any doubt respecting the legality of the former voyage, but only whether the vessel, with a return-cargo, being the proceeds of the freight received from the enemy on the former voyage, could be condemned on the return voyage; which question was answered in the negative, provided the property had bond fide vested in the neutral ship-owners. Before the treaty of 1674 was concluded, foreign vessels were freely admitted into the coasting trade of France; and when Louis XIV. was making efforts _ a nursery of seamen for his navy, and Colbert, under the influence -I of the commercial system of political economy, was endeavoring to appropriate to his own country some portion of the benefits of the carrying trade, which had been before almost entirely conducted, even from one French port to another, by the Dutch, they did not exclude foreign vessels from the coasting trade, but only imposed a tonnage of fifty sous upon the Dutch, and a crown upon Spanish and Flemish vessels. (&) A like discriminating duty was imposed upon foreign vessels entering French ports, in whatever commerce they might be engaged; so that there was as much reason to conclude, that the whole trade of France was exclusively appropriated to her own shipping, in time of peace, as that the coasting trade was thus appropriated. This renders it more improbable, that the trade from one enemy’s port to another should have been considered unlawful by the British prize courts, until the principle of adoption, or naturalization, was applied, in the war of 1756, to the trade between the mother country and her colonies, from which neutrals, were in fact, excluded in time of peace. Neither that' principle, nor the more modern doctrine, which confines the neutral to his accustomed peace trade, could be applied to a commerce which the neutral might carry on in peace or war, upon payment of alien tonnage duties. According to Lord Liverpool, this discriminating duty of fifty sous was suspended during the war of 1756, in order to ward off the effects of the British superiority at sea;(c) and this might afford a pretext for applying the rule, during that war, to the coasting trade of France, as it would raise a presumption of enemy’s interests in the foreign shipping, thus adopted into his navigation, with all the privileges of French-built ships. But such a presumption could never arise from neutral vessels entering the coasting trade, under the disadvantage of the discriminating duty; nor could the doctrine which confines the neutral to his accustomed peace trade be applied, *since it is admitted by Sir William Scott, in the case of The Imman-01 "J uel, that the neutral has a right to push his accustomed trade to the utmost extent of which it is capable, but not to enter a new trade from which he was before wholly excluded, (d) (a) Sir Leoline Jenkins’s Works, vol. 2, p. 741. (6) Valin, sur l’Ordonnance, tom. 1, p. 14. (c) Discourse on the Conduct of the Government of Great Britain, &c., p. 9. (d) “ I do not mean to say, that in the accidents of a war, the property of neutrals may not be variously entangled and endangered ; in the nature of human connections, it is hardly possible, that inconveniences of this kind should 23G be altogether avoided. Some neutrals will be unjustly engaged in covering the goods of the enemy, and others will be unjustly suspected of doing it; these inconveniences are more than balanced by the enlargement of their commerce; the trade of the belligerents is usually interrupted in a great degree, and falls, in the same degree, into the lap of neutrals. But without reference, to accidents of the one kind or the other, the general rule is, that the neutral has APPENDIX. 512 Rule of War of 1756. It is incredible, that the freight only should have been forfeited, in the wars of 1744, 1756 and 1778, as a mitigation of the primitive strictness of the rule, when we know that vessels engaged in the colonial trade, in the war of 1756, were confiscated, together with their cargoes ; and the Veränderen, taken *on a voyage from Bor-deaux to Dunkirk, 1778, and the Prospérité, from Nantz to Dunkirk, 1779, L . could not have been restored by Sir James Marriott, upon the ground of a relaxation, but restitution must have been decreed, upon the principle of a total abandonment of the rule, since the one was a vessel belonging to Prussia, and the other to Lubeck, with neither of which states Great Britain had, at that time, any treaty regarding this matter. . It is true, that, before the war of 1756, attempts were made to prohibit, by mere proclamation, all trade with an enemy. Thus, beside the earlier attempts of this nature, (a) by the convention concluded at London, on the 22dof August 1689, between England and Holland, wherein the contracting parties say, “that, having declared war against the Most Christian King, it behoves them to do as much damage as possible to the common enemy, in order to bring him to. agree to such conditions as mây restore the repose of Christendom ; and that, for this end, it was necessary to