Hallett v. Lamothe, 7 N.C. 279, 3 Mur. 279 (1819)

May 1819 · Supreme Court of North Carolina

7 N.C. 279, 3 Mur. 279

Abraham S. Hallett v. Francis Lamothe.

From Craven.

Question of jurisdiction. — The Plaintiff was owner of the brig Jane and her cargo, both of which were covered by Spanish papers to protect them from British capture, during the late war between Great-Biitain and the United States. On her voyage from a Spanish to an American port, she was captured by an armed schooner in a belligerent manner, and a prize-master and crew put on board ; by whom she was brought into the port of Beaufort, North-Carolina, where she was entered as a Spanish merchantman, having all the papers which it is usual for such a vessel to possess. No commission was shewn by the schooner at the time of the capture; but it was known that she hadbeen fitted outfrom ■a port of the United States, whence she sailed as a cruiser under a Cai-thagenian commission. — Upon the arrival of the Jane at Beaufort, she was consigned by the prize-master to the Defendant, who sold part of the cargo, and loaded her with a return cargo. Before she sailed, the American captain appeared and libelled the brig and cargo in the United States’ District Court of Admiralty. The brig was restored, the return cargo directed to be sold, and its proceeds, after payment of costs, paid to the Plaintiff for damages for the detention. But as to • tiie prayer in the libel, that damages should be decreed for the value of the cargo on board at the time of the capture, and that the Defendant and others should account for the value in their hands, the libel-lant waived all further claim on that process, and no decree was made thereon; he then brought an action of trover to recover tile value of so much of the cargo, as had been sold by the Defendant — The action will not lie ; for

The Courts of common law have no jurisdiction in this case, the question of prize or no prize, is exclusively of admiralty cognizance ; and that qustion must be decided before it can be ascertained whether the Defendant has committed a wrongful conversion.

The jurisdiction of a common law Court administering a code not common to other nations, is ousted, whenever it appears that the capture Was made in a hostile character ; and whenever the jurisdiction of the admiralty has once attached by the taking as prize, nothing subsequent can take it away.

Whether the State that granted the commission to the cruiser, could rightfully exercise the prerogatives of sovereignty, is a question to be determined by the laws of nations, and not by the municipal laws of any country.

The view of the case is the same, if the case be considered as one of piracy.

The objection that the Plaintiff would be without redress, if a common law Court refuse it, is answered by the decision of the Supreme Court of the United States, “ that a prize Court of the United States has cognizance of a capture as prize, where the property is-bimight within the jurisdiction of such Court; and if the capture were made without a commission, or the vessel illegally fitted out in the neutral country, the captors are bound to make restitution.”

Action of trover and conversion — plea, not guilty. The Jury found the Defendant guilty of the trover and conversion charged in the Plaintiff’s declaration, as to four thousand hides, and not guilty as to the residue therein charged,* and assess the Plaintiff’s damages to 4,040 dollars, subject to the opinion of the Court upon the question whether a Court of Common Law has jurisdiction of the matter in controversy. The question arose on the following case:

The Plaintiff, a resident and merchant of Ncw-York, was the proprietor of the brig Jane and her cargo, hound on a voyage from Porto Cavallo to New-York. To protect the Jane and her cargo from British capture, during the late Avar, they were both covered by Spanish documents, and purported to belong to Spanish subjects resi-, dent at Porto Ca'vallo. On the high sea she was chased by an armed shooner ,• avIio captured her in a belligerent manner, putting on board a prize-master and a prize-erew. The schooner did not shew a commission; but it Avas known that she had recently sailed as an armed cruiser, under a Carthagenian commission, from a port of the United States, where she Avas repaired and fitted for the cruise. Not long after the capture, the Jane, neAvly painted and otherwise altered in appearance, arrived with her cargo at the port of Beaufort in North-Carolina, documented as a Spanish merchant ship coming from Cuba, commanded by a man calling himself Pedro Gonozales, and having all the papers which a bona Jide Spanish merchant vessel would ordinarily possess. How these papers had been procured, did not appear. There Avas no evidence to sheiv that any condemnation had taken place, or to account for the ajxparent change of ownership. Gun-•¿ales, on his arrival, consigned the brig to the Defendant, a merchant in North-Carolina, who as consignee, in the ordinary mercantile mode, entered her at the custom-house, bonded the cargo, and sold the four thousand hides set forth in the verdict, for the price of g4,040, giving a bill of parcels in Ms own name.

