Penhallow, et al. versus Doane's Administrators

Penhallow, et al. versus Doane’s Administrators THIS was a Writ of Error, directed to the Circuit Court for the District of New-Hampshire. The case was argued from the 6th to the 17th of February ; the Attorney General of the United States, (Bradford) and Ingersoll, being Counsel for the Plaintiffs in error ; and Dexter, Tilghman and Lewis, being Counsel for the Defendants in error. The Case, reduced to an historical narrative, by Judge Paterson, in delivering his opinion, exhibits these features : “ This cause has been much obscured by the irregularity of the pleadings, which present a medley of procedure, partly according to the common, and partly according to the civil, law. We must endeavour to extract a state or the case from the Record, Documents, and Acts, which have been exhibited. It appears, that or the 25th of November, 1775 (1 Jour. Congress, 259) Congress passed a series of Resolutions respecting captures. These Resolutions are as follow : “ Whereas it appears from undoubted information, that ma"ny vessels, which had cleared at the respective Custom-houses "in these Colonies, agreeable to the regulations established by “ Acts of the British Parliament, have, in a lawless manner, “without even the semblance of just authority, been seized by "his Majesty’s ships of war, and carried into the harbour of “ Boston, and other ports, where they have been risted of their “ cargoes, by order of his Majesty’s naval and military officers, “ there commanding, without the said vessels having been pro“ceeded against by any form of trial, and without the charge of “having offended against any law. “ And whereas orders have been issued in his Majesty’s "name, to the commanders of his ships of war, to proceed as “ in the case of actual rebellion against such of the sea-port "owns and places being accessible to the king’s ships, in " which any troops shall be raised or military works erected, " under colour of which said orders, the commanders of his ma“jesty’s said ships of war have already burned and destroyed " the flourishing and populous town of Falmouth, and have “ fired upon and much injured several other towns within the "United Colonies, and dispersed at a late season of the year, “ hundreds of helpless women and children, with a savage hope, "that those may perish under the approaching rigours of the “ season, who may chance to escape destruction from fire and "sword, a mode of warfare long exploded amongst civilized “ nations. “ And whereas the good people of these colonies, sensibly "affected by the destruction of their property and other unpro" voked injuries, have at last determined to prevent as much " as possible a repetition thereof, and to procure some repara" tion for the same, by fitting out armed vessels and ships of “ force. In the execution of which commendable designs it is " possible, that those who have not been instrumental in the “ unwarrantable violences above mentioned may suffer, unless " some laws be made to regulate, and tribunals erected compe“ tent, to determine the propriety of captures. Therefore re" solved, “ 1. That all such ships of war, frigates, sloops, cutters, "and armed vessels as are or shall be employed in the present “ cruel and unjust war, against the United Colonies, and shall "fall into the hands of, or be taken by, the inhabitants thereof, " be seized and forfeited to and for and purposes herein after “ mentioned. “ 2. Resolved, That all tranfport vessels in the same service, “ having on board any troops, arms, ammunition, cloathing, " provisions, military or naval stores of what kind soever, and “ all vessels to whomsoever belonging, that shall be employed “ in carrying provisions or other necessaries to the British army "or armies, or navy, that now are, or shall hereafter be within " any of the United Colonies, or any goods, wares, or mer" chandize for the use of such sleet or army, shall be liable to " seizure, and with their cargoes shall be confiscated. “3. That no master or commander of any vessel shall be en" titled to cruize for, or make prize of any vessel or cargo, be" fore he shall have obtained a commission from the Congress, " or from such person or persons as shall be for that purpose ap" pointed, in some one of the United Colonies. “ 4. That it be and is hereby recommended to the several " legislatures in the United Colonies, as soon as possible, to " erect Courts of Justice, or give jurisdiction to the courts now “ in being, for the purpose of determining concerning the cap"tures to be made as aforesaid, and to provide that all trials in “ such case be had by a Jury under such qualifications, as to “ the respective legislatures shall seem expedient. “5. That all prosecutions shall be commenced in the court of " that Colony, in which the captures shall be made, but if no “ such court be at that time erected in the said colony, or if “ the capture be made on open sea, then the prosecution shall " be in the court of such Colony as the captor may find most “convenient; provided that nothing contained in this resolu “ tion 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 to seized “ within any harbor of the same. “ 6. That in all cases an appeal shall be allowed to the Con"gress, or such person or persons as they shall appoint for the “ trial of appeals, provided the appeal be demanded within five “ days after definitive sentence, and such appeal be lodged with “ the secretary of Congress within forty days afterwards, and “ provided the party appealing shall give security to prosecute “ the said appeal to effect, and in case of the death of the secre“ tary during the recess of Congress, then the said appeal to be “ lodged in: Congress within twenty days after the meeting “ thereof. “ 7. That when any vessel or vessels, shall be fitted out, at “ the expence of any private person or persons, then the cap“ tures made, shall be to the use of the owner or owners of the “ said vessel or vessels; that where the vessels employed in the “ capture shall be fitted out at the expence of any of the Uni“ ted Colonies, then one third of the prize taken shall be to “ the use of the captors, and the remaining two thirds to the “ use of the said Colony, and where the vessels to employed, “ shall be fitted out at the continental charge, then one third “ shall go to the captors, and the remaining two thirds, to the “ use of the United Colonies; provided nevertheless, that if “ the capture be a vessel of war, then the captors shall be enti“ tled to one half of the value, and the remainder shall go to “ the colony or continent as the case may be, the necessary “ charges of condemnation of all prizes being deducted before “ distribution made.“ That, on the 23d March, 1776, Congress resolved that the inhabitants of these colonies be permitted to fit out armed vessels, to cruise on thé enemies of the United Colonies. That, on the 2d April, 1776, Congress agreed on the form of a commission to commanders, of private ships of war; that the commission run in the name of the Delegates of the United Colonies of New-Hampshire, &c. and was signed by the President of Congress. That, on the 3d July, 1776, the Legislature of New-Hampshire, passed an act for the trial of captures; of which the part material in the present controversy, is as follows:— “And be it further enacted, That there shall be erected and constantly held in the town of Portsmouth, or some town or place adjacent, in the county of Rockingham, a court of justice, by the name of the Court Maritime, by such able and discreet person, as shall be appointed and commissioned, by the Council and Assembly, for that purpose, whose business it shall be to take cognizance, and try the justice of any capture or captures, of any vessel or vessels, that have been, may or shall be taken, by any person or persons whomsoever, and brought into this colony, or any recaptures, that have or shall be taken and brought thereinto. “ And be it further enacted, That any perfon or perfons who havé been, of ihall be concerned, in the taking and bringing into this colony, any veffel. or veffels employed or offending, or being the property as aforefaid,. ihall jointly, or either of them by themfelves, or by their attornies, or agents, within twenty days after being poffeffed of ⅛⅜ fame in this Colony, file before the faid Judge, a libel in writing, therein giving a full and ample account of the time, - manner, and caufe of the .taking 'fuch veflel or veflels. But in cafe of any fuch veffel or veffels, already brought in as aforefaid, then fuch libebihall be filed- within twenty days next after the palling of this act, and.at the time of filing fuch libel, ihall alfo be filed, all papers on board fuch veflel or veffels, to the- intent, that the Jury may have the benefit of the' evidence, therefrom ariling. And the judge ihall as foon as may be, appoint a day to try by a jury, the juftice of the capture of fuch veffel or veffels, with their apurtenances and cargoes; and he is hereby authorized and empowered to try the fame. And the fame judge, ihall caufe a notification thereof and the name, if known, and de-fcription of the veffel, fo brought in, with the day fet for the trial thereon, to be ad vert i fed in fome newfpapers printed in the f.fid Colony (if any fuch paper there be) twenty days before the time of the trial, and for want of fuch paper, then tq caufe the fame, notification to be affixed on the doors of the To.vni-Houfe, in laid Portjinonth, to. the intent that the owner Of fuch veffel,- or. any perfons concerned, may appear and ihew caufe (if any they have) why fuch veil'd, with her cargo and appurtenances, iho'uld not be condemned as aforefaid. And the faid Judge ihall, feven days before'the day fet and appointed for the.frial of fuch veffel, or veffels, iflue his warrant to any confiable- or confiables within the county aforefaid, c'oroman.ding’them, or either of them, to affemble the inhabitants of their towns refpetftively, and to draw out of the box, in manner provided for drawing jurors, toferve at the Superior Court of Judicature, fo many good and lawful men as the faid Judge fhall order, not lefs than twelve, nor exceeding .twenty-four ; and the confiable or confiables íhail, as foon as may be, give any perfon or perfons, fo drawn to ferve on the jury in faid Court, due notice thereof, and fhall make due return of his doings therein to the faid Judge, at or before the day fet and.appointed for the trial. And the faid jurors fhall be held to' ferve on the trial of all fuch veflels as (hall have been libelled before the faid Judge, and the time of their trial, publiihed, at the time faid jurors are drawn, unlefs the Judge fhall fee caufe to difcharge them, or either of them before; and if feven of the jurors fhall appear and there fhall not be enough.to compleat the number of twelve (which fhall be a pannel) or if there fhall be a legal challenge, to any of them, fo that there fhall be fe-ven, and not a pannel, it fhall and may be lawful for the Judge, to order his clerk, the fheriff, or other proper officér, attending' faid court, to nil up the jury with good and lawful men prefent; and the faid jury when fo rilled Up, and impannelled, fhall be fworn to return a true verdidl, on any bill, claim, or memorial which fhall be committed to them according to law, and evidence; and.if the jury fhall find, that, atiy vefiel or veflels, agalnft..which a bill or libel is committed to them have been offending, ufed, employed of improved as'aforefaid, or.are the property of any inhabitants of Great-Britain as aforefaid, they fhall return their verdiiR thereof to the faid Judge, and he fhall thereupon condemn fuch vefiel or veflels, with their cargoes, and appurtenances, and fhall order them to be difpofed.of, as by law is provided; and if the jury fhall return a fpetial ver-⅜⅜ therein fettiog forth certain fadts, relative to fuch vefiel or veficis (a bill againft which1 is committed to them) and it fhall appear to the faid Judge, by faid verdict, that fuch vefiel or vefiüs, have been' infefting the fea coaft.of America, or navigation thereof, or that fuch .veflels have been employed, ufed, improved, or offending, or are. the property of any inhabitant, or inhabitants of Great-Britain, as aforefaid, he, the faid Judge’, fhall condemn fuch vefl’el or vefiels, and decree them-to be fold, with their cargoes, and appurtenances, at public vendue; and. fhall alió order the charges of faid trial and condemnation, to be paid out of the money which fuch vefiel and cargo, with her appurtenances, fiiall fell for to the officers of the court, according to the table of fees, laft eftablifhed by law of this Colony, and fhall order the refidue thereof to be delivered' to the captors, their, agents, or .attornies, for'the ufé and benefit of fuch captors,'and others concerned therein: and iftwpor morevef-fels (the commanders wheteof, fhall be properly commiflion-ed) fhnill jointly take fuch vefiel, the money which fhe and her cargo fhall fell for (after payment of charges as aforefaid) fhall be divided between the captors in proportion to their men. And the faid Judge is hereby authorized to make out his precept, under his hand and feal, directed to the iheriff of the county aforefaid (or if thereto requefted by the captors or agents to any other perfon to be appointed by the faid Judge) to fell fuch veflel and appurtenances, and cargo, at public vendue, .and fuch iheriff or other perfon after deducting his own charges for the fame, to pay and deliver the refldue, according to the decree pf the faid Judge. “ A.nd be it enacted by"the authority aforefaid, That any per-fon ór perfons, claiming the whole, or any part or ihare, either as owner or captor of any fuch veflel, or veflels, againft which •a libel is fo .filed, may jointly, or by themfelves, or by their attornies or agents, five days before the day fet ¿fid appointed for the trial of fuch .veflel or vefiels, file their claim before the faid Judge; which claim ihall be committed to the jury, with the libel, which is firil filed, and the jury ihall thereupon determine and return thfcir verdict, of What part or. ihare fuch claimant or claimants, ihall have of the capture, or captures and every perfon or perfons who ihall negleiS to file his or their claim in the manner as aforefaid, ihall be forever barred therefrom. “ And be it further enaiSed by the authority aforefaid, That every veflel, which ihall be taken and brought into this.Colony, by the armed vefiels of any of the United Colonies of America, and ihall be condemned as aforefaid, the proceeds of fuch vefiels and cargoes, ihall go and be, one third part to the ufe • of the captors, and the other two thirds, to the ufe of the colony, at whofe charge, fuch armed veflel was. fitted out. “ And where any veflel or vefiels Avail be taken by the fleet and army of the United Colonies, and brought into this colony, and condemned as afor.efaid, the faid Judge ihall diftribute and difpofe of the faid vefiels, and cargoes, according, to the re-folves and orders of the American Congrefs. Andwhereas, the honorable Continental Congrefs have recommended, thac in certain cafes an appeal ihould be granted from tbe court aforefaid: “ Be it therefore ena&d, That from all judgments, or decrees, hereafter to be given in the faid court maritime, on the capture of any veflel, appurtenances or cargoes, where fuch veflel is taken, or ihall be taken by any armed veflel, fitted out at the charge of the United Colonies, an appeal fhall be allowed to the Continental Congrefs, or to fuch perfon or perfons", as they already have, or. ihall hereafter appoint, for. the trials of appeals, provided the appeal be demanded within five days, after definitive fentence given, arid fuch appeal ihall be lodged with the Secretary of the Congrefs, within forty days after-wards; and provided the party appealing, ihrfll give fecurity to profecute faid appeal with effeeft; and in cafe of the death of the Secretary, during the recefs of the. Congrefs,. the faid appeal fhall be lo3ged in Congrefs, within twenty days, after the next meeting thereof; and that from the judgment, decrees, or fentence of the faid court, on the capture of any veflel, 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, an appeal ihall.be allowed to the fuperior court of Judicature, which ihall next be held in the county aforefaid. “ And whereas no proviiion has been made by any of the faid refolves for an appeal from the fentence or decree of the faid Judge, where the caption of any fuch veflel or veflfels may be made by a veflel in the fervice of the United Colonies, and of any particular colony, or perfon together: “ Therefore be it enafted by the authority aforefaid: That in fuch cafes, the appeal ihall be allowed to the then next fuperi- or Court as aforefaid : Provided the Appellant ill all enter into bonds with fufficient fureties to profecute his appeal with effedt. Andfuch fuperior Court, to which the appeal ihall be, ihall take cognizance thereof, in the fame manner as if the appeal was from the inferior Court of Common Pleas, and ihall condemn or acquit, fuch veflel or veflfels, their cargoes, and appurtenances, and in the fale, and difpofitio'n of them, proceed according to this a<ft. And the Appellant ihall pay the court, and jury, fuch fees as are allowed by law in civil a ¿lions.” That, on "the 30th 'January-, 1777, Congrefs refolved,' that, a iianding committee, to confift of five members, be appointed,' to hear and determine upon Appeals brought againft fen-tences pafled on libels in the courts of Admiralty in the refpec-tive ftates. That Jo/hua Stackpole, a citizen'of New-Hampjhire, commander of the armed brigantine called thzM’Clary, adling under the commiflion and authority of Congrefs, did, in the month 'of Odfober, 177.7, on the-high feas, capture the-brigantine Sufanna, as lawful prize. That John Penhallow., Jojhua Wentworth, Amml R. Cutter,- Nathaniel Folfom, Samuel Sherburne, Thomas Martin, Mofes'Woodward, Niel M’Intire, George Turner, Richard; Champney, •and Robert Furnefs, all citizens of New-Hamp-fbire, were owners of the brigantine M’Clary. That George Wentworth was agent for the captors. That, on the ijth November 17.77-, ^Jlbel was exhibited to the Maritime Court -af' New Hampjhire, in the names of John Penhallow and Jacob Treadwell, in behalf of the owners of the M’Clary, and of George Wentworth,-agent for the captors, againft the Sufanna, and her cargo; to which claims were put in by Elijha Doane, Ifaiab Doane, and James Sh'ep-herd, citizens of Majfachufetts. That, on the 16th December, 1777, a trial was had before the faid court, when the Jury found a verdiS in favor of the Libellants; whereupon judgment was rendered, that the Su-fanna, her cargo, &c. fhould belforfeited, and deemed lawful prize, and the fame were thereby ordered to be diftributed according to law. That an appeal to Congrefs'was, in due time, demanded,-but refufédby the faid court, becaufe it was contrary to the law of the State. ' „ That then the faid Claimants prayed an appeal to the fupe-rior Court,of New Hampjhire, which was granted. That, on thefirft Tuefday of September, 1778, the fuperior Court of New Hampjhire, proceeded' to the trial of the faid appeal, when the Jury found in favour of the Libellants; that thereupon the court gave judgment, that the Sufanna, with her .goods, claimed by Elijha Doane, Ifaiah Doane, and James Shepherd, were forfeited to the Libellants, and the fame were ordered to be fold at public vendue, for their ufe and benefit, and that the proceeds thereof, after deducting thecoftsof fuit, and charges of Tale, be paid to John Penhallow and Jacob Treadwell, agents for the owners, and to George Wentworth, agent for the captors, to be by therm paid and diftributed according t® law. . • That the-claimants did, in due timé, demand an appeal from the faid fentence to Congrefs,' and did alfo tender fufficient fe-curity or caution to profecute the faid appeal to effedi, and that the fame was lodged in Congrefs, within forty days after' the definitive fentence was.pronounced in the fuperior.court of New Hampjhire. That, on the ninth of October, 1778, a petition from Eli-jha Doane-was read in Congrefs, accompanied with the proceedings of a Court of Admiralty for the State of Neiv Hamp-1-{hire, on the libel,. Treadwell and Penh a low, verfits brig Su- • - fanna, See. praying, that he may be allowed an appeal to Con-. grefs; whereupon it was ordered, that the fame be referred to the committee on appeals. Fourth Journal of Congrefs, .586. That, on the 26th June, 1779, the commiffioners of appeal, or the Court of Commiffioners, gave their opinion, that they. had jurifdidlion of the oaufe. That the articles of confederation bear date the 9th July, 1778, and weré ratified by all the ftates on the 1 ft March., I78r. • That, by thefe articles, the United States were veiled with the foie ana cxclufive ■ power of eftablilhing courts for receiving and determining finally appeals in all cafes of capture. That fuch a court was eftablilhed, by the ftyle of « The “ Court of Appeals in cafes of capture.” By the commiffion, the Judges were “ to hear, try, and determine all appeals from “ the Courts of Admiralty in the States refpecftively, in cafes “ of. capture.” 