interrupt all trade and commerce with the subjects of the said king,” it was agreed between them, “ that they would take any vessel, whatever king or state it may belong to, that shall be found sailing into, or out of, the ports of France, and condemn both vessel and merchandise as legal prize ; and that this resolution should be notified to all neutral states.” Lord Liverpool and Mr. Ward, among the strongest advocates for the maritime claims of Great Britian, condemn in the most unequivocal manner, this pretension, on her part. (&) The French regulation of the 23d July 1704 seems to have been intended to counteract these measures of the English and Dutch, during the war which followed the English revolution in 1688, and we may suppose, were revived during the subsequent war concerning the Spanish succession. Although Louis XIV., in the preamble to this ordinance, studiously negatives the idea of its being intended as a r measure of retaliation, yet this profession is powerfully contrasted with the pro- *■ visions actually contained in the body of the edict, prohibiting all neutral trade in articles the growth or manufacture of the enemy’s country, except in the direct voyage from the enemy’s ports to a port of the neutral country to which the vessel belongs. (J) During the long period of tranquillity which followed the peace of Utrecht, interrupted only by the very short war of 1719, no occasion could be afforded to administer the principles of prize law ; and, as we have seen, no traces of the existence of the rule in question can be found, previous to that epoch, although the colonial system a right to carry on, in time of war, his accustomed trade, to the utmost extent of which that accustomed trade is capable. Very different is the case of a trade which the neutral has never possessed; which he holds by nd title of use and habit, in times or peace, and which, in fact, can obtain, in war, by no other title, than by the success of the one belligerent against the other, and at the expense of that very belligerent under whose success he sets up his title; and such I take to be the colonial trade, generally speaking.” (2 Rob. 198.) The truth is, France never had a navigation act, similar to the English, and absolutely excluding foreign shipping from her coasting and carrying trade, until the revolution, when the decree of the 21st of September 1793, entitled Acte de Navigation, was passed, which is alluded to by Sir W. Scott in the case of The Emanuel (1 Rob. 297), as if it had been a re-enactment of the ancient laws of France. This was, besides, limited to the coasting trade; as it only extended to the transportation of goods of French production or manufacture, and not to the trade from port to port, in commodities of foreign growth or fabric; which last has been confounded by the British prize courts in the same indiscriminate rule of condemnation with the coasting trade, properly so called. (a) Coll. Mar. 158, note h. (6) Discourse on the conduct of the Government of Great Britain, &c., p. 36; Ward on the Rights and Duties of Belligerents and Neutrals, &c., pp. 3, 4. (c) Valin, sur l’Ordonnance, 2 tom. p. 248. 237 514 • APPENDIX. Rule of War of 1756. of Europe had, long before, been established, and its maritime nations all participated in the commerce of the East and West Indies. The judicial history of the rule, during the subsequent wars, is so admirably traced in a memorial to congress from the merchants of Baltimore, &c., a paper drawn up, in 1806, by Mr. Pinkney, that the subject cannot be better illustrated than by the following extract: “ In the war Of 1744, in which Great Britain had the power, if she had thought fit to exert it, to exclude the neutral states from the colony trade of France and Spain, her high court of appeals decided, that the trade was lawful, and released such vessels as had been found engaged in it. “ In the war which soon followed the peace of Aix-la-Chapelle, Great Britain is supposed to have first acted upon the pretension, that such a trade was unlawful, as being shut against neutrals in peace. And it is certain, that, during the whole of that War, her courts of prize did condemn all neutral vessels, taken in the prosecution of that trade, together with their cargoes, whether French or neutral. These condemnations, however, proceeded upon peculiar grounds. In the seven years’ war, France did not throw open to neutrals the traffic of her colonies. She established no free ports in the east, or in the west, with which foreign vessels could be permitted to trade, either generally, or occasionally, as such. Her first practice was simply to grant special licenses to particular neutral vessels, principally Dutch, and commonly chartered by Frenchmen, to make, under the usual restrictions, particular trading voy- „ ages to the colonies. These licenses *furnished the British courts with a pecu- J liar reason for condemning vessels sailing under them, viz., ‘ that they become in virtue of them, the adopted or naturalized vessels of France.’ “As soon as it was known, that this effect was imputed to these licenses, they were discontinued, or pretended to be so ; but the discontinuance, whether real or supposed, produced no change in the conduct of Great Britain; for neutral vessels, employed in this trade, were captured and condemned as before. The grounds upon which they continued to be so captured and condemned, may bést be collected from reasons subjoined to the printed cases In the prize causes, decided by the high court of admiralty (in which Sir Thomas Salisbury, at that time, presided), and by the Lords Commissioners of Appeal between 1757 and 1760. “In the case of The America (which was a Dutch ship, bound from St. Domingo to Holland, with the produce of that island, belonging to French subjects, by whom the vessel had been chartered), the reason stated in the printed case is, ‘ that the ship must be looked upon as a French ship (coming from St. Domingo), for by the laws of France, no foreign ship can trade in the French West Indies.’ “In the case of The Snip, the reason (assigned by Sir George Hays and Mr. Pratt, afterwards Lord Camden) is, ‘for that the Snip (though once the property of Dutchmen), being employed in carrying provisions to, and goods from, a French colony, thereby became a French ship, and as such was justly condemned.’ “ It is obvious, that the reason, in the case of The America, proceeds upon a presumption, that as that trade, was, by the standing laws of France, even up to that moment, confined to French ships, any ship found employed in it must be a French ship. The reason in the other case does not rest upon this idle presumption, but takes another ground; for it states, that by the reason of the trade in which the vessel was employed, she became a French vessel. “ It is manifest, that this is no other than the first idea of adoption or naturalization, accommodated to the change attempted to be introduced into the state of things, by the actual or pretended discontinuance of the special licenses. What, then, is the amount of the doctrine of the seven years’ war, in the utmost extent which it is possible to ascribe to it ? It is, in substance, no more than this, that as France did not, at any period of that war, abandon, or in any degree suspend, the principle of colonial monopoly, or the system arising out of it, a neutral vessel, found in the prosecution of the trade, which, according to that principle and that system, still continuing in force, could only be a French trade, and open to French vessels, either became, or was legally 238 APPENDIX. *516 Rule of War of 1756. to be presumed to be, a French vessel. It *cannot be necessary to show, that this doctrine differs essentially from the principle of the present day; but even if it were otherwise, the practice of that war, whatever it. might be, was undoubtedly contrary to that of the war of 1744, and as contrasted with it, will not be considered, by those who have at all attended to the history of these two periods, as entitled . to any peculiar veneration.' The effects of that practice were almost wholly confined to the Dutch, who had had rendered themselves extremely obnoxious to Great Britain, by the selfish and pusillanimous policy, as it was falsely called, which enabled them, during the seven years’ war, to profit of the troubles of the rest of Europe. “In the war of 1744, the neutrality of the Dutch, while it continued, had in it nothing of complaisance to France ; they furnished, from the commencement of hostilities, on account of the pragmatic sanction, succors to the confederates ; declared openly, after a time, in favor of the Queen of Hungary ; and finally, determined upon, and prepared for, war by sea and land. Great Britain, of course, had no inducement, in that war, to hunt after any hostile principle, by the operation of which, the trade of the Dutch might be harassed, or the advantage of their neutral position, while it lasted, defeated. In the war of 1756, she had this inducement in its utmost strength. Independent of the commercial rivalry existing between the two nations, the Dutch had excited the undisguised resentment of Great Britain, by declining to furnish against France the succors stipulated by treaty ; by constantly supplying France with naval and warlike stores, through the medium of a trade, systematically pursued by the people, and countenanced by the government ; by granting to France, early in 1757, a free passage through Namur and Maestricht, for the provisions, ammunition and artillery belonging to the army, destined to act against the territories of Prussia, in the neighborhood of the Low Countries ; and by the indifference with which they saw Nieuport and Ostend surrendered into the hands of France, by the court of Vienna, which Great Britain represented to be contrary to the Barrier treaty and the treaty of Utrecht. Without entering into the sufficiency of these grounds of dissatisfaction, which undoubtedly had a great influence on the conduct of Great Britain towards the Dutch, from 1757 until the peace of 