Talbot, qui tam, &c., v. The Commanders and Owners of three Brigs

SEPTEMBER SESSIONS, 1784. Talbot, qui tam, &c., v. The Commanders and Owners of three Brigs. Admiralty jurisdiction. — Marine trespass. — Prize. The state admiralty court had jurisdiction of a marine trespass ; and an appeal lay to the high court of errors and appeals. The owners of letters of marque are responsible for injuries committed on the high seas, by the commanders of their vessels, at least, to the value thereof. A vessel is not entitled to share in the proceeds of a prize, merely by seeing the capture made. Talbot v. The Owners of the Achilles, Patty and Hibernia, Hopk. Dee. 85, modified. This cause was of great consequence, not only on account of the property depending on its decision, but because tbe following questions were determined upon solemn argument. 1. That the owners of Letters of Marque are responsible for injuries committed on the high seas, by the commanders-of vessels sent out by them, at least, to the value of the vessels. 2. That in cases of capture from enemies, persons in other vessels acquire no right, merely by seeing the capture made. 3. That the judge of the admiralty for this state, may legally take cognisance in causes similar to this. 4. That the appeal in such cases to the high court of errors and appeals for this state, is regular. It was an appeal from a decree in the Admiralty on the following case: Silas Talbot, commander of the armed sloop Argo, belonging to, and in the service of these states, duly commissioned, sailed from New London, in the state of Connecticut, the 29th of August 1779, on a cruise. On the 6th of September, after an engagement of three hours, he took as prize upon the high seas, an armed letter of marque vessel, called the Betsey, of two hundred tons burden, with a valuable cargo, belonging to subjects of Great Britain, not being inhabitants of Bermuda, and bound for New York, then in possession of the British naval and land forces. He took the commander and eleven of the people out of the prizepleaving three in her, and put on board a prize-master and eleven other hands, with instructions to proceed to New London. The firing was heard, and the engagement, for more than an hour, seen by persons on board three letter of marque brigs that had lately sailed from Philadelphia. During the engagement, the Betsey was perceived from the three brigs, bearing towards them. Her surrender was also seen from on board them. The prize-master, in obedience to his instructions, proceeded on his voyage, in company with the Argo, for New London. Some time after, the three brigs *were discerned from on board the Betsey. Towards evening, they chased the Argo and Betsey. The next day, early in the morning, the three brigs were seen from on board the prize and the Argo, chasing them. The brigs approached fast under British colors. Captain Talbot, finding it impracticable for the prize to escape, with a trumpet, hailed her, directing the prize-master to throw off the rope, and lie too with the prize, until the three brigs should come up with her, adding, that he with the Argo would run a little to leeward and lie too also —and that if the brigs should prove to be American, the prize-master should endeavor to obtain permission for the prize to come down by herself and inform him of the brigs being friends. In a short time, the brigs came up, and from one or two of them, under British colors, the Betsey was fired at twice, she then bearing British colors reversed, according to the custom of prizes, and being in the latitude of 39 degrees 4 minutes, and the longitude of 71 degrees 24 minutes. When first hailed, the people on board the Betsey answered, she was from Montserrat. Persons from two of the brigs, one of which had fired at the Betsey, boarded her. Among these was W. D. from the last-mentioned brig. The commander of this brig was informed by the prize-master on board the Betsey, that she was a prize to the Argo, commanded by Captain Talbot; that the vessel then in sight was the Argo; that he was put on board the Betsey as prize-master, by Captain Talbot; he showed him his written instructions as such; but said the Betsey had been taken three days before. W. D., from on board the Betsey, told the said commander, that the prize-master denied having seen the brigs the day before, or that she was then captured; but from every circumstance, and from the report of one of her English sailors, he was convinced, she was the same vessel seen engaged the day before. On board the brig, to the commander of which this information was given, were a boatswain and sail-maker, who had been taken by Captain Talbot, about ten days before, in a vessel from London, and sent by him prisoners to Philadelphia, and shipj>ed there. One of the persons put into the Betsey by Captain Talbot, knowing them, mentioned this fact in conversation on board the said brig, to W. D. The person thus put on board by Captain Talbot also said, that the Betsey had been taken three days before. The papers on board the Betsey were examined by W. D., in behalf of the three brigs, and the number of names specified in the English papers, was found to correspond with the number of persons then on board. From these papers, it appeared, that she was a British vessel bound from Montserrat to New York. W. D. made several other examinations on board the Betsey, on behalf of the three brigs, and in the course of them, was informed by a seaman who belonged to her, while-possessed by the British, that she was taken the day before. This sailor also said, she sailed from Montserrat. Before W. D. left Philadelphia, he had heard in the coffee-house there, a few days before he sailed, that the Argo, a New England privateer had taken *the Dublin cutter, fitted ^ out full of men-of-war’s men. While these examinations were made, *■ the two other brigs chased the Argo, under all sail, upon which Captain Talbot, concluding they must have been British cruisers, made sail before the wind, and soon left them. The commanders of the three brigs took the prize-master and hands out of the Betsey,' who were carried to Spain, except one or two of the least considerable, and also took out of her two cannon, small arms, powder, ball, two coils of cordage, and some other articles. They then put a person on board her as a prize-master, and men from each of the brigs, with written orders, dated the 7th of September 1779, and signed by them all, directing him to “take charge of her as prize to the brigs Achilles, Patty and Hibernia ; carry her into Delaware, Chesapeake, Egg Harbor or Boston, but to get her, if possible, into Delaware, Chesapeake or Egg Harbor, for fear of the sloop Argo’s falling in with her, begging him to stand to the southward that night, and strive hard for Philadelphia.” These orders were signed on board the brig, the commander of which had directed the examinations before mentioned, on board the Betsey. The Betsey sailed off, close by the wind, to the southward, was afterwards retaken, carried into New York, and restored to the former owners. On the 17th of September 1779, congress resolved, “that in consideration of the distinguished merit of Colonel Silas Talbot, a commission of captain in the navy be given him, and that the marine committee be directed to provide a proper vessel for him, as soon as possible.” On the first of March 1780, congress resolved “that any interest the United States may have in the capture of the Betsey, by the sloop Argo, Captain Silas Talbot, be relinquished to the said captain, and the officers, seamen and marines, under his command, at the time of the capture.” On the 18th of March 1780, Captain Talbot, qui tarn, &c., filed his bill in the court of admiralty for this state, against the three brigs, their owners and commanders. Process issued accordingly. On the 27th, the owners came severally before the court, and entered into stipulations for the performance of the decree. August 29th, a plea to the jurisdiction filed, “ for that in cases of damages to be assessed or recovered to make satisfaction for a wrong or trespass to person or property, the prosecutions ought to be in courts of common law.” Replication, “ that the cause of action was within the jurisdiction of the admiralty.” Plea dismissed, respondeant ouster awarded, and plea of not guilty filed. July 19th, 1788, decree, that the libellants have and recover of the respondents 12,791l. 5s. Od., with costs, and .on the 22d, the respondents appeal. The cause was ably argued on several days, and now, at an adjourned session, held the 14th of January 1785, the President delivered the resolution of the court. Dickinson, President. — There are two principal questions concerning jurisdiction in this cause. *Mrst. Whether the court of admiralty for this state had jurisdiction? Second. Whether this court has jurisdiction ? The first has been subdivided into these secondary questions : 1st. Could the court of admiralty for this state take cognisance, as an instance court, supposing this cause not to be a cause of prize ? 2d. Did that court take cognisance as a prize court ? It is acknowledged by the counsel for the appellants, that if this is not a cause of prize, the court of admiralty might take cognisance as an instance court, it being now settled, that damages may be assessed in the admiralty— if it was not for an objection arising from the act of assembly for regulating and establishing admiralty jurisdiction in this state. By that act, the judges of the admiralty shall “have cognisance of all controversies, suits and pleas of maritime jurisdiction, not cognisable at the common Icvw, and thereupon, shall decree as the maritime law, the law of nations, and the laws of this commonwealth shall require.” The objection made is, that the present controversy is cognisable at common law. It is manifest from this act, that in framing it, the legislature took into consideration the English statutes relating to things done upon the high seas, and particularly the statutes of 13 Hie. II., c. 3 & 5, and 2 Hen. IV., e. 11, by which, “Admirals and their deputies are prohibited from meddling with anything done within the realm of England, but only with things done upon the seas, according to that which hath been duly used in the time of Edward the third,” and it is “ declared, that the court of the admiral hath no manner of conusance, power or jurisdiction of any contact, plea or quarrel, or of any other thing done or rising within the bodies of counties, except in cases of death or mayhem done in great ships, being in the main stream of rivers beneath thepoints of the same.” It is clear, even from these cautions against encroachments of the admiralty upon the courts of common law, and from the well-known dispute mentioned in Coke’s 4th Inst., that the jurisdiction of that court, as to “ things done upon the sea,” is acknowledged to be proper : and that, as to them, the jurisdiction of the common-law courts was not proper, but only acquired by a fiction in supposing them to have been done in the same county, when they were not. 3 Inst. 134, 143; 4 Bl. Com. 43, 106, &c.; Fortescue de Laudibus 67, et in notis. The common-law courts had a great advantage : they used it : there was no superior court to prohibit them. They went beyond the “ credo quia impossibile est /” for they, upon certain suggestions, without “ believing” them, but knowing them to be both false #ocn an<^ imP0SSible, assumed jurisdiction ; and would *not permit evident J truth to be. regarded. With such labored ingenuity has the jurisdiction of common-law courts, as to acts upon the high seas, been sustained, to the great mortification of Sir Thomas Rydlye and other learned civilians, the former, with much commendation from the rest, very gravely undertaking to prove, that a ship could not sail in Cheapside, in the city of London, the place usually assigned in suggestions, as the scene of naval transactions. Yet, notwithstanding these statutes, mariners have, in England, been allowed to sue for wages in the admiralty, upon contracts made there, within the body of a county, “ against the statute expressly,” as was held by the judges, when that great man, Lord Chief Justice Holt, presided in the King’s Bench (Clay v. Sudgrace), 1 Salk. 33. The reasons were, that the remedy was easier, because they could join in the suit, and better, because the ship would be answerable. In the present case, the owners, masters and sailors of the three brigs could not be jointly sued, at common law. If they could not, what a multiplicity of actions must be brought ? Supposing the owners, commander and men of the Argo could join in a suit at common law, one of them might destroy the action by a release. The vessels are not liable in the same manner at common law, as they are in a court of admiralty. If the court of admiralty for this state cannot take cognisance of things which courts of common law may draw into their cognisance, it seems to have been nugatory in the legislature to have given that court any other jurisdiction than in cases of