1795 No Corporate Jurisdiction Over The Natural Man
1795 No Corporate Jurisdiction Over The Natural Man
1795 No Corporate Jurisdiction Over The Natural Man
" cruel and unjuft war, againfl the United Colonies, and fhall
" fall into the hands of, or be taken by, the inhabitants thereof,
be feized and forfeited to an( for the purpofes herein after
"c mentioned.
179S with the Secretary of the Congrefs, within forty days after-
1y_ ) wards ; and provided the party appealing, hall give fecurity
to profecute faid appeal with effe& ; and in cafe of the death of
the Secretary, during the recefs of the Congrefs, the (aid ap-
peal (hall be lodged in Congrefs', within twenty days, after
the next meetingthereof; and that from the judgment, decrees,
or fentence of the faid court, on the capture of any veffel, or
cargo which have been or fhall hereafter be brought into this
colony, by any perfon or perfons, excepting thofe who are in
the fervice of the United Colonies, an1appeal hall be allowed
to the fuperior court of Judicature, which ihall next be held in
the county aforefaid.
" And whereas no provifion has been made by any of the laid
refolves for an appeal from the fentence or decree of the faid
Judge, where the caption of any fuch veffel or veffels may be
made by a veffel in the fervice of the United Colonies, and of
any particular colony, or perfon together:
"Therefore be it ena&ed by the authority aforefaid : That in
fuch cafes, the appeal fhall be allowed to the then next fuperi-
or Court as aforefaid : Provided the Appellant fhall enter into
bonds with fufficient fureties to profecute his appeal with effed.
Andfvch fuperior Court, to 'which the appeal hall be,' hall
take cognizance thereof, in the fame manner as if the appeal
was from the inferior Court of Common Pleas, and fhall con-
demn or acquit, fuch veffel or veffels their cargoes, and ap-
purtenances, and in the fale, and difpofition of thom, proceed
according to this at. And the Appellant (hall pay the court,
and Jury, fuch fees as 2re allowed by law in civil acions."
"1hat, on the 3oth 7anuary, 1777, Congrers refolved, that
a flanding committee, to confift of five members, be appoint-
ed, to hear and determine upon Appeals brought againft fen-
tences paffed on libels in the courts of Admiralty in the refpec-
tive ftates.
That )JIJuaStackpole, a citizen of New-Hampft8ire, com-
mander of the armed brigantine called the M'Clary, eaing Un-
der the commiffion and authority of Congrefs, did, inthe month
of Oaober, J777, on the high feas, capture the brigantine
'Sufanna, as lawful prize.
That 7ohn Penhallow, Joohua Wentworth, nrnmi R. Cit-
ter, Nathaniel' Foomn, Samuel Sherburne, Thomos Martin,
M ofes Woodward, Niel M'lntire, George Turner, Richard
C"hampney, and Robert Furnefs, all citizens of New-Hamp-
/hire, were owners of the brigantine M'Glary.
That George JJ'entworth was agent for the captors.
That, on the iith November 1777, a libel was exhibited to
the Maritime Court af New Hamp/hire, in thenarnes of _7ohn
Penhallow
SUPREME COURT of the United States.
1795. That, by thefe articles, the United States were veiled with
o the fole andexclufive power of eftablifhing courts for receiv-
ing and determining finally appeals inall cafes of capture.
That fuch a court was eftablithed, by the ftyle of " The
" Court of Appeals in cafes of capture." By the commiflion,
the Judges were " to hear, try, and determine all appeals from
" the Courts of Admiralty in the States refpe~lively, in cafes-
" of capture." 6tb Journalof Congrefs, 4±, 2t, 75.
That, on the z4th May, 1780, Congrefs refolved, "That all
matters refpeIing appeals in cafes of capture, now depending
before Congrefs, or the Commiffioners of Appeals, confifting
of Members of Congrefs, be referred to the. newly ere6ed
Court of Appeals, to be there adjudged and determined ac-
cording to law."
Thatt in the month of September, 1783, the Court of Ap'-
peals, before whom appeared the parties by their advocates,
Oid, after a full bearing and folemn argument, finally adjudge
and decree, that the fentences or decrees paffed by the inferior
and fuperior Courts of Judicature of New Hamphbire,. fo far
as the fame refpcled Elijha Doane, Ifaiah Doane, and Yames
Shepherd, fhould be revoked, reverfed, and annulled, and that
the property, fpecified in their claimrs, fhould be retlored, and
that the parties, each pay their own coils on the faid appeal.
Here the caufe refied till the adoptionof the exili'ng Con-
Aitution of the United Srates; except an i.effedual ftruggle
before, Congrefs, on.the part of New 1-ampjhire, and an Unia-
vailing experiment, at common law, to obtain redrefs on the
part of the Appellants. After the organization of the judici-
ary under the prefent government, the reprefentativea of EliAa
Doane, who was one of the Appellants, exhibited alibel in the
Diflri&l Court of New HampJhire, which was legally transfer-
red to the Circuit Court, againfi h~hn Penhallow, 7o/hua
[Wentwortk, A.nmm R. Cutter, NatbanielFofom, Samuel Sher-
burne, Thomas I artin, Mofes Woodward, Ar'ei M'Intire,
George Turner, RichardChampley, Robert Furnefs, & Georgf
.Ventworth.
This libel, after Lftting forth the proceedings in the differ-
ePt courts, flates, that the brigantine Sufanna, with her tac-
k0e, furniture, apparel and cargo, and alio the monies arifing
fror the faLs thereof, came, after the capture, to the hands
atn d poffeflion of 'ohtha Wentwortb, and George [Ventworth,
whereby they became liable for the fame, together with the
c: ptors and owners. That after the death of Eiba Doane,
loters of adminifiratien of the perfonal eftate of the faid Eli/ha
w.rre granted to Ainna Doane, his widow, and Ifaiah Doane,
a ;d that the widow afterwards intermarried with David.Stod-
da ,d Grceu:;g. The Libellatnts pray procefs againft the ref-
pondents
SVPFti, MP CoIRTtf the Unitud State..,
pondents to fhew caufe, why the decree of the Court of Ap- iy95.
peals (hould not be carried into execution, and they alfo pray,
that right and juffice may be done in the premifes and that
'they may recover fuch damages as they have fililained by tea-
fon of the taking of the Slftnna.
The Refpondents, protefting, that they never were owners
'of the .M'Glary, and that they have none of the effe6ts of the
Sufanna, nor her carzo in their poffeflion, fay, that the Su-
fanna was in the cuftody of the Marfhal, and, upon tht final
decree of the fuperior Court of New Hamphire, told for the
benefit of the owners and 1narine's of the .M'Clary, and diE.-
tributed amongthem according to law; that the decifion of the
faid Court i as- final ; that no other court ever had, or hath,
or ever can have power to r'evoke, reverfe and annul the faid
decree, and, in a tibfequent part 'of the pleadings, that the
Dilfricq Court of New I-1ampjire hath no authority to carry
'the decree of the Court of Appeals into execution, or to gi.e
To this fort of plea and anfwer, neither and yet bioth, the
Libellatits reply, th.t the matters 'contained in thtir libel are
juft 'and true, And that they are ready to verify tnd -prove the
fame; that the matters an things alledged by the Refpondehfs
are falfe' and untrue ; that the Court of Conimiffioners, and
Court of Appeals were duly conflituted, a'nd had jurifdi&ion
'of the fubj-&-matter; that no other Court hath or can'have
authority to drav into queftion the legality of their decifions,
"and that'fthe Diffrid Court of New Hampjhire hath jurifdlic-
tri on,
I have extra&ed and confdlidated the material parts of the
'libel, plea, anfwer, replication, rejoinder,'fur-rejoinder, &c. if
they 'nay 'be'fo termed, without "detailingthe allegations of the,
pnrties as 'ihey'arife in the courfe of procedure.
Upu'n'thefe pleadings the patties went* to aLhearing before
the Circuit Court of New 1-amplhire, which, after full confi-
deration, decreed, that the Refpundents fhould pay to the Li-
bellants their damages arid coffs, occafioned by their not com-
plying with the decree of thire Court of Appeals ; the quantum
4f ,iieh-to be afcertained by Commiffloners. This interlo-
cutory fenience was pronounced the 2,4 th Oaober, 1793.
The Commiffioners reported, that the Lzfanna, her cargo,
&c. were, on the *2dOJober, '1778, being the affumed time of
fale, worth £.5)895 14 10
That'they calculated thereon i6 years
interef, viz. from the 2d. Od7ober 1778,
to ad.OU7sker 1-794,'anQunting&to 5, 6 59 17 4-
EOn
64 CASES ruled and adjudged in the
by them appointed, to hear and try appeals in prize caufes, ac- i179 .
cording to the Refolve of Congrefs, but repugnant thercto,viz. 1..-y
by way of complaint, and that no appeal from the faid decree of
laid Court of New-Hampjhire, was allowed by the fanie Court,
or by Congrefs.
Fourth/y. There is alfo manifeft error in this, viZ. That in
and by the faid libel upon which the decree aforefaid in faid
Circuit Court is made, damages for not performing the decree
of faid Court of Appeals, are not prayed for---wherefore, the
faid Circuit Court ought not to have decreed or condemned the
Plaintiffs in damages as is done by-faid final decree.
Fifthly. There is alfo manifcft error in this, viz. That faid
final decreeof Caid Circuit Court, was not made upon a due tri-
al and examination of the merits of the capture of the faid Bri
gantine Sufanna, her tackle, apparel and furniture, and of the
goods, *wares, and merchandizes, and of the evidences or
proofs which might have been adduced by the Plaintiffs in er-w
ror if fuch trial had been had. But the decree of the Court of
Appeals was received and admitted as the only evidence of tire
right.of claiai of the faid Grenough and others, the libellants, to
the faid Brigantine, her tackle, apparel and furniture, and of the
faid goods, wares and merchandizes, condemned, and of the il-
legality of the capture and condemnation gforementioned in
faid libel, which is contrary to the ulage and cuftoms of Admi.
ralty, Maritime and Prize Courts, and altogether unwarranted
by law.