1763, it is manifest, that this very dissatisfaction, little short of a disposition to open war, and frequently on the eve of producing it, takes away, in a considerable degree, from the authority of any practice to which it may be supposed to have led, as tending to establish a rule of the public law of Europe. It may not be improper to observe, too, that the station occupied by Great Britain in the seven years’ war (as proud a one as any country ever did occupy), compared with that of the other European *powers, was not exactly calculated to make the measures which her resentments against Holland, or her views *-against France, might dictate, peculiarly respectful to the general rights of neutrals. In the north, Russia and Sweden were engaged in the confederacy against Prussia, and were, of course, entitled to no consideration in this respect. The government of Sweden was, besides, weak and impotent. Denmark, it is true, took no part in the war ; but she did not suffer by the practice in question. Besides, all these powers combined, would have been as nothing against the naval strength of Great Britain, in 1758. As to Spain, she could have no concern in the question, and at length, became involved in the war, on the side of France. Upon the whole, in the war of 1756, Great Britain had the power to be unjust, and irresistible temptations to abuse it. In that of 1744, her power was, perhaps, equally great, but everything was favorable to equity and moderation. The example afforded on this subject, therefore, by the first war, has far better title to respect than that furnished by the last. “ In the American war, the practice and decisions on this point followed those of the war of 1744. The question first came before the Lords of Appeal, in January 1782, in the Danish cases of the Tiger, Copenhagen, and others, captured in October 1780, and condemned at St. Kitts, in December following. The grounds on which the captors relied for condemnation, in The Tiger, as set forth at the end of the respondent’s printed case, were, ‘for that the ship having been trading to Cape François, where none but French ships are alllowed to carry on any traffic, and having been laden, at the 239 617 APPENDIX. Rule of War of 1756. time of the capture, with the produce of the French part of the island of St. Domingo, put on board at Cape François, and both ship and cargo taken, confessedly, coming from thence, must (pursuant to precedents in the like cases in the last war), to all intents and purposes, be deemed a ship and goods belonging to the French, or at least adopted and naturalized as such.’ “ In The Copenhagen, the captor’s reasons are thus given : ‘ 1st. Because it is allowed, that the ship was destined, with her cargo, to the island of Guadaloupe, and no other place. 2d. Because it is contrary to the established rule of general law, to admit any neutral ship to go to, and trade at, a port belonging to a colony of the enemy, to which such neutral ship could not have freely traded in time of peace. On the 22d of January 1782, these causes came on for hearing before the Lords of Appeal, who decreed restitution in all of them ; thus, in the most solemn and explicit manner, disavowing and rejecting the pretended rules of the law of nations, upon which the cap-*5181 ^ors 5 the first of which is literally borrowed from the doctrine of the ■* war of 1756, and the last of which is that very rule on which Great Britain now relies. “ It is true, that, in these cases, the judgment of the Lords was pronounced upon one shape only of the colony trade of France, as carried on by neutrals ; that is to say, a trade between the colony of France and that of the country of the neutral shipper. But as no distinction was supposed to exist, in point of principle, between the different modifications of the trade, and as the judgment went upon general grounds, applicable to the entire subject, we shall not be thought to overrate its effect and extent, when we represent it as a complete rejection, both of the doctrine of the seven years’ war, and of that modern principle, by which it has been attempted to replace it. But at any rate, the subsequent decrees of the same high tribunal did go that length. Without enumerating the cases, of various descriptions, involving the legality of the trade in all its modes, which were favorably adjudged by the Lords of Appeal, after the American peace, it will be sufficient to mention the case of The Vervagting, decided by them in 1785 and 1786. This was the case of a Danish ship, laden with a cargo of dry goods and provisions, with which she was bound on a voyage from Marseilles to Martinique and Cape François, where she was to take in, for Europe, a return-cargo of West India produce. The ship was not proceeded against ; but the cargo, which was claimed for merchants of Ostend, was condemned as enemy’s property (as in truth it was), by the vice-admiralty of Antigua, subject to the payment of freight pro rata itineris, or, rather, for the whole of the outward voyage* On appeal, as to the