6th Journal of Congrefs, 14, 21, 75. That, on the 24th May, 1780, Congrefs refolved, “ That all matters refpe&ing appeals in cafes of capture, now depending before Congrefs, or the Commifiioners of Appeals, confifting of\jMembers of Congrefs, be referred to the newly ereited Court of Appeals, to be there adjudged and determined according to law.” That in the month of September, 1783, the Court of Appeals, before whom appeared the parties by their advocates, did, after a full hearing and folemn argument, 'finally adjudge and decree, that the fentences or decrees paffed by the inferior and fuperior Courts of Judicature of. New Hampjhire, fo far as the fame refpecfted Elijha Doane, Ifaiah Doane, and James Shepherd, ihould be revoked, reverfed, and annulled, and that the property, fpecified in their claims, ihould be reftored,- and that the parties each pay their own coils on the faid appeal. Here the caufe relied till the adoption of the exifting Con-llitution of the United States; except an ineffedtual ilruggle before Congrefs, on the part of New Hampjhire, and an unavailing experiment, at common law, to obtain redrefs on the part of the Appellants. After the organization of the judiciary under the prefent government, the repréfentatives of Elijha Doane, who was one of the Appellants, exhibited alibel in the Diilrift Court of New Hampjhire, which was legally transferred to the Circuit Court, againft John Penhallow, Jojhua Wentworth, AmmiR. Cutter, Nathaniel Folfom-, Samuel Sher-burne., Thomas Martin, Mofes Woodward., Niel M’Intire, George-Turner, RichardChampley, Robert Furnefs, & George Wentworth. This libel, after fatting forth the proceedings in the different courts, ftates, that the brigantine Sufanna, with her tackle, furniture, apparel and cargo, and alfo the monies arifing from the fales thereof, came, after the capture, to the hands and poffeffion of Jojhua Wentworth, and George Wentworth, whereby they became liable for the fame, together with the captors and owners. That after the death of Elijha Doane,, letters of adminiftration of theperfonal eftateof the/aid Elijha Were granted to Anna Doane, his widow, and Ifaiah Doaney and that the widow afterwards intermarried with David Stod-dard Greenough. The. Libellants pray procefs againft the ref-pondents to ihew caufe, why the decree of the Court of Appeals ihould not be carried into execution,, and they alfo pray, that right and juftice may be done in the premifes and that they may recover fuch damages as they have fuftained by rea-fon of the taking of the Sufanna. The Refpondents, protefting, that they never were owners of the M7 Clary, and that they have none of the effeéts of the Sufanna, nor her cargo in their pofteffion, fay, that the Su-fanna was m the cuftody of the Marihal, and, upon the final decree of the fuperior Court of New Hampjhire, fold for the benefit of the owners and mariners of the M’Clary, and dif-tributed among them according to law; that the decifion of the faid court «as final; that no other court ever had, or hath, or ewer can have power to revoke, reverie and annul the faid decree, and, in a fubfequent part of the pleadings, that the Diftri<ft Court of New Hampjhire hath no authority to carry the decree of the Court of Appeals into execution, or to give damages. To this fort of plea and anfwer, neither and yet both, the Libellants reply, that the matters contained in their libel are juft and true, and that they are ready to verify and.prove the fame; that the matters and things alledged by the Refpondents are falfe and untrue; that the.Court of Commiffioners, and Court of Appeals were duly conftituted, and hád jur'ifdi&ion of the fubjeéi-matter; that no other Coui t. hath or can have authority to draw into queftion the legality of-their decifions, and that the Diftriét Court of New Hampjhire hath jurifdiction. . I have extraéled and confolidated the material parts of the libel, plea, anfwer, replication, rejoinder, fur-rejoinder, Sec. if they may be fo termed, without detailing the'allegations of the parties as'they arife in the courfe of procedure. Upon thefe pleadings the partiefe went to a hearing before the Circuit Court of New Hampjhire, which, after full confi-deration, decreed, that the Refpondents ihould pay to the Li-bellants their damages and cofts, occafioned by their not complying with the decree of the-Court of Appeals; the quantum of which to be afeertained by Commiffioners. This interlocutory fentence was pronounced the 24th Oble her, 1793. The Commiffioners reported, that the Lufanna, her cargo, Sec. were, on the ad October, 1778, being the afliimed time of fale, worth £.5,895 14 10 That they calculated thereon 16 years - intereft, viz. from the 2d. OStober 1778, to 2d. Obleber 1794, amounting to 5,659 17 4 £•”*555 1⅜ ⅜* On this report being affirmed, the Circuit Court pronounced their definitive fentence on the 24th OEtober, 179.4, that tbe Libellants recover againll the Refpondents the fum of 38,518 dollars and 69 cents, damages, and 154 dollars, and 30 cents, coñs. The Refpondents, conceiving themfelves aggrieved, have removed the caufe before this court forrevifion.” The Record'being returned, the Plaintiff in error on the ad February 1798, affigned the following errors : ■“ To the Chief juilice and the Aitodate Jullices of the Supreme .Court of the United States, to be holden at the City of Philadelphia, on the firlt Monday of February in the year of our Lord one thoufand feven hundred and ninety-five, John Penhallow, Jofhua Wentworth, Ammi Ruhammah Cutter, Nathaniel Fulfom, Samuel Sherburne-, fen. Thomas Martin,' Mofes Woodward, Neal M’ Intire, George Turner, Richard Champ-ney, Robert Furnefs, arid George Wentworth, Plaintiffs in error, againll David Stoddart Grenough, and Anngr his wife, and Ifaiah Doane, Adminiilrators of the eilate of Elijha Doane, de-ceafed, Defendants, , “Humbly shew,That in the Record and Procefs aforefaid, hereto annexed, and in paffing the final Decree, it is manifell - ly erred in this, viz. That whereas it was decreed in favour of the faid David Stoddart Grenough, and Anna his wife, and Ifaiah Doane; the faid decree ought to have been in favour of. the'faid John Penhallow, and others, the Plaintiffs i-*—and for other and further Errors, they affign the following, viz. .“ Firjlly. That by faid decree it was ordered, that the faid John Penhallow and others, Plaintiffs, be condemned in dama-, ges for their not performing a certain decree of a Courtclaim-ing Appellate jurifdiction in'prize caufes,. held in the City of Philadelphia, bn the feventeenth day of September, Anno Domi-ni, 1783, when, in fact, the faid lait mentioned Court had no jurifdiction power, or authority whatever, by law, to make and pafs the faid decree-} and that the faid decree was illegal and ' a nullity. “ Secondly. That there is alfo manifell Error in this, viz. That if the faid lait mentioned Court had at the time of their paffing faid decree, .Appellate j urifdiction of faid caufe, yet faid decree was altogether erroneous and'impoffible to be performed or executed, becaufe, (as by the faid Greenough's and others own ihewing, in their libel aforefaid)'the faid Elijha^ Doane was, at the time of making and paffing the faid decree, viz.'on Úse:fe-venteenth day of September, Anno Domini 1783, andlong before that time, dead ; when, by the fame decree, it' is ordered that reiloration of faid property be made to laid Elijha Doane. ThirdlyThere is alfo manifell error in this, viz. That faid oaufe Was not broúght before Congrefs, or the Commiffioners by them appointed, to hear and try appeals in prize califes, according to theRefolveof Congrels, but repugnant thereto, viz. by way of complaint, and that no appeal from the faid decree of faid Court of New - Hampjh ire, was allowed by the fame Court, or by Congrefs. Fourthly. 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 Appeal0, 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 manifeft error in this, viz. That faid final decreeof faid Circuit Court, was not made upon a due trial and examination of the merits of the capture cfthe faid Brigantine Sufanna, her tackle, apparel and furniture, and of the goods, wares, and merchandizes, and of the evidences of .proofs which might have been adduced by the Plaintiffs in error if fuch trial had been had. But the decree of the Court of Appeals was received and admitted as the only evidence of the right of claim 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 illegality of the capture and condemnation aforementioned .in. faid libel, which.is contrary to the ufage and cuftoms of Admiralty, Maritime-and Prize Courts, and altogether unwarranted by law. Sixthly. There ⅛ manifeft error alfo, in this, viz.-—That by the fhewing of the faid Libellants, the monies arifing from the fale of faid brigantine and cargo, &c. were paid to the faid Jojhua Wentworth and- George Wentworth as agents, to be diftfibuted according to law, viz: one half to the owners of the faid privateer, M"Clary, and the other to the captors, viz. to the officers and feamen on board, which were diftributed accordingly. Whereas in-fadt by faid final decree, they the Plaintiffs in error, and fofhua and George as agents, and the other Plaintiffs'as owners, are made liable, and condemned, in full damages for the whole value of faid brigantine, her tackle, apparel, and furniture, and of faid goods, wares and merchandizes, which is altogether illegal. Seventhly. There is alfo manifeft error in this, viz.—-That it doth not appear by the copy of the record of faid Court of 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. Eighthly. There is manifeft error in this, alfo, viz.—That faid Circuit Court, in palling faid final decree, and in all the; proceedings in the fame, aéted and proceeded tf a Court m Admiralty, when as fuch, they, bylaw, had no jurifdictron of faidcaufe, and could not legally take cognizance thereof. WHEREFORE, for thefe and other errors in the record and procefs, and final decree aforefaid, of the faid Circuit Court, the faid Plaintiffs in error, pray, That the final decree afore-faid, of the faid Circuit Court, thay be reverfed,'annulled, and held fio be altogether void, and-'they reftored to all things which they have loft. JOHN S. SHERBURNE. . The Defendants replied in nullo eji erratum; and thereupon iffue was joined. For the Plaintiffs in error, the arguments were of the following purport. I. Error. This is a queftion' between citizens of the United States', á citizen of one State being a citizen of every State. Conjt. Art. f. Queftions between fubjeéts of different States, belong entirely to the law of nations. 3 B,l. Com. 69, but between citizens of the. fame State, the municipal law, even in queftions of prize during a war, is of fupereminent control. 1 Wood. 137. 2 Wood. 3 Wood. 454. Hen .Bl. Rep. 4 T. Rep. 3 Atk. 195. Parke 166. 180. 3 Bro. 304. But this appeal was never pr jperly before the Congrefflonal Court of Appeals. Doan-e petitioned Congrefs, and Congrefs referred •the petition to the Committee of Appeals. 6 Vol. Journ. Cong. 133, 167. In the cafe of the Sandwich Packet, a committee was appointed,- and upon their report, Congrefs allowed the appeal.- Regularly, in the prefent inftance, the appeal ought to have been allowed by the court below, and the record lodged with the Sed'retary of Congrefs; or there fliould, at leaft, appear a fpecial allowance of the appeal by Congrefs, as in the cafe of the Sandwich Packet, and not a mere reference -to a committee. The court of New Ha'mpjhire, in fait, refuted to allow the appeal;- and the appearance of the party in the Congreflional Courtsof Appeals, could not cure any defeét, as he there pleaded dire&ly to the jurifdiétion, and notice fitrni-fies nothing againft a compulfory judgment. The legal, cuf-tomary, mode.s to compel the return of a record, by certiorari, and a writ of diminution, &c. might have been reforted to. 3 Bac. Ábr. R04. Confct on courts. 187. There was no privi- ' ty between the Court of Appeals and the Circuit Court; and an inferior Court-cannot execute the deciees of a fuperior Court. I Sid. 418. 1 Vent. 32. 6Vin. 373.pi. 2. Bfp. 87. I Lev. 243. Raym. 473. Doug. 580. Cowp. 176. But’had the Congrel-fional Court of Appeals juril'diction in this cafe ? That court is extinét; and may mow be confidered in the light of a fo- . reign court; and the decres of foreign courts are'regarded on a footing of reciprocity. Whether, then, the Congreffional Court of Appeals, was, in this inftance, a court of the laft re-fort, is the gift of the controverfy-; and we .contend that it was not, but that the fuperior Court of New Hampjhire, was, by the law of the State, the Court of the laft refort .Onan appeal,- or on a writ of error, like this,- in the nature of an appeal, the Plaintiff in error may ufe every defence which he could have urged below; and the authorities evince that the competency of the court giving th« judgment may be enquired into. 1 Bac. Abr. 630. Doug. 5.3 Term Rep. 39. T30.132. 269. Garth. Parke on Inf. x I State Trials, 222. 232.2 Dom. b-jb-Ayl. 72. 3. Whether the Congreffional Court had any jurifdldlion at all, muft depend on a companion between the refolves of Congrefs of November 177.5, ar)d the law of New Hampjhire, of July 1776; and to folve that difficulty, threefubordinate queftions may be difcuffed: —1 ft. Had Congrefs exciujive jurifdiction of prize caufes in Nov. 1775?—2d. Are their refolutions on that fubjedt mandatory and abfolute; or recommendatory—md*3d. Did they neceffarily. imply, and authorife, a revjfion of fadts, which had already'been eftabliihed by the verdrdt of a Jury.— 1. Had Congress exclusive jurisdiction of prize causes Nov. 1775 ? If New Hampshire had any original right to take cognizance of prize causes, the Plaintiff in error must prevail; for, in such case,the jurisdiction would be,at least, concurrent with that claimed by Congress. But, wherever an alliance is not corporate, but confederate, the sovereignty refides in each State. Federalist, p. Adams’ Def. 162. 3. And in histories of Holland and of Germany the rule will be illustrated and confirmed. I Montesq. 263. 7 Vol. Encyclopœdia, 709. Chesterfield’s Works, I vol. Sir William Temple, 114. Adams’ Def. 362. Now, the State retained all the powers which she did not expressly surrender to the Union; a State cannot cease to be sovereign without its own act; nor can sovereignty be afferted but upon a clear title. 7 Journ. Cong. p. 49, &c. Congress had only the power to recommend certain acts to the States, they had no absolute right to enforce a performance, nor to inflict a penalty for disobedience. Whatever power Congress possessed must have been derived from the People. If Congress had a right of erecting Courts of Appeals from New Hampshire, it must be in consequence of an authority derived from New Hampshire;—all the other twelve States could not give it: Nor had Congress the exclusive power of war ; as a retrospective view of the revolutionary occurrences will demonstrate. The Colonies, totally independent of each other before the war, became distinct, independent, States, when they threw off their allegiance to the British crown, and Congress was no longer a Convention of Agents for Colonies, but of Ambassadors from sovereign States. Adams' Def. I vol. 362. 3. 4. In that character they were uniformly considered by Congress ; and on the 24th of June, 1776, [2 Vol. Journ. Cong. 229.] when that body recommends passing laws on the subject of treason, the crime is declared to be committed against the colonies, individually, and not against the confederation. The powers of the first Congress of 1774, were, indeed, only those of consultation, to project the proper measures for obtaining a redress of grievances: they were, in effect, a counsel of advice. Their credentials, as well as the opinions of writers, manifest the truth of this assertion. I Ramfay’s Hist. I43. I Journ. Cong. 17. 54. 55. The second Congress sat on the same authority; with the same latitude to obtain a redress of grievances; but, all the credentials of the members bear date before the news of the battle of Lexington ; (19 April 1775) those from Pennsylvania, New-Jersey, and Virginia, merely authorise a meeting in Congress; and none of the rest hold out the idea of war, though those from Massachusetts seem to have given the greatest latitude. I Journ Cong. 56. 3 Vol Cong. 14. It appears clearly, then, that Congress at those stages of the Revolution, possessed no positive powers, by express delegation. When, however, the war afterwards came on, Congress seized on such powers as the necessity of the cafe required to be exercised: but still, the validity of those powers depends on subsequent ratifications, or universal acquiescence; and if New-Hampshire has ever ratified the assumption of a right to hold appeals in all cases of capture as prize, we abandon the cause. But in a variety of instances, it is manifest, that, although some of the assumed powers of Congress were confirmed, others were denied and repelled. Thus, the power of embargo was desired by Congress, but never conceded by the States. 4 Journ. Cong. 575. 321. 331; and in Pennsylvania, it was even thought, necessary to pass a law to indemnify, all persons, who acted under the authority of the resolutions of Congress, &c. 3 Vol. Dall. Edit. III. Still, however, it is conceded, that Congress, from the necessity of the cafe, and a general acquiescence, might raise an army, and direct the military operations of the war; though even in that respect, it is questionable, whether Massachusetts would have, consented to the Congressional appointment of a commander in chief, had General Ward been successful at Bunker's Hill. But the States, by their acquiescence in this exercise of the rights, of war, on the part of Congress, did not convey an exclusive power to the Federal head, nor divest themselves of their individual authority to wage war, issue letters of marque,&c. War is that state in which a nation prosecutes its rights by force. Vatt. b. 3. c. I. S. I. Now, the fact is, that the New -England colonies had first made war, according to this definition; and at their instance the other colonies afterwards joined them. I Ramsay's Hist. 192. New-Hampshire, accordingly, voted 2000 men for the service. Ib. 395; established post-offices; and vested a committee of safety with powers equal to those of a dictator. Ib. 395. Connecticut, likewise, made war on her own individual authority; Ticonderoga Was taken by Allen; and Arnold made a prize of a vessel on Lake Champlaine. Gord. Hist. 349. I Vol. Journ. Cong. 8I. At this period the States must have been possessed of individual sovereignty; for, the sovereign power alone can raise troops. Vatt. b. 2. c. 2. s. 7; and both Massachusetts ahd Connecticutt had actually fitted cut and armed vessels to cruize against the enemy in October, 1775, (South-Carolina soon following the example) whereas the resolution of Congress respecting prizes, did not pass till the succeeding month. Gord. Hist 428. Ramsay's Hist. 224. Could the resolutions of Congress at that time take away the jurisdiction of New-Hampshire, without her own content ? and the articles of confederation, at a later period, expressly reserved to the respective States, the right of issuing letters of marque, &c. after a declaration of war by the United States. By considering the circumstances under which Congress exercised other powers, we may be furnished with some analogies in support of our doctrine, respecting the power claimed, as an incident of war, to hold appeals in all cafes of capture. Congress were allowed to issue money; but they could not guard it from counterfeit, nor make it a legal tender ; nor effectually bind the States to redeem it; though all these incidents were essential to support the credit and currency of the money. Congress assumed the power of regulating the post-office; but they could impose no penalties for a breach of their resolution on the subject. Congress received Ambassadors, and other public ministers; but when the immunity of the French minister’s house was violated, the State of Pennsylvania only could punish the offender. Dall. Rep. De Longchamp’s cafe. Congress made treaties, but they could malee no law to enforce an observance of them. Even for effectuating their resolutions, relative to admiralty jurisdiction, Congress were obliged to address themselves by recommendation to the States, individually; 5 Journ. Cong. 215; and New-Hampshire passed a law, granting to Congress the power that was requested, in the case of foreigners only, with an allowance of only a day for making the appeal. In that law Congress acquiesced, Ib. 459. till the dispute arose in this very case. 9 Journ. Cong. 45. 87. 97. 98. Dall. Rep. 71. This distinction has been taken in Pennsylvania, that on the evacuation of, Philadelphia all puplic military property belonged to Congress, and all private property to the State. To manifest, if possible, more forcibly the participation of the individual States, in the power assumed and exercised by Congress, we find that the very commissions issued by Congress, were countersigned by the Governors of the respective States. By the law of New-Hampshire, passed in July 1776, a power was given to the Executive to issue letters of marque, &c. and the adt of countersigning the congressional commissions was equivalent to the exercise of that power. In the instructions to privateers, it is, likewise observable, that Congress authorise the captors to proceed to libel and condemn their prizes “ in any court erected for the trial of maritime affairs, in any of these colonies.” 2 Journ. Cong. 106. 116. 118. But surely, it is possible for a State, to delegate the power of issuing letters of marque, &c. and yet retain a jurisdiction over prizes brought into her ports; or, reversing the proposition, to give up that jurisdiction, and yet retain the power of issuing letters of marque. A court of appeal is not a necessary incident of sovereignty. If there be a court judging by the law of nations, no complaint can be made by foreign powers; the rest depends on municipal law. 4 T. Rep. 382. 3 Atk. 401. Coll. Jurid. It has been questioned, indeed, whether any court can decide on the legality of a prize, which has been captured under the authority of a different power, from that by which the court was constituted but in the case of a confederated sovereignty, each member of the confederation may, undoubtedly, give, power to the others to decide on prizes taken under its separate authority. Thus, likewise, it appears that France established courts in the Weft-Indies, to determine the legality of prizes taken by American vessels, although no article of the treaty provided for such an establishment; 5 Journ. Cong. 440. In other treaties, however, the case is expressly provided for, and the judicatures of the place, into which the prize, taken bv either of the contracting parties, shall have been conducted, may decide on the legality of the captures, according to the laws and regulations of the States, to which the captors belong. Pruffian Treaty. Art. 21. s. 4. Dutch Treaty. Art. 5. Swedish Treaty, Art. 18. s. 4. Rut the language of the articles of confederation demonstrates the political independence, and separate authority, of the States : “ each State retains its sovereignty, freedom, and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congrefs assembled.” Art. 3. If, indeed, the States had not, individually, all the powers of sovereignty, how could they transfer such powers, or any of them, to Congress ? Does not Congress itself, by the appointment of a committee to draft the articles of confederation ; and by its earnest solicitation, that the several States would ratify the instrument; evince a sense of its own political impotence, and of the plenitude of the State authorities ? But, after all, it must be considered that Doane, the Defendant in error, waved the appeal to Congress, by carrying his case into the Supreme Court of New-Hampshire, instead of applying immediately for relief to Congres, when the inferior State Court refused to grant an appeal to the congressional court of appeals; and the Supreme Court of Massachusetts has determined in an action of Trover between the same parties, that the court of appeals had no jurisdiction in this cause. Sit finis litium. 