Sixthly. There is manifeft error alfo, in this, viz.,---That
by the hewing of the faid Libzliants, the monies arifing from
the fale of faid brigantine and cargo, &c. were paid to the faid
7ofua Wentworth and George Wentworth as agents, to be
diftributed according to law, viz: one half to the owners of
die faid privateer, M'Clary, and the other to the captors, viz.
to the officers and feamen on board, which were diftributed ac,
cordingly. Whereas in fa& by faid final decree, they the Plain-
tiffs in error, and Yo/hua and George as agents, and the other
Plaintiffs as owners, are made liable, and condemned in full da-
mages for the whole value of faid brigantine, her tackle, appa-
rel, and furniture, and of faid goods, wares and merchandizes,
which is altogether illegal.
Seventhly. There is alfo manifcft error in this, viz.-That
it doth not appear by the copy of the record of faid Court o
Appeals, filed and ufed in this caufe, how the fame caufe, in
which that court decreed as aforefaid, came before faid court,
or was legally inftituted, orhad day therein, at the-time of paff-
ing faid decree.
Eghthly. There is manifeft error in this, alfo, viz.-That
faid Circuit Court, in pafring raid final decree, and in all the
VOL. 111. K Admiralty
66 CASts ruled and adjudged in the
England colonies bad firft made war, according to this definl- 1795.
tion ; and at their inftance the other colonies afterwardsjoincd ,ey%
them. I Ramfay's Hil. 192. New-Hamp/bire, accordingl.y, vo-
ted 2000 men for the fervice. Ib.395; eftablifhed pofI-offices;
and vefted a committee of fafety with powers equal to thofe of a
didator. Ib.395. Connetricut, likewife, made war on her own
individual authority; Ticonderoga was taken by Allen; and
Arnold made a prize of a veffel on Lake Cbamplaine. Gord.
Hr7r3-49. I Vol. 7ourn. Cong. St. At this period the States
muft hAve been poffeffed of individual fovereignty; for, the
fovereign power alone can raife troops. JFatt. b. .c. ,,.f 7;
and both Mafachufetts and Conne~iiutt had a&ually fitted e -it
and armed veffels to cruize againift the enemy in O-tober, 1775,
fSouth-Carolinafoon following the example) whereas the re-
folution of Congrefs refpeaing prizes, did not pafs (ill the fuc-
ceeding month. Gord. Hi?. 428. Ranfay's Hift. 224. Could
the refolutionsof Congrefs at that time take away the jurifdic-
't'on of New-Hampjhiret, without her own confent ? and the
At-icles of confederation, at a later period, expre(sly rrferved
to the refpecfive fitates, the right of iffuing letters of m-arqp.
.&c. after a declaration of war by the United States. By confi-
dedring the, ciscum mtaces under which Congrefs exercifed ,other
)powers, we ,may be furnifhed with fome analogies in fupport
of our dofrine, ,refpeffing the power claimed, as an incideat
-of war, to hold appeals in all cafes ,of capture. C ong.refs
were allowed to .iffue money; but they could not guard i.t from
counterfeit, nor make it a legal tender ; nor effeually bind
the -States to redeem it; thoughall thefe incidents were' effen-
tial to fupport the credit and currency of the mopey. Congrefs
hey coud
aftfumed thepower of regulating the ;pof-offc; but
impgfe no penalties for a breach oftheir refoluti.on on the fub-
jed. Cong received Armbaffador, -and other public .m.1ni-
Iters; but when the immunity of the French minifter's .houffe
was violated, the State of Pennfylvania only could p.unifl the of-
fender. Dall. Rep. De Longchazqp's cafe. Congrefs rpade
treaties, but they could make no law to enforce an obfervance of
then,. Even for effeduating their refolutions, relative to ad-
miraltyjurifdi&iqn, Congrefs -wer.e -obliged to addrefs thei-
felves by recommendation to the flates, individually; 5 orn.
Cong. 2i5; and New-Hampflire paffed a law, granting to Con-
.grefs the power that -was requefted, in ,the cafe offoreigners on-
ly, with an allowance of only a .day for making the appeal. In.
that law Congrefs aoquiefced, b. .459. till the difpute arofe
.iithis very cafe. 9 journ. Cong. 45.-87. 97.98. Dal. Rep.
71. This di-ftindfion has 'been'taken in Pennfjlania, that on
the evacuation of Philadelphia,all puplic military property be-
longcd to Congrcfs, and all.priv.ate poperry to the State. To
manifrdt,
70 .('AsEs ruled and adjudged in the
1795. IT. ERftOR. It appears on the record that Doane was dead
% when the judgment was given: for, the libel itfelf fets forth
the commitment of adminifiration to his reprefentatives before
udgrnent; and, although that may not be conclufive, it is
'rongevidence of his death, upon which the court will decide
the fad. Pr.Reg. ch. i.p. 264. 3 & 4 [Food. 377. 2 Bac,
204. 4 fin. 429. '1. RayM. 463. it has been faid, that even
if Doane were dead, it was no abatement, being in a civil law
court. i Cha. Ca. 122: but the cafe referred to, as an autho-
rity, was merely a bill of review, which is not Jtrilli jurs,
and was difiniffed. Befides, the perfon who filed that bill had
no privity, and was not entitled to it ; and even if he had, the
exception mighthave been error, notwithftanding the difmiffal
of the bill. It is likewife faid, that death was no abatement
in an ecclefiaftical court. Lev. ; but it is evident from
the authority cited, that the party reprefenting the deceafed,
muff come into court before judgment can go againift him. 3
Huberus, 582. The moft that can reafonably be urged is,
that the decree was good, fo far as it pronounced the captured
fhip to be free ; but it was void, fo far as it made any order up-
on Doane to do any particular ad. See 3 7" Rep. 323. The
Circuit Court (which has been called a court of review) was,
in far, only the Court of Appeals continued ; but Doane's
adminiftrators were never called upon, and, therefore, could
not be obliged to go into thatcourt. The ground of the epi-
nion of the Circuit Court is, that damages flhall be recovered,
for not refloring the property to Doane; who, being then dead,
the reflitution was impoffible. Befides, letters of adminiftra-.
tion were only taken out in Majfachufetts, which would not
operate in New Hampf'ire, where alone, if any where, the:
debt was valid. Lovelace on wills.
.IL. E IROR. The argument in fupport of this error has;
been anticipated in difcuffing the firft error affigned.
IV. ERROR. Damages were not afkcd by the Libellant in
the Circuit Court. The libel prays, indeed, that the decree
of the Court of Appeals might be carried into effe& ; that
damages might be given for the illegal capture of the fhip; arid
that general relief-might be granted ; but it does not pray fo:r
damages on account of the non-performance of the decree of
the Court of Appeals. A judgment which gives damages,
where they ought not to be given, is erroneous: as where the
damages are laid at iool. in the declaration, and the judgment
is rendered for 2oo. No damages are to be allowed on rever-
fal. Lee on capt. 24r. There ought to have been an account
of the value of the thing to be reftored, by the decree of the
Court of Appeals ; and as that court gave no damages for the
unlawful taking of the veffel, no other court had power to give
them.
gA1REME COURT of the United 3tale. .78
1795. deed, a fuit abates by the death of the party; but the
Slaw is not invariably fo, where the party dying is immaterial to
the caufe. I Eq. Abr. i. The proceeding in the prefent
cafe was in rem; and, therefore, the life of the party was not
material. .dyliff. The court refufed to examine into an abate-
ment by death, in a bill of review for that purpofe, the decree
being made twenty years before. i Cha. Ca. 122. Nor is
there any abatement by death of parties in a fpiritual court. 2
Roll. Rep. 8. 2 Lev. 6. And this being a court of civil law,
the principle equally applies. The prefent record ifates that the
appellant and appellee appeared by their advocates; and if
any error in this refpe& occurred in'the court of appeals, a
court of review was eftablifhed by Congrefs, who might have
examined and correded it; there is no court that has now a
jUrifdiftion to do fo; though the error, if it exiffed, fhould
have been affigned, and relied on, in the Circuit. Court for
'the diftrid of Arew-HampJhire. But, after all, the court may
rejed that part of the libel, which ifates the adminifiration to
have been committed, prior to the time of pronouncing the
judgment of the Court of Appeals. 2 Fin. 404. p1, 4 (bis.)
p. 5. pL 7. pL.9. pL II. It is not faid by the record that Doane
was then dead, but merely that adminiftration had been grant-
ed on his eftate, which is only evidence of his death. On this
point alfo were cited Breok. Tit. Judgment 113. Sal. 8. pl.
21. Salk. 33. pl. 6. Carth. ix8.
I1. EREOR :-The argument in oppofition to this affign-
ment of errors, has been anticipated in difcufling the firft
Error.
IV. ERRoR :-That the Circuit Court gave damages, where-
as the judgment of the Court of Appeals was for rejlitution;
is not a valid objedion. If the Court of Appeals had attached
the party, damages muff have been paid before he would have
be.en difcharzed :-damages are the fubftance of the whole pro-
ceeding. Nor is it exceptionable, that damages are not ex.
prefsly prayed for by the libel ; fince that is neceffarily includ-
ed in the prayer for general relief.
V, ERROR :--That the Circuit Court did not enquire into
the merits of the original decree, is furely no legal objecion.