prize ; for even in the ease of wages, justly a favorite object of admiralty jurisdiction, mariners may sue for them at common law. It appears to have been the intention of the legislature, that justice should be done in the easiest and best manner, and that by the words “ not cognisa-ble at common law,” should be understood “ not properly cognisable at common law.” The next secondary question is so connected with the definition of a cause of prize, and the treating of that subject introduces so many considerations concerning relative circumstances in these states, and the Law of Nations, and these again are so combined with inquiries as to the jurisdiction of this court, that they cannot be conveniently, at least, not easily separated. We will at present, therefore, pass to the second principal question, reserving until that shall be discussed, what peculiarly relates to the question we now leave. This state has all the powers of independent sovereignty, by the Declarar tion of Independence, on the 4th of July 1776, except what were resigned by the subsequent confederation, dated the 9th of July 1778, but not completed by final ratification, until the first of March 1781. *By the confederation, the United States are vested, among other r*100 things, with the “ sole and exclusive power of establishing rules for [*100 deciding in all cases what captures on land and water shall be legal, and in . what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated; of granting letters of marque and reprisal, in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally, appeals in all cases of captures.” Such a court was established by the style of “ The Court of Appeals in cases of capture.” Acts of Congress, May 24, 1780. By the commission, the judges are “ to hear, try and determine all appeals from the courts of admiralty in the states, respectively, in cases of capture, which now are, or hereafter may be duly entered and made in any of the said states.” Acts of Congress, February 2d, 1780. It was resolved by congress, May 24, 1780, “ that all matters respecting appeals in cases of capture, now depending before congress or the commissioners of appeals, consisting of members of congress, be referred to the newly erected court of appeals, to be there adjudged and determined according to the law.” It is necessary to enquire, what is the reasonable and legal meaning of the words of the confederation, and of congress, in their several acts relative to this subject, for that is the true meaning. Thus we shall be led into a construction, by which the positive words may be properly and justly modified. What are the foundations of such a construction here ? 1. The counsel for the respondent are themselves compelled to qualify the generality of the expression, “establishing courts for receiving and determining finally appeals in all cases of captures,” by adding, as prize / The addition is indispensably necessary; for without it, the words would comprehend every kind of taking, on land and water, in peace and war. Having been obliged to go so far, in qualifying the extent of the original expression, wo are under the same necessity of explaining the terms of qualification themselves ; and certainly, we have the same right, founded on reason and law, to explain them, that we had to introduce them. In doing this we shall find — 2. That “ captures, as prize, by citizens of the United States, may be carried into foreign countries, and be legally proceeded against in the courts of admiralty there ; and therefore, it is to be inferred, that the confederation in tended only such capture,” brought, infra praesidia of the United States. That this was the. intention thereof, further appears, as — 3. Congress, in the commission and resolution before mentioned, have shown their sense of the words “ cases of captures,” by using them in reference to appeals “ in cases of capture, which then were duly entered and depending,” as well as to future cases; but none were “ then entered and depending,” except where the “ captures ” were brought infra preesidia of the United States. This sense of congress will *apf>ear still more plain, from their several resolutions, prior to the confederation ; which were in force at the time of the capture made by Captain Talbot, and which were the groundwork of the ninth section of the confederation. “November 25, 1775. That it be recommended to the several legislatures, as soon as possible, to erect courts of justice, or give jurisdiction to the courts now in being, to determine concerning captures to be made. If the capture be made on open sea, the prosecution shall be in the court of such colony as the captor may find most convenient; provided, that nothing in this resolution shall be construed so as to enable the captor to remove his prize from any colony competent to determine concerning the seizure, after he shall have carried the vessel, so seized, within any harbor of the same. That in all cases, an appeal shall be allowed to congress, or persons appointed by them. That when vessels are fitted out by private persons, the captures made, shall be to the use of the owneis. December 5. That in cases of re-captures, the re-captors shall retain for salvage, according to the time, ¿so. March 23, 1116. That all vessels and goods belonging to inhabitants of Great Britain, taken on the high seas, by armed vessels of private persons, and commissioned, being libelled and prosecuted in any court erected for trial of maritime affairs in any of the colonies, shall be deemed and adjudged to be lawful prize. Vessels and goods taken near the shores of a colony, by the people, or a detachment of the army, shall be deemed lawful prize, and condemned in the court of admiralty of that colony. Commissions to be obtained, and bonds to be given for observance of instruction from congress. Instructions to the commanders of private vessels of war : “You shall bring such vessels, ¿so., as you shall take, to some convenient port of the United Colonies, that proceedings may thereupon be had in due form, before the courts which are or shall be there appointed to hear and determine causes civil and maritime. You shall bring one or two of the principal persons of the vessel, as soon as ma3r be, to the judge of such court, to be examined, and deliver to the said judge all papers, ¿so. You shall keep and preserve every vessel, ¿sc., by you taken, until they shall, by sentence of a court properly authorized, be adjudged lawfful prizes, not breaking bulk, nor suffering such a thing to be done.” 4. By the maritime law of nations, the appropriation of jurisdiction to a particular court of admiralty, depends upon the capture being infra præsidia, 3 Bl. Com. 108; that law regarding proceedings in rem, the acquittal or condemnation of the ship or goods. Answer of the British court, to the memorial delivered by the order of the King of Prussia. JUxposition des motifs, 11; (Tenemoulin v. Sandys) 12 Mod. 143. It would be injurious to nations, if it was otherwise; for it would cause competition of jurisdictions, and would occasion frauds. The usual method is simple and fail-. 