cargo, the Lords of Appeal, on the 8th of March 1785, reversed the condemnation, and ordered further proof of the property to be produced, within three months. On the 28th March 1786, no further proof having been exhibited, and the proctor for the claimants declaring, that he should exhibit none, the Lords condemned the cargo, and on the same day, reversed the decree below, giving freight pro rata itineris (from which the neutral master had appealed), and decreed freight, generally, and the costs of the appeal. “It is impossible, that a judicial opinion could go more conclusively to the whole question on the colony trade than this ; for it not only disavows the pretended illegality of neutral interpositions in that trade, even directly between France and her colonies (the most exceptionable form, it is said, in which that interposition could present itself) ; it not only denies, that property engaged in such a trade, is, on that account, liable to confiscation (inasmuch as, after having *reversed the condemnation of the J cargo pronounced below, it proceeds afterwards to condemn it, merely for want of further proof as to the property), but it holds, that the trade is so unquestionably lawful to neutrals, as not even to put in jeopardy the claim to freight for that part of the voyage which had not yet begun, and which the party had not yet put himself in a situation to begin. The force of this, and the other British decisions produced by the American war, will not be avoided, by suggesting, that there was anything peculiarly favorable in the time when, or th$ manner in which, France opened her colony trade to neutrals on that occasion. Something of that sort, however, has been said! We 240 APPENDIX. Rule of War of 1756. 519 find the following language in a very learned opinion on this point : ‘ It is certainly true, that in the last war (the American war), many decisions took place, which then pronounced that such a trade between France and her colonies was not considered as an unneutral commerce ; but under what circumstances ? It was understood, that France, in opening her colonies, during the war, declared, that this was not done with a temporary view, relative to the war, but on a general permanent purpose of altering her colonial system, and of admitting foreign vessels, universally, and at all times, to a participation of that commerce ; taking that to be the fact (however suspicious its commencement might be, during the actual existence of a war), there was no ground to say, that neutrals were not carrying on a commerce as ordinary as any other in which they could be engaged ; and therefore, in the case of The Vervagting, and in many other succeeding cases, the Lords decreed payment of freight to the neutral ship-owner. It is fit to be remembered, on this occasion, that the conduct of France evinced how little dependence can be placed upon explanations of measures adopted during the pressure of war ; for, hardly was the ratification of the peace signed, when she returned to her ancient system of colonial monopoly.’ “We answer to all this, that, to refer the decision of the Lords, in The Vervagting, and other succeeding cases, to the reason here assigned, is to accuse that high tribunal of acting upon a confidence which has no example, in a singularly incredible declaration (if, indeed, such a declaration was ever made), after the utter falsehood of it had been, as this learned opinion does itself inform us, unequivocally and notoriously ascertained. “We have seen, that The Vervagting was decided by the Lords in 1785 and 1786, at least two years after France had, as we are told, ‘ returned to her ancient system of colonial monopoly,’ and when, of course, the supposed assertion of an intended permanent abandonment *of that system, could not be permitted to produce any legal consequence. We answer, further, that if this alleged declaration was in fact made (and we must be allowed to say, that we have found no trace of it out of the opinion above recited), it never was put into such a formal and authentic shape, as tb be the fair subject of judicial notice. It is not contained in the French arrêts of that day, where only it would be proper to look for it, and we are not referred to any other document proceeding from the government of France, in which it is said to appear. There does not, in a word, seem to have been anything which an enlightened tribunal could be supposed capable of considering as a pledge on the part of France, that she had resolved upon, or even meditated, the extravagant change in her colonial system, which she is said, in this opinion, to have been understood to announce to the world. But even if the declaration in question was actually made, and that, too, with all possible solemnity, still, it would be difficult to persuade any thinking man, that the sincerity of such a declaration was, in any degree, confided in ; or that any person in any country, could regard it in any other light than as a mere artifice that could give no right which would not equally