There were no merits out of the record, brought before the
court, If any fads had been offered and rejeded, a bill of
exceptions might have been taken. Nor can this court en-
quire into the fads. The law gives an appeal from the Di-
ftrift to the Circuit Court; but a writ of error only lies from
the Circuit Court to the Supreme Court. On a writ of Er-
ror, no extrinfic fad can be enquired into ; and the diverfity of
the procefs proves, that it was the intent of the Legiflature to
preclvde fuch an enquiry. ITT
SUPREMI COURT of the United States. 79
See aJt,.p. 4,
. so CASiS ruled and adjudged in the.
preme wills as there were fates, and a; many wars as there 1795.
were wills. Happily, however, for I/m:rica, this was not the -.
cafe ; there was bat one war, and one fovereign will to con-
dud it. The danger being imminent, and common, it became
necefary for the people or colonies to coallcle and ad in con-
cert, in order to divert, or break, the violence of the gathering
florin ; they accordingly grew into union, and formed one
great political body, of which Congrefs was the dire&ing
principle and foul. As to war and peace, and their neceflhry
incidents, Congrefs, by the unanimous voice of the people, ex-
ercifed exclufive jurifdidion, and flood, like Jove, amidft the
deities of old, paramount, and fupreme. The truth is, that the
States, individually, were not known nor recognized as fove-
reign, by foreign nations, nor are they now ; the States collec-
tively, under Congrefs, as the oonineding point, or head, were
acknowledged by foreign powers as fovereign, -particularly in
that acceptation of the term, which is applicable to all great
national concerns, and in the exercife' of which other fovereigns
would be more immediately interefted ; fuch, for inflance, as
the rights of war 'and peace, of making treaties, and fending
and receiving' ambaffadors. Befides, every body muft be amena-
ble to the authority under which he a.s. If he accept from
Congrfs a commiffion to cruize againDf the enemy, he muft be
refponfible to them for his condu&. If, under colour of fuch
commiflion, he had violated the law of nations, Congrefs would
have been called upon to make atonement and redrefs. The
perfons who exercife the right or authority of commiffioning
privateers, muff, of courfe, have the right or authority of exa-
mining into tle condud of the officer ading under fuch com-
mifiqon, and of confirming or annulling his tranfadions'and
deeds. In the prefent cafe, the Captain of the M'Claryobtain-
ed his commiflion from Congrefs ; under that commiflion he
cruifed on the high feas, and captured the Sfanna ; and for the
legality of that capture he muff ultimately be refponfible to
Congrefs, or their conftituted authority. This refalts from
the nature of the thing ; and, befides, was cxprefsly flipulated
on the part of Congrefs. The authority cxercifed by Con-
grcfs in granting conimifflions to privateers, was approved and
ratified by the f( veral colonies or ftates, becaufe they received
and.filled up the conirniffions anid bonds, and returned the lat-
ter to CongrefiNev-Harnpfiiredid fo, as Well as the rtfl.
Another circumftance, worthy of notice, is the condud cf
Aew-Hanpjhire, by her Delegate in Conrefs, in the cafe of
the floop A.Iive. A8s of Congrefs, 6th March, i779.-Bv this
decifion, New-Hampflire concurred in binding the other 11ates.
Did fhe not alfo bind herfelf ? Before the articles of confede -
ration were ratificd, or even formed, a league of fiome kind Iub-
V... 1II. M fifle4
82 CAss ruled'and adjudged in the
1795. fifled among the flates ; and, whether that league originated in
compa&, or a fort of tacit confont, refulting from their fituation,
the exigencies of the times, and the nature of the warfare, or
from all combined, is utterly immaterial. The States, when in
Ccngrefs, flood on the floor of equality; and, until otherwife
flipulated, the majority of them muft controul. In fuch a con.-
federacy, for a 1late to bind others, and not, in fimilar cafes, be
bound herfif, is a folecifin. Still, however, it is contended,
that New-Hanpjhire was not bouind, nor Congrefs fovereign as
to war and peace, and their incidents, becaufe they refitted this
fupremacy in the cafe of the Sufanna. But I amr, notwith-
flanding, of opinion, that New-Hampfhire was bound, and
Congrefs fupreme, for the reafons already affigned; and that fne
continued to be bound, becaufe fhe continued in the confedera-
cy. As long as the continued to be one of the federal f-ates, it
muft have been on equal terms. If the would not fubmit to
the exercife of the act of fovereignty contended for by Con-
grefs, and the other flates, the fhlould have withdrawn herfelf
from the confederacy.
In the Refolutions of Congrefs of the 6th of March, I779,
is contained acourf. of reafoning, which, in my opinion, is co-
gent and conclufive. 5 Jour. "Cong. 86, 87, 88, 89, 90.
The committee, confifting of Mr. Floyd, Mr. Ellery, and
Mr. Burke, to whom was referred the report of the committee
on appeals of January i9th, 1779, having, in purfuance of the
infrudions to them given, examined into the caufes of the re-
fufal of the Judge of the Court of Admiralty for the State of
Pennfyljvania, to carry into execution the decree of the Court
or committee ofappeals, report,
" That on a libel in the court ofadmiralty for the ifate of Penn..
fylvania in the cafe of the floop Adive, the jury found a ver-
did in the following words, viz. " one fourth of the nett pro-
ceeds of the floop Adive and her cargo to the firif claimants,
three fourths of the nett proceeds of the faid floop and her cargo
to the libcllant and the fecond claimant, as per agreement be-
tween them ; which verdid was confirmed by the judge of the
court, and fentence paffed thereon. From this fentence or judg-
me-'nt and verdid, an appeal was lodged with the fecretary of
Congrefs,.and referred to the committee appointed by Congref;
" to hear and determine finally up:,n all appeals brought to
Congrefs," friom the Courts of Admiralty of the feveral States :
CThat the fiid committee, after folemn argument and full hea-
ring of the parties by their advocates, and taking time to con-
fider thereof, proceeded to the publication of their definitivw-
fentence or de.cree, thereby reverting the fentence of the Court,
of Adm-iralty,, making a new decree,, and ordering procefs to
i L--,
SUPREME CoUR' of the United States.-
iffie out of the Court of Admiralty for the Itate of Penifylvania 1795.
to carry this their decree into executioi
"That the judge of the Court of Admiralty refufed to carry into
execution the decree ef the faid committee on appeals, and has
amgned as the reafon of his refufal, that an a& of the Leaifla-
tosre of the laid State has declared, that the finding of ajury fhall
eflablifl the fads in all trials in the Courts of Admiralty), with-
our re-examination or appeal, and that an appeal is permitted
only from the decree of the judge :
"That havino examined the laid a&, which is entitled, " an at
for eftabliing a Court of Admiralty," pafled at a feflion which
commenced on the 4 th of Auguft, 1778, the committee find the
following words, viz. "the finding of a jury thall eftablifla the
faft, without re-examination, or appeal," and in the feventh
fedion of the fame ad the following words, viz. " in all cafes
of captures an appeal from the decree of the Judge of Admiral-
ty of this State, (hall be allowed to the Continental Con-
grefs, or fuch perfion or perfons as they may friom time to time
appoint for hearing and trying appeals.
That although Congrefs, by their refolution of November
25th, 1775, recommended it to the feveral legiflature , to
eret courts for the purpofe of determining concerning cap-
tures, and to provide that all trials in fuch cafes be had by a
jury, yet it is provided, that in all cafes an appeal fhall be al-
lowed to CongreA, or to fich perfon or perfons as they fhall
appoint for the trial of appeals :" whereupon,
" Refolved, That Congrefs, or fuch perlbn or perfons as
they appoint, to hear and determine appeals from the courts of
Admiralty, have neceffarily the power to examine as well in-
to decifions on fatds at decifions on the la., and to decree fi-
nally thereon, and that no finding of ajury in any court of Ad-
miralty, or court for determining the legality of captures on
the high feas, can or ought to deitroy the ri,,ht of appeal, and
the re-examination of the fads refervcA to C'mnirefs :
" That no ad of any one fiate can or ought to defroy the
right of appeals to Congrefs, in the felf' above declared:
" That Congrefs is by thefe United States, inveted with the
fupreme. fovereign power of war and peace:
C That the power of executing the law of nations is efirtial
to the fovereign fupreme power of war and peace:
" That the legality of all captures on the high feas mull be
determined by the law of nations:
" That the authority ultimately and finally to decide on all
matters and queftions touching the law of nations, does refide
and is vel-ed in the fovercign fiapreme power of war and
peace; That
CASES ruled and adjudged in the
relative to the floop a/ive, and the obje~ions made to the 1795,
executioin of the decree of the committee on appeals, to the
end that proper meafures may be adopted for removing the faid
obfiacles ; and that a committee of three be appointed to hold
the fiid conference, with the committee of the General Affembly
of Pennfylvania:
"Thc members chofen, Mr. Paca, Mr. Burke, and Mr. R.
H. Lee."
I fball clofe this head of difcourfe with obferving, that it is
with diffidence I have ventured to give an opinion on a quef-
tien fo novel and intricate, and refpcffing which, men, emi-
nent for their talents, their literary attainments, and fkill in
jurifprudence, have been divided in fentiment. The opinion,
however, which has been given, is the refult of convidfion ; if
wrong, it is the error of the hea , and as fuch will carry its
apology with it.
I1. Vhether, after the articles of confederation were ra-
tified, the Court of Appeals h d jurifdiLion of the fubjea
matter ?
However problematical the opinion, which has been deli-
vered on the preceding point, may be, I apprehend, that little
doubt or difficulty can arife on the prefent queftion. By the
9 th article of the Confederation, the United States, in Congrefs
aff'embled, are vefled, among other things, with the fole and
exclufive power of effabliffling rules for deciding in all cafes,
what captures on land or water fliall be legal, and in what
manner prizes, taken by land or naval forces in the fervice of
the United States, ffiall be divided or appropriated; of grant-
ing letters of nvarque and reprifal in times of peace; appoint-
ing courts for the trial of piracies and felonies committed on
the high feas, and effabliling courts for receiving and deter-
mining finally, appeals in all cafes of captures.