6. The articles in the treaties of the United States with France, the United Netherlands and Sweden, with relation to prizes, refer to the cases of prizes conducted into the ports of the contracting powers, *relying on cautions ...„ against malversations and contraventions to be given by command- *- ers of private vessels of war, rules and regulations for deciding the legality of prizes, and trials in courts of admiralty generally. 6. An authority to “ establish rules for deciding in all cases, what captures on land or water shall be legal, and courts for receiving and determining finally, appeals in all cases of captures,” as prize, brought infra prcesidia of the United States, together with the other powers vested in congress, will sufficiently obviate the mischiefs apprehended from the irregularities of citizens of confederated America upon the high seas. Foreigners are protected by the confederation, from the irregularities mentioned; for, congress can, “ exclusively, appoint courts for the trial of piracies and felonies committed on the high-seas,” and can send out a naval force to cruise for and seize the offenders. If the respondent was a Frenchman, and the decree goes against him, he could not justly complain ; for he instituted his suit in an American court. If the appellants wore Frenchmen, and the decree goes against them, they could not justly complain, for they took, without battle, by force and violence, from a friend and ally, that which in their sight, according to their own allegations and proofs, he had before fought for and captured, and afterwards voluntarily put themselves within the jurisdiction, precinct and power of an American court. What are the sentiments of learned authors, treating of the law of nations, upon such an occasion ? Quce db hostibus capmntur, statim capientium fiunt;” which is to be understood, when the battle is over. Yoet, and many writers he refers to, maintain with great strength, per solam occupationem, dominium preedae hostibus acquiri. One argument used to prove it, is, that “ the instant the captor has got possession, no friend, fellow-soldier or ally can take it from him, because it would be a violation of his property Lord Mansfield, delivering the resolutions pf the court, in the case of Goss and another v. Withers (2 Burr. 693). In either case, and in the strongest light in which the affair can be viewed, it is no more than a matter to be treated of between their sovereign and the United States. 2 Shower 232 ;.Raym. 473. If it be said, that congress should have a legal mode of making compensation, by rectifying improper decisions against foreigners, thereby to prevent disagreeable consequences, it is a doctrine that cannot be universally admitted, for reasons too plain to be insisted on. If it be confined to acts on the high seas, provision has been made by the confederation, in the cases where it was judged necessary. What the rulers of nations desire and stipulate for, in treaties, as to transactions on the high seas, is to secure their people from being plundered by the citizens or subjects of those with whom they treat. That great point being guarded, and it is guarded here, the danger of consequences from cases that rarely occur, complicated with a variety of circumstances, and decided upon in open courts, are not to be apprehended. When sovereigns are determined to quarrel, they will never want pretences ; but while they revere the *sacrcd obligations of justice and humanity, or the precious sentiments of the good and wise, in their own and succeeding ages, they will not disturb the repose of the world by violating the law of nations, upon slight claims of their subjects, or, “in re minime dubia.” Answer of the British court, 23; Vattel, lib. 11, ch, 4, 5, 7. Neither can one of these states prey upon another, without violating the confederation ; for, by that, “No vessel of war shall be kept up, in time of peace, by any state, except such number only, as shall be deemed necessary by the United States in congress assembled, for the defence of such state, or its trade ; nor shall any state engage in any war, without their consent, unless invaded by enemies, or certainly advised of an intended invasion by Indians ; nor grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war, by the United States in congress assembled, and then only against the kingdom or state, and the subjects thereof, against which war has been so declared, unless infested by pirates, and then only until the United States in congress assembled, shall determine otherwise.” Besides, “all disputes and differences concerning any cause whatever, are determinable by courts to be established under the authority of congress.” Let us now inquire, whether the present case is such a cause of prize as is mentioned in the many cases quoted by the counsel for the respondent. In what circumstances, is any of those cases like this ? Does it appear from any of them, that the prize court in England would decide such a case as this is ? Does it appear, that the courts of Westminster Hall, in any action for such a trespass as this, would refuse to take cognisance, because the original taking was a capture as prize ? Does it appear, that they would refuse to take cognisance, under color that the second taking was a capture as prize ? If they should, ought any such decision to have weight with us, in this case? What are the cases quoted? A justification by persons of original captures made by themselves, because made as prize. What is this case ? A justification of their conduct, after a capture made in battle, by others, in their sight, under pretence of right, founded on that circumstance. If they say, the second taking was an original capture as prize, their assertion is falsified by their own proofs, that they saw the capture made by others, the day before. If they say, their proceedings were united with the original capture as prize, by being in sight at the time, let