well exist without it. Upon the whole,, it is manifestly impracticable to rest the decisions of the Lords of Appeal, in and after the American war, upon any dependence placed on this declaration, of which there is no evidence that it ever was made—which, it is certain, was not authentically or form lly made—which, however made, was not, and could not be, believed, at any time, far less in 1785 and 1786, when its falsehood had been unquestionably proved by the public and undisguised conduct of its supposed authors, in direct opposition to it That Sh James Marriot, who sat in the high court of admiralty of Great Britain, during the greater part of the late war, did not consider these decisions as standing upon this ground, is evident ; for notwithstanding that, in the year 1756, he was the most zealous, and perhaps, able advocate for the condemnation of the Dutch ships engaged in the colony trade of France, yet, upon the breaking out of the late war, he relied upon the decisions in the American war as authoritatively settling the legality of that trade, and decreed accordingly. “If, as a more plausible answer to these decisions (considered in the light of authorities), than that which we have just examined, it should be said, that they ought rather to be viewed as reluctant sacrifices to policy, or even to necessity, under circum- 1 Wheat.—16 241 520 APPENDIX. Rule of War of 1756. stances of particular difficulty and peril, than as an expression of the deliberate opinion of the Lords of Appeal, or the government of Great Britain, on the *matter of J right, it might, perhaps, be sufficient to reply, that if the armed neutrality, coupled with the situation of Great Britain as a party to the war, did in any degree compel these decisions, we might also expect to find, at the same era, some relaxation on the part of of that country, relative to the doctrine of contraband, upon which the convention of the armed neutrality contained the most direct stipulations which the northern powers were particularly interested to enforce. Yet such was not the fact. But in addition to this, and other considerations of a similar description, it is natural to inquire, why it happened, that if the Lords of Appeal were satisfied that Great Britain possessed the the right in question, they recorded, and gave to the world a series of decisions against it, founded, not upon British orders of council, gratuitously relaxing what was still asserted to be the strict right, as in the late war, but upon general principles of public law. However prudence might have required (although there is no reason to believe it did require) an abstinence, on the part of Great Britain, from the extreme exercise of the right she had been supposed to claim, still it could not be necessary to give, to the mere forbearance of a claim, the stamp and character of a formal admission, that the claim itself was illegal and unjust. In the late war, as often as the British government wished to concede and relax, from whatever motive, on the subject of the colony trade of her opponents, an order of council was resorted to, set-«ting forth the nature of the concession or relaxation, upon which the courts of prize were afterwards to found their sentences ; and, undoubtedly, sentences so passed can-mot, in any fair reasoning, be considered as deciding more than that the order of council is obligatory on the courts whose sentences they are. But the decrees of the Lords of Appeal, in and after the American war, are not of this description; since there existed mo order of council on the subject of them; and of course, they are, and ought to be, of the highest weight and authority against Great Britain, on the questions involved in, mnd adjudged by, them.” In confirmation of the preceding authorities, adduced from the decisions of the ¡British prize courts, during the wars of 1744, 1756 and 1778, the following cases may >be added from the adjudications of the common-law tribunals. The first is that of Berens v. Rucker, ruled by Lord Mansfield, at the sittings after 'Trinity term 1761. (1 W. Black. 818.) This was an action on a policy of insurance on a Dutch ship, called the Tyd, *and its cargo, at and from St. Eustatius to J Amsterdam, warranted a Dutch ship, and the goods Dutch property, and not ■laden in any French port in the West Indies. The cargo was worth 12,000Z., and insured at a premium of 15 guineas per cent., which was inflamed to this high rate, on account of the number of captures made by the British, of neutral vessels, on suspicion < of illicit trade, and the detention of those vessels by the proceedings in the courts of . admiralty. In May 1758, the ship was at St. Eustatius, taking in her cargo, which consisted of sugar and indigo, and other French commodities, which were put on board her, partly out of barks from sea, and partly from the shore of the island. On the 18th of June 1758, she sailed on her voyage to Amsterdam; on the 27th, she was taken by a British privateer, and carried into Portsmouth, in England. On the 1st