The Court of Appeals, in September 1783, decided upon the
point ofjurifdidlion either direaly, or incidentally ; for, after a
full hearing, they decreed that the fentences paffed by the Su-
perior and inferior Courts of New.Hmpjhire (hould be rever-
fed and annulled, and the property be reflored. This decree
being made by a court, conflitutionally eftabliffned, of compe-
tent authority, and the higheff jurifoi~tion, is conclufive and
final. It cannot be opened and inveftigated ; for, neither this
court, nor any other, can, in a collateral way, review the pro-
ceedings of a tribunal, which had jurifdi6iion of the fubjed.f
matter. The Court of Appeals was compet(nt to the deci-
fion ; they have adjudicated as well on the jurifdifion as the
merits of the caufe, and we muff fippofe that they have adled
properly. This alfo is an arfwer as to irregularities, if any
there were, which may have taken place in the proceedings
before
86 CASES ruled and adjudged in the
1795. before the Court of Appeals, or in the mode of removing tlie
caufe before them. This court cannot take notice of i:regu-
larities in the proceedings, or error in the decifion, of the
Court of Appeals. The queftion is at reft ; it ought not to be
again, diffurbed.
II[. Whether the Diftria Court of New-Hampfhire had
jurifdi&ion ; or, in other words, whether the libel exhibited
before that court, was the proper remedy, or mode of carrying
into execution, either fpecifically, or by way of damages, the
decree of the Court of Appeals ?
On this point I entertain no doubts. Recurrence to fafts
will anfwer the quefion. The exiftence of the Court of Ap-
peals terminated with the old government; this alfib was the
cafe with the fubordinate Court of 'Admiralty in the Stte of
New-Hampjhire. The property was not reffored to the libel-
lants, nor were they compenfated in damages; of courfe the
decree in their favour remains unfatisfied. They had no re-
medy at common law; they had none in equity ; the only fo-
ruin competent to give redrefs is the 1)iftri& Court of New-
.ampbire, becaufe it has admiralty jurifdicfion. There they
applied, and, in my opinion, with great propriety.
Judges may die, and courts be at an end; but juftice ffill
lives, and, though fie may fleep for a while, will eventually
awake, and muAf be fatisfied.
Having difcuffed the preliminary queftions relative to jurif-
diffion, we fhall now confider the proceedings in the Circuit
Court of New-Hampjhire. And here the firft queftion is,
whether by the Jeath of Elia Doane, before the judgment
rendered in the court of appeals, that judgment is not avoid-
ed ? The death of Doane does not appear on the record of the
proceedings before the court of appeals ; it is in evidence from
the certificate of the judge of probates, which is annexed to
the record tranfinitted from the Circuit Court of New-Hamp-
Jhire. Many anfwers have been given to this quefcion ; fome
of which are cogent as well as plaiufible. On this fubjed, it
will be fufficient to obferve, that admitting the death of Doane,
and that it can be taken notice of in this court, it is unavailing,
becaufe the proceedings in a court of admiralty are in rem.
The fentence of a court of admiralty, or of appeal in queftions
of prize, binds all the world, as to every thing contained in it,
becaufe all the world are parties to it. The fentence, fo far
as it gees, is conclufive to all perfons.
The moft formidable objeftions have been levelled againift
'the damages.
I. It is faid, that the damages ought not to have been given,
they were not Frayed. The anfwer to this obje6ion
a'ecife
SUPREME COURT of the United States.
1795. ( citizen and citizen" in this cafe are very ill applied to the
\ parties in queffion, they not having een citizens of the fame
State, the captors having been citizens of New Hampfhire, and
the claimant a citizen of AIaflachufatts-Bay. It never was
confidered that before the aual fignature of the articles of
confederation a citizen of one State was to any one purpofe a
citizen of anlother. He was to all fubftantial purpofes as a Fo-
reigner to their forenfic jurifprudenee. If rigorous law had
been enforced, perhaps he might have been deemed an alien,
withoutan exprefs provifion of the State'to fave him. And as
an unjuft decifion upon the l6w of nations, in the cafe of a
Foreigner to all the States, might, if redrefs had notbeen giv-
en, have ultimately led to a foreign war, an unjuff decifion on
the fame law in tne State, to the prejudice of a citizen of ano-
ther State, might have ultimately led, if redrefs had not been
given, to a civil war, -an evil much the more dreadful of the
two. I have made thefe obfervations merely asto the propriety
that this power fhould have been delegated, and therefore to
fhew that if it wasaffumed without adequate authority, it was
not an arbitrary and unnatural affumption of a power, that ought
exclufively to belong to a fingle State ; but by no means with a
view to argue, that becaufe it was proper tobe given, there-
fore it was atually given, a pofition which, as it would lead to
dangerous and inadmillible confequences, cannot be the ground
of a legitimate argument.
Some of the arguments at the bar, if pufhed to an extreme,
would tend to eftablifh, that Congrefs had unlimited power to
a& at their difcretion, fo far as tle purpofes of the war might
require ; and it was even faid, that the Yus Belli never was in
any one of the States, and therefore it could riot be delegated
by any State to Congrefs. My principles on this fubjeft are
totally different from thofe which were the foundation of this
opinion, and as it is a point of no fmall importance, and I find
on this occafion, as I have formerly done on others, confidera-
ble miftakes (as I conceive) by very able men, owing to a mif-
apprehenfion of terms, 1 will endeavour to ifate my own prin-
ciples on the fubje& with fo much elearnefs, that whether my
opinion be right or wrong, it may at leain be underitood what
the opinion really is.
If Congrefs, previous to the articles, of confederation, por-
feffed any authority, it was an authority, as I have fhewn, de-
rived from the people of each Province in the frft inflance.
When the obnoxious aas of Parliament paired, if the people
jn each Province bad chofen to refift feparately, they undoubt-
edly had equal right to do fo, as to join in general meafures of
refiftance with the people of the other Provinces, however un-
wife pnd deftru6tive fetch a policy might, and undoubtedly
would
SUPREME CoUmnr of the United States.
would have been. If they had purfued this feparate fyffem, r795.
-nd afterwards the people of each Province had refolved that
'fuch Provinceihould be a free and indepelident State, the State
from that moment would have become poffeffed of all the pow-
ers of fovereignty internal and external, (viz. the exclufive
right of providing for their own government, and regulating
their intercourfe with foreign nations) as completely as any
one of the ancient Kingdoms or Republics of the world, which
never yet had formed, or thought of forming, any fort of Fe-
deral union whatever. A diffinaion was taken at the bar be-
tweet aflate and the people of thejlate. It is a dif'cinffion I
am not capable of comprehending. By a State forming a Re-
public (fpeaking of it as a moralperfon) Ido not mean the Le-
giflature of the State, the Executive of the State, or the Judi-
ciary, but all the citizens which compofe that State, and are, if
I mayfo exprefs myfelf, integralparts of it; all together form-
ing a body politic. - The great difiin6ion between Monarchies
and Republics (at leaft our Republics) in general is, that in
the former the monarch is confidered as the fovereign, and each
individual of his nation as fubjeft to him, though in fome coun-
tries with many important fpecial limitations: This, I fay, is
generally the cafe, for it has not been founiverfally. But in a
Republic, all the citizens, as fuch, are equal, and. no citizen
can rightfully exercife any authority over another, but in virtue
of a power conifitutionally given by the whole community, and
fuch authority when exercifed, is in effe& an a& of the whole
community which forms fuch body politic. In fuch govern-
ments, therefore, the fovereignty refides in the great body of
the people, but it refides in them not as fo many diftin& indivi-
duals, but in their politic capacity only. Thus A. B. C. and
D.,citizens of Pennfylvania, and as fuch, together with all the
citizens of Pennfylvania, fhare in-the fovereignty of the State.
Suppofe a State to confift exaaly of the number of lO,OOO
citizens, and it were pra&icable for all of them to affemble
at one time and in one place, and that 99,999 did a&ually
affemble: The State would not be in fact afftembled. Why ?
Becaufe the ifate in fa& is compofed of all the citizens, not~of
a part only, however l~Irge that part may be, and one is want-
ing. In the fame manner as 991. is not a hundred, becaufe
one pound is wanting to complete the full fum. But as fuch
exa&nefs in human affairs cannot take place, as the world
would be at an end, or involved in univerfal maffacre and
confufion, if entire unanimity from every fociety was required ;
as the affembling in large numbers, if prafficable as to the ac-
tual meeting of all the citizens, or even a confiderable part of
them, could be producive of no rational refult, becanfe there
could be no general debate, no confultation of the whole, nor
ef
94 CASEs ruled and adjudged in the
CCclaim the whole, or any part of the veffel and cargo in dif-
cl pute." The refolution of Congrefs was dated the 6th Marcb,
1779; the acf of Aew-Hampfiire in November following.
The vote of the delegates of New-Hampfhire, in the cafe of
the A&ive, would not, indeed, be equivalent to a clear grant
of the power, but it is a refpe"lable fupport of the conftrufio&a
oontended for by the defendants in error. It has been pro-
perly obferved, that a court cannot by its own decifion, give
itfelf jurifdi&ion where it had none before; but if courts are fo
conflituted that one is neceffarily fuperior to another, the de-
cifion of the fuperior muff, to be fure, prevail. This, perhaps,
is not conclufive as to the court of commiffioners, becaufe it
cannot be decided whether it was in fact the fuperior court in
refpect to New-Hamphire, without deciding whether it was
confitutionally fo in virtue of power from allthe Rates. This
point it would be now neceffary for this court to decide, if it
were not for the decifion of the court of'appeals in 1783, a
court of acknowledged prize jurifdiction, eftablifhied in virtue
ef exprefs authority from all the Rates (New-Hampjhire in-
cluded) and made a court in the laft refort as to all prize cau-
fes, or in other words (as expreffed in the article of confede-
ration itfelf) in 'allcafes of captures. And the decifion of this
court on the fubject of the two contending jurifdictions, I
eonfid-r
96 CAgEs ruled and adjudged in the
1795. confider to be final and conclufive, for the following reafons.
Si. At the time the decifion was given, it was the only court
of final appellatejurifdition, as to cafes of captures, in the Uni-
ted States. It feems therefore to follow neceffarily, that upon
all queflions of capture their decifion fhould be final and conclu-
five, as much as the decifion of this Court upon a writ of er-
ror from the Circuit Court, or any other branch of its ju-
rifdidion, would be fo.