2. The second subordinate question is-—-Are the Resolutions of Congress, respecting prize causes, mandatory and absolute ; or only recommendatory ? In spirit and in terms they are no more than recommendatory ; such as the State might at pleasure, either carry into effect, or reject. The State, which erected the Court of Admiralty, possessed the power, likewise, to regulate the Appellate jurisdiction from its decrees. Thus, the act of Pennsylvania modelled the Appellate power in a special manner, as to the time of appealing ; and denied the appeal altogether, as to facts found by the verdict of a jury. The Supreme Court of New-Hampshire was in existence long before the Resolutions of Congress were passed ; and there is no pretence for Congress to claim a controuling, or appellate, power, upon the judgments, or decrees, there pronounced ; though Congress might recommend a particular mode of proceeding as convenient and advantageous. As far as respected Foreigners, New-Hampshire concurred in the opinion of Congress ; but rejected it in cases, like the present, between citizens. 3. The third subordinate question is---Whether the Resolutions of Congress, necessarily imply and authorise a revision of facts, which had already been established by the verdict of a jury ? The fair construction of the Resolution of Congress is, that there shall be an appeal on points of law appearing on the record. The appeal from a jury is not known here, though it is familiar in New-England; but even in New-England, the appeal is always from one jury to another jury, and a jury may, in some measure, proceed on their own knowledge. 3 Bl. Com. 330. 367. In the case of the Sloop Active ( 2 Vol. p. ) the Chief Juftice (M’Kean) was decisively of opinion, that an appeal did not lie from the Admiralty of the State to the Congressional Court of Appeals, as to facts found by a Jury : and, in the same case, the General Assembly expressed the same opinion, by their instructions to the Delegates in Congress. Journals, 31st of January, 1780. After a jury Trial, facts cannot be re-examined on a writ of Error. 3 Bl. Com. 330. 367. II. ERROR. It appears on the record that Doane was dead when the judgment was given: for, the libel itself sets forth the commitment of administration to his representatives before judgment; and, although that may not be conclusive, it is strong evidence of his death, upon which the court will decide the fact. Pr. Reg. ch. 1. p. 264. 3 & 4 Wood. 377. 2 Bdc.. 204. 4 Vin. 429. T. Raym. 463. It has been said, that even if Doane were dead, it was no abatement, being in a civil law court. 1 Cha. Ca. 122: but the case referred to, as an authority, was merely a Bill of review, which is not Stricti juris, and was dismissed. Besides, the person who filed that bill had no privity, and was not entitled to it; and even if he had, the exception might have been error, notwithstanding the dismissal of the bill. It is likewise said, that death was no abatement in an ecclesiastical court. Lev. ; but it is evident from the authority cited, that the party representing the deceased, must come into court before judgment can go against him. 3 Huberus, 582. The most that can reasonably be urged is, that the decree was good, so far as it pronounced the captured ship to be free ; but it was void, fo far as it made any order upon Doane to do any particular act. ' See 3 T. Rep. 323. The Circuit Court (which has been called a court of review) was, in fact, only the Court of Appeals continued; but Doane’s administrators were never called upon, and, therefore, could not be obliged to go into that court. The ground of the opinion of the Circuit Court is, that damages shall be recovered for not restoring the property to Doane; who, being then dead, the restitution was impossible. Besides, letters of administration were only taken out in Massachusetts, which would not operate in New Hampshire, where alone, if any where, the debt was valid. Lovelace on wills. III. ERROR. The argument in support of this error has been anticipated in discussing the first error assigned. IV. ERROR. Damages were not aSked by the Libellant in the Circuit Court. The libel prays, indeed, that the decree of the Court of Appeals might be carried into effect; that damages might be given for the illegal capture of the ship; and that general relief might be granted; büt it does not pray for 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 100l. in the declaration, and the judgment is rendered for 200l. No damages are to be allowed on reversal. Lec on capt. 241. There ought to have been an account of the value of the thing to be restored, by the decree of the Court of Appeals; and as that court gave no damages for the unlawful taking of the vessel, no other court had power to give them. Nor, indeed, ought any damages to have been given, as the order for restitution was not directed to the Respondents. Besides the damages are given against the Defendants jointly, whereas each should have been charged severally with the sum which came into his hands ; 3 T. Rep. 371. Cowp. 506. 4 Vin. 444. 7 Vin. 252. And it does not even appear that they had notice of the decree of the Court of Appeals, though it is stated on the record that they were heard by their advocates sometime before it was pronounced. A monition should have issued; and the superior court should have inhibited the court of New Hampshire from proceeding on their judgment: otherwise, if that court did so proceed, and under their order the vessel was sold and the money paid away, the persons who paid it are not responsible. 3 T. Rep. 125. An agent paying over trust money without notice of appeal, is excused. 4 Burr. 1985. Cowp. 565. 2 Ld. Ray. 1210. And the Admiralty only compels agents to account for the money actually in their hands. H. Bl. 476. 483. 3. T. Rep. 323. 326. 7.343. 4 T. Rep. 382. 393. 1 Bl. Rep. 315. In the Admiralty a number of persons are joined, in order to prevent a multiplicity of suits : but, substantially, each person stands on his own separate ground, and a mode is established for assessing several damages. Doug. 579. V. ERROR. That the court below did not examine into the merits, cannot be deemed error, if they had no jurisdiction to meddle with the subject at all. This assignment of error, therefore, cannot be maintained. VI. ERROR. The argument on this, was anticipated in the discussion of the 4th error assigned. VII. ERROR. The argument on this, was anticipated in the discussion of the first error assigned. VII. ERROR. The fate of this error was submitted, without remark, to the opinion of the court. For the defendant in error, the answers were of the following tenor. 1. Error:—The objeflion thattheappeal was not properly before the Congreifional Court, ought not at this Rage to be fuRained, ftnee the party ^appeared'- there, and pleaded to the jurifdi&ion; and the court took cognizance of the caufe. The court ad quem, and hot the court a quo, the proceeding is brought, muR determine whether the appeal lay. A certified copy of the decree of the Court of. New Hampjhire was lodg-with Congrefs; and the cafe was treated in the fame way that Congrefs (who were not bound down to particular forms) treated other fimilar cafes. • Nor can it injure the Defendant in error, that he took his firft appeal to the fupcrior Court of New Hampjhire-, for, that State had certainly a right to efta-bliih different Courts of Appeal, provided the laft refort was made to Congrefs. But an appeal was tendered and refufed ; anda certiorari only lies to Courts of Record, which was not the cafe with the inferior Court of New Hampjhire. Theadt of Congrefs diredts a removal by writ of error in all -caes and therefore rakes away all objections not appearing on.the record. Nor is it effedtual to fay, that an inferior court cannot execute the judgment of a fuperior Court; for, we had nore-rnedy at common law ; the queftion of prize or no prize being folely of. Admiralty jurifdidlion. Dali. Rep. : the only remedy was in the Diftridt Court of New Hampjhire. It has even been contended, that a Court of Admiralty of England may grant execution on a judgment in Friezland againft an Engl/Jhman. b Vln. 513./»/. is. 1 Lev.zéj. 1 Vent. 32. Godb. 260. and a Court of Admiralty may proceed to give effedt to its own, fentence upon a new libel being filed. 4 T, Rep. 385. We contend then, that Congrefs had jurifdidtion to determine the appeal as well before, as after, the ratification of the articles of confederation :—before the ratification, from the nature and ne-ce.ffity of the cafe; and after the ratification from the force of the compadt. Congrefs was chofen by " the reprefentatives of the people; and when war commenced, it could not have been profecuted, without vetting that body with a jurifdidtion, which, ihould pervs&e the .whole continent. A formal compadt is not eflential to the inftitution of a government. Every nation that governs itfejf, under what form foever, without any dependence on a foreign power, is a fovereign Jla'te. In every fociety there mult be a fovereignty. iDall. Rep. 46, 57. Vatt. B. 1. ch. i.f. 4. The powers of war form an inherent charadteriftic of national foveieignty; and, it is not denied, that Congrefs-pofll-fied thofe powers. As, therefore, -the decifion of' the queftion, whether prize, or no prize, is a part of the power and iaw. of war, Doug. 585- 6. and mull be governed by the hw of nations, 3 Bl. Com. 68,169. s Wood. 139. 4 Term Rep, 394,400,401, it follows, asa ncceflary confequence, that if Congiefs poflefTed the1 whole power of war, it pofleiT-ed all the parts;—rthe incidents, as well as the principal -.jurif-didtion. Under this imprefTion, Congrefs recommended the inftitution of prize-courts in the feveral States; but referved to itftif the right of appeal.; and its journals are filled with the exercife of powers deiivedfrom the fame fóurce, and having no greater pretenfi.ons to validity. On the ad May, 1775, the militia are dire&ed tobe trained for defence. On the ill june, Congrefs declare that they ftand on the defenfive merely, and the invafion of -.Canada by any of the Colonies is óbjeéted to. On the 14th June, un army is directed to-be railed. On 15th. June, a General is appointed. On the 6th July-, war is, in ef-fe£l, declared. On the 7th November, the articles of war, in-fli&ing death in certain cafes, were pafied. Oh the 25th Nov. •the refolutions concerning prizes were adopted. On the a8ih November-, rules and orders were eíia'oliíhéd for the government of the navy. On the 5th December provision was made for falvage in the cafe of re-captured veflels. .On the ly^nDecsinber 2. fleet was eftablifhed. Qn 20th December -it was declared that the law of nations iliould regulate the proceedings in prize caufés. On 2ad December, the Naval Committee aét. On 26U1 Dec. the United-Colonies áre pledged for the redemption of the paper money. On the 23d March and 24th July, 1776, the equipment of privateers is authorifed. On 2d and 3d April, the form of a commiffion for privateers is fettled. On the 4th July, Indepen* ■ dence is declared. On 26th Aug. half pay was allowed to di fabled officers. On 5th September, it was refolved that piopofidons for peace ihould only be made to Congrefs. On the 9th September,a committee is, appointed on an appeal in the cafe of the fchooner Tki/lle, and the ftile of the confederation was changed from “ United Colonies “ to” United States.” On 16th September, additional battalions were raifed. On 20th September, a new fet of articles of war were fubftituted inftead of the former. On the 21ft Qiiobcr, the oath to be taken by officers in the Continental fervice was preferibed. On 3cth January and 8th.May, 1777, a {landing committee was appointed, to hear and detet - mine appeals. Ongifi: January, a decree of a committee wa? fet afide on an appeal. On 8th May, a new commiffion for privateers was fettled. On the. 14th Oplober, Congrefs refolved to retaliate by condemning as prize, the er.emy’s veflels, brought in by their own mariners. On the 6th February, 1778, Congrefs formed a treaty of -alliance with France. On 9K1 July, 1778, the articles of confederation were ratified and fign-ed by all the ftates, except Nem-Jerfey, Delaware, and Maryland. On 27th July, 1778, new members were added to the committee of appeals. On January, 1779, Congrefs-refoived that they would not conclude a truce or treaty with Great-Britain, without the consent of France. On the 6th of March, the objection to the appellate jurifdi&ion of Congrefs, as to fails found by a jury, was urged by Pennfylvania in the cafe of the fioop ASiive. On irjhjan. 1780, and 24th May, acourt of appeals in the cafe of captures was inilituted. On 21ft January and 30th Aiarch, 1784, the proceedings in the cafe of the Sufanun, came before Congrefs. On 24th May, 1780, the ftile of the court of appealswas'fettled. On 26th June, 1786, a. court of review was inftifuted. After fo extenfive a difpiay .of power andjurifdiction, it is abfurd to oppofe theory to pra£tice, and to reafon in the abftracft, inftead of adopting the evidence of facfts. But on principle ‘as well as-pra£tice, the old commiffioners of appeals had jurifdicftion. Congrefs had an imperfecft fovereignty previous to the declaración of independence; and the articles of confederation are only a definement of rights, before vague and uncertain. The aóts of Congrefs were either performed by virtue, of delegated powers, or of fubfequent ratifications, and the acquiefcence of the ftate legiilatures and the people. On- the declaration of independence, a new body politic was created; Congrefs was the organ of the declaration; but ⅛ was the acft of the people, not of the. ftate legiilatures, which were likewife nothing more than organs of the people. Having, therefore, a national fovereignty, extending to all the powers of war and peace, including, as a neceiTary incident, the right-to judge of captures, the commiffioners of appeals were lawfully inftituted; and it is abfurd to fay that both the Federal and State governments held fovereignty in the fame points, nor can the jurifdicftion of the court of appeals that fuc-ceeded the commiffioners be now queftioned. . There would, indeed, be no end of difputes, if the judgments of a Supreme Court, on the point of jurifdicftion, could be enquired into. Lee on Cap. 242. Collec. Jurid. 153. 139. 3 Bl. Com. 4,11.57., 1 Bac. Abr 524. That point was lawfully before the eóurt of appeals y and the court- of appeals, when they made their decree, in 1783, were clearly the fupreme court of admiralty under the confederation. The court of appeals took the caufe up, as it had been left by the commiffioners- of appeals; and not on a new appeal from- Nnv-Hdmpfkire% they, therefore, virtually decided, that the commiffioners óf, appeals had jurifdhftion. If, then, this court may-now enquire into the judgment of the court of appeals, every diftriift court in the Union may do the fame; and the controverfy would never be at reft. The individual States had no right to erect courts of prize, but under the authority of Congress, who derived their authority from the whole people of America, as one united body. Was it bot considered, during the war, by every man, that Congress were thus vested with this and all the other rights of war and peace, and not the individual States? Why, else, was it necessary by a special resolution of Congress, (4 April, 1777) to give validity to captures made by privateers bearing commissions issued by the governor of North-Carolina, previously to the 4th of April, 1777? And on what other principle could that resolution be " transmitted to each of the United States, as a law in any prize cause, which may be depending or instituted in any of the courts therein, and to secure the condemnation of vessels taken under such commissions?" The very privateer that made the capture in question, was commissioned by Congress; and the usual bond was given by her owners to the President of Congress: Could, then, a privateer acting under the commission of Congress, be deemed to act under any other authority; or be governed by any other laws than those which Congress had prescribed? Had New-Hampshire a right to erect courts for the condemnation of prizes made by vessels commissioned by Congress, unless by the authority of Congress, and upon the terms of their resolutions? It is urged, however, that this is a case between citizens of the same country; and, therefore, not within the general principle: But we answer, that a citizen of Massachusetts is a foreigner with regard to New-Hampshire. The law of New-Hampshire, respecting admiralty matters, passed in 1776, long before the articles of confederation were ratified; and 'till those articles were ratified, there is no colour to alledge, that the citizens of one State, were citizens of all the rest. But, if Congress had a jurisdiction co-extensive with the object, they are alone competent to modify or limit its exercise: and, when they reserved to themselves the appeal in all cases, it is clear that they intended an appeal should lie as well in cases between citizens, as in cases between citizens and foreigners;—from the verdict of a jury on matters of fact, as well as from the judgment of the court in matters of law. Nor can the municipal law of State, govern the question of prize, or no prize, even between citizens; though it may regulate the distribution of prize money, for, in that respect, none but the citizens of the State can be interested. In the case of the Sloop Active, all the States but Pennsylvania voted originally that the decision should according to the law of nations, and not according to the municipal law of the State; and although in the year 1784, fix of the States voted support of a different opinion; yet, it must be recollected that the hearing was then ex-parte; Congress were evidently influenced by an apprehension of the consequence of enforcing the decree of the court of appeals in that case against the State of Pennsylvania, as they have been in this case against the State of New-Hampshire; and the whole proceeding was marked and discoloured with want of candor. II. ERROR:—The death of Doane, under the circumstances that appear on the record, and the law and practice of the court, did not abate the appeal. Every intendment will be made support a judgement. 1 Wils. 2. 2. Stra. 1180. Regularly, indeed, a suit abates by the death of the party; but the law is not invariably so, where the party dying is immaterial to the cause. 1 Eq. Abr. 1. The proceeding in the present case was in rem; and, thereforem the life of the party was not material. Ayliss. The court refused to examine into an abatement by death, in a bill of review for that purpose, the decree being made twenty years before. 1 Cha. Ca. 122. Nor is there any abatement by death of parties in a spiritual court. 2 Roll. Rep. 18. 3 Lev. 6. And this being a court of civil law, the principle equally applies. The present record States that the appelant and appellee appeared by their advocates; and if any error in this respect was established by Congress, who might have examined and corrected it; there is no court that has now a jurisdiction to do so; though the error, if it existed, should have been assigned, and relied on, in the Circuit Court for the district of New-Hampshire. But, after all, the court may reject that part of the libel, which States the administration to have been committed, prior to the time of pronouncing the judgement of the Court of Appeals. 2 Vin. 404. pl. 4 (bis.) pl. 5. pl. 7. pl. 9. pl. 11. It is not said by the record that Doane was then dead, but merely that administration had been granted on his estate, which is only evidence of his death. On this point also were cited Brook. Tit. Judgement 113. Sal. 8. pl. 21. Salk. 33. pl. 6. Carth. 118. III. ERROR:—The argument in opposition to this assignment of errors, has been anticipated in discussing the first Error. IV. ERROR:—That the Circuit Court gave damages; whereas the judgment of the Court of Appeals was for restitution, is not a valid objection. If the Court of Appeals had attached the party, damages must have been paid before he would have been discharged :—damages are the substance of the whole proceeding. Nor is it exceptionable, that damages are not expressly prayed for the libel; since that is necessarily included in the prayer for general relief. V. ERROR:—That the Circuit Court did not enquire into the merits of the original decree, is surely no legal objection. There were no merits out of the record, brought before the court. If any facts had been offered and rejected, a bill of exceptions might have been taken. Nor can this court enquire into the facts. The law gives an appeal from the District to the Circuit Court; but a writ of error only lies from the Circuit Court to the Supreme Court. On a writ of Error, no extrinsic fact can be enquired into; and the diversity of the process proves, that it was the intent of the Legislature to preclude such an enquiry. VI. ERROR:—The damages, it is contented, ought to have been several and distributive, according to the actual receipt of the different parties; and it is said that a mere agent ought not to be made responsible, after he has bona fide paid over the money; but the injury was done by the joint act of the original Libellants; Wentworth's paying away the money which he had received as agent, is denied and traversed in the replication; he must have had full notice of the appeal, and, therefore, acted at his own peril. If, however, the judgement of the Circuit Court should be deemed erroneous in the mode of decreeing damages, this court will correct it, and give such a judgement as the court below ought to have done. On this point the following authorities were cited: Doug. 577. 