After this sale and a payment of part of its proceeds in duties and charges, and after Gonzales had gone, the American captain of the Jane appeared, and made known her capture as aforesaid. A libel was filed, and admiralty process sued out in the name of the FlaintifF, in the United States District Court, after she was loaded with a return cargo : and on this process the brig was restored, the return cargo decreed to be sold, and its proceeds, after payment of costs, paid to the Plaintiif for damages sustained by reason of detention. In the libel it was prayed that the Court would decree damages for the value of the cargo on board at the time of capture, and that the present Defendant and others should account for the proceeds of said cargo in their hands. While this claim was reserved for the decision of the Court, the libellant waived any further decree, and no decision was made upon it. This action was then instituted against the Defendant.

On the trial, it was objected that this Court had not jurisdiction of the case, because it involved the question of prize or not prize. — The Court reserved this objection, and the verdict was rendered subject thereto. The case was sent to this Court, when it was argued by Mordecai for the Plaintiif, and Gaston for the Defendant.

Mordecai for the Plaintiff,

in support of the jurisdiction.

The Plaintiff has been deprived of his property and is entitled to a remedy. The question submitted in this case is, has he applied to the proper forum ? — It is said tliis Court has no jurisdiction. 1st. Because the case involves the question of prize or no prize, which is cognizable only in the admiralty. 2d. That if it be not a question of prize, it is one of piracy, and cognizable only in the admiralty, 3d. That under the constitution and judiciary acts of the United States, this case can be tried only in the Admiralty.

It may be laid down as a general rule, that all possible injuries not within the exclusive jniisdiclion of other Courts, are within the cognizance of the Common Law Courts ;^* and it was said by Lord Holt,^† (< the Common Law is the overruling jurisdiction, and you must entitle yourselves well to draw a thing out of the jurisdiction of it.” — For a tortious taking at sea, unconnected with the question of prize or no prize, there is a concurrent jurisdiction in the Courts of Admiralty and Common Law and;^‡ in many other cases the Courts of Admiralty and the Courts of Common Law have concurrent jurisdiction; as salvage— charter party — seamen’s wages, &c. — It is only in cases of prize, and in questions arising from taking as prize, that the Court of Admiralty has exclusive jurisdiction $ and then the trial must be in the Court of the captor.^§

This is not a question of prize. The commission, if there be any, is not granted by a State of which we can jjudicially take notice. Our government has not yet recognized it as an independent state, and until such recognition, it must be regarded as a pai't of the colonial possessions of Spain.^ǁ And as the question of prize or no prize, is triable only in the Court of the Sovereign of the captor, it follows that the commission must be granted by a known Sovereign Stated.^¶ Our Courts have .a right to enquire whether this cruiser was lawfully commissioned.^**

If it be said that this is an admiralty case, it is clear that that Court sitting as a Prize Court has no jurisdiction ; and viewing the case as a marine tort, Common Law Courts have concurrent jurisdiction with the admiralty.^* What is a prize ? It is defined to be something “ taken on the high seas Jure Belli, out of the hands of an enemy.” Judge Chase says, “ that prize ex vi termini implies a capture in a state of war.”^† A seisure on the high seas by an unauthorised individual, is a mere trespass and produces no change of rights.^‡

This, then, is not a question of prize. The vessel was not taken by a cruiser commissioned by sovereign authority — she was not taken as a prize. There is no evidence that the cruiser had any commission, and the conduct of the captors shews that the vessel taken was not taken as a prize; for she was not carried in for condemnation— she was entered, under forged papers, as a Spanish vessel. Until condemnation as prize, the property is not changed;^§ and that condemnation must be in the Court of the captors, as a consequence of the equality and independence of sovereign states. Where could such condemnation take place in the present case ?