2. To the fuggeflion at the bar, that the Court of appeals
could have no retrofpe6t, feveral anfwers, I conceive, may
be given.
i. It is taking for granted the very point in difpute, that
this decition was retrofpeaive. If Congrefs poffeffed this
authority before, and the articles of Confederation amount-
ed only to a folemn confirmation of it, it was in no man-
ner retrofpective. It was in effect a continuance of the
fame court acting under an exprefs, inflead (as before) of
acting under an implied authority, and allowing the full ben-
efit of an appeal regularly prayed, and rightfully enforced
by the fiperior tribunal, after an unwarranted diffallowance
by the inferior.
2. Whether the article in the confederation giving au-
thority to this court as a fuperior tribunal inaall cafes of
capture, did authorife them to receive appeals in cafes cir-
cumftanced like this, was a point for them to decide; finee
it was a queftion arifing in a cafe of capture, of all which
cafes (without any exception) they were conflituted judges
in the laft refort. The merits of their decifion we furely
cannot now enquire into, but their authority to decide,
not being limited, there was no method, by applying
to any other court, of correcting any error they might com-
mit, if in reality they fhould have committed any.
3. Whether their decifion was right or wrong, yet nobody
can deny that the jurifdiction of the commiffioners was at leaft
doubtful ; of courfe the Court of Appeals found a cafe then
depending in the former court of the commiflioners, after a pre-
liminary, but not a final, determination, for fuch I confider it to
have been. It was therefore a caufe then fubjudice, and it be-
ing a cafe of capture and a queftion of appeal, no other court
on earth, but that, in my opinion, could decide it. A,.d no objec-
tion can be urged in this cafe againft the authority of fuch a de-
cifion, or the pr6priety of its being final, but fuch as may be ur-
ged againfl: all courts in the lafi re fort, with refpect to the me-
rits of whofe decifions there may be eternal difputes, but fuch
difputes would be productive of eternal war, if fome court had
not authority to fettle fuch queftions forever. :
tereforc,
m, havc not the fmalleft doubt, that the decifion ofk
the
SjUPREME CO-URT Of the United States. 97
the court in 1783, was final and conclufive as to the partics to 1795.
the decree. And this point appears to me fo plain, thatIthink
it ufelefs to take notice of any authorities' quoted on either fide,
in relation to it, none of'them, I conceive, in iiny manner con-
travening the conclufive quality of fuch decrees upon the prin-
ciples I have QRated, and fome of them clearly, and b~yond all
quefrion, fupporting it,
The decree of _eptembe., 1783, being by me thus deemed
final and conclufive, the next enquiry is,
Whether it was a decree which the Diffri& Court bf Ncw-
Hampjhire,or the Circuit Court of New-Hamjh"ire a&ing fpe-
cially in this caufe for'the legal reafon alledged, h-Ad authority
to enforce, either by decreeing a fpecific execution, or award-
ing damages for a non-performance of it ?
Upon this branch of the fibje& a few words will be fu$-
cient. The Dith i& Court, by the aA of Congrefs, hath the
Whole original jurifdi&iQn in admiralty and maritime caufes.
-Whatever doubt might otherwife have arifen, the decifion of
this court upon the writ of error from Maryland, laft February,
fully eftablifhed, that this includes a prize jurifdi&ion,' as well
as other cafes of a maritime nature. I was not prefent when
the decifion was given ; had I been fo, I probably fhould have
concurred in it, becaufe the wotds, " all civil caufes ot admiral-
ty and maritime jurifdilion," evidently include all maritime
caufes, whether peculiarly of admiralty jurifdi&ion or not ; be-
caufe'aqueftion ofprize on the high feas is clearly of a maritime
nature, and therefore the Png/ijh diftinlion between an in-
}Ance (which is ftricqly an admiralty) court, and a prize court,
does not apply to this cafe ; more efpecially as the Diftri&
Court having as large authority given to it in all maritime
caufes of a civil nature, as the con&fitution itfelfprefcribes. If
that court does not poffefs fuch an authoritv, no court can be
inftituted with powers adequate to that purpofe, fo that under
the prefent conititution, there could be no prize jurifdiaion at
all ; and the very tenure of all the judges (which is for good
behaviour) naturally excludes the idea of a temporary and occa-
fional eftablifhment of any courts whatfoever. I mention thefe
reafons, not becaufe the authority of the cafe receives any addi-
tional fandion fr6m my opinion, but becaufe I was defirous to
,take fo favourable an opportunity of exprefing my concurrence
in a decifion offo much importance.*
It was clearly fliewn at the bar, that a Court of Admiralty in
one nation, can carry into effe( the determinatior of the Court
of Admiralty of another. A Court of Prize being equally
grounded on the law of nations as a Court of Admiralty, and
proceeding alfo, as that does, on the principles of the civil law,
aCt.iJ 171 . V~j~ I~C~SkC Ir ~4
VOL. 11. VotIe b taufrs e tY t, N Mutt,
99' CASEs ruled and adjudged in the
3" The third error in the decree, in my opinion, is, rak- i 95.
ing George W'"entworth, ihe agent,'liable for any part. fiave
had confiderable doubts on this fubject, btit upon the fulleft
confideration I have been able to beftow on it, I think he is not
liable. " Had he held any of the property, at the time of the
decree of the Court of Appeals, he would have been undoubt-
edly liable. Had he any now, or any of the proceeds in his
hands, he would alfo be liable. Perhaps fiemi'ght- had he heid
ny of the property or proceeds, after actual notice of th&
Court of Appeals taking cognizance of this cafe. Neither of
thefe facts appears on the face of the record$ and as they ae of
importance . and neither is afferted i neither is to be prefumed:
The contrary, indeed, may be fairly inferred from the flatement
on the record, and has been candidly acknowledged to be the
real truth. I-le therefore appears in the character of a mere
-agent, acting avowedly- for the benefit of others, and not for
a
his own; and as he had paid-away the money in virtue of a de
&ee of a court, haying pr-ima facie authority for the time, to
decide wlhether an appeal did, or did not lie; I think he ough
not'f6 be ordefed to refund. It is ailledged that the prayer of
in appeal, in a cafe where- an appeal lies, ipfo fql7o, fupends
the proceedings, aid all' afterwards igcorarn nonjudice. I canA
not admit the doctrine in that extent.' Where there are infe
ibr and fuperior juridictions, and an appeal is allowed from
the former to the.latter, and it is thd exprefs duty of the party'
praying an appeal, to apply in the firft inifance, to the inferior.
Court (as I conceive it was in this cafe under the refolutions of
C6ngrefs, which directed an appeal to be prayed for within five
days, anfd fecurityto be taken) I muff prefume that that court
isprimafacieto judge whether it is applied for in a proper man-
ner, and whether all the requifites previous to his being fully
entitled to it, are complied with. If the court decides in any
of thefe particulars erroneoufly, it would be abfurd to fay, that
the party iliould lofe the benefit of iis appeal, but, in my opi-
nion, it would be equally unj'uff to hold, that a party who
obeyed tie decree of a court,, over whom' he had no controul,,
fhould fuffer by his refpect to the law, which conftituted that
court,. and which muft'therefore mean tu fupport its decifions,
in a caufecoming within its jurifdiction, while they remain un-
controuled by any fuperior tribunal. It was fhewnthat an inhi-
bition, in cafes of this kind, fometimes at: leaft iffues to forbid
the court's further proceeding. Can there be a itronger proof,
that the court.had authority de"fao (whatever may be faid as.
to its authority dejure) without.that interpofition !. The laW
never does a nugatory act, and therefore, I prefume, would not
forbid the doing of a thing, which if done, is totally and abfo-
lutely void. It was faid, this was t6.bring the.judge into con-
Vol.. III. P tempt.
C.A5ss ruled. 2nd adjudged in the
1795. tempt. But if the conduct of the judge who is bound to know
hisjurifdiction is in the mean time innocent, furely anrobedi-
ence to him by a party, who is not to be prefurned capable of
deciding: on the jurifdiction by his own judgment, muff be fo.
George-Tentworth, on the face of the whole proceedings, was
a mere agent, an attorney in fafT, and for aught I call fee, a&
Iittle liable to refund in a cafe of this fort, as any attorney, in
fact, or even .n attorney 'at law, to whom mcney had been
paid under a judgment or decrce and who had paid it away to
his client. An agent in cafes of this kind, is allowed by law.
They are recognized, I beliere, in all prize aets. Mariners,
whoe employment is on the fea, cannot be required withoutin-
juPcice to attend their cafes in perfon. In cafes of privateers,
the captors are fo numerous that tile employment of one or more
agents on Ihore, feems unavoidable. 'The law, when it al-
lows a benefit, never intends that it fhall be imperfectly enjoy-
eJ ; therefore in allowing privateering, it allows agents. Thefe
I coni'der as nominal parties, and that the real parties are their
principals. Now I will fuppofe that in a common Taw cafe an
infant fues in a perfonal action by his guardian, and obtains a
judgment ; the guardian receives the money, and pays it to the
infant after he comes of age. The judgment is afterwards re-
verfed. Can the guardian ever be made to refund to the de-
fendant, or muft the perfon who was the infant do it ? This
cafe appears to me a very parallel one in all its circumftances.
'File infant cannot a& for himfelf, and therefore is allowed to
ad by his guardian. The law takesnotice, by allowing agents,
ithat perfous concerned in privateers, at leaft, cannot do well
without them. The guardian is nominally a party; fo is the
agent : but the infant, in tle one cafe, and the principals, in
the-other, are the real parties. The guardian is accountable
to the infant, for money he received for him : fo is the agent to
the principal, for nionoy he receives. There is,' that I can
imagine, but one difference, that can be fuggefte4 between
them ; that in the one cafe, the judgment is good till reverfed;
and, therefore, all lawful ads intermediately done, are valid.