1 Dall.Rep.95. VII. ERROR:—The answer to this assignment of error was anticipated in the course of the preceding answers. VIII. ERROR:—That the Circuit Court had jurisdiction as a Court of Admiralty, has been decided in the cafe of Glass et al v. the Sloop Betsey . On the 24th of Feb. 1795, the Jugdes delivered their opinion Seriatim. PATERSON, Justice :— This This cause has been much obscured by the irregularity of the pleadings, which present a medley of procedure, partly according to the common, and partly according to the civil, law. We must endeavour to extract a State of the case from the Record, Documents, and Acts, which have been exhibited. [Here the Judge delivered the historical narrative of the cause, with which this report is introduced, and then proceeded as follows:] PATERSON, Justice. I have been particular in stating the case, and giving an historical narrative of the transaction, in order that the grounds of decision may be fully understood. The pleadings consist of a heap of materials, thrown together in an irregular manner, and, if examined by the strict rules of common law, cannot stand the test of legal criticism. We are, however, to view the proceedings as before a Court of Admiralty, which is not governed by the rigid principles of common law. Order and systematic arrangement are no small beauties in juridical proceedings; and, whatever may be said to the contrary, it will, on fair investigation, appear, that good pleading is founded on found logic, and good sense. In the discussion of the cause, several questions have been agitated; some of which, involving constitutional points, are of great importance. The jurisdiction of the Commissioners of Appeals has been questioned. The jurisdiction of the Court of Appeals has been questioned. These jurisdictions turning on the competency of Congress, it has been questioned, whether that body had authority to institute such tribunals. And, lastly the jurisdiction of the District Court of New Hampshire has been questioned. In every step we take, the point of jurisdiction meets us. I. The question first in order, is, whether the Commissioners of Appeals had jurisdiction, or, in other words, whether Congress, before the ratification of the articles of confederation, had authority to institure such a tribunal, with appellate jurisdiction in cases of prize ? Much has been said respecting the powers of Congress. On this part of the subject the counsel on both sides displayed great ingenuity, and erudition, and that too in a stile of eloquence equal to the magnitude of the question. The powers of Congress were revolutionary in their nature, arising out of events, adequate to every national emergency, and co-extensive with the object to be attained. Congress was the general, supreme, and controuling council of the nation, the Centre of union, the centre of force, and the fun of the political system. To determine what their powers were, we must enquire what powers they exercised. Congress raised armies, sitted out a navy, and prescribed rules for their government: Congress conducted all military operations both by land and sea : Congress emitted bills of credit, received and lent ambassadors, and made treaties : Congress commissioned privateers to cruize against the enemy, directed what vessels should be liable to capture, and prescribed rules for the distribution of prizes. These high acts of sovereignty were submitted to, acquiesced in, and approved of, by the people of America. In Congress were veiled, because by Congress were exercised with the approbation of the people, the rights and powers of war and peace. In every government, whether it consists of many states, or of a few, or whether it be of a federal or consolidated nature, there must be a supreme power or will ; the rights of war and peace are component parts of this supremacy, and incidental thereto is the question of prize. The question of prize grows out of the nature of the thing. If it be asked, in whom, during our revolution war, was lodged, and by whom,was exercised this supreme authority ? No one will hesitate for an answer. It was lodged in, and exercised by, Congress ; it was there, or no where ; the states individually did not, and, with safety, could not exercise it. Disastrous would have been the issue of the contest, if the States, separately, had exercised the powers of war. For, in such case, there would have been as many supreme wills as there were Rates, and as many wars as there were wills. Happily, however, for America, this was not the case ; there was but one war, and one sovereign will to conduct it. The danger being imminent, and common, it became necessary for the people or colonies to coalesce and act in concert, in order to divert, or break, the violence of the gathering storm ; they accordingly grew into union, and formed, one great political body, of which Congress was the directing principle and soul. As to war and peace, and their necessary incidents, Congress, by the unanimous voice of the people, exercised exclusive jurisdiction, and stood, like Jove, amidst the deities of old, paramount, and supreme. The truth is, that the States, individually, were not known nor recognized as sovereign, by foreign nations, nor are they now ; the States collectively, under Congress, as the connecting point, or head, were acknowledged by foreign powers as sovereign, particularly in that acceptation of the term, which is applicable to all grea national concerns, and in the exercise of which other sovereigns would be more immediately interested ; such, for instance, as the rights of war and peace, of making treaties, and sending and receiving ambassadors. Besides, every body must be amenable to the authority under which he acts. If he accept from Congress a commission to cruize against the enemy, he must be responsible to them for his conduct. If, under colour of such commission, he had violated the law of nations, Congress would have been called upon to make atonement and redress. The persons who exercise the right or authority of commissioning privateers, must, of course, have the right or authority of examining into the conduct of the officer acting under such commission, and of, confirming or annulling his transactions and deeds. In the present case, the Captain of the M'Clary obtained his commission from Congress ; under that commission he cruised on the high seas, and captured the Sufanna ; and for the legality of that capture he must ultimately be responsible to ; Congress, or their consituted authority. This results from the nature of the thing ; and, besides, was expressly stipulated on the part of Congress. The authority exercised by Congress in granting commissions to privateers, was approved, and ratified by the several colonies or states, because they received and filled up the commissions and bonds, and returned the latter to Congress—New-Hampshire did so, as well as the rest. Another circumstance, worthy of notice, is the conduct of: New-Hampshire, by her Delegate in Congress, in the case of the sloop Active. Acts of Congress, 6th March, 1779.-By this decision, New-Hampshire concurred in binding the other states. Did she not also bind herself ? Before the articles of confederation were ratified, or even formed, a league of some kind subsisted among the states ; and, whether that league originated in compact, or a sort of tacit consent, resulting from their situation, the exigencies of the times, and the nature of the warfare, or from all combined, is utterly immaterial. The States, when in Congress, stood on the floor of equality ; and, until otherwise stipulated, the majority of them must controul. In such a confederacy, for a state to bind others, and not, in similar cases, be bound herself, is a solecism. Still, however, it is contended, that New-Hampshire was not bound, nor Congress sovereign as to war and peace, and their incidents, because they resisted this supremacy in the case of the Sufanna. But I am, notwithstanding, of opinion, that New-Hampshire was bound, and Congress supreme, for the reasons already assigned, and that she continued to be bound, because she continued in the confederacy. As long, as she continued to be one of the federal states, it must have been on equal terms. If she would not submit to the exercise of the act of sovereignty contended for by Congress, and the other states, she should have withdrawn herself from the confederacy. In the Resolutions of Congress of the 6th of March, 1779, is contained a course of reasoning, which, in my opinion, is cogent and conclusive. 5 Four. Cong. 86, 87, 88, 89, 90. “ The committee, consisting of Mr. Floyd, Mr. Ellery, and Mr. Burke, to whom was referred the report of the committee on appeals of January 19th, 1779, having, in pursuance of the instructions to them given, examined into the causes of the refusal of the Judge of the Court of Admiralty for the State of Pennsylvania, to carry into execution the decree of the Court or committee of appeals, report, “ That on a libel in the court of admiralty for the state of Pennsylvania in the case of the sloop Active, the jury found a verdict in the following words, viz. " one fourth of the nett proceeds of the sloop Active and her cargo to the first claimants, three fourths of the nett proceeds of the said sloop and her cargo to the libellant and the second claimant, as per agreement between them ; which verdict was confirmed by the judge of the court, and sentence patted thereon. From this sentence or judgment and verdict, an appeal was lodged with the secretary of Congress, and referred to the committee appointed by Congress “ to hear and determine finally upon all appeals brought to Congress,” from the Courts of Admiralty of the several States : “That the said committee, after solemn argument and full hearing of the parties by their advocates, and taking time to consider thereof, proceeded to the publication of their definitive sentence or decree, thereby, reverting the sentence of the Court of Admiralty, making a new decree, and ordering process to issue out of the Court of Admiralty for the state of Pennsylvania to carry this their decree into execution : “ That the judge of the Court of Admiralty refused to carry into execution the decree of the said committee on appeals, and has assigned as the reason of his refusal, that an act of the Legislature of the said State has declarad, that the finding of a jury shall establish the facts 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 having examined the said ad, which is entitled, “ an ad for establishing a Court of Admiralty,” passed at a session which commenced on the 4th of August, 1778, the committee find the following words, viz. “ the finding of a jury shall establish the facts, without re-examination, or appeal,” and in the seventh section of the same act the following words, viz. “ in all cases of captures an appeal from the decree of the Judge of Admiralty of this State, shall be allowed to the Continental Congress, or such person or persons as they may from time to time appoint for hearing and trying appeals; ” “ That although Congress, by their resolution of November 25th, 1775, recommended it to the several legislatures, to erect courts for the purpose of determining concerning captures, and to provide that all trials in such cases be had by a jury, yet it is provided, that in all cases an appeal shall be allowed to Congress, or to such person or persons as they shall appoint for the trial of appeals whereupon, , “ Resolved, That Congress, or such person or persons as they appoint, to hear and determine appeals from the courts of Admiralty, have necessarily the power to examine as well into decisions on facts as decisions on the law, and to decree finally thereon, and that no finding of a jury in any court of Admiralty, or court for determining the legality of captures on the high seas, can or ought to destroy the right of appeal, and the re-examination of the facts reserved to Congress : “ That no act of any one state can or ought to destroy the right of appeals to Congress, in the sense above declared ; “ That Congress is by these United States, invested with the supreme sovereign power of war and peace : “ That the power of executing the law of nations is essential to the sovereign supreme power of war and peace : “ That the legality of all captures on the high seas must be determined by the law of nations : “ That the authority ultimately and finally to decide on all matters and questions touching the law of nations, does reside and is veiled in the sovereign supreme power of war and peace: “ That a controul by appeal is necessary, in order to compel a just and uniform execution of the law of nations. “ That the said controul must extend as well over the decisions of juries, as judges, in "courts for determining the legality of captures on the sea ; otherwise the juries would be possessed of the ultimate supreme power of executing the law of nations in all cases of captures, and might, at any time, exercise the same in such manner, as to prevent a possibility of being controuled ; a construction which involves many inconveniences and absurdities, destroys an essential part of the power of war and peace entrusted to Congress, and would disable the Congress of the United States, from giving satisfaction to foreign nations complaining of a violation of neutralities, of treaties, or other breaches of the law of nations, and would enable a jury, in any one state, to involve the United States in hostilities ; a construction, which for these and many other reasons, is inadmissible : “ Thar this power of controuling by appeal, the several admiralty jurisdictions of the States, has hitherto been exercised by Congress, by the medium of a committee of their own members : “Resolved, That the committee before whom was determined the appeal from the court of Admiralty for the State of Pennsylvania, in the case of the sloop Agtive, was duly constituted and authorised to determine the fame : " The yeas and nays being taken, it appears that the States of New-Hampshire, Massachusetts-Bay, Rhode-Island, Connecticut, New-York, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, voted, unanimously in the affirmative : the State of Pennsylvania unanimously in the negative ; and Mr. Witherspoon, who was alone from New-Jersey, voted also in the negative, The Congress then voted as follows, viz. - “ Resolved, That the said committee had competent jurisdiction to make thereon a final decree, and therefore their decree ought to be carried into execution.” The yeas and nays being taken on this resolution, it appears, that New-Hampshire, Massachusetts-Bay, Rhode-Island, Connecticut, New-York, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, voted unanimously in the affirmative ; Pennsylvania unanimously in the negative; and Mr,” Witherspoon, who was alone from New-Jersey, voted on this occasion in the affirmative. The Congress then resolved as follows, viz. " Resolved, That the General Assembly of the State of Pennsylvania, be requested to appoint a committee, to confer with a committee of Congress, on the subject of the proceedings relative to the sloop Active ; and the objections made to the execution of the decree of the committee on appeals, to the end that proper measures may be adopted for removing the said obstacles ; and that a committee of three be appointed to hold the said conference, with the committee of the General Assembly of Pennsylvania : “ The members chosen, Mr. Paca, Mr. Burke, and Mr. R. H. Lee.” I shall close this head of discourse with observing, that it is with dissidence I have ventured to give an opinion on a question so novel and intricate, and respecting which, men, eminent for their talents, their literary attainments, and (kill in jurisprudence, have been divided in sentiment. The opinion, however, which has been given, is the result of conviction ; if wrong, it is the error of the head, and as such will carry its apology with it. II. Whether, after the articles of confederation were ratified, the Court of Appeals had jurisdiction of the subject matter ? However problematical the opinion, which has been delivered on the preceding point, may be, 1 apprehend, that little doubt or difficulty can arise on the present question. By the 9th article of the Confederation, the United States, in Congress assembled, are veiled, among other things, with the sole and exclusive power of establishing rules for deciding in all cases, what captures on land or 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. The Court of Appeals, in September 1783, decided upon the point of jurisdiction either directly, or incidentally ; for, after a full hearing, they decreed that the sentences passed by the Superior and Inferior Courts of New-Hampshire should be reverted and annulled, and the property be restored. This decree being, made, by a court, constutionally established, of competent authority, and the highest jurisdiction, is conclusive and final. It cannot be opened and investigated ; for, neither this court, nor any, other, can, in a collateral way, review the proceedings of a tribunal, which had jurisdiction of the subject-matter. The Court of Appeals was competent to the decision ; they have adjudicated as well on the jurisdiction as the merits of the cause,and we must suppose that they have acted properly. This also is an answer as to irregularities, if any there were, which may have taken place in the proceedings before the Court of Appeals, or in the mode of removing the cause before them. This court cannot take notice of irregularities in the proceedings, or error in the decision, of the Court of Appeals. The question is at rest; it ought not to be again disturbed. III. Whether the District Court of New-Hampshire had jurisdiction ; or, in other words, whether the libel exhibited before that court, was the proper remedy, or mode of carrying into execution, either specifically, or by way of damages, the decree of the Court of Appeals ? On this point I entertain no doubts. Recurrence to fails will answer the question. The existence of the Court of Appeals terminated with the old government ; this also was the case with the subordinate Court of Admiralty in the State of New-Hampshire. The property was not restored to the libellants, nor were they compensated in damages; of course the decree in their favour, remains unsatisfied. They had no remedy at common law; they had none in equity ; the only forum competent to give redress is the District Court of New-Hampshire, because it has admiralty jurisdiction. There they applied, and, in my opinion, with great propriety. Judges may die, and courts beat an end; but justice still lives, and, though she may sleep for a while, will eventually awake, and must be satisfied. Having discussed the preliminary questions relative to jurisdiction, we shall now consider the proceedings in the Circuit Court of New-Hampshire. And here the first question is, whether by the death of Elisha Doane, before the judgment rendered in the court of appeals ; that judgment is not avoided ? 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 transmitted from the Circuit Court of New-Hampshire. Many answers have been given to this question ; some of which are cogent as well as plausible. On this subject, it will be sufficient to observe, that admitting the death of Doane, and that it can be taken notice of in this qourt, it is unavailing, because the proceedings in a court of admiralty are in rem. The sentence of a court of admiralty, or of appeal in questions of prize, binds all the world, as to every thing contained in it, because all the world are parties to it. The sentence, so as it goes, is conclusive to all persons. The most formidable objections have been levelled against the damages. I. It is said, that the damages ought not to have been given, because they were not prayed. The answer to this objection is satisfactory—the prayer is for general relief, and therefore sufficient. 2. If any damages ought to be given, yet none ought to have been awarded against George Wentworth, because he was an agent, and paid the money over under the decree of the Court of New Hampshire. ■ If any Agent pay over, .after notice, he pays wrongfully, and ihall not be excufed. In this cafe George Wentworth was a parry to the fuit, he appeared as one of the Libellants, and mull be liable to all the legal confequences refulting from fuch a íituation. As a party, he was before thecourt, and privy to the appeal, which was made in due feafon. The appeal did, from- the moment it was made,.fufpend the execution of the decree, and that whether it was received or not ; efpecially in cafes like the prefent, where George Wentworth was a party to the fuit, before the court, and had notice of its having been tendered or made. In fuch a predicament, he ought not td have paid over 5 but ihould have awaited the ultimate decilion of the Court of Appeals, If he paid, it was at his peril; he took the riik upon himfelf, and in cafe of undue payment, became liable. It has been said, that an inhibition should have been issued, and that without it the appeal did not suspend the execution of the decree. The writ of inhibition is a proper and necessary writ, not because it suspends the effect of the decree, for that is already done by the appeal; but because it enables the court , of appellate jurisdiction, in case of disobedience, to punish the inferior court as being in contempt. The appeal has not this effect, because it is the act of the party, and not of the superior court. A monition, it is said, ought to have been addressed to the Appellees to enforce their appearance before the Court of appellate jurisdiction. The answer is, that George Wentworth, as well as the others, did appear both before the Court of Commissioners and the Court of Appeals. If a defect, and inquirable into by this court, it is cured by appearance. In short, George Wentworth was a party to the suit, present in court, and had notice of the appeal. If, in such a situation, he undertook to distribute the proceeds, it was at his own risk: and in case of reversal, he made himself liable. I have doubts how far the court below could inquire into the question of agency and payment over, especially as the payment is said to have been made, previously to the argument before the Court of Appeals, or even the Court of Commissioners. 