There is another ground upon which this must be considered as a common marine tort: This vessel was fitted out in the United States in violation of our laws. See act of 5th June, 1794. 2 Rev. Code, 426. Continued by act 24th April, 1800. 3 Dallas, 153, 154, 155, 158, 168, 169. In this case in Dallas, Judge Patterson declared, that even if the captain of the cruiser had a French commission, it would be questionable whether, as he left this country malajide, the property taken should not be restored to the rightful owners. Courts will not afford aid to those who contravene these laws.

Then what claim to exemption have the Defendants ? When and where did they acquire a character to render them independent of the tribunals of the country? Was it whilst violating the law in fitting out at one of our ports ? Was it whilst attacking the property of American mer-cjiall^-s on jijgjj seas ? Or whilst stealing their prize into Beaufort ? The true rule to he collected from all the authorities is, that the municipal Courts have jurisdiction in all cases, except where the act complained of has been committed by the commissioned agent of a sovereign state. As soon as such commission appears, the Court of Common Law must stop, and the trial must be in the Prize Court of the captor.

2. But it is said, if this be not a case of prize, it is onc-of piracy, and cognizable only in the Admiralty. In answer to this objection it may be urged, that every tortious taking is not piracy.^* The Plaintiff alleges that this was a mere conversion of Ms property, and that the Defendant cannot allege his own iniquity in his defence.^† By a piratical taking, the right of the property is hot altered: you may proceed criminally for the piracy, and civilly for the goods.^‡ The trespass is not merged in the piracy, which is a civil law felony,^§ in which there was no appeal.^ǁ

3. As to the objection arising • under the Constitution and the acts establishing the judiciary of the United States, it is contended, that exclusive jurisdiction is not given to the Courts of the United States. The Constitution declares that “ the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction.” The Constitution did not intend to give in these cases exclusive jurisdiction. It will be seen, by reference to that instrument, that wherever exclusive jurisdiction was intended to be given to any branch of the government, it has been done in express words. “ The Senate shall have sole power to try all impeachments.” Art. 1, sec. 3, clause 5. Where no such exclusive jurisdictions intended to be given, a different phraseology is used : “ The judicial power shall extend to all questions arising under the Constitution; to controversies between citizens of different states,” &c. And such questions are every day entertained in the State Courts.

This is not necessarily a maritime case. It is a mere trespass. Could not a suit for an assault and battery committed on the high seas, be prosecuted in. the State Courts ? The judicial act, 24th Sep. 1789, (sec. 2, Rev. Code, 60,) recognizes the jurisdiction of the Common Law Courts, where they are competent to give relief; and this may be considered as a cotemporaneous exposition of the Constitution. See JSreckenridgc’s opinion. 3 Rin-ney, 263.

Gaston, for the Defendant,

against the jurisdiction.— The first section of the third article of the Constitution declares, that “ the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction and the act of Congress of 24th Sep. 1789, gives to the District Courts of the United States exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving the common law remedy, where the common law gives one. To ascertain what are causes of admiralty and maritime jurisdiction, either exclusively, or concurrently with the common law, we must examine into the English doctrine on the subject.

The jurisdictions of all Courts in England are either mediately or immediately derived from the Crown. The administration of justice is one of the attributes of the Executive power, originally exercised in person, but for many ages back delegated to the Judges of the different Courts. These Courts have gained a known and stated jurisdiction, regulated by certain and established rules, which nothing short of the authority of Parliament can altor; but all flowing from the same' fountain.^* These Courts are known to be principally four: 1st, The Courts of Common Law and Equity. 2d. The Courts Ecclesi-agijcaj_ 3d. The Courts Military. 4th.- The Courts Maritime. As the partition of jurisdiction between them was not very specifically defined, it must have- happened that conflicts arose among them, and' that the- limits of their respective jurisdictions were not immediately ascertained.