But the difallowance of the appeal, is faid to be a nullity, and
all fibfEquent proceedings in that court are void. .1 admit the
confequence, if the latv be 1b. But I have already ifated rea-
fons, why I think it is otherwift. A court of juffice, indeed,
ought at its peiiil to take notice of its own jurifdidion, and it is
not often that cafes of fuch doubt arife, that a Judge can be at
a, lofs on the fubje,. But it may happen, and does fometimes
happen, that innocent and ferio*us doubts, are really entertain-
ed. Is a court, therefore, becaufe its judgments may be final-
ly dhqi rnted from, by a fuperior tribunal, to be couEdered as
flying in the face of the law, fo that parties befoxe it, ihall not
only
SUPREME COURT of the United Stakes.
only be prote&ed in difobeying it, but punifhied for their obe- 1795
dience ? If this be the cafe, the old maxim, cedunt anra tog-, ,
will very ill apply to Courts of Juffice. Inftead of being the
peacefuf arbiters of right, and the facred afylum of unprotea-
ed innocence, their very forums will be the feat of war and
confufion. I admit, indccd, where there is a conflict of jurif-
diffion, and the party entitled to a decree, is prohibited from
obeying it, bya power claiming a fuperior cognizance, he muff
at his peril obey one or the other ; but this arites from the ab-
folute neceffity of the cafe, becaufe, whether the one or the
other be right or wrong, muff depend on a fubfequent decifion.
In this cafe, George TJentworth, before the diftribution, re-
ceived no monition, or any other procefs from the tribunal al-
ledged to be fuperior. He could not even be certain that the
Appellants would carry their application further. I confider
him, therefore, juftifiable in obeying the decree, which at the'
time, was compulfory upon him, and for a difobedience to
which, he might have been committed for a contempt, accord-
ing to the opinion of the court which pronounced it. The
parties frill have their remedy againfl thofe who adually re-
ceived the money, or their reprefentatives, if they can be found.
They may perhaps be entitled to a remedy under the bond giv-
ed, when the commiffion of the privateer was granted. If ei-
ther of thefe remedies be difficult or inefficient, that does not
make George W'entworth, in point of law, move liable than if
they were perfeclly eafy, and clearly effe6ual. It will be one
melancholy inftance, in addition to a thoufand others, of the
diftrefs incident to a doubtful and imperfe6 t fyftem of jurif-
prudence, which has been fince happily changed for one fo
precife and fo comprehenfive, as to leave little room for fuch
painful and deftrulive queftionshereaftcr.
The 4 th queffion is,
Whether this court can now relify the dec:ee in refpca to
the parts of it confidered to be erroneous, or muff affirm or
reverfe in the whole.
The latter is certainly the general method at common law,
and it has been contended, that as this proc'eeding is on a wit
of error, it muff have all the incideuts of a writ of error at
common law. The argurnent would be conclufive, if this was
a common law proceedin, but as it is not, I do not conceive,
that it neceffarily applies. An incident to one fubjaa cannot
be prefumed, by the very name of -fuch an incident,' to be in-
tended to apply to a fubjed totally difErent. I prefume the
term, ,' writ of error," was made ufe of, becaufe we are pro-
hibited from reviewing fa6s, and therefore mufl be confined to
the errors on the record. But as this is a civil law proceed-
ingc, I conceive the word " errcr" muft,be a' plied to fuch er-
cot
log CsEs ruled and adjudged in the
1795. rors as are deemed fuch, by the principles of the civil law, and
- that in reffifying the error, we muff proceed according to thofe
principles. In a civil law court, I believe, it is the conftant
pradfice to modify a decree upon an appeal, as the juffice of the.
cafe requires ; and in this infiance, it appears to me, under the
24 th fe6tion of the judicial a(1, we are to render fuch a decree
as, in our opinion, the Diftri6t Court ought to have rendered,
If this was a cafe, wherein damages were uncertain, and
wherein for'that reafin, the caufe fhould be rewanded for a fi.
nal decifion, (which it does not qppear to be, becaufe the Li-
bellants in the original fuit had a decree in their favour, which
is now to be affirmed in part) yet the damages here are not un
certain, becaufe we all agree, that intereff ought to be allowyed
from the date of the decree, in September, 1783,' upon the va.
lue of the property, as fpecified in the report; againt thofe who
are to be adjudged to pay the principal.
Upon the whole, my opinion is, that the decree be affirmed
ini refpe& to the recovery of the Libellants, in the original ap-
tion againif all the Defendants but George Wentworth; that
the libel againifhim, be adjudged tobedifniffed ; but that there
be recovered againf the other Defendants in the original affion,
the value of the property they received, as afcertainled in the
Circuit Court, with intt P from the i7th of September, I783,
I am alfo of opinion, "'Tiat the refpe ive partiessofull p4'Y
their own colts.
BLAIR,'ulJice. When this caufe came before me, at R
eter, in ew Ha'npfire, I felt myfelf in a del icate eituatiop, iq
haviqg a caufe of fuch magnitudc, and at the fame title, of fi4ch
x!oveltyand difficulty, as to have drawvn the judgment of men of
eminence,' different ways, brotjght before foe for my fipgle de-,
cifi6n. It' was, however, a confolation to know, that whatever
that decifion might be, it was not intended to be fin'al, and I can
truly fay, it will give me pleafure to have any errors I may
have committed, corre&ed in this. court, Two points, ard, if I
miftake not, onl, two, were br6ught before me: The firf, whe-
ther under the def:ription of Admiralty and Maritim jurif,
diffion, the judiciary bill gave to the Diftrit Court any jurif,.
4i&ion cqncerning prizes, . decided i, the affi'mative; and
the famke 4.ecifion having been afterwards m.de -in this co.rt,
in the cafe of Glaff, and others, I confider that as nlow fet.
tled. The other point, was, whether tho Court f Apteals,.
Creted by Congrefs, had authorby to reverfe the f:-.tenc.es gti-
ven in the Courts of Admiralty of the feveral S.tayes; and the
fource of the ol~je(tion upon this point, was tle. defea of au-
hoity. in the Cong;,s itfelf. Here, alfo, my fentence
. " a/rmeO
- IIn.
the )urfd&i-
I e tRded as diligently, and as impartially as . ould
SuPREM-E COVI-T of the United States.
1795. contain nothing but fimple powers to meet, Congrefs ; tht reff
' exprefsly give authority to their delagates to confent to all fuch
further meafures, as they and the (aid Congrefs fthall think ne-
ceffary, for obtaining a redrefs of Americai grievances, and a
fecurity of their rights. It is not in all of them worded alike,
but in fubftance, that feems to be the fenfe. Every thing which
may be deemed neceffary ! I think it cannot well be fuppofed,
that in fuch a delegation of authority, at fuch a time, there was
not an eye to war, if that fhouild become neceffary. But it is
obje&ed, that at moft, no greater power was given to Con-
grefs than to enter into a definitive war with Great-Britain,
not the right of war and peace generally; and even that war,
till the declaration of independence, would be only a civil war.
But why is not a definitive war againft Great-Britain (call it
if you will a civil war) to be condu&ed on the fame principles
as any other : If.it was a civil war, fRill we do not allow it to
have been.a-rebellion-America refifred and became thereby
engaged in what flhe deemed a juft war. It was not- the war
of a lawlefs banditti, but of freemen fighting for their dearei
rights, and of men lovers of order and good government. Was
it not as neceffary in fuch a war, as in any between contending
nations, that the'law of nations Thould be obferved, and that
thofe who had the condu&ingof it, fhould be armed with every
authority for preventing injuries to neutral powers, and their.
fubjeas, and even cruelty to the enemy ? The power fuppofed
to have been given to Congrefs, being confined to a definitive
war againfi Great-Britain, and not extending to the rights of
peace and war generally, appears to me to make no material
difference; fRill the fame neceffity recurs, of confining the evil
of the war to the enemy'againfi whom it is waged. Till a
formal declaration of independence the people of the Colonies
are raid to have continued fubje&s to Great-Britain; true, and
that circumRifance itis, which denominates the war a civil war,
as to which I have already Rfated how, in my mind, the qu~ftion
is affe&ed by that circumitance. But it was afked whether, if
during the vinr, Great-Britain, at any time before the decla-
ration of independence, had declared war againrf any nation of
Europe, that nation would not have had a right to treat Ame-
rica with hoffility as being fubje6d to Great-Britain? Ac-
cording to thlis fuppofition, Great-Britain might have had
fome temptation to declare fuch war that fhe might have the
co-opcration of her enemy, to reduce her colonies to obedience.
But Great-Britainwas too Wife to adopt' fuch a policy; flie
knew. that by herengaging in fuch a war, the, colonies, iriflead
of finding a new enemy to loppofe, would have known where
to find a friend ; they might have formed an alliance with fuch
a power, who probably would have confidered it as an acquifi-
tion,
SUPREME COURT of the United Statet.
tion, and Congrefs might have been the fooner encouraged to 1795.