'I'he decree is for restoration. If the Court of Appeals had issued process to carry their definitive sentence into effect, or directed the Maritime Courts of New Hampshire to have done so, would it, in the instance of George Wentworth, have beena legal justification to have said, that he had delivered the property, or paid its proceeds to the captors ? Besides, whatever could have been brought forward, by way of defence, in the Court of Appeals, ought there to have been urged and relied upon ; and if the party has omitted to do so, he has slipt his opportunity, and is precluded from taking advantage thereof in future. I know, that a distinction is made between foreign and domestic judgments; that the latter are conclusive, whereas the former are liable to investigation. Be it so. But is the principle, upon which this distinction is founded, applicable to decrees, on questions of prize, in the highest Court of Admiralty, which in such cases, is guided by the law of Nations, and not municipal regulations ? If it is, it must be under very special circumstances. 3. It is objected, that the damages awarded are joint ; whereas they ought to have been several. This objection is a found one. But as the facts are spread on the record, it is in the power of the court to sever the damages, and so to apportion them as to effectuate substantial justice. The damages should have pursued and been admeasured by the original decree, which directed, that one moiety of the proceeds should be paid to the owners, and the other to the captors. George Wentworth received a moiety only ; he is liable for that, and no more. 4. Another objection is, that interest has been calculated from a wrong-period, to wit, from the 2d October, 1778 ; and therefore the decree of the Circuit Court is erroneous. The Court of Appeals pronounced their definitive sentence in September 1783 ; by which the judgments of the inferior and superior Courts of New Hampshire were reversed, and restoration decreed ; they also directed, that the parties should pay their own costs. I am of opinion, that interest should have been computed from the day, on which the definitive sentence of the Court of Appeals was pronounced. Of this there can be no doubt with respect to John Penshallow and the owners. Some doubts, however, have been entertained on this point with regard to George Wentworth. But for the reasons, which have been assigned, he must be considered in the same situation as the others. Arguments, deducible from the hardship of the case, have been advanced and insisted upon. It is hard, that George Wentworth ; who was an agent, should be made personally responsible. It is cruel, that George Wentworth should be cut down by the collision of conflicting jurisdictions. But motives of commiseration, from whatever source they flow, must not mingle in the administration of justice. Judges, in the exercise of their functions, have frequent occasions to exclaim, " durum valde durum, fed sic lex est." To conclude, the sum of £ 5,895 14. 10 appears, on the record, to be the aggregate value of the Sufanna, her cargo, &c. ~ On this sum interest should be calculated from 17th September, 1783, till 24th October, 1794, which will amount to to 3,920 13 4 Making in the whole. £ .9,816 2 Equa1 to 32,721 dollars and 36 cents. The one moiety whereof, being 16,360 dollars and 68 cents, I am of opinion, should be paid by John Penhallow and the owners, and the other moiety by George Wentworth. The costs in the courts below should be divided in the same manner. manI am alfo ~f opinion, that the parties thould ~bear their ref... pe~ive coPcs, which have arifen on the pi~ofeci~tion of the appeal in this court. IREDELL, Justice. This case, which is of so much novelty and importance, has been argued at the bar with very great ability on both sides. 1 have listened with the must respectful attention to every thing that has been said upon it, and the opinion,which I am now to deliver, is the result of the best consideration which I have been able to bestow on the subject. The order in which it has appeared to me most convenient to arrange the different heads of enquiry is as follows : 1. Whether either of the decrees of June, 1779, or September, 1783 was originally valid ? .2. If. either of them was 1i, ~ihether it was a decree which the ~iftria Court of New Harnpft,ire~ or the C~rcuit. Court of New Ham~jhirc, a&ing fpeci~ily in this cavfe for th~ legal rea1¼~ a1L~dged, h~d ~uthnrity. to enforces either by decrecinga fpeci~ic ej~ccutioa, or aw~irding damage~fora non-performance of it? -. 3. W7hether, if th~ Diffri~ or Citcuit Cot~rt had fuèh aü authority, it h~s been executed ~roper1y iii this inifance, under all the circumf~:mces of the cafe? 4. Whether, in case the Libellants were entitled to a decree in their favour, but if shall appear that the decree has been erroneous in respect to the relief given, either in the whole or in part, this court can rectify the decree, or order it to be rectified by the court below, or must affirm or reverse in the whole ? Under the first head it will be proper previous1y to consider if either of the decrees was final and conclusive because if that point should be decided in the affirmative, it will unnecessary a decision of many important questions that otherwise arise in this cause. This previous point, however, cannot be decided on satisfactory principles, without in some measure tracing the origin of the general powers of Congress, from the time of the earliest exercise of their authority, to the period when definite and express powers were solemnly and formally given to them by the articles of confederation. I shall therefore make a few preliminary observations on this subject, though I by no means think it material to go into a full detail. Under the British government, and before the opposition to the measures of the Parliament of Great Britain became necessary, each Province in America composed (as I conceive) a body politic, and the several Provinces were no otherwise connected with each other, than as being subject to the fame common sovereign. Each Province had a distinct legislature, a distinct executive (subordinate to the king) a distinct judiciary ; and in particular the claim as to taxation, which, began the contest, extended to a separate claim of each province to raise taxes within itself; no power then existed, or was claimed, for any joint authority on behalf of all the Provinces to tax the whole. There were some disputes as to boundaries, whether certain lands were within the bounds of one Province or another, but nobody denied that where the boundaries, of any one Province could be ascertained, all the permanent inhabitants within those boundaries were members of the body politic, and subject to all the laws of it. When acts were passed by the Parliament of Great Britain which were thought unconstitutional and unjust, and when every hope of redress by separate applications appeared desperate, then was conceived the noble idea, which laid the foundation of the present independence and happiness of this country, (though independence was not then in contemplation) of forming a common council to consult for the common welfare of the whole, fo far as an opposition to the measures of Great Britain was concerned. In order to compose this common council each Province chose for itself, in its own way, and by its own authority, without any previous concerted plan of the whole, deputies to attend at a general meeting to be held in this city. Some appointed by their Assemblies ; others by Conventions ; some perhaps in other modes ; but, in whatever way the appointment was made, it was notoriously done with the hearty consent and approbation of the great body of the people in each Province, and therefore the appointment was unexceptionable to all those who thought the opposition just, and a union of the whole in the measures of opposition necessary. Each Province even appointed as many or as few deputies as it pleased, at its own discretion, which was not objected to, becaufe the Members of Congress did not vote individually, but the votes given .. Congress were by Provinces, as they afterwards were (subsequent to the declaration of Independence, and until the present constitution of the United States was formed) by States. The powers of Congress at first were indeed little more than advisory; but, in proportion as the danger increased, their powers were gradually enlarged, either by express grant, or by implication arising from a kind of indefinite authority, suited to the unknown exigencies that might arise. That an undefined authority is dangerous, and ought to be entrusted as cautiously as possible, every man must admit, and none could take more pains, than Congress for a long time did, to get their authority ' regularly defined by a ratification of the articles of confederation. .But that previously thereto they did exercise, with the acquiescence of the States, high powers of what I may, perhaps, with propriety for distinction, call external sovereignty, is unquestionable. Among numerous instances that might be given of this, (and which were recited very minutely at the bar) were the treaties of France in 1778, which no friend to his country at the time questioned in point of authority, nor has been capable of reflecting upon since without gratitude and satisfaction. Whether among these powers comprehended within their general authority, was that of instituting courts for the trial of all prize causes, was a great and awful question ; a question that demanded deep consideration, and not perhaps susceptible of an easy decision. That in point of prudence and propriety, it was a power most fit for Congress to exercise, I have no doubt. I think all prize causes whatsoever ought to belong to the national sovereignty. They are to be determined by the law of nations. A prize court is, in effect, a court of all the nations in the world, because all persons, in every part pf the world, are concluded by its sentences, in cases clearly coming within its jurisdiction. Even in the case of citizen and citizen I do not think it a proper subject for mere municipal regulation, because as was observed at the bar, a citizen may make a colourable claim, which the court may not be able to detect, and yet a foreigner be fatally injured by it. In case of a bona fide claim, it may appear to be good by the proofs offered to the court, but another person living at a distance may have a superior claim, which he has no opportunity to exhibit. It is true a general monition issues, and this is considered notice to all the world, but though this be the construction of the law from the necessity of the case, it would be absurd to infer in fact that all the world had actual notice, and therefore no superior claimant to the one before the court could possibly exist. The court, therefore, can never know with certainty whether citizens only are interested in the enquiry. But the words “ citizen and citizen” in this case are very ill applied to the parties in question, they not having been citizens of the same State, the captors having been citizens of New Hampshire the claimant a citizen of Massachusetts-Bay. It never was considered that before the actual signature of the articles of confederation a citizen of one State was to any one purpose a citizen of another. He was to all substantial purposes as a Foreigner to their forensic jurisprudence. If rigorous law had been enforced, perhaps be might have been deemed an alien, without an express provision of the State to save him. And as an unjust decision upon the law of nations, in the case of a Foreigner to all the States, might, if redress had not been given, have ultimately led to a foreign war, an unjust decision on the same law in one State, to the prejudice, of a citizen of another 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 these observations merely as to the propriety that this power should have been delegated, and therefore to shew that if it was assumed without adequate authority, it was not an arbitrary and unnatural assumption of a power, that ought exclusively to belong to a single State; but by no means with a view to argue: that because it was proper to be given, therefore it was actually given, a position which, as it would lead to dangerous and inadmissible consequences, cannot be the ground of a legitimate argument. Some of the arguments at the bar, if pushed to an extreme, would tend to establish, that Congress had unlimited power to act at their discretion, so far as the purposes of the war might require; and it was even said, that the Jus Belli never was in any one of the States, and therefore it could not be delegated by any State to Congress. My principles on this subject are totally-different from those which were the foundation of this opinion, and as it is a point of no small importance, and I find on this occassion, as I have formerly done on others, considerable mistakes (as I conceive) by very able men, owing to a misapprehension of terms, I will endeavour to State my own principles on the subject with so much clearness, that whether my opinion be right or wrong, it may at least be understood what the opinion really is. If Congrefs, previous to the articles of confederation, possessed any authority, it was an authority, as I have shewn, derived from the people of each Province in the first instance. When, the obnoxious acts of Parliament passed, if the people in each Province had chosen to resist separately, they undoubtedly had equal right to do as to join in general measures of resistance with the people of the other Provinces, however unwise and destructive such a policy might, and undoubtedly would have been. If they had pursued this separate system, and afterwards the people of each Province had resolved that such Province should be a free and independent State, the State from that moment would have become possessed of all the powers of sovereignty internal and external, (viz. the exclusive right of providing for their own government, and regulating their intercourse 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 Federal union whatever. A distinction was taken at the bar between fate and the people of the State. It is a distinction I am not capable of comprehending. By a State forming a Republic (speaking of it as a moral person) I do not mean the Legislature of the State, the Executive of the State, or the Judiciary, but all the citizens which compose that State, and are, if I may to express myself integral parts of it; all together forming a body politic. The great distinction between Monarchies and Republics (at least our Republics) in general is, that in the former the monarch is considered as the sovereign, and each individual of his nation as subject to him, though in some countries with many important special limitations: This, I say, is generally the case, for it has not been so universally. But in a Republic, all the citizens, as such, are equal, and no citizen can rightfully exercise any authority over another, but in virtue of a power constitutionally given by, the whole community, and such authority when exercised, is in effect an act of the whole community which forms such body politic. In such governments, therefore, the sovereignty resides in the great body of the people, but it resides in them not as of many distinct individuals, but in their politic capacity only. Thus A. B. C. and D. citizens of Pennsylvania, and as such, together with all the citizens of Pennsylvania, share in the sovereignty of the State. Suppose a State to consist exactly of the number of 100,000 citizens, and it were practicable for all of them to assemble at one time and in one place, and that 99,999 did actually assemble: The, State would, not be in fact assembled. Why? Because the State in fact is composed of all the citizens, not of a part only, however large that part may be, and one is wanting. In the same manner as 99l. is not a hundred, because one pound is wanting to complete the full sum. But as such exactness in human affairs cannot take place, as the world would be at an end, or involved in universal massacre and confusion, if entire unanimity from every society was required ; as the assembling in large numbers, if practicable as to the actual meeting of all the citizens, or even a considerable part of them, could be productive of no rational result, because there could be no general debate, no consultation of the whole, nor of consequence a determination grounded on reason and reflexion, and a deliberate view of all the circumstances necessary to be taken into consideration, mankind have long practiced (except where special exceptions have been solemnly adopted) upon the principle, that the majority shall bind, the whole and in large countries, at least, that representatives shall be chosen to act on the part of the whole. But when they do so, they decide for the whole, and not for themselves only. Thus, when the legislature of any State passes a bill by a majority, competent to bind the whole, it is an act of the whole Assembly, not of the majority merely. So when this court gives a judgment by the opinion of a majority, it is the judgment, in a legal sense, of the whole court. So I conceive, when any law is passed in any State, in pursuance of constitutional authority, it is a law of the whole State acting in its legislative capacity; as are, also, executive and judiciary acts constitutionally authorised, acts of the whole State in its executive or judiciary capacity, and not the personal acts alone of the individuals, composing those branches of government. The same principles apply as to legislative, executive, or judicial acts of the United States, which are acts of the people of the United States, in those respective capacities, as the former are of the people of a single State. These principles have long been familiar in regard to the exercise of a constitutional power as to treaties. These are deemed the treaties of the two nations, not of the persons only, whose authority was actually employed in their formation. There is not one principle that I can imagine which gives such an effect as to treaties, that has not such an operation on any other legitimate act of government, all powers being equally derived from the same fountain, all held equally in trust, and all, when rightfully exercised, equally binding upon those from whom the authority was derived. I conclude, therefore, that every particle of authority which originally resided either in Congress, or in any branch of the State governments, was derived from the people who were permanent inhabitants of each province in the first instance, and afterwards became citizens of each State; that this authority was conveyed by each body politic separately, and not by all the people in the several provinces, or States, jointly, and of course, that no authority could be conveyed to the whole, but that which previously was possessed by the several parts; that the distinction between a State and the people of a State has in this respect no foundation, each expression in substance meaning the same thing; consequently, that one ground of argument at the bar, tending to shew the superior sovereignty of Congress, in the instance in question, was not tenable, and therefore that upon that ground the exercise of the authority in question can not be supported. I have already, however, Stated my opinion, that from the nature of our political situation, it was highly reasonable and proper that Congress should be possessed of such an authority, and this is a confideration of no small weight to induce an inference, that they actually possessed it when their powers were so indifinite, and when it seems to have been the sense of all the States, that Congress should possess all the incidents to external sovereignty, or, in other words, the power of war and peace, so far as other nations were concerned, though the States in some particulars differed, as to the construction of the general powers given for that purpose. Two principles appear to me to be clear. 1. The authority was not possessed by Congress, unless given by all the States. 2. If once given, no State could, by any act of its own, disavow and recall the authority previously given, without withdrawing from the confederation. In the case of the Active, ten States out of twelve recognized the authority, New-Hampshire voting in support of it. This was in 1779, long after the act of New Hampshire was passed, which has given occassion to the controvesy in this cause, and in the same year when the second act of New-Hampshire was passed, which allowed an appeal to Congress in cases (as the act expressed it) “ wherein any subject or “ subjects of any foreign nation or State, in amity with this “ and the United States of America, should in due form of law, “ claim the whole, or any part of the vessel and cargo in dispute.” The resolution of Congress was dated the 6th March, 1779; the act of New-Hampshire in November following. The vote of the delegates of New-Hampshire, in the case of the Active, would not, indeed, be equivalent to a clear grant of the power, but it is a respectable support of the construction contended for by the defendants in error. It has been properly observed, that a court cannot, by its own decision, give itself jurisdiction where it had none before; but if courts are so constituted that one is necessarily superior to another, the decision of the Superior must, to be sure, prevail. This, perhaps, is not conclusive as to the court of commissioners, because it cannot be decided whether it was in fact the Superior court in respect to New-Hampshire, without deciding whether it was constitutionally so in virtue of power from all the States. This point it would be now neccessary for this court to decide, if it were not for the decision of the court of appeals in 1783, a court of acknowledged prize jurisdiction, established in virtue of express authority from all the States (New-Hampshire included) and made a court in the last resort as to all prize causes, or in other words (as expressed in the article of confederation itself) in all cases of captures. And the decision of this court on the subject of the two contending jurisdictions, I consider to be final and conclusive, for the following reasons. 