them take care that their pretension of right is well founded. Comb. 367. If it is not, their proceedings are distinct from the original capture, and they are plainly trespassers, and must abide by the consequences. We are clearly of opinion, that their pretension of right is utterly unfounded, and that the whole conduct of the commanders and crews of the brigs, was cruel, unprovoked, wanton and mold fide. In this very singular and extraordinary case, they have exerted themselves to disable the respondent from proving the capture to be prize ; *and is the sole question, afterwards, . . to be, prize or not ? What necessity is there for determining whether L the Betsey was prize or not ? Is it not evident from the case of Combs v. The Hundred of Bradley, in 2 Salk. 613; and of Goss and another v. Withers, 2 Burr. 83; and many other cases, that an action will lie, on possession by the plaintiff ? And with what peculiar force does the reason apply in this case, for the action being maintained merely on the possession ? This court and the court of admiralty are competent, not only to direct proceedings, but to ascertain facts, judge of them, and the law upon them, and assess damages, as justice may require. As to the notion of mistake excusing, it is a petitio prineipii. The mistake does not appear — the crime does. So far from behaving as partners in the capture, with the Argo, the commanders of the three brigs, who saw the surrender to her, chase her off ; send the Betsey as prize to themselves only, for a port distant from the home of the captors, and in the eye of the wind, though in a part of the sea where she was particularly exposed to dangers from the enemy, with orders to avoid certain ports for fear of the Argo’s falling in with her. In fact, it was not a real, but a pretended capture, as prize, by them. Are we then bound, in such a case, to call it a cause of prize, because the original taking was a capture as prize ? Or, are we to refuse to call it a trespass, though the second taking was not a capture as prize ? How far soever the learned judges in England have carried the justification of captures, from the circumstance of their being made as prize, yet they never have carried it so far as this case extends. That they have gone a great way is evident. In the cited case of Vanderwoodst and others v. Thompson (2 Doug. 609), the defendant, in an action of trespass, having a letter of marque, took a vessel that made some resistance, and carried her to Newcastle, where she was seized by the custom-house officers, for having smuggled goods on board; and she was afterwards condemned in the Exchequer. It was contended for the plaintiff, that the capture was unlawful, because the defendant did not belong to the custom-house, and he could not justify the seizure under the hovering act of 6 Geo. I, c. 11, as king’s ships >nly can seize under such circumstances. It was held, “ as there was reason r.o suppose that the ship was a pirate, though the jury should be satisfied she was not really so, yet the action would not lie.” Afterwards, “ there was a motion for a new trial, which, upon consideration, was denied by the court.” If that cause was cognisable in the prize court, and if that court determines solely by the law of nations and treaties, as is laid down by the judges, how were other nations interested in the principle of such a decision ? If it was not cognisable in the prize court, how can it be applied to the present case, in favor of the respondent ? To proceed : If the courts of Westminster Hall, in an action for such a trespass as this, should refuse to take cognisance, because the original *1051 was a capture as prize, or under color that the *seeond talcing J was a capture as prize, ought any such decision to have weight with us in this case ? It ought not. Such a decision must turn entirely upon the municipal law of England. It must be founded upon this principle, governing in the cases cited by the counsel for the respondent; “ that, of a seizure as prize, the common law does not take notice as a trespass.” Le Caux v. Eden (2 Doug. 572). Admit the principle. It applies not. This is not a common-law court. The act of assembly establishing this court, makes it “ a court of appeals from definitive sentences or decrees of the admiralty.” We are, therefore, a court of admiralty. “ If the sentence of the court of admiralty is thought to be erroneous, there is, in every maritime country, a superior court of review, &e., to which the parties who think themselves aggrieved, may appeal; and this superior court judges by the same rule which governs the court of admiralty, viz., the law of nations and treaties. This manner of trial and adjudication is supj^orted, alluded to, and enforced by many treaties.” Answer of the British court, &c. We are a court of admiralty, comj)etent to judge by that rule. The act of assembly establishing admiralty jurisdiction in this state, declares, that the court shall be governed by “ the law of nations.” Whatever in the law of nations relates to a court of admiralty, relates to this court, because no treaty has diverted the a¡)plication. Answer of the British court, &c. ; Vattel, b. 2, ch. 7; 3 Bl. Com., 69. Much has been said of a distinction, in England, between the instance court and the prize court, though the powers of both are exercised by the same person ; and it is urged, that only the latter judges by the law of nations and treaties. We are told, “ it is no more like a court of admiralty, than it is to any court of Westminster Hall; that the manner of proceeding is totally different; that the appeal is different — to delegates, from the admiralty — to-commissioners consisting of privy counsellors, from the court of prize. That to constitute the authority of the prize court, or to call it forth, in every war, a commission under the great seal issues, &c.” Such a distinction may prevail in England, but is it known or regarded in other nations ? The words “ to call it forth,” are material. It seems only a solemn, official notification to the admiralty, that there is a war, and that it may proceed accordingly, as a declaration of war is a notification to the people in general. But this declaration does not make the war, in the one case ; nor, perhaps, does the commission constitute the authority, in the other. It is confessed, “ that the most ancient instrument shows a prize jurisdiction, either inherent or by commission in the admiral. It is a letter from Edward III. to the King of Portugal.” And “that since the reign