feparate from Great-Britain, by a formal declaration of.inde- t.P-y-.'d
pendence. As the fiuppofition that Congrefs was invefted with
all the rights of war, in refpect to Great-Britain, is of great
moment in the prefent caufe, and as the power may not be fo,
fatisfactorily conveyed by the inftructions to the feveral dele-
gates as might he wifhied, partly becaufe fome of them did not
exhibit farther inftructions than to attend Congrefs, and part-
ly becaufe the inftructions given to the reft, may be fatisfied
by a different conffruction, it may be proper to confider the
manner in which Congrefs, by their proceedings, appear to
have confidered their powers; not that by any thing of this
fort, they had a right to extend their authority to the defir-
ed point, if it was not given, but becaufe" in (hewing by
fuch means, their fenfe of the extent of their power, they
gave an opportunity to their contlituents to exprefs their
difapprobation, if they conceived Congrefs to have ufurped
power, or by their cc-operation to confirm the conftruc-
tion of Congrefs; which would be as legitimate a fource
of authority, as if it had been given at firif. If they were only
a mere council, to unite by their advice and recommendation
all the States in the fame common meafures (which, by the by,
if not uniformly purfued, might be difappointed) then the feve-
ral members might be juftly compared to ambaffadors met in a
Congrefs, and could only report their proceedings for the rati-
fication of their principals ; but Congrefs refolved to put the
colonies in a ftatG.of defence ; they raifed an army, they ap-
pointed a commander in chief, with other general and field of-
ficers ; they modelled the army, difpofed of the troops, emitted
bills of credit, pledged the confederated colonies for the re-
demption of them, and in thort, aaed in all refpe&s like a body
completely arm'ed with all the powers of war ; and at all this I
find nct tlie leaft fymptom of difcontent among all the confede-
rated 4ates, or the whole people of America ; on the contrary,
Congrefs were univerfally revered, and looked up to as our po-
itical fathers, and the faviours of their country. But if Con-
grefs poffeffed the right of war, they had alfo authority to equip
a naval force; they did fo, and exercifed the fame authority over
it, as they had done over the army; they paffed a refolution for
permitting the inhabitants of the colonies to fit out armed vef-
fels to cruize againft the enemies of lmerica; direded what
'veffels fhould be fubjeLI to capture, and prefcribed a rule of
.diffribution of prizes, together with a form of commiffion, and
inftruLtions to the commanders of private (hips of war : they
directed that the general affemblies, conventions, and councils
or committees of fafety of the United Colonies, ihould be fup-
plied with blank corarniflions, figned by the Prefident of Con-
gref ,
112 C'As't rtiled and adjudge'd in the
i795. grefs, to be by them filled up, and, de'lvered' tq any pdfroN i'ln-
Lowvyi tending to fit out private flhips of war, on his etecutinga bond,
forms of which were to be fent with the commiffionA, and the
bonds to be re.u'rne'd to Congrefs. Thefe bond are givent to
the Prefident of Congrefs, in truft for the ufe of the Uni-eed' Co-
lonies, with- condition- to conform to the commiffion and iry-
ftru6lions. The cornimiffion, under which the' Captain- of the
refpondents, aaed, was oie of th-efe cmrimiffions, it feem' , only
this isattempted to be qu'alified' by faying that it was countct-
figned by: the Governor of New ftampfnire ; but this
circumfiance feems to me to be of no hinportance. Who-
ever has the righ t of cormiflioning dnd inffru&ing , mufd
certainly have the right of examining and co troul'ing, of
confirming or annulling the a&s of him who aceepfs the"
c'ommiffioni and ads, under if. Arid' thi's dxercife ofautho-
rity in granting coimmiffiuns feems- to have had'the fpecial faric-
tion.of the feveral colonies, as th'ey filled up tie commiffions,.took'
the bonds, and tea'nfmitted'them to Congrefs, It vas urged iti.
theourfe of the argument, that ifCongrefs did enj)y the p6w:.
erf contended for; the confederation, whith was' a thing of fuci"
lmn'g and anxious expelarion, Was nbt of any confequence ; but'
it is to. be obferved, th'at that inrfrument cohtained Come impor-
tant! porters which could not be derived ficm the right of war'
and peace ; it- was of importance alfo, as a confirmation of the'
powers claimed as neceffarily incident to war, becaufe fome o(
the flaces appeared not to be fenfible of, nor to have acknoW-
led'ged fuch incidency-; and yet the power my' have exiffed be-
fore. It is t that
hue, inffrument is worded in a matinee, on.
which rome ftrefs has been laid, that the' feveral States fhould
retain,.thiei' fover'eigiitiesi and' all powers not thereby exprefsly
delegared To Congrefs, as" if they were, till' the ratification of
that compa&L, in poffeflion of all the powerg thereby delegated ;.
but it feems to me, that it would be g'oing too-far from a fingle
expreffi'on, ufediperhaps- in-a lbofe fenfe, to'draw an inference fo
coxwrary to a' known'fact; to wit,that Congrefs wasi with the
approbation of the ffareg, in-poffeflioi of fome' of the powers
there mentioned, which yet, if the word 'retain' be taken in fo
africt a fenfe,, it muft. be' fuppofed they never had. I take the'
truth to be, that the framers of that iriffru'rdent were coritem-
plating what pbwefs'-Congress ought to have had at the begiri-
ning ;. and that in reference to the firft occafion of tfieir aflem-
bling to oppofe the tyranny of Great Brittain, at leaftin refer-'
ence to the time of framing the confederation,.fay, the ftates
fliall' retain. Put however that may be, as I faid before, I think
it is laying too great a ftrefs' upon-a fingle word, to contradict
fomne things which were evidently true.
But it-was faid, that New -aipfirehad'a right to revoke
any
SUPREME CoU'P:r of the United States.
'1795. preciation of the Sufanna and her cargo, from fo remote a pe-:
Siod as the fale of the velhel and cargo.
That George W1/entvorth, being a mere agent, and having
difr ibted among thofe who were entitlcd, under the decrees
of the Courts of Admiralty of New HampJhire, all the money
byhim received for their-uf,., ought not to have been fubje~ted
by the decree of the Circu.it Court, to the repayment of that
money.
And that a lumping decree, fubjecaing the Refpondents in-
diferiminately, to the payment of all the damages, although,
alfo erroneous."
their interePfs were feveral and diflin&, was
It does not, indeed, appear to me, that the decree is for the
payment of too large a fim, the damages having been fwelled by
interef&, calculated upon the appraifed value of the Sufanna, her
apparel, and of her cargo,froaa fo remote a period. The decree
of the Court of Appeals was merely for reftitution, and that-
the Appellants fliould be placed at that time in the fame fitua-
tion as they were in, previous to the capture. A compenfa-
tio for the lofs they fufiained in being in the mean time de-
prived of their property, was not provided for in the decree,
nor were even cofts allowed. The libel in the Circuit Court
being bottomed on the decree of reverfal, fought only a com-
penfation in damages equivalent toa reftitution at the time of.
the reverfal : Intereft, therefore, ought, Ithink, -to have been.
allowed only from that tim'e.
. George Tentworth, it is -true, was not concerned in intereft;
hercprefented the intereft of the officers and feamen, but had
none himfelf; and a mere agent who has paid away all, or any
part of the money by him received in that chara&er, without
having been by a monition noti-fied of the appeal, will be al-
lowed credit i1 his accourt for the money fo paid away. But
George T'entworth appears, I think, in another character be-
fides that of an agent: he was a party libellant, as fuch he
knew that the Claimants were diffatisfied with the decrees of
the Admiralty Courts of New Hamplhire, having prayed an
appeal to Congrefs, and offered the requifite fecurity ; and
when the petition of appeal was referred to the Court of Coin-
niidioners, and they dire&td notice to be given to the parties,
who appeared before'that court, it feems evident that they had
notice. What then is the e-ffect of this ? , Was any this_ fur-
ther neceffary to fufpend the decrees of the Statc Courts ? An
inhibition is, indeed, worded in a manner naturally leading to
the fuppolition, that that intfrument was ,eceffary to effe6t a
fupenfion; but this, I think, cannot be the cafe; for, it is ob-
fervable, that by the pradicee, an interval of throe nmnths is
allowed before the inhibition is fued out, in which time, if no-
thing had antecedently
a, fufpended the fcntence, it might be car-
FA
i
.SUPREivI COURT of the United States.
ried into complete effie&, and every body be juffified in their 1795.
condud, as paying obedience to a decree continuing in full -
force. The inhibition may be intended only as a more formal
dire&ion to ceafe farther proceedings, when yet they may have
been inhibited before: it has a fairther ufe alfo, for it appoints
a day for the attendance of the parties. Conformably to this
idea, it is faid, in Donat, that the a!/peal fufpends the decree.
But a diftinction is attempt 4 here ; it is admitted that an ap-
peal allowed by the inferior court, fufpends, while an appeal
received by a fuperior court, is denied to have that effect. But
according to Domat, it works a fufpenfion, even againft the
will of the inferior Judge; and it would be very ftrange, if the
fufpending operation of an appeal, to a Judge who has 'an au-
thority to reverfe, fhould depend upon the confent of the infe-
rior Judge. But if the fentences of the State Courts were in-
deed fufpended, no perfon had authority to act under them
nnd if any do, he takes upon himfelf the confequencs. Be-
fides, if George Wf/entworth had innocently and without notice,
diftributed the money which came to his hands, fhould not this
have been flewa to the Court of Appeals ? If thaf had been
dorne, perhaps after reverfing the decrees of the State Court,
inftead of decreeing reftitution, they might have only decreed
that the owiiers fhould pay to the Appellants, the moiety of the
fales by them received. But they have decreed reflitution fpe-
ciically ; and if this court thould fo model the decree of the
Circuik Court, as to exonerate Mr. WPentwortb, as to the
moiety of the money by him received, it will fubftantially alter
the decree of the Court of Appeals ; and yet we fay, that the
decree now is to be bottomed on that of the Court of Appeals,
which is now to be fuppofod right ; and that for that reafon it
was erroneous in the Circuit Court, to carry intereft farther
back than from the period of reverfal, and in this way give da-
mages, which were noz intended by the Court of Appeals.
The decree of the Circuit Court, appears now, I confefs, to
be wrong, in that it fubje&s all the lI fcndants, indifcriminate-
ly, to the payment of all the damages. In the original libel,
they had indeed joined, but it was in rightof feveral intereffs,
which I think ought to have been diftinguifhed in the decree;
juftice obvioufly requires this; fo obvioufly, that it' is enough
to ftate the cafe to obtain the mind's affent to the propri-ety of
diftributive damages, inflead of thofe which the decree con.
templates. I will only fay further, that I have no remembrance
of having had this point brought to my view at the Circuit
Court, and it certainly did not occur to mylWlC but if any
thing was faid upon the point, and 1, with deliberation, then
preferred the decree as it fRands, I am clearly now, of a dif-
ferent opinion. Upon the whole, I think the decree of the
Circuit
rx6 CASEs ruled and adjudged in the
795. Circuit Court will fland as it ought, when corre&ed by re-
Sducing the damages in the manner propofed, and when fo re-
duced, by proportioning them among the then Defendants,
according to their diftUha interefts.