1. At the time the decision was given, it was the only court of final appellate jurisdiction, as to cases of captures, in the United States. It seems therefore to folloe necessarily, that upon all questions of capture their decision should be final and conclusive, as much as the decision of this Court upon a writ of error from the Circuit Court, or any other branch of its jurisdiction, would be so. 2. To the suggestion at the bar, that the Court of appeals could have no retrospect, several answers, I conceive, may be given. 1. It is taking for granted the very point in dispute, that this decision was retrospective. If Congress possessed this authority before, and the articles of Confederation amounted only to a solemn confirmation of it, it was in nó manner retrospective. It was in effect a continuance of the same court acting under an express, instead (as before) of acting under an implied authority, and allowing the full benefit of an appeal regularly prayed, and rightfully enforced by the superior tribunal, after an unwarranted disallowance by the inferior. 2. Whether the article in the confederation giving authority to this court as a superior tribunal in all cases of capture, did authorise them to receive appeals in cases circumstanced like this, was a point for them to decide; Since it was a question arising in a case of capture, of all which cases (without any exception) they were constituted judges in the last resort. The "merits of their, decision we surely 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 commit, if in reality they should have committed any. 3. Whether their decision was right or wrong, yet nobody can deny that the jurisdiction of the commissioners was at least doubtful ; of course the Court of Appeals found a case then depending in the former court of the commissioners, after a preliminary, but not a final, determination, for such I consider it to have been. It was therefore a cause then Sub judice, and it being ? cafe of capture and a question of appeal, no other court on each, but that, in my opinion, could decide it. And no objection can be urged in this case against the authority of such a decision, or the propriety of its being final, but such as may be urged against all courts in the last resort, with respect to the merits of whole decisions there may be eternal disputes, but such disputes would be productive of eternal war, if some court had not authority to settle such questions forever. I therefore, have not the smallest doubt, that the decision of the court in 1783, was final and conclusive as to the parties to the decree. And this point appears to me so plain, that I think it useless to take notice of any authorities quoted on either side, in relation to it, none of them, I conceive, in any manner contravening the conclusive quality of such decrees upon the principles I have stated, and some of them clearly, and beyond all question, supporting it. The decree of September, 1783, being by me thus deemed final and conclusive, the next enquiry is; Whether it was a decree which the District Court of New-Hampshire, or the Circuit Court of New-Hampshire acting specially in this cause for the legal reason alledged, had authority to enfore, either by decreeing a specific execution, or awarding damages for a non-performance of it ? Upon this branch of the subject a few words will be sufficient. The District Court, by the act of Congress, hath the whole original jurisdiction in admiralty and maritime causes. Whatever doubt might otherwise have arisen, the decision of this court upon the writ of error from Maryland, last February, fully established, that this includes a prize jurisdiction, as well as other cases of a maritime nature, I was not present when the decision was given ; had I been so, I probably should have concurred in it, becaufe the words, “ all civil causes of admiralty and maritime jurisdiction," evidently include all maritime caufes, whether peculiarly of admiralty jurisdiction or not; because a question of prize on the high seas is clearly of a maritime nature, and therefore the English distinction between an instance (which is strictly an admiralty) court, and a prize court, does not apply to this case ; more especially as the District Court having as large authority given to it in all maritime causes of a civil nature, as the constitution itself prescribes. If that court does not posess such an authority, no court can be instituted with powers adequate to that purpose, so that under the present constitution, there could be no prize jurisdiction at all; and the very tenure of all the judges (which is for good behaviour) naturally excludes the idea of a temporary and occassional establishment of any courts whatsoever. I mention these reasons, not because the authority of the case receives any additional sanction from my opinion, but because I was desirous to take so favourable an opportunity of expressing my concurrence in a decision of much importance. • It was clearly shewn at the bar, that a Court of Admiralty in one nation, can carry into effect the determination 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 also, as that does, on the principles of the civil law, must, in common reason, have the same authority. I think it was rightly observed, that the sentence consisted, in effect, of two parts, one reversing the decree, and therefore vesting a right to a restitution or a recovery in value in the appellant, the other ordering a specific restitution. If that specific redress is from any cause rendered impracticable, those who have unjustly, and upon a sentence determined to be erroneous, received the property or its value to their own use, must in justice be accountable ; otherwise form, which ought only to be the handmaid of right, might prove its treacherous destroyer. The District Court having sole original authority in cases of this kind, must have equal power, as to such subjects, with the power possessed by this court in any case where it has original jurisdiction, with this difference only, that in the one cafe a writ of error is allowed, in the other not. The Court of Appeals, which passed the final decree, having expired, there seems at least as much reason for a court of similar jurisdiction as to the subject-matter, proceeding to give effect to its decisions, as there can be for a Court of Admiralty of one nation giving effect to the decision of a Court of Admiralty of another, to which perhaps it is a perfect stranger, and of which it may know little more than that they equally belong to the great family of mankind. I am therefore of opinion, that the District Court, or the Circuit Court, acting specially in this instance on account of the incapacity of the former (as the law empowered it to do) had authority to enforce the decree in question, by decreeing damages in lieu of a specific restitution, which was impracticable. The third question is, • Whether the authority hath been exercifed properly in this inftance, under all the circumftances of the cafe ? . The material circumftances to be confidered, either from 'facts admittéd'on the face of the record, or the public proceedings referred to by it, and of which we are judicially to take notice, feem to be as follow : That the brig M’Clary was fitted out, under the authority, and pursuant to certain resolutions of Congress, in consequence of which, an act of the legislature had passed, in the State of New Hampshire, which complied partially with those resolutions, but made some regulations apparently intended as a restriction upon them (whatever might be their legal operation :) That on the 30th Oct. 1777, she captured the brig Sufanna and cargo on the high feas : That the captured property was libelled in the Court Maritime of New Hampshire, (erected by the State law) on the 11th November, 1777: That Elisha Doane (whose administrators are the defendants in error in this cause) exhibited his claim on the 1st December following; and on the 16th the property was condemned, and ordered to be distributed according to law : That within five days (the time for praying an appeal prescribed by the resolutions of Congress) Doane prayed an appeal to Congress, which was dissallowed : That he then prayed and obtained an appeal to the superior court of New Hampshire, agreeably to the directions of the State law, which allowed of such an appeal in cases of this kind, the act providing for an appeal to Congress, only in case of a capture by an armed vessel fitted out at the charge of the United, Colonies : That on the first Tuesday in September, 1778, the Superior court adjudged the property to be forfeited, and ordered it to be fold by the sheriff at public vendue for the use of the libellants ; and the court further, ordered, “ that the proceeds “ thereof, after deducting charges, should be paid to John Penshallow and Jacob Treadwell, agents for the owners, and to “ George Wentworth agent for the captors, to be by the said agents paid and distributed to the persons mentioned therein, according to the law of the State in that case made.” That an appeal from this decree to Congress was prayed within five days, and disallowed: and that afterwards, in obedience to the decree, and in virtue of it, the property was fold, and distributed to those entitled under the decree ; and the proportionate shares (upon the supposition of a lawful capture ) are admitted to have rightly been, one half to the owners, and the other half to the officers, mariners, and seamen. That an application was afterwards made to the commissioners for hearing appeals under the authority of Congress; and after due notice to the libellants in the original suit, who appeared and pleaded to the jurisdiction, stating not only the defect of the authority of the court to sustain the appeal under any circumstances, but also special reasons why the Appellant was not entitled to the benefit of an appeal under the circumstances of the case (viz. the Appellant’s waving ,the benefit of his appeal to Congress, by taking an actual appeal to the superior court of New-Hampshire that the appeal first demanded, was not prosecuted for more than forty days ; and, that by the resolution of Congress, no appeal should be had from the verdict of a jury, but only the sentence of the judge). The commissioners, on the 26th June, 1779, decreed that they had jurisdiction, but declined any further proceedings at that time in the cause, for a reason they alledge. That on the 12th September 1783, this case again came before the court of appeals, established under the articles of confederation; which, after a full hearing, and solemn argument by the advocates on both sides; passed a definitive decree in these words, viz. “ It is hereby confidered, and finally adjudged and decreed by. tc this court, that the fentences or decrees pafled by the infe- “ ri.or and fupefior courts of judicature for’ the. county of " Rockingham, in' the above'caufe, fo far as the fame have re- “ lation to the property fpecxfied in the claims &f Elijha Doane, cC Ifaiah Dóane, and James Shepherd., be,1 and the • fame are hereby revoked,- reverfed, and'annulled, and'that the faid pro- “ perty fpecified in the faid claims, be reftored to'the laid claim- “ añts refpcóHvely ; and it is hereby ordered, that the parties to “ the appeal each pay their own cofts, which have accrued “in the profecution of the faid appeal in- this court.” . In this cafe considerable difficulty has arifen from the peculiar manner of pleading, which, is laid to be warranted by local practice, but which certainly has very much contributed .to embarrafsl the queftion in the caufe.’. There, is,neither a, complete demurrer, nor, I conceive, a regular/ iffue; and it may be deemed doubtful, whether whatsis termed a plea, ought to be confidered as a plea Or an anfwer. . I had, therefore, at. firft;ftrong doubts whether there, was fufficient- matter before, ifs to ground a. final decree.: -But upon-reflecRion it feems 'to me, that as- the cafe has been argued pn both fides, upon a .fuppoiition that a final decree co.uld be made; as there has been no application on either, for the examination of teftimony,' but - the hearing.took place without objection upon the pleadings as. theyftand,- and confequently, we can regard the facSs, only as ftated on the record; as an exprefs confent that the caufe fhould be decided on this footing, would undoubtedly have been binding, and the circumftances in this cafe.eyidently prove an implied one; I think the pleadings as they ftand, will afford fufficient foundation forfa¿ decree^, efpedaHy-according. fo thofe principles of practice, which we áre told prevatbin the ftate from which this record comes-r—a praftiee vrhjch, until altered,- We undoubtedly ought to purfue, when it is not fubr_ ftanftially itkonfiftent with juft-ice. • Several objections have been offered (admitting the validity of the final decree, in respect to the authority of the court upon the points then before them ) which I will consider in the best manner in my power.— I. It is objected that the Apellant Doane was dead, before the final decision which was given in September, 1783; and this is alledged, though not appearing on the face of the record, does appear from the letters of administration produced by the libellants, which letters are dated in February 1783. Admitting that the courts are bound to inspect the date of the letters, and to regard that date as conclusive, and to infer the fact accordingly from it; several answers have been given to this objection; either of which, if valid, is decisive. I. That the proceeding in question was a proceeding in rem, and upon such proceeding in civil law courts, the death of a party does not abate. I incline to think the law is so, but as my opinion is clear on ther points in answer to the objection, I avoid giving an opinion on this. 2. That admitting the decree for this cause to be erroneous, it can only be avoided by a solemn proceeding in the nature of a proceeding in error, and cannot be enquired into in this collateral way. Upon this point I am clear, that the decree was not rendered absolutely void, but must stand regularly good till reversed for this error, if it be one. So the matter stood while the court of appeals was in being. If the Appellees could have avoided the decree for this error, they might have applied to that court to have reviewed its decree upon this suggestion. The expiration of the court is no reason why the law in this particular should be considered as changed. It is true, in many cases where there has been error in a suit, and this has affected the right of a person not a party, this error has been admitted to be shewn in a suit where the point came collaterally in question. But it has never been permitted to a party who might have set aside the original judgment for error. I speak now of proceedings at common law. The same reason, I think, applies in this cafe. It does, indeed, seem reasonable, that if one party can proceed in the District Court to enforce the decree, the other party may to impeach it. But then this ought to be done in the same mode as in the other court, and that for a very substantial reason: Because, when that suggestion is the sole ground of enquiry, the other party may come prepared to shew many things to do away its force. He may (for aught I know) be permitted to shew a mistake in the date of the letters. He may shew an actual knowledge of the fact by the other party previous to the decree, and an acquiescence in it. He may possibly shew that the administrators were in fact before the court, though this does not appear on the face of the proceedings. As the enquiry in this case is fact, perhaps any thing of this kind may be shewn, and, if so, there surely ought to be an opportunity of doing it. 3.There seems great reason in what was alledged at the bar, that though it might have been competent for the administrators, had the decree been against Doane, to have shewn this fact for error, because neither the principal nor they had any opportunity, of supporting their right before the court, when the decree was given, the former being dead, and the latter not being called upon, yet that it is not competent for the Appellees, who were before the court, were heard, and cannot alledge (had that been the fact) that they had sustained any prejudice by their being heard ex parte. It is a rule at common law (the reason applies in equity and other civil law cases) that if a party can please a fact, material to his defense, and omits to do it at the proper time, he can never avail himself of it afterwards. They had a day in court to plead the death of the Appellant. If they say they did not know of it, the same might be alledged in any case at common law, where we know it will, not avail. The law rather chuses that a party should incur a risque of this nature, than leave a door open to endless,litigation upon pretences, the truth of which it is very difficult to discover. 4. This is an error in fact, and, in my opinion, it was a powerful argument, that if we cannot reverse a decree even of a District or Circuit Court for any error in facf, we have no ground to set aside the solemn and final decree of a court that has expired, for such an error. The argument, in my opinion, is altogether a fortiori. II. The death of Doane has been alledged for another purpose. It is said, that the decree is to restore to Elisha Doane, which was impossible, becaufe Elisha Doane was not then in being. Admitting that upon this record we are to take judicial notice that Doane was dead at the time of pronouncing the decree (in which I am by no means clear) yet if this was the real reason why the Plaintiffs in error had withheld the property or its proceeds, they might themselves have said so. They have not, and as each party generally makes the best of his own case, we are to presume that did not in fact constitute their reason. In this case it could be of no avail, but at the utmost to prevent the allowance, of interest until a demand actually made. It never could destroy the whole beneficial effect of a decree given in rem, and when the parties who make the objection were in court, and parties to the very decree complained of. I think nothing can be more evident, than that if the decree be not totally void, the administrators are entitled to the benefit of it, at least until it is set aside for error, if there be any error in it, and such a remedy is now practicable. If a Scire facias was necessary before execution could have been obtained out of the court which passed the decree, it could be for no other reason than that the other party might have an opportunity to contest the validity of the letters, and the existence of the administration, if any such objection could be supported. Such an objection might have been made here. It has not been made. There is, therefore, I conceive, no principle of law or justice which forbids giving effect to the decree upon this ground. III. Another objection is, that the cause was not regularly brought up to the Court of Appeals, and proceeded on, agreeably to the resolutions of Congress. There does not appear any ground for this objection in point of fact. But 1 am clear that this is a point not now enquirable into. When a court has final and exclusive jurisdiction in a case, and has pronounced a solemn judgment, every other court must presume that all their previous proceedings were right, of which indeed they were the only competent judges. IV. It is alledged, damages were not prayed for by the libel. It is a sufficient answer, that there is a prayer for general relief. And so little do I think of this objection, and so much of the duty of a court, unaided by formal applications, where there is a substantial one, that I am strongly induced to think, if a case proper for a specific relief was laid before a civil law court, and the direct contrary to the proper relief was prayed for, yet the court even in this case would be justified in granting the relief that might be properly afforded, if the party who had committed the mistake consented to it: without that indeed it might he improper, for no court ought to force a benefit on a party unwilling to receive it. These objections being all got over, which were urged against any relief whatsoever, it is necessary to consider the particular objections against the relief actually afforded. And here, I think, very formidable objections occur. • I think the decree erroneous in thefe particulars : 1. In decreeing intcreft’ for the time previous to the date of the decree in 1783. 2. In granting full damages against all the parties, without distinguishing between the owners to whom one half was distributed, and the agent who received the other half for the benefit of the officers, mariners and seamen. 