We will turn our attention to the Courts of Common Law and the Courts Maritime. The business of the first was to enforce contracts made within the body of the realm; and so strictly was this the case, that it was an established maxim, that nothing done without the realm could be tried within it by the oaths of twelve men.^† The object of the latter was to inquire into maritime contracts and torts arising on the sea, or in parts out of the reach of the common law. It was a delegation of that branch of the executive prerogative and duty, which regarded the protection of the king’s subjects by sea.^‡ It was considered as comprehending all questions- of prize, of torts and offences, as well in ports within the ebb and flow of the tide as on the high seas, of contracts of a maritime nature, or relating to navigation, and also the custody of the prerogative of the crown in the British seas.^§

This jurisdiction was gradually impaired. The barons' and the boroughs which had a privilege of holding special Courts were anxious to take away from these Courts the jurisdiction of wrecks. They wished to enjoy the fortunate spoil thrown upon their shores, rather than suffer an over refined tribunal to preserve it for the distressed owners. They, therefore, procured the passage of the acts of 13 Rich’d, 2, ch. 5, 15 Rich’d, 2, ch. 3, and 2 Hen. 4, ch. 11.^* These statutes declared that the Admiralty should not take cognizance of any contracts, pleas or quarrels, or other things arising within the bodies of counties, as well by land as sea, nor (specially naming them) of wrecks of the sea; and they gave an action to the party who should be wrongfully pursued in an Admiralty Court.

In the conflict which afterwards occurred between the Courts of Common Law and the Maritime Courts, (similar to those of the Courts of Common Law with the Courts of Equity and with the Ecclesiastical Courts,) the former availed themselves of these statutes to effect that which never had been designed by them. They imposed a most rigid construction, and confined the admiralty jurisdiction (with some remarkable exceptions) to contracts and other things arising exclusively, and executed, or to be executed, exclusively on the high seas.^† No one was more zealous in this strife than Lord Coke, of whom Justice Buller remarked, “ What is said by my Lord Coke in 4 Inst. 135, relative to the admiralty jurisdiction, has always been received with great caution and frequently contradicted. He seems to have entertained not only a jealousy of, but an enmity against that jurisdiction.^‡ The Courts of Common Law enforced their construction by means of their writs of prohibition $ and to prevent a failure of justice in this and other cases, they invented the fiction of supposing an act done on the sea, or beyond seas, as done within the realm, and permitted a false venue to be averred, which they would not suffer to be traversed;^§ and thus rendered the controversy triable by an English jury.

In many instances, the Court of Admiralty were thus stripped of their jurisdiction, while in others they were permitted to exercise it in common with the Courts of Common Law. The latter were principally mariners' wages, except where the contract was under seal; bottom-ry, in certain cases anti under many restrictions ,• sal-vag6j wiiere the wrecked property was not cast on shore.^*

It must be remembered that every Court of Admiralty has two distinct functions •, indeed, it may be said that the Judg’e holds two Admiralty Courts of civil jurisdiction, the one is the g’eneral Court of Admiralty or the Instance Court; the other the Priae Court. The first is holden by virtue of his general commission, enumerating every object of his judicial cognizance, but nothing relative to prize. To call forth this other authority, a distinct commission issues directing him to proceed upon all manner of captures, seisures, prizes and reprisals of all ships or goods, and to hear and determine thereof, according to the course of the admii’alty and the law of nations.