CUSHING, .7flice. The fa6[s of this cafe being already
fully flated by the court, I flhall go on to enquire, whether the
decree of the Circuit Court ought to be reverfed, for any of
the errors afiigned.
The firft is, that the Court of Appeals, which made the de-
cree of refforation, had not jurifdlilion of the caufe.
In anfwer to this, I concur with the reft of the court, that
(he Court of Appeals, being a court under the confederation
of 1781, of all the lates, and being z-tcourt for" determining
finally, appeals in all cafes of capture," and fo being the high-
eft court, the dernier rebrt in all fuch cafes, their decifion up-
on the Nrifdi&ion and upon the merits of the caufe, having
heard the parties by their council, muff be final and conclufive,
to this, and all other courts : to this, as a Court of Admiralty,
becaufe it is a courtof the fame kind, as far as relates to prize,
and without any controuling'or revifionary powers overlit; to
this as a court of common law, becaufe it is entirely a prize-
inatter, and not of common law cognizance. The cafes,
therefore, cited to fhew, that the common law is of general
jurifditioii, and that the court of King's bench, prohibits,
"controuls, and keeps within their line, Admiralty Courts, Spi,
ritual Courts, and other courts of a fpccial, limited jurifdia-
,tion, do not, 'I conceive, touch this cafe.
It is conceded by all, that the. decifion of a court competent
is finail and binding. Now, if the Court of Appeals was, un-
der the confederation of all thc Rates, a court conflituted "for
determinlng flieally appeals in all cafes of capture," it was a
court competent; and they have decided. - Again; the Admi-
ralty of England gives credence and fo'ce to the' decifionk of
foreign courts of Admiralty; why pot equal reafon here ?
It is true, the courts of coinmon law there, will not allow a
greater latitude to the jurifdi(1ion of foreign courts of Admi-
i'alty, than to their own ; as it feems nat'ural and reafonable,
they flin~qld not; for infa'Fnce, holding plea of a contract'made
entirely at land, which feerms to have been the fubflantial
ground of a prohibition, in the cafe cited, refpecting the de-
cree in Spain.
If the decree of the court qf Apeals muf- he confidered as
binding, as it muff, or there may never be an end to this con-
trovcrFv ; that will carry an anfvwcr to* feveral other errors af-
I;gned, viz. the t ird, fifth, and feventh, refpecting the caufe.
pot being regularly before Congrefs or the court, and refpect-
ing the Circuit Court no; entat' into the mcrits-,and to
fome
SUPPEME COURT of the 6)nited States.
fome other particular exccptions; as, that appealing to the 1 95.
Superior Court of XAew-Hampfhire, was a waver of the right
of appeal to Congrefs : If that appeal was confiffent with the
refolve of Congrefs, which only provided an appeal to Con-
grefs in the laft refort, it was not a wavar. Again, it is faid,
there ought to have been a jury at the Court of Appeals ; but
that, clearly, was not the intent of the refolve of Congrefs, nor
of the Confederation, nor eorrefpondent to the proceedings in
courts of Admiralty, even where trials by jury are ufed and
accuftomed in other matters ; nor was it thought a proper or
neceffary provifion in the prefent conflitution, which has been
adopted by the people of the United States.
As to the original queftion of the powers of Congrefs, re-
fpecting captures, much has been well and eloquently faid on
both fides. I have no doubt of the fovereignty of the flates,
faving the powers delegated to Congrefs, being fuch as were,
"proper and neceffary" to carry on, unitedly, the common de-
fence in the open war, that was waged againft this country,
and in fupport of their liberties to the end of the conteft.
But, as has been faid, I conceive we are concluded upon
that point, by a final decifion heretofore made.
The 2d exception in error is, that the fentence of the Court
of Appeals was' void by the death of Mr. Doane.
That fact does not appear upon the record of the Court of
Appeals, and 1 think we cannot reverfe the decree in this
incidental way, if it could be done upon a writ of error. If it
was pleadable in abatement, it ought to have been pleaded or
fuggefted there by the oppofite party.
On the contrary, it is implied by the record, that Doane
was alive; otherwife he could not have been heard by his coun-
cil as the record fets forth ; for a dead man could not have coun-
cil or attorney. On the other hand, the letters of adminiftra-
tion imply that he was dead at the time; but thofe letters were
not before the court, and therefore could not be a ground
for their abating the fuit, if it was abateable at all for fuch
a caufe. Here fetus to be record againif record, as far
as implications go, and I take it to be an error in fad, for
which, by the judicial a&, there is to be noreverfal. Upon this
head, a cafe in Sir Thos. Raymond, is cited by the council for the
Plaintiff in error, of trover by five plaintiffs-one dies-thx
reft proceed to verdia and judgment-and adjudged error,.be-
caufe every man is to recover according to the right he has at
the time of bringing the adion ; and here each one was not,
at the time of bringing the adion, entitled to fo much as at the
death of one of the plaintiffs.
But a cafe in Chancery Cafes, p. 122, is more in point-
where momey was made payable by the decree to a man that
was
-08 CAsEs ruled and adjudged in the
1.795. was dead, and yet adjudged, among other things, no errof.
SBut another matter, which feems well to rule this cafe, is, that,
being a fuit in rein, death does not abate it.
So fay fome books, and I do not remember to have heard
any to the contrary. It does not affed the juffice of the canfe;
it makes no odds to the plaintiff in errori whether the money
is to be paid to Colonel Doane being alive, or to his legal re-
prefentatives, if dead.
The 4 th exception, that damages are not prayed for, yet de-
creed, is anfvwered by a prayer for general relief.
The 8th exception is, that the Diftri& and Circuit Court
poffeffed not admiralty jurifdi6fion, and that the Circuit Court
had no right to carry the decree into execution.
If courts of Admiralty can carry into execution decrees of
foreign Admiralties, as feems to be fettled law and ufage; and
if the Diftri& and Circuit Courts, have admiralty powers by
the law and conflitution, as was adjudged and determined by
this court laft February, 1 think there can be no doubt upon
this point
Another qtefftion of confequence is, whether Mr. George
lJfentworth, being agent for the captors, and having paid over,
can be anfwerable jointly with the other libellants for the whole,
or, in any way, for any part. If it was-fimply the cafe of an
agent regularly paying .over, I fhould fuppofe he could not
juffly be called upon to refund. But it. feems he was an origi-
nal libellant, a party through the whole courfe of the fuit; and
an appeal being claimed in time, at the court and term, at
which the libellants obtained the decree (of which, therefore,
he had legal notice) the appeal, if a lawful one, in my opinion,
fufpended the fentence and muff make him anfwerable for what-
ever monies he fhould receive under that decree, in cafe of re.
verfal : every man being bound to take notice of the law, at
his peril..
It is fuggecfed, that an inhibition was neceffary to tako off
the force of the fentence. An inhibition (according to the
form of one produced, which iffued in England laff July, near
four months after the trial and appeal at New-Providence inhi-
bits the judge and the party from doing any thing in preju-
dice of the appeal, or of the jurifdiaion of the court appealed
to, and cites the party to appear and anfwer the party appellant,.
at a certain- time and place. The citation to the party to ap-
pear and anfwer at the proper time and place, I take to be the
inofr fubfiantial part of the procefs; the inhibitory part to be
rather matter of form, or in purfuance of the fufpending nature
of the appeal, and as a further guard and caution againft rif-
applying the property. For it appears to me abfurd to fuppofe,
that an inhibition taken out feven or eight months after the
appeal
SUPREME CO'URT of the United States. 119 "
appeal (nine months being all'wed for the pnrpofe) fhould be 1795.
the only thing that fufpended the fentence, leaving the judge
below and the party, all that time, to carry the fentence into
compleat execution.
The judicial act in providing an appeal in maritime caufes
to the Circuit Court, contains no hint of an inhibition as ne-
celfary to fufpend the fentence. Domat is exprefs, that an
appeal has that effe6q, and I believe other civil law writers.
The reje~ion of the appeal, if unwarranted, could not take
away the right of the citizen.
. There does not appear any thing adually compulfory upon
Mr. George Wentworth, to pay the money, except what may
be fuppofed to be contained in the decree appealed from, the
force of which was fufpended. All this matter might have
been offered at the Court of appeals, where the parties wera
fully heard, and, if-offered, was, iso doubt, involved in their
decifion.
It is faid, if I underflood the matter right, that there ought
tc have been a monition from the CircuitCourt to Mr. Went-
-worth, to bring in what he had in his hands.
I fee no neceflity for a monition exa&ly in that form. There
was a monition to come in and anfwer the libellants upon the
j uftice of the caufe, as fet forth ;-he came in anid had a~n oppor-
tunity to defend himfelf : and the queftion was, whether he was
anfwerable upon the circu-nftances of the cafe, which was de-
termined by the court.
By the cafes in Durnford and Earl, as well as from other
books, it is clear that the admiralty has not only jurifdi&ion in
rem, but alfo power over the perfons of the captors and all thofe
who have come to the poffeflion of the proceeds of the prize, to
do complete juftice as the cafe requires, to captors and claim-
ants.
But I cannot conceive why the decree of the court of ap-
peals is not conclufive upon Mr. George J'entwortb as much as
u pon the 6ther libellants.
Again; it is objeL'ed, that the decree being for reftoration,
damag:es could not be awarded. The decree was not complied
with -:he thing was gone. How, then, could juflice be done
without giving damages?
Then the queflion is, how are we to underifand the decree
as joint upon all the libellants for thewhole, Mr. Geoige 'ent-
worth included, or as decreeing the owners to reftore one halff
and Mr. George lWentworth, agent for the captors, the other
half ?
If the latter, which perhaps may be a reafonable and j Lif con-
ftru6-[ion, conformable to the fpiritof the original libel, then
the Circuit Court is in that refpet erroneous.
A fle
CASES ruled and adjudged in the
R U L E S.
Ag0