of Queen Elizabeth, the judge of the admiralty, either by virtue of an inherent power, or the king’s commission, *or both, has solely exercised the jurisdiction of prize— p... and that so far back as particular cases can be traced, which is for a [*106 century, the admiralty has judged of, and condemned goods taken on land, as prize, as well as goods taken on sea.” Lord Mansfield, delivering the resolution of the court, in the case of Lindo v. Rodney and another, What do treaties, ancient and modern, stipulate for, in order to guard against violences on the seas ? A trial in the court of admiralty, as soon as possible, before the effects taken are in any manner to be disposed of. Why ? because, by the maritime law of nations, that court judges by the law of nations and treaties. Sir George Lee, Doctor Paul, Sir Dudley Ryder and Mr. Murray, now Lord Mansfield, in their report, which forms the principal part of the answer of the British court, and is so celebrated, by Messrs. Montesquieu and Vattel, say, “ By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be, or be not, lawful prize. Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon, as prize, in a court of admiralty, judging by the law of nations and treaties. The proper and regular court for these condemnations, is the court of that state to whom the captor belongs.” Are we, then, because in England they call the admiralty court a prize court, when it acts in a cause of prize, and it then proceeds in a different manner, with an appeal to commissioners of the privy council, to reject the “ universal and immemorial ” compact of mankind ? There was a time, when we listened to the language of her senates and her courts, with a partiality of veneration, as to oracles. It is past — we have assumed our station among the powers of the earth, and must attend to the voice of nations— the sentiments of the society into which we have entered. Lord Mansfield, in the cause of Lindo v. Rodney and another, said, “ The end of a prize court is to suspend the property till condemnation ; to punish every sort of misbehavior in the captors ; to restore instantly, veils levatis, if, upon the most summary examination, there does not appear a sufficient ground ; to condemn finally (if the goods really are prize) against everybody, giving everybody a fair opportunity of being heard : A captor may, and must force every person interested, to defend ; and every person interested, may force him to proceed to condemn without. delay. These views cannot be answered in any court of Westminister Hall, and therefore, *the courts of Westminster Hall never have attempted to take cognisance of the question — prize or no prize ; not from the locality of being [*107 done at sea, but from their incompetence to embrace the whole of the subject.” “ These views are answered ” here in the court of admiralty, and v ith as good cautions as in England; and as far as a court of appeals is concerned, they can be answered in this court as fully as in a court of appeals to commissioners there. It seems proper here, to take notice of the objection against the authority of this court, founded on the words of the law by which it was established, prior to the completion and final ratification of the confederation. It is constituted “ a court of appeals for reviewing, re-considering, and correcting, the definitive sentences and decrees of the court of admiralty, other than in cases of capture upon the water, in time of war, from the enemies of the United States, &c.” The construction of these words depends upon the resolutions of congress, the confederation, and the law by which the admiralty jurisdiction is established, taken together. If the principles of our preceding construction are right, they apply as aptly here, and the appeal is regular. If it is not, there will be a defect of justice. The legislature intended to give this court an authority to receive all appeals from the judge of admiralty, where, they were not resigned to a continental court of appeals. This was not resigned. It, therefore, belongs to this court. We will endeavor to promote justice, according to the intentions of the commonwealth, conveyed in the laws ; and not demit any part of her sovereignty, unless we are convinced beyond a doubt, that it is our duty to do so. We now return to the last of the secondary questions. Did the court of admiralty take cognisance as a prize court ? In considering this question, a very strict attention must be had to the proceedings of the court of admiralty in this case. That court was also erected by an act of assembly, prior to the completion and final ratification of the confederation. It is, to be sure, a court of prize, and an instance court, if that mode of expression be preferred ; or, in other words, the judge who has but one commission, may try causes of prize, and other matters of admiralty jurisdiction. There is a difference in his proceedings for condemnation in causes 'of prize, and those in other cases. His style by law is, “ judge of the admiralty.” The reasonable and legal meaning of the 3d, 4th and 6th sections of the law under which he acts, is, that in trying a cause of prize, the vessel or goods taken, must be within his jurisdiction, precinct and j>ower. They are these — “ That in cases of prize, capture or re-capture upon the water, from enemies, or by way or reprisal, or from pirates, the same shall be tried, adjudged and determined, as well as to the question whether prize or not, as to the claims of the parties interested or pretending to be interested in the same, by'the law of nations and the mots and ordinances of congress, ^before the said judge, by witnesses, according to the course of the civil law :” and — “ That the captain or commander of any ship or vessel of war, or prize-master, or other person, having charge of any capture or re-capture, or other property seised upon the water as aforesaid, who shall conduct or bring the same into port, shall immediately deliver the same, without diminution, to the marshal of the said court of admiralty.” *108] The law then goes on to direct the mode of proceeding to the condemnation, ordering, “That the judge shall cause notice to be published immediately, in some newspaper, of the day appointed for the trial of such prize, inserting therein the name, size or burthen, and other description of the said vessel, so taken and brought into port, the name and surname of the master, the place she last sailed from, the port for which destined, and in case of a re-capture, by what