The enactment of the Parliament and the efforts of the Judges of the Common Law Courts, had no view whatever to the prize jurisdiction of admiralty. The statutes did not refer to prize proceedings, there had been no complaints about such, no prohibitions in such •, and the Prize Courts continued uniformly, and without interruption, to try all cases involving the question of capture as prize within or without the realm.^† Notwithstanding the favorite maxim of the day. “ Est boni jvdids ampliare juris-dictioniim,” an attempt was scarcely made to bring such a case within the reach of the Westminster Courts. It was a matter to be decided by the jus gentium, which they did not profess to understand, required an acquaintance with the King’s foreign treaties, with the forms of foreign commissions, with the nature of the relative intercourse, friendly or hostile, between foreign states, and with the proceedings of foreign Courts acting under the civil law ; all perfectly foreign from the subjects of municipal jurisprudence — sometimes they would be tempted to make an encroachment, but they did not long persist. For instance, they at one time held that if a tort be committed at sea, fit for the consideration of a Maritime Court, and the property taken be afterwards changed on land, or if the tort were not a continuing one, but severed by the intervention of new parties, they could then claim a jurisdiction.^* But, on mature consideration, this claim was retracted, upon the very plain reason, that it would drive them- to examine into the nature of the original tort, which they professed not to understand $ and they laid it down as a fixed principle, that where the original tort was at sea, the jurisdiction of the Admiralty should not be defeated by any subsequent transaction on land.^†

This jurisdiction of prize, claimed and exercised by the Admiralty Courts exclusively, not only not prohibited to them, but never exercised, and in fact disclaimed by the Courts of Common Law, comprehended,

1. Every case of capture, or of alleged capture, as prize by British subjects.^‡

2. Every case of capture on the high seas by pirates, where the thing or persons came within the British realm.^§

3. Every caso of alleged capture as prize by foreigners, where the prize is brought within the realm. The Court of Prize has there jurisdiction to examine whether it has |)Cen gQ ¿a¡íel],5 -whether under authority, whether under circumstances demanding or justifying the interference of the nation; and this more especially, if any subjects of Ms own complain.

If the prize be carried into neutral territory, the Admiralty then shall enquire and may restore.^*

If it be supposed that the Courts of Common Law liare a concurrent jurisdiction, this supposition is repelled,

1. By the utter want of precedent to shew that an action in such a case ever was sustained in a Court of Common Law. It was said by Justice Buller, “ that an universal silence in Westminster Hall on a subject, which frequont- “ ly gives occasion for litigation, is a strong argument to e< prove that no such action can he sustained.”

2. By the reason which permits the Court of Admiralty to take cognizance of sijph controversies. The question of “ prize or no prize,” is to he decided, not on principles of Municipal Law, but by the Law of Nations and by treaties. Mutual convenience, eternal principles of justice, the wisest regulations of policy, and the consent of nations, have established a system of procedure, a code of law, and a tribunal for the trial of prize. Every claimant resorts to this tribunal, which in all civilized nations is governed by the same law. The cases which are brought before it, almost uniformly affect the sovereign authority of other nations, and may change the public relations of the one in which the tribunal hears and decides them. They should, therefore, he confided to a national tribunal, and to none other.^*

3. By the most express and repeated adjudications, that wherever a case presents the question of “ Prize or not prize i” not only the Admiralty shall, but the Common Law Courts shall not have jurisdiction. It is emphatically the question which excludes jurisdiction. However wrongful the capture, however destitute of color, though there has been a final decision that it was not prize, yet the existence of the question precludes the Common Law jurisdiction.^*

j£ y. ]}fi objected that it does not appear that the capturing vessel had a commission | that if it had, the authority of that commission was invalidated by equipment within the United States, or the subsequent conduct of the cap- íors; it may be answered, that the question is not now was it a good prize ? — did the capture vest the property ? but a preliminary inquiry: Can this Court have cognizance of a cause which presents such a question ?

If a capture be made as prize, under the pretence of a jus belli, it is not a lit subject for the jurisdiction of a Court of Common Law. But still a Court of Prize may examine into it. Should that Court find it was made with authority from any sovereign, or that it was an outrage on the rights of the nation where such Court is held, such Court may restore. (Glass v. the Betsey, Talbot x>. Jan-son, the Alerta, &c. before cited.) But when it finds it to be done by authority of the sovereign of the captors, it remits the case to the decision of his Courts of Prize. This inquiry into the regularity of the commission and conduct of the captors is interdicted to a Municipal Court.