of August, the seamen were examined on the standing interrogatories, and the master entered his claim in the high court of admiralty. In October, the claimants were cited to specify what part of the goods were taken from the shore of St. Eustatius, and what from the barks. Citation was continued, from court to court, until February 1759, when an interlocutory decree was pronounced, for the contumacy of the claimants, in not specifying, and that, therefore, the goods should be presumed French property. There was an appeal to the Lords, but as many cases stood before it, as the market was Very high, and as the cargo was, in part, perishable, the agent of the owners agreed with the captors to give them 800Z. and costs, in order to obtain a reversal of the sentence. The reversal was had by consent, and in order to give costs to the captors, it was decreed, by consent, that there was probable cause for seizure, and thereupon, costs were 242 APPENDIX. Rule of War of 1756. 522 decreed to the captors, and the cargo was restored to the claimants. The ship, when restored, proceeded to Amsterdam; and after her arrival there, the chamber of insurances, in that city, settled the average of the plaintiff towards the loss and expenses occasioned by the capture, detention and litigation, and for this sum the action was brought. “Lord Mansfield.—The first question is, whether this was a just capture ? Both sentences are out of the case, being done, and undone, by consent. The capture was certainly unjust. *The pretence was, that part of this cargo was put on board, r;(. off St. Eustatius, out of barks supposed to come from the French islands, and L not loaded immediately from the shore. This is now a settled point by the Lords of Appeal, to be the same thing as if they had been landed on the Dutch shore, and then put on board afterwards; in which case, there is no color for seizure. The rule is, that if a neutral ship trade to a French colony, with all the privileges of a French ship, and is thus adopted and naturalized, it must be looked upon as a French ship, and is liable to be taken. Not so, if she have only French produce on board, without taking it in at a French port, for it may be purchased of neutrals. “The second question is, whether the owners have acted bona fide and uprightly, as men acting for themselves, and upon a reasonable footing, so as to make the expenses of this compromise a loss to be borne by the insurers. The order of the judge of the admiralty to specify, was illegal, contrary to the marine law and the act of parliament, which is only declaratory of the marine law; because, if they had specified, it could be of no consequence, according to the rule I before mentioned. The captors were, however, in possession of a sentence, though an unjust one; and a court of appeal cannot, or seldom does, upon a reversal, give costs or damages which have accrued subsequent to the original sentence; for these damages arise from the fault of the judge, not of the parties. Under all these circumstances, the owners did wisely to offer a compromise. The cargo was worth 12,000Z., the appeal was hazardous, the delay certain. The Dutch deputy in England negotiated the compromise; the chamber of commerce, at Amsterdam, ratified it, and thought it reasonable. Had the whole sentence been totally reversed, the costs must have sat heavy on the owners. I, therefore, think the insurers liable to answer this average loss, which was submitted to, in order to avoid a total one.” (a) Such was the definition of the rule, as given by a judge who, according to Blackstone, attended the commission of appeals, *and conducted its decisions during # ' the war of 1756, and “whose masterly acquaintance with the law of nations was known and revered by every state in Europe.”(d) The next case is that of Brymer ®. Atkyns, determined in the court of common pleas, Hilary Term 1789, in which Lord Loughborough uses the following words: “ But during the prosecution of the war which ensued in the year 1758, great complaints were made by neutral powers of the misconduct of English privateers in the channel, in seizing their merchantmen, and a question had also arisen between the subjects of Holland and the officers of the British navy, upon the extent of the treaties of commerce between this country and the Dutch republic; the Dutch claiming a right to carry to the French all such goods as were not specifically enumerated under the title of contraband ; while, on the part of the British navy, it was contended, that free ships only made free goods as to such course of trade as was carried on in time of peace; that the Dutch being excluded from the French islands in the West Indies, in time of peace, and only admitted in time of war, to cover their trade, their ships ought to be considered as adopted French, and were, therefore, lawful prize.”(c) The next adjudication which may be advantageously cited, to illustrate the history of the rule, is the case of The Katharina, determined in the House of Lords, on the 2d of May 1783. (