ship or vessel taken, to the end that all pei sons concerned may appear and show cause, if any there be, wherefore such capture, or re-capture, goods, merchandise, or other property, should not be condemned and adjudged to the libellants.” Does the present case in any manner resemble the “ cases of prize ” described in this law ? Where are “ claimants interested or pretending to be interested?” Claimants are voluntary applicants for justice. Shall trespassers, compelled to answer for their wrong, cover themselves with that character ? Can there be “ claimants,” but in a proceeding in rem ? Iiow would the publication before mentioned suit such claimants as the appellants ? Were the proceedings of the judge in this case, such as he constantly has observed in cases of prize ? They were not. Application was made to him for damages. He proceeded in that line. Here is neither libel nor process against the capture — no monition — “ no notice ” under the act of assembly. What could give the judge of the admiralty for this state, jurisdiction to proceed as a court of prize, upon a capture contested between citizens of different states, which is the case here, rather than any court of admiralty in any other state, when the property captured was not within the power of his jurisdiction ? Because, it is said, some of the offending captains and their vessels came into this port. Does the jurisdiction of a court of prize depends on certain offenders, with respect to the capture coming into a port ? Where are the authorities of law, to show that this circumstance can give such jurisdiction, or, that there can be an institution of a cause of prize, according to the maritime law of nations, for damages only? The authorities cited, that were thought most apposite, and were most relied on by the counsel for the respondent, were those of Brown and Burton against Frankln, the King’s Proctor (Carth. 474): and of the King v. Broom. But they are not in any manner applicable. In the first, the plaintiffs, masters of two vessels, but having no regular letters of marque, took a French ship, cargo and money, upon land, in the East Indies — they being English subjects — it was held, that they acquired no right by this capture, but that it was a perquisite *of the admiralty. The King’s Proctor, p upon the usual monition, got a sentence of condemnation for the whole, in order to make them account. In brief, they had effects in their hands, which by the maritime law of England, belonged to the king or his admiralty, and they were obliged to account for them, according to that law. 12 Mod. 125. Lord Mansfield calls it a proceeding in rem; Le Caux v. Eden, in the notes. The second case was of the same kind, and was decided on the same principles. It was further said bjr the counsel for the respondent, that the court of admiralty, that first proceeds in such a case as the present, acquires an exclusive right of deciding upon it, in the same manner as the nation that first commences a judicial ju'ocess against pirates, may pronounce sentence against them. To say no more on this comparison, it is sufficient to observe, that such a right may be attributed to the atrocity of the guilt, as the offenders are hostes humani generis If the coming of trespassers, or of the vessels in which they trespassed upon the high seas, within the power of a judge’s jurisdiction, authorizes him. to proceed against them, to what confusion may it lead ? A capture is made from an enemy; afterwards friends trespass against the prize, and arrive in different ports, the fate of the prize being unknown. They are prosecuted in one or more courts of admiralty. The prize at length arrives in a different port, and is libelled in a different court of admiralty, for condemnation in the usual manner. What contests for jurisdiction must ensue ? “ Quod inconveniens est, non licitum est.” We are unanimously of opinion, that the judge of the admiralty for this state, had jurisdiction in this cause, and that the appeal to us is regular. We decree, that the respondent recover and have of the appellants, 1141Í. 5s. 4d., with costs, except those in this court, of which each party is to pay a moiety, For the decree in the Admiralty in this case, and the evidence upon which it waa principally founded, I beg leave to refer the reader to a small volume of reports of Oasea in the Admiralty of Pennsylvania, published by the Honorable Francis Hopkinson, Esq., the Judge of that Court; and printed by Dobson, in Philadelphia. In this book will, likewise, be found several important decisions upon questions of Hypothecation. To understand the arguments in this cause, it may be necessary to premise that the counsel for the respondent contended, that the appeal lay to the Court of Appeals, instituted by the United States; and the counsel for the appellants, that the Court of Admiralty for this state had no jurisdiction in this case. Doctor Zouch, in his “ Jurisdiction of the Admiralty,” p. 85, urges strong reasons against this construction; and in Owen’s Reports, p. 122, it is said by the court, that the statute of 15 Bic. II. is misprinted. For the translator mistook bridges (fonts) for points, that is to say the Lands-End. Fiotio, est in re certa, ejus quod est possibile, ad/oersus veritatem, pro veri-tate a jure facta assumptio. Doctor Godolpin’s view of Admiralty Jurisdiction, p. 84. Zouch, p. 131; God. p. 105; 3 Bl. Com. 107. 3 Lev. 355. Lord Mansfield, delivering the resolution of the court, in the case of Lindo v. Rodney and another, 2 Doug. 613. а) The very great antiquity of the Court of Admiralty in England, and the extent of its jurisdiction, may he known from the learned Selden’s notes on Fortescue de Laudibus, p. 67; Zouch 44, &c.; Godolph. p. 22, &c. Though the authority of this court, with respect to matters in which foreign nations may be concerned, and particularly to captures jure belli, is treated of, yet no distinction is made by these authors as to the Court of Admiralty and the Court of Prize. Montesquieu’s Letters, 5 March 1753; Vattel, b. 2, ch. 7, § 84; 3 Bl. Com. 70 See Purviance v. Angus, post, p. 180; Doane’s administrator v. Penhallow, 2 Dall. 160, 174; s. c. 3 Id. 54. See also Montgomery v. Henry, ante, p. 40; Jennings v. Carson, 1 Peters’ Adm. 8; Findley v. The William, Id. 12; Brevoor v. The Fair American, Id. 92; United States v. Bright, Bright. R. 19; Commonwealth v. Smith, 7 Sm. L. 696; Moxon v. The Fanny, 2 Peters’ Adm. 309; Hollingsworth v. The Betsey, Id. 330. W. B. v. Latimer, 4 Dall. app’x 1; Rice