In opposition to all these principles and decisions, is brought forward the case of 'Wlieelright v. Depreyster, from 1 John. 471. As to this case, it may be said, that the point was really never decided, but evaded by the Court. It was distinctly made by the Counsel, see 476. “ This, being a question of prize, belongs properly to the « District or Admiralty Court, and is not cognizable here. “ All questions relating to property sold as prize, and in “ whichthe legality of the capture is litigated, belong exclu- “ sively to the Admiralty Court.” This argument is feebly answered by asking, “ Is this the time to raise objections “ to jurisdiction on a motion for a now trial ? Why did you “ not remove the cause into the Court of the United States ?” In the judgment of the Court, this objection to the jurisdiction is absolutely mistaken for the position “ that the e< sentence of the Court at St. Domingo was conclusive.” They examine whether the sentence of condemnation at St. Domingo was conclusive, in order to ascertain whether they have a jurisdiction. The attempt to shew that in questions of insurance, Courts of Common Law exercise the jurisdiction which is there contested entirely fails. They do not inquire whether the capture be as prize ? Whether the captors have authority ? Whether the property be changed ? But, simply, what was its character ^011 £a|cen ? Bid it comport with that described in the policy ?

The case of Hallett v. Novion, in 14 Johns, is also quoted. The decision is made by a bare majority, and the reasons given will not stand an examination. They are completely answered and refuted in the opinion of the minority, as delivehed by Mr. Justice Spencer. By what logic is it established, that because the original equipment was against our municipal laws, that a capture made cannot be a prize of war ? Suppose this to be established, will it follow that the capture could not even have been made as prize? If Congress pass a law prohibiting an act, and giving jurisdiction of the offence to the Federal Courts, have they therefore taken from those Courts the civil jurisdiction which they heretofore exclusively had over the consequences of such an act?

Originally maritime captures under the form of war were solely examinable in the Admiralty Courts, and, however wrongful, were not what the Common Law recognized as trespasses. By prohibitions and fictitious venues, the Courts 'of Common Law have indeed much restricted the jurisdiction of the instance side of the Admiralty Courts, but have never taken any part of their jurisdiction in matters of prize. All torts connected with asserted prize, have ever admitted and received in Courts of Admiralty complete redress ; and their jurisdiction over such torts is rigorously exclusive. This exclusive jurisdiction, by a fundamental law of the land, has been wisely given to a national tribunal.

* 3 Black. Com. 109.

† 1 Ld. Ray. 272.

‡ 3 Binney, 271. Id. 245.

§ See Sir Wm Scott’s answer to Mr. Jay, 1 Rob. Introduc. iv. 1 Whea-ton 254, 261. 1 Johns. 481. 4 Crancli 282. Id. 243, where no objection, was taken to the common law remedy.

ǁ 4 Crancli 272. 1 John. Ch. Rep. 547. 13 Johns. 155, 587. 9 Ves. 347. Edwd. Adm. Rep. 1. Case of the Manilla. Appendix D, Case of the Pelican.

¶ 4 Cranch. 282. 1 Wheaton 254.

** 3 Dallas 159. 1 Wheaton 258.

* 1 Robs. Rep. 38.

† 4 Dallas, 44.

‡ 4 Cranch, 282.

§ 1 John. 481. 2 Bur. 694. 1 Rob. Rep. 117.

* 3 Dallas, 154, 160.

† 3 Dallas, 158. 1 Mod. 283. 6 Com. Dig. 397

‡ 3 Dallas, 160. Cro. Eliz. 685.

§ 3 Inst. 111, 112.

ǁ 4 Black. Com. 362, 363,

* 1 Black. Com. 266, 7. 3 do, 24.

† Littleton, § 440. Doctor Be Student, B. 2, ch. 2.