3. In making George Wentworth, the agent, personally liable for any part. 1. As to the first point, as this libel proceeds only, and can be supported, as I conceive, upon no other ground, upon the principle of enforcing the decree of September 1783, so that the Libellants might recover such benefit from it as the nature of the case could admit, their case is not to be made better or worse, as to the original right, than as the Court of Appeals decided it. The Court of Appeals might have decreed fatisfaólion for detention, but did not. They did not .even decree colls, but ordered each party to pay his own coffs. Thefe things were altogether, diferetionary in the court. That was the proper court to judge, whether any damages should be allowed for 'detention. If the decree is to be final and couclufive as to the fu bjedl matter, it mull be fo as completely in refpeA to the attention, which formed one part of the cafe, as to the refieration, which-formed the principal objedl of if. I should indeed have had some doubts as to the subsequent interest, had it appeared that the Defendants had been unable to comply substantially with the decree, owing to the death of Doane, and the want, (had that been the case) of a subsequent demand by the Administrators. But as that is not alledged, and they set up their whole defence upon the point of right, merely, we are not to presume, that those circumstances (if the Administrators did not make a demand, with respect to which nothing appears) had any weight in inducing their noncompliance with the decree. I am of opinion, that damages against all the Defendants jointly, ought not to have been given. We are to look at substance, not form. There were, in effect, two decrees originally, one half of the value of the property to one party, the other half to another. The reversal of the decree ought to affect the decree itself, in the manner in which it was given. Consequently, each, party ought only to be required to restore what he was adjudged to receive. The case of joint trespasses Stated at the bar, does, in my opinion, by no means apply. The privateer in question, had a lawful commission. In the execution of such an authority, difficulties often arise. Where they happen, bona fide, the master is considered in no fault, and neither he nor his owners made accountable, even in case of a mistaken seizure, but for restoration, and, at the utmost, costs. In case of gross misbehaviour, not only costs, but damages will be allowed by the court of prize. It seems now to be settled that they have exclusive jurisdiction on all such subjects. As not even costs were allowed in this case, we are to infer that the seizure was prima facie innocent; consequently, if a principle of the common law, deemed by many highly rigorous, and founded, perhaps, rather on the forms of proceeding, than on strict justice, if those forms did not interfere, could be applied to a case arising in a court, not only authorised, but bound to distinguish between a mere mistake, and a want on abuse of power, there is no foundation for such an application, in fact, in the present instance. As owners are, in all instances, made jointly liable ex contractu, and their respective shares are matters of private cognizance, to that they, in all instances, appear jointly before the court, and a payment to one owner is, in law, a payment to all; I can discover no principle, upon which any discrimination could be properly made in this case, in regard to the different interests and actual receipts of the owners. I think, therefore, the decree in regard to one moiety, pught to be jointly against all the owners. 3 The third error in the decree, in my opinion, is, making George Wentworth, the agent, liable for any part. I have had considerable doubts on this subject, but upon the fullest consideration I have been able to bestow 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 undoubtedly liable. Had he any now, or any of the proceeds in his hands, he would also be liable. Perhaps, he might, had he held any of the property or proceeds, after actual notice of the Court of Appeals taking cognizance of this case. Neither of these facts appears on the face of the record, and as they are of importance, and neither is asserted, neither is to be presumed. The Contrary, indeed, maybe fairly inferred from the statement on the record, and has been candidly acknowledged to be the real truth. He therefore appears in the character of a mere agent, acting avowedly for the benefit of others, and not for his own; and as he had paid away the money in virtue of a decree of a court, having prima facie authority for the time, to decide whether an appeal did, or did not lie; I think he ought not to be ordered to refund. It is alledged that the prayer of an appeal, in a case where an appeal lies, ipso facto, suspends the proceedings, and all afterwards is coram non judice. I cannot admit the doctrine in that extent. Where there are inferior and superior jurisdictions, and an appeal is allowed from the former to the latter, and it is the express duty of the party praying an appeal, to apply in the first instance, to the inferior court (as I conceive it was in this case under the resolutions of Congress, which directed an appeal to be prayed for within five days, and Security to be taken) I must presume that that court is prima facie to judge whether it is applied for in a proper manner, and whether all the requisites previous to his being fully entitled to it, are complied with. If the court decides in any of these particulars erroneously, it would be absurd to say, that the party should lose the benefit of his appeal, but, in my opinion, it would be equally unjust to hold, that a party who obeyed the decree of a court, over whom he had no controul, should suffer by his respect to the law, which constituted that court, and which must therefore mean to support its decisions, in a cause coming within its jurisdiction, while they remain uncontrouled by any superior tribunal. It was shewn, that an inhibition, in cafes of this kind, sometimes at least issues to forbid the court’s further proceeding. Can there be a stronger proof, that the court had authority de facto (whatever may be said as to its authority de jure) without that interposition ! The law never does a nugatory act, and therefore, I presume, would not forbid the doing of a thing, which if done, is totally and absolutely void. It was said, this was to bring the judge, into contempt. But if the conduct of the judge who is bound to know his jurisdiction is in the mean time innocent, surely an obedience to him by a party, who is not to be presumed capable of deciding on the jurisdiction by his own judgment, must be so. George Wentworth, on the face of the whole proceedings, was a mere agent, an attorney in fact, and for aught I can fee, as little liable to refund in a case of this fort, as any attorney, in fact, or even an attorney at law, to whom money had been paid under a judgment or decree, and who had paid it away to his client. An agent in cases of this kind, is allowed by law. They are recognized, I believe, in all prize acts. Mariners, whole employment is on the sea, cannot be required without injustice to attend their cases in person. In cases of privateers, the captors are so numerous that the employment of one or more agents on shore, seems unavoidable. The law, when it allows a benefit, never intends that it shall be imperfectly enjoyed ; therefore in allowing privateering, it allows agents. These I consider as nominal parties, and that the real parties are their principals. Now I will suppose that in a common law case an infant sues in a personal 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 reversed. Can the guardian ever be made to refund to the defendant, or must the person who was the infant do it ? This case appears to me a very parallel one in all its circumftances. The infant cannot act for himself, and therefore is allowed to act by his guardian. The law takes notice, by allowing agents, that persons concerned in privateers, at least, cannot do well without them. The guardian is nominally a party; so is the agent: but the infant, in the 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: so is the agent to the principal, for money he receives. There is, that I can imagine, but one difference that can be suggested between them that in the one case, the judgment is good till reversed; and, therefore, all lawful acts intermediately done, are valid. But the disallowance of the appeal, is said to be a nullity, and all subsequent proceedings in that court are void. I admit the consequence, if the law be so. But I have already stated reasons, why I think it is otherwise. A court of justice, indeed, ought at its peril to take notice of its own jurisdiction, and it is not often that cases of such doubt arise, that a Judge can be at a loss on the subject. But it may happen, and does sometimes happen, that innocent and ferious doubts, are really entertained. Is a court, therefore, becaufe its judgments may be finally dissented from, by a superior tribunal, to be considered as flying in the face of the law, so that parties before it, shall not only be protected in disobeying it, but punished for their obedience ? If this be the case, the old maxim, cedunt arma togas, will very ill apply to Courts of Justice. Instead of being the peaceful arbiters of right, and the sacred asylum of unprotected innocence, their very forums will be the seat of war and confusion. I admit, indeed, where there is a conflict of jurisdiction, and the party entitled to a decree, is prohibited from obeying it, by a power claiming a superior cognizance, he must at his peril obey one or the other; but this arises from the absolute necessity of the case, because, whether the one or the other be right or wrong, must depend on a subsequent decision. In this cafe, George Wentworth, before the distribution, received no monition, or any other process from the tribunal alledged to be superior. He could not even be certain that the Appellants would carry their application further. I consider him, therefore, justifiable in obeying the decree, which at the time, was compulsory upon him, and for a disobedience to which, be might have been committed for a contempt, according to the opinion of the court which pronounced it. The parties still have their remedy against those who actually received the money, or their representatives, if they can be found. They may perhaps be entitled to a remedy under the bond gived, when the commission of the privateer was granted. If either of these remedies be difficult or inefficient, that does not make Georgs Wentworth, in point of law, more liable than if they were perfectly easy, and clearly effectual. It will be one melancholy instance, in addition to a thousand others, of the distress incident to a doubtful and imperfect system of jurisprudence, which has been since happily changed for one so precise and so comprehensive, as to leave little room for such painful and destructive questions hereafter. The 4th question is, Whether this court can now rectify the decree in respect to the parts of it considered to be erroneous, or must affirm or reverse in the whole. The latter is certainly the general method at common law, and it has been contended, that as this proceeding is on a writ of error, it must have all the incidents of a writ of error at common law. The argument would be conclusive, if this was a common law proceeding, but as it is not, I do not conceive, that it necessarily applies. An incident to one subject cannot be presumed, by the very name of such an incident, to be intended to apply to a subject totally different. I presume the term, “ writ of error,” was made use of, because we are prohibited from reviewing facts, and therefore must be confined to the errors on the record. But as this is a civil law proceeding, I conceive the word “ error,” must be applied to such errors as are deemed such, by the principles of the civil law, and that in rectifying the error, we must proceed according, to those principles. In a civil law court, I believe, it is the constant practice to modify, a decree upon an appeal, as the justice of the case requires ; and in this instance, it appears to me, under the 24th section of the judicial act, we are to render such a decree as, in our opinion, the District Court ought to have rendered. If this was a case, wherein damages were uncertain, and wherein for that reason, the cause should be remanded for a final decision, (which it does not appear to be, because the Libellants in the original suit had a decree in their favour, which is now to be affirmed in part) yet the damages here are not uncertain, because we all agree, that interest ought to be allowed from the date of the decree, in September, 1783, upon the value of the property, as specified in the report, against those who are to be adjudged to pay the principal. Upon the whole, my opinion is, that the decree be affirmed in respect to the recovery of the Libellants, in the original action against all the Defendants but George Wentworth; that the libel against him, be adjudged to be dismissed; but that there be recovered against the other Defendants in the original action, the value of the property they received, as ascertained in the Circuit Court, with interest from the 17th of September, 1783. I am also of opinion, that the respective parties should pay their own costs. Paterson, Juflicr :—IF the damages were improperly given, joint⅜ by the Circuit Court, can this court rectify the error, or direit the Cir-cnit Court to doit ? . ' Bradford'.—This.Court cannot do it, becaufe they are not poül-fled of evidence to Ihew in what proportions the damages ought to lie paid Incite Refpondents. -See a/::, pt 4. a Dux. 686. See Glass et al. versus The Betsey et al. [MAJORITY — BLAIR, Justice. By the Court.] BLAIR, Justice. When this cause came before me, at Exeter, in New Hampshire, I felt myself in a delicate situation, in having a cause of such magnitude, and at the same time, of such novelty and difficulty, as to have drawn the judgment of men of eminence, different ways, brought before me for my single decision. It was, however, a consolation to know, that whatever that decision might be, it was not intended to be final, and I can truly say, it will give me pleasure to have any errors I may have committed, corrected in this court. Two points, and if I mistake not, only two, were brought before me: The first, whether under the description of Admiralty and Maritime jurisdiction, the judiciary bill gave to the District Court any jurisdiction concerning prizes, I decided in the affirmative; and the same decision having been afterwards made in this court, in the case of Glasse, and others, I consider that as now settled. The other point, was, whether the Court of Appeals, erected by Congress, had authority to reverse the sentences given in the Courts of Admiralty of the several States; and the source of the objection upon this point, was the defect of authority in the Congress itself. Here, also, my sentence affirmed the jurisdiction. I have attended as diligently, and as impartially as I could to the arguments of the gentlemen, upon the present occasion, to discover, if possible, how I may have been led astray, in the decision of this question ; but as the impressions which my mind first received, continue uneffaced, (whether through the force of truth, or from the difficulty of changing opinions, once deliberately formed) I will repeat here the opinion which I delivered in the Circuit Court, as the best method I can take for explaining the reasons upon which it was founded. I would premise, however, that it contains something relative to what had been said at the bar of the Circuit Court, but which I believe was not mentioned on this occasion. “ The immediate question is, whether Congress had a right to exercise, by themselves, by their committees, or. by any regular court of Appeals by them erected, an appellate jurisdiction, to affirm or reverse a sentence of a State court of Admiralty, in a question whether prize or no prize. If they possessed such an authority, it must be derivative, and its source either mediately or immediately the will of the people; usurpation can give no right. The respondents contend they had no such authority, till the completion of the Confederation in 1781, but only a recommendatory power; the Libellants insist, that Congress was considered as the sovereign power of war and peace, respecting Great-Britain, and that to that power is necessarily incident that of carrying on war in a regular way, of raising armies, making regulations for their discipline and government, commissioning officers, equipping fleets, granting letters of marque and reprisal, the power (now contested) of deciding, in all cases of capture, questions whether prize or not, and every power necessarily incident to a State of war. It is, at least, certain, that the political situation of the American Colonies, required a union of council and of force, by wise measures to bring about, if possible, a reconciliation with the mother-country, on a basis of freedom and security, or, if this should fail, by vigorous measures to defeat the designs of their tyrannical invaders ; and although this alone cannot suffice for an investiture in Congress, of the powers necessary to that end, yet if the powers given be delegated in terms large enough to comprehend this extent of authority, but which may also be satisfied by a more limited construction, the supposed neccessity for such powers given to a federal head (and the counsel for the respondents have admitted that it would have been good policy) is no contemptible argument for supposing it actually given. In the beginning of the year 1775, our affairs were drawing fall to a crisis, and for some time before the battle or Lexington, a State of warfare must in the minds of all men have been an expected event. Some of the delagations (I think three) of members to the Congress which met in May of that year, contain nothing, but simple powers to meet Congress; the rest expressly give authority to their delagates to consent to all such further measures, as they and the said Congress shall think necessary, for obtaining a redress of American grievances, and a security of their rights. It is not in all of them worded alike, but in substance, that seems to be the sense. Every thing which maybe seemed necessary ! I think it cannot well be supposed, that in such a delegation of authority, at such a time, there was not an eye to war, if that should become necessary. But it is objected, that at most, no greater power was given to Congress 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 against Great-Britain (call it if you will a civil war) to be conducted on the same principles as any other : If it was a civil war, still we do not allow it to have been a rebellion—America resisted and became thereby engaged in what the deemed a just war. It was not the war of a lawless banditti, but of freemen fighting for their dearest rights, and of men lovers of order and good government. Was it not as necessary in such a war as in any between contending nations, that the law of nations should be observed, and that those who had the conducting of it, should be armed with every authority for preventing injuries to neutral powers, and their subjects, and even cruelty to the enemy ? The power supposed to have been given to Congress, being confined to a definitive war against Great-Britain, and not extending to the rights of peace and war generally, appears to me to make no material difference; still the same necessity recurs, of confining the evil of the war to the enemy against whom it is waged. Till a formal declaration of independence the people of the Colonies are said to have continued subjects to Great-Britain ; true, and that circumstance it is, which denominates the war a civil war, as to which I have already Stated how, in ray mind, the question is affected by that circumstance. But it was asked whether, if during the war, Great-Britain, at any time before the declaration of independence, had declared war against any nation of Europe, that nation would not have had a right to treat America with hostility as being subject to Great-Britain ? According to this supposition, Great-Britain might have had some temptation to declare such war that she might have the cooperation of her enemy, to reduce her colonies to obedience. But Great-Britain was too wise to adopt such a policy; she knew that by her engaging in such a war, the colonies, instead of finding a new enemy to oppose, would have known where to find a friend ; they might have formed an alliance with such a power, who probably would have considered it as an acquisition, and Congress might have been the sooner encouraged to separate from Great-Britain, by a formal declaration of independence. As the supposition that Congress was invested with all the rights of war, in respect to Great-Britain, is of great moment in the present cause, and as the power may not be so satisfactorily conveyed by the instructions to the several delegates as might be wished, partly because some of them did not exhibit farther instructions than to attend Congress, and partly because the instructions given to the rest, may be satisfied by a different construction, it may be proper to consider the manner in which Congress, by their proceedings, appear to have considered their powers; not that by any thing of this sort, they had a right to extend their authority to the defined point, if it was not given, but because in shewing by such means, their sense of the extent of their power, they gave an opportunity to their constituents to express their disapprobation, if they conceived Congress to have usurped power, or by their co-operation to confirm the construction of Congress; which would be as legitimate a source of authority, as if it had been given at first. If they were only a mere council, to unite by their advice and recommendation all the States in the same common measures (which, by the by, if not uniformly pursued, might be disappointed) then the several members might be justly compared to ambassadors met in a Congress, and could only report their proceedings for the ratification of their principals ; but Congress resolved to put the colonies in a state of defence; they raised an army, they appointed a commander in chief, with other general and field officers ; they modelled the army, disposed of the troops, emitted bills of credit, pledged the confederated colonies for the redemption of them, and in short, acted in all respects like a body completely armed with all the powers of var ; and at all this I find act the least symptom of discontent among all the confederated States, or the whole people of America; on the contrary, Congress were universally revered, and looked up to as our political fathers, and the saviours of their country. But if Congress possessed the right of war, they had also authority to equip a naval force ; they did so, and exercised the same authority over it, as they had done over the army; they passed a resolution for permitting the inhabitants of the colonies to fit out armed vessels to cruize against the enemies of America; directed what vessels should be subject to capture, and prescribed a rule of distribution of prizes, together with a form of commission, and instructions to the commanders of private ships of War : they directed that the general assemblies, conventions, and councils or committees of safety of the United Colonies, should be supplied with blank commissions, signed by the President of Congress, to be by them