v. Taylor, Hopkinson’s Adm. Cases 16; Pray v. The Recovery, Id. 47; Cassin 11. The Tristram Shandy, Id. 84. In Dias v. The Owners of the Revenge, 3 W. C. C. 262, it was held, that the owners of a commissioned privateer were not liable in damages to the persons injured for acts of piracy committed by the officers and crew. [MAJORITY — Mr. President Shlppen] Mr. President Shlppen delivered an opinion upon the second point made m the case, which has never been published, and may be acceptable to the profession. It is therefore subjoined : Shippen, President. — There is one matter which I beg leave to mention, in addition to what the president has advanced, as it is an argument founded on the proceedings of the court of admiralty, with which I formerly had occasion to be a little acquainted, and as, in my opinion, it has considerable weight in the determination of tills question. It has been frequently mentioned, that the court of admiralty below has two different and distinct jurisdictions, one as an ordinary court of admiralty, called the instance court, the other as a prize court. “ The manner of proceeding in the two courts,” as Lord Mansfield says, “is totally different.” It is material, therefore, to consider on which side of this court, or rather in which court, this suit has been originally instituted: because it appears to me, that the meaning of the confederation and acts of assembly, constituting the courts of appeal, was, that the appeals from the prize court should be to the congress court, those from the instance court, to this court. On this state of the matter, two questions seem to arise : 1st, Could this suit bo instituted in the prize court ? 2d, Has it been instituted there ? To the first question, his excellency has spoken so fully, that I shall add nothing to it. But to the second question I have a few words to offer, viz —Supposing this cause could have been instituted there, has it been done ? Here it will bo necessary to examine the usual course of proceedings in the two courts. In the instance court, we have considerable lights in a book known to every lawyer, called Gierke’s Praxis Curias Admiralitatis ; the proceedings stated in that book do all relate to the ordinary jurisdiction of the admiralty, and there is no prize case mentioned in it. It appears there, that the first process is against the person of the defendant, to compel an appearance, in a cause civil and maritime, in the same way that a common-law process issues. But if the person cannot be arrested, then follows another mode of proceeding, against the property of the defendant, his ship or goods, which, when attached by the marshal, are to remain in the power of the court, to answer the judgment of the court. This proceeding against the effects, however, is justified only where the defendant is out of the kingdom, or so absconds that he cannot be arrested — except in such cases where the ship itself is made answerable by law. What is the precedent in the prize court ? Lord Mansfield says “ it is peculiar to itself, and no more like that of the instance court of admiralty than it is to any court in Westminster Hall.” It will be found invariably to be a proceeding in rem, against the captured ship and goods. “ The end of the prize court (says he) is to suspend the property till condemnation, to punish every sort of misbehavior in the captors ; to restore instantly, velis levatis, if, upon the most summary examination, there does not appear a sufficient ground ; to condemn finally, if the goods are really prize, against everybody, giving every person a fair opportunity of being heard.” All this speaks the language of a proceeding solely in rem. And it will be found, that there is' no instance of a suit being commenced in the prize court, but what had the condemnation or acquittal of the ship as its object, or was a suit, by way of supplemental libel, founded upon the previous proceeding had against the captured ship or goods, as prize. Look at the case of the King v. Broom, and that of the King’s Proctor v. Brown and Burton. In both cases, the suits were to oblige the defendants to account for the value of the ship and goods taken as prize. How was the proceeding in the prize court ? first, to exhibit libels against the vessel and goods captured, and condemn them as lawful prize to the king, then to file supplemental libels against the defendants, to bring them to account for the value. In both eases, the vessel and goods themselves were out of the power of the court who condemned, one having been sold in Barbadoes, and the money converted to the defendant’s use, in the other, the ship was stranded in the East Indies. Yet, to give the prize court jurisdiction, so as to enable them to enforce their decrees against the defendants, it appeared necessary to proceed in the first instance to condemn as prize. Look at all the cases cited in Douglas, in the cause of Le Caux v. Eden, it will be found that in every one of them (except one, which was a case of piracy and not prize), proceedings had been previously had against the captured vessels, which gave the prize court full • and exclusive jurisdiction, as to all the consequences. In what manner was the present suit commenced and carried on in the court of admiralty ? Not by libelling the brig Betsey as prize, and then calling the defendants to account for wresting her out of the hands of the captors, which would have been the mode of proceeding in the prize court, but by issuing process against the defendants and two of their vessels, in the usual and ordinary mode of proceeding in the instance court of admiralty. It is not material to the present purpose, to consider whether the former mode was practicable or convenient; suffice it to say, it has not been adopted, and therefore, the suit was not instituted in the prize court. It must be acknowledged, that this cause carries strong marks of being a prize cause. But it should be observed, that in the case cited by the counsel, the prize court of admiralty had possession of the original cause, and were competent to give redress as to all the consequences. But if we will suppose a case, where the prize court cannot, consistently with its institution or forms, take possession of a cause, and it is brought in the ordinary court of admiralty or in a common-law court, if they cannot decide upon it, because a matter of prize arises incidentally in it, there may be a manifest defect of justice, and perhaps in the present case, Captain Talbot would have no redress for the injury he has sustained.