‡ 3 Black. Com. 69. 3 Reeves’ History, 198. 13 Reports, 53.

§ 2 Gal. 400 to 407,

* Essay on the Civil Jurisdiction of the Admiralty. Introduction to Hall’s Translation of Clarke’s Praxis.

† 2 Gal. 406 to 422,•"and authorities there cited,

‡ 3 Term Reports, 348,

§ Co. Litt, 361. b.

* Abbot 528, 153, 4 and 5, 383 and 4. Intvod. to Ckake’s Praxis.

† Dorcy, 613 and 614, 2d Woodeson, 451, 2,

* The Spanish Ambassador v, Jolliffe, Hob. 78.

† 1 Vent. 308, 173. 2 Saund. 259. Cro. Eliz. 685. I Soil. Ah. 530. Com. Dig. Adm’y, 3?. 5 and 6. 2 Gall. 435 and 436.

‡ Hadley v. Egglesfield, 2 Saunders, 259. Where, after an adjudication of prize, the Court of Admiralty still had jurisdiction to examine whether it was prize, and determine the validity of the sentence; for the validity ofsuch sentence is not determined by the Common Law.

Turner & Carey v. Nile, 1 Lev. 243. Or Turner & Carey v. Smith, 1 Sid. 367, for damage sustained in port by reason of an illegal capture of a neutral by a British letter of marque. See Le Caux v. Eden, Dough 594, and cases there cited.

§ Cro. Eliz. 635. If goods be tortiously taken on the sea by piracy, and sold upon the land, not "in market overt, the matter shall be tried in the Admiralty. Ventris, 308. Ship taken by pirates and carried to Tunis and sold. Notwithstanding the sale on land, it is a case for the Admiralty — quoted 2 Bac. Ab. — Court of Admiralty.

Spark v. Stafford, Hard. 183. Ship taken at sea by pirates, and ransomed by master, who paid the money on land. Suit in the Admiralty for the money,

* 3 Dallas, 160. Lex. Merc. 206, 207, 227. Molloy, 41, B. 1, C. 2, § 21. Institutes of Admiralty, 7, 219.

A Dunkirker took a French vessel on tlie liiglr seas, and sold ship and lading at Weymouth before carrying them infra prasidia. A fit case for the Admiralty. Laws of the Admiralty, 1 vol. 126.

Palaches case, 3 Buis. 27, 8, 9. 1 Rolle’s Rep. 175.

The Perseverance, 2 Rob. 198. A British vessel taken as prize, illegally condemned in Norway, seized by the former owner on her coming to England, through the medium of a Court of Prize.

The Kierlighest, 3 Rob. 82. British ship which had been taken as prize by the French, condemned by a French consul in Norway, sold to a Dane, captured again, condemned in Spain by a French consul, but ordered to be restored on appeal, comes into a British port. The Court of Admiralty there examines into the transaction, and restores.

Glass v. sloop Betsey, 3 Dallas, 6. An American Court of Admiralty has jurisdiction to entertain the libel of its own citizens, and friendly foreigners seeking the restitution of property taken from them as prize on the high seas, and brought into our ports. “ That the vessel is a legal prize may be a good plea to the Court, but it is none to the jurisdiction of the Court.

Talbot v. Janson, 3 Dallas, 133. Prize Court in the united States lias a right to examine into a capture made on the high seas as prize, and brought into a port of the United States. And if it appear that the capture were made -without commission, or the vessel were illegally equipped in a neutral country, it is bound to restore.

The Merta, 9 Cranch, 359. Same doctrine fully laid down by the Supreme Court.

The L'Invincible, 1 Wheaton, 257, 258. When a vessel is seized upon the high seas, it is prima facie a maritime tort, of which the Admiralty Courts of the country into which she is carried may inquire. It is no plea to the jurisdiction of such Courts that the seizure was as prize. Such Courts, proceeding by jus gentium, may go on to examine whether it was an authorised seizure, made in the legitimate exerpise of the rights of war. If it appear to such, a Court that there was no commission; that the seizure violated the territorial rights of the nation; that the capturing' vessel was illegally equipped within the country; then it is bound to exercise its proper Admiralty powers, die power of protesting against unlawful depredations on the high seas, to restore and compensate. But the instant it is shewn to be a seizure by a commissioned cruizer, made in the legitimate exercise of the rights of war, their progress is arrested, and the case must be left to the Courts of Brize of the captors.

* Judge Iredell’s Remarks, 3 Balias 91.

* Le Caux v. Eden, Dougl. 594. Smart v. Wolff, 3 Term Rep. 344. Camden v. Horne, 4 Term, 382. Key v. Hubbard, do. 607.

Doane’s Administrator v. Penhallow, 1 Dallas, 218. There had been a final decree for restitution of property, because it was not prize. After this decree, the person having possession used the property. On an action being brought at Common Law, the suit was dismissed, because the original talcing was as prize; and the question whether prize or not, occurred again, although the sentence was decisive evidence to prove it was not prize. And it was held that Courts of Common Law and Instance Courts might have concurrent jurisdiction; but Courts of Common Law and Courts of Prize, never. A libel was afterwards filed in the District Court of the United States, as a Court of Prize. Jurisdiction entertained, and redress given, 3 Dallas, 54.

Ross’s Executors v. Rittenhouse, 2 Dallas, 160 to 170. An action at Common Law to recover a sum of money which an Inferior Judge of a Court of Admiralty had been ordered to pay, will not lie. A libel for the money in the United States5 District Court, as a Court of Prize, was maintained. See 5 Cranch.

Dusportas v. Jennings & Woodrop, 1 Bay’s Reports, 470. A sale was made in the United States, under an order of a Trench Consul here, as of piize, and a purchase by the former proprietors, who refused to pay. An action could not be sustained, because of the question of prize or not prize, which deprived such a Court of jurisdiction.

Maidonnair v. Keating, 2 Gallison, 325. The cognizance of ransom bills exclusively belongs to the Admiralty, because they involve the question of prize or no prize, the legality of the capture, the regularity of tire commission, and conduct of the captors.

Chariott v. Tonpart, 3 Binney, 220. A Court of Common Law cannot sustain an action to recover property which has been taken on the high seas as prize. Per Vates & Breclcenridge, Judges.

And Courts of Common Law cannot have jurisdiction where Courts of Prize have. Per Washington, Judge, in Snell v. Foupart, 3 Binney, 239.

Simpson v. Nadeau, 2 Hay. 391. Conf. Rep. 115. If a capture be made on pretence of prize, it ousts the jurisdiction of a Corut of Common Law.

Taylor, Chief-Justice,

delivered the opinion of the Court:

The question of jurisdiction arises out of the following facts: The Plaintiff was owner of the brig Jane and cargo, both of which were covered by Spanish papers to, protect tlicm from BHtish capture. On her voyage from a Spanish to an American port, she was captured by an armed schooner, in a belligerent manner, and a prize master and crew put on hoard of her, by whom she was conducted to the port of Beaufort, in this State, where she was entered as a Spanish merchantman, having all the papers which it is usual for such a vessel to possess. No commission was shewn by the schooner at the time of the capture; but it is known that she was fitted out from a port in the United States, whence she sailed on a cruise under a Carthagenian commission. Upon the arrival of the Jane at Beaufort, she was consigned by Gonzales, the prize master, to the Defendant, who sold paid of the cargo, and loaded the brig Avith a return cargo, Avhcn the American captain appeared, and libelled the hvig and cargo in the United States District Court of Admiralty. The brig was restored, the return cargo directed to be sold, and its proceeds, after payment of costs, paid to the Plaintiff for damages ; but as to the prayer in the libel, that damages should be decreed for the value of the cargo on board at the time of the capture, and that the Defendant should account for the value in his hands, the libellant waived all further claim on that process, and no decree