filled up, and delivered to any person intending to fit out private ships of war, on his executing a bond, forms of which were to be sent with the commissions, and the bonds to be returned to Congress. These bonds are given to the President of Congress, in trust for the use of the United Colonies, with condition to conform to the commission and instructions. The commission, under which the Captain of the respondents acted, was one of these commissions, it seems, only this is attempted to be qualified by saying that it was countersigned by the Governor of New Hampshire ; but this circumstance seems to me to be of no importance. Whoever has the right of commissioning and instructing, must certainly have the right of examining and controlling, of confirming or annulling the acts of him who, accepts the commission, and acts under it. And this exercise of authority in granting commissions seems to have had the special sanction of the several colonies, as they filled up the commissions, took the bonds, and transmitted,them to Congress. It was urged in the course of the argument, that if Congress did enjoy the power contended for, the confederation, which was a thing of fuch long and anxious expedition, was not of any consequence ; but it is to be observed, that that instrument contained some important powers which could not be derived from the right of war and peace; it was of importance, also, as a confirmation of the powers claimed as necessarily incident to war, because some of the States appeared not to be sensible of, nor to have acknowledged such incidency ; and yet the power may have existed before. It is true, that instrument is worded in a manner, on which some stress has been laid, that the several States should retain their sovereignties, and all powers not thereby expressly delegated to Congress, as if they were, till the ratification of that compact, in possession of all the powers thereby, delegated ; but it seems to me, that it would be going too far, from a single expression, used perhaps in a loose sense, to draw an inference so contrary to a known fact, to wit,that Congress was, with the approbation of the States, in possession of some of the powers there mentioned, which yet, if the word retain be taken in so strict a sense, it must be supposed they never had. I take the truth to be, that the framers of that instrument were contemplating what powers Congress ought to have had at the beginning; and that in reference to the first occasion of their assembling to oppose the tyranny of Great Brittain, at least in reference to the time of framing the confederation, say, the States shall retain. But however that may be, as I said before, I think it is laying too great a stress upon a single word, to contradict some things which were evidently true. “ But it was said that New Hampshire had a right to revoke any authority fee may have consented to give to Congress, and that by her acts of assembly fee did in fact revoke it, if it were ever given. To this a very satisfactory answer was made: if fee had such a right, there was but one way of exercising it, that is, by withdrawing herself from he confederacy ; while fee continued a member, and had representatives in Congress, fee was certainly bound by the acts of Congress. I am therefore of opinion that those acts of New Hampshire, which restrain the jurisdiction of Congress, being contrary to the legitimate powers of Congress, can have no binding force, and that under the authority of Congress an appeal well lay from the Courts of Admiralty of that State, to the Court of Commissioners of Appeals. That Court has already affirmed their jurisdiction in this particular case, upon a plea put in against it; and upon that account, also, I incline to think that this court, not being a court of superior authority, ought not to call it in question. Under these impressions, I must; of course, decree (whatever may be the hardship of the case), that the Respondents, pay to the Libellants, their damages and costs, occasioned by not complying with the decree of the Court of Appeals, the quantum of which to be ascertained by Commissioners." If the reasoning upon which I went, in pronouncing the above decree, in favour of the jurisdiction of the Court of Appeals, be unfound, and if the decree stand in need of some better support, it will probably find it in the confederation, by which authority is given to Congress, to erect Courts of Appeals in all cases; and from that time the authority of the court of appeal is confessed; the present case was then depending before that court, they asserted their jurisdiction, and gave a final decree. As to the objection, that previously to the confederation, Congress were themselves sensible, that they did not possess Supreme Admiralty jurisdiction, because of their recommending to the several States, that they should erect Courts of Admiralty, for the trial of prizes, with appeal to Congress, I see not how such recommendations can prove any thing of the kind ; for Congress might have authority to establish such courts in the respective States, when yet they chose only to recommend to the States to do it. But admitting the authority of the Court of Appeals, and the propriety of applying, to the District Court of New Hampshire, to inforce that decree in the way of damages, for not restoring the vessel and cargo, when through the disobedience of the present Plaintiffs in error, specific restitution was become impossible, yet if any thing erroneous can be found in the decree of the Circuit Court, it is the duty of this court to correct it. It is objected, that the damages allowed, were too high, including interest on the appreciation of the Sufanna and her cargo, from so remote a period as the sale of the vessel and cargo. That George Wentworth, being a mere agent, and having distributed among those who were entitled, under the decrees of the Courts of Admiralty of New Hampshire, all the money by him received for their use, ought not to have been subjected by the decree of the Circuit Court, to the repayment of that money. And that a lumping decree, subjecting the Respondents indiseriminately, to the payment of all the damages, although their intrests were several and distinct, was also erroneous. It does not, indeed, appear to me, that the decree, is for the payment of too large a sum, the damages having been swelled by interest, calculated upon the appraised value of the Susanna, her apparel, and of her cargo,from so remote a period. The decree ef the Court of Appeals was merely for restitution, and that the Appellants should be placed at that time in the same, situation as they were in, previous to the capture. A compensation for the loss they sustained in being in the mean time deprived of their property, was not provided for in the decree, nor were even costs allowed. The libel in the Circuit Court being bottomed on the decree of reversal, fought only a compensation in damages equivalent to a restitution as the time of the reversal: Interest, therefore, ought, I think, to have been allowed only from that time. George Wentworth, it is true, was not concerned in interest; he represented the interest of the officers and seamen, but had none himself; and a mere agent who has paid away all, or any part of the money by him received in that character, without having been by a monition notified of the appeal, will be allowed credit in his account for the money so paid away. But George Wentworth appears, I think, in another character besides that of an agent: he was a party libellant, as such he knew that the Claimants were dissatisfied with the decrees of the Admiralty Courts of New Hampshire, having, prayed an appeal to Congress, and offered the requisite security; and when the petition of appeal was referred to the Court of Commissioners, and they directed notice to be given to the parties, who appeared before that court, it seems evident that they had notice. What then is the effect of this ? Was any thing further necessary to suspend the decrees of the State Courts ? An inhibition is, indeed, worded in a manner naturally leading to the supposition, that that instrument was necessary to effect a suspension; but this, I think, cannot be the case; for, it is observable, that by the practice, an interval of three months is allowed before the inhibition is fued out, in which time, if nothing had antecedently suspended the sentence, it might be carried into complete effect, and every body be justified in their conduct, as paying obedience to a decree continuing in full force. The inhibition may be intended only as a more formal direction to cease farther, proceedings, when yet they may have been inhibited before: it has a farther use also, for it appoints a day for the attendance of the parties. Conformably to this idea, it is said, in Domain that the appeal suspends the decree. But a distinction is attempted here; it is admitted that an appeal allowed by the inferior court, suspends, while an appeal received by a superior court, is denied to have that effect. But according to Domat, it works a suspension, even, against the will of the inferior Judge; and it would be very strange, if the suspending operation of an appeal, to a Judge who has an authority to reverse, should depend upon the consent of the inferior Judge. But if the sentences of the State Courts were indeed suspended, no person had authority to act under them ; and if any do, he takes upon himself the consequences. Besides, if George Wentworth had innocently and without notice, distributed the money which came to his hands, should not this have been shewn to the Court of Appeals? If that had been done, perhaps after reversing the decrees of the State Court, instead of decreeing restitution, they might have only decreed that the owners should pay to the Appellants, the moiety of the sales by them received. But they have decreed restitution specifically; and if this court should so model the decree of the Circuit Court, as to exonerate Mr. Wentworth, as to the moiety of the money by him received, it will substantially alter the decree of the Court of Appeals ; and yet we say, that the decree now is to be bottomed on that of the Court of Appeals, which is now to be supposed right; and that for that reason it was erroneous in the Circuit Court, to carry interest farther back than from the period of reversal, and in this way give damages, which were not intended by the Court of Appeals. The decree of the Circuit Court, appears now, I confess, to be wrong, in that it subjects all the Defendants, indiscriminately; to the payment of all the damages. In the original libel, they had indeed joined, but it was in right of several interests, which I think ought to have been distinguished in the decree; justice obviously requires this; so obviously, that it is enough to State the case to obtain the mind’s assent to the propriety of distributive damages, instead of those which the decree contemplates. I will only say 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 myself; but if any thing was said upon the point, and I, with deliberating, then preferred the decree as it stands, I am clearly now, of a different opinion. Upon the whole, I think the decree of the Circuit Court will stand as it ought, when corrected by reducing the damages in the manner proposed, and when so reduced, by proportioning them among the then Defendants, according to their distinct interests. Cushing, Justice. The facts of this case being already fully stated by the court, I shall go on to enquire, whether the decree of the Circuit Court ought to be reversed, for any of the errors assigned. The first is, that the Court of Appeals, which made the decree of restoration, had not jurisdiction of the cause. In answer to this, I concur with the rest of the court, that the Court of Appeals, being a court under the confederation of 1781, of all States, and being a court for "determining finally, appeals in all cases of capture," and so being the highest court, the dernier resort in all such cases, their decision upon the jurisdiction and upon the merits of the cause, having heard the parties by their council, must be final and conclusive, to this, and all other courts : to this, as a Court of Admiralty, because it is a court of the same kind, as far as relates to prize, and without any controuling or revisionary powers over it ; to this as a court of common law, because it is entirely a prize-matter, and not of common law cognizance. The cases, therefore, cited to shew, that the common law is of general jurisdiction, and that the courts of a special, limited jurisdiction, and that the court of King's bench, prohibits, controuls, and keeps within their line, Admiralty Courts, Spiritual Courts, and other courts of a special, limited jurisdiction, do not, I conceive, touch this case. It is conceded by all, that the decision of a court competent is final and binding. Now, if the Court of Appeals was, under the confederation of all the States, a court constituted " for determining finally appeals in all cases of capture, " it was a court competent; and they have decided. Again; the Admiralty of England gives credence and force to the decisions of foreign courts of Admiralty; why not equal reason here ? It is true, the courts of common law there, will not allow a greater latitude to the jurisdiction of foreign courts of Admiralty, than to their own ; as it seems natural and reasonable, they should not; for instance, holding plea of a contract made entirely at land, which seems to have been the substantial ground of prohibition, in the case cited, respecting the decree in Spain. If the decree of the court of Apeals must be considered as binding, as it must, or there may never be an end to this controversy; that will carry an answer to several other errors assigned, viz. the third, fifth, and seventh, respecting the cause not being regularly before Congress or the court, and respecting the Circuit Court not entering into the merits—and to some other particular exceptions; as, that appealing to the Superior Court of New-Hampshire, was a waver of the right of appeal to Congress : If that appeal was consistent with the resolve of Congress, which only provided an appeal to Congress in the last resort, it was not a waver. Again, it is said, there ought to have been a jury at the Court of Appeals ; but that, clearly, was not the intent of the resolve of Congress, nor of the Confederation, nor correspondent to the proceedings in courts of Admiralty, even where trials by jury are used and accustomed in other matters ; nor was it thought a proper or nccessary provision in the present constitution, which has been adopted by the people of the United States. As to the original question of the powers of Congress, respecting captures, much has been well and eloquently said on the both sides. I have no doubt of the sovereignty of the States, saving the powers delegated to Congress, being such as were, "proper and necessary" to carry on, unitedly, the common defence in the open war, that was waged against this country, and in the support of their liberties to the end of the contest. But, as has been said, I conceive we are concluded upon that point, by a final decision heretofore made. The 2d exception in error is, that the sentence 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 I think we cannot reverse 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 suggested there by the opposite party. On the contrary, it is implied by the record that Doane was alive; otherwise he could not have been heard by his council as the record sets forth ; for a dead man could not have council or attorney. On the other hand, the letters of administration imply that he was dead at the time; but those letters were not before the court, and therefore could not be a ground for their abating the suit, if it was abateable at all for such a cause. Here seems to be record against record, as far as implications go, and I take it to be an error in fact, for which, by the judicial act, there is to be no reversal. Upon this head, a case in Sir Thos. Raymond, is cited by the council for the Plaintiff in error, of trover by five plaintiffs—one dies—the rest proceed to verdict and judgment—and adjudged error, because every man is to recover according to the right he has at the time of bringing the action ; and here each one was not, at the time of bringing the action, entitled to so much as at the death of one of the plaintiffs." But a cafe in Chancery Cases, p. 122, is more in point— where money was made payable by the decree to a man that was dead, and yet adjudged, among other things, no error. But another matter, which seems well to rule this case, is, that, being a suit in rem, death does not abate it. So say some books, and I do not remember to have heard any to the contrary. It does not affect the justice of the cause; it makes no odds to the plaintiff in error, whether the money is to be paid to Colonel Doane being alive, or to his legal representatives, if dead. The 4th exception, that damages are not prayed for, yet decreed, is answered by a prayer for general relief. The 8th exception is, that the District and Circuit Court possessed not admiralty jurisdiction, 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 seems to be settled law and usage; and if the District and Circuit Courts, have admiralty powers by the law and constitution, as was adjudged and determined by this court last February, I think there can be no doubt upon this point . Another queftion of confequence is, whether Mr. George Wentworth, being agent fov°the captors, and having paid over, • can be anfwerable jointly with the other libellants for the whole, or, in any way, for arty part. If it was {imply the cafe of an agent regularly paying over, 1 fhoulci fuppofe he could not juftly be called upon to refund.' But it feems.he was an original libellant, a party through the ;whole courfe of the fuit; and an appeal being claimed in: timé, 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 whatever monies he ihould receive under that decree, in cafe of re 1 vqrfal:. every man being bound to take notice of the law, at his peril» It is suggested, that an inhibition was necessary to take off the force of the sentence. An inhibition (according to the form of one produced, which issued in England last July, near four months after the trial and appeal at New-Providence inhibits the judge and the party from doing any thing in prejudice of the appeal, or of the jurisdiction of the court appealed to, and cites the party to appear and answer the party appellant, at a certain time and place. The citation to the party to appear and answer at the proper time and place, I take to be the most substantial part of the process; the inhibitory part to be rather matter of form, or in pursuance of the suspending nature of the appeal, and as a further guard and caution against misapplying the property. For it appears to me absurd to suppose, that an inhibition taken out seven or eight months after the appeal (nine months being allowed for the purpose) should be the only thing that suspended the sentence, leaving the judge below and the party, all that time, to carry the sentence into compleat execution. The judicial act in providing an appeal in maritime causes to the Circuit Court, contains no hint of an inhibition as necessary to suspend the sentence. Domat is express, that an appeal has that effect, and I believe other civil law writers. The rejection of the appeal, if unwarranted, could not take away the right of the citizen. There does not appear any thing actually compulsory upon Mr. George Wentworth, to pay the money, except what may be supposed to be contained in the decree appealed from, the force of which was suspended. All this matter might have been offered at the Court of appeals, where the parties were fully heard, and, if offered, was, no doubt, involved in their decision. It is said, if I understood the matter right, that there ought, to have been a monition from the Circuit Court to Mr. Wentworth, to bring in what he had in his hands. I see no necessity for a monition exadtly in that form. There was a monition to come in and answer the libellants upon the justice of the cause, as set forth;—he came in and had an opportunity to defend himself: and the question was, whether he was answerable upon the circumftances of the cafe, which was determined by the court. By the cases in Durnford and East, as well as from other books, it is clear that the admiralty has not only jurisdiction in rem, but also power over the persons of the captors and all those who have come to the possession of the proceeds of the prize, to do complete justice as the case requires, to captors and claimants. But I cannot conceive why the decree of the court of appeals is not conclusive upon Mr. George Wentworth as much as upon the other libellants. Again; it is objected, that the decree being for restoration, damages could not be awarded. The decree was not complied with—the thing was gone. How, then, could justice be done without giving damages ? Then the question is, how are we to understand the decree ; as joint upon all the libellants for thewhole, Mr. George Wentworth included, or as decreeing the owners to restore one half, and Mr. George Wentworth, agent for the captors, the other half? If the latter, which perhaps maybe a reasonable and just construction, conformable to the spirit of the original, libel, then the decree of the Circuit Court is in that respect erroneous. Also as to damages, I suppose, interest ought not to have been allowed farther back than the decree. The only queftion that remains, is whether this court can rectify those errors, consistently with the judicial act. And I think it may, as there is sufficient matter, apparent upon the record, to do it by. I agree that each party bear their own costs of this court. By the Court. Ordered, That against all the Plaintiffs in error, except George Wentworth, sixteen thousand three hundred and sixty dollars and sixty-eight cents, be recovered by the Defendants in error, and the same sum against George Wentworth ; and that against the Plaintiffs in error the costs of the Circuit Court be recovered, one half against George Wentworth, and the other half against the other. Plaintiffs in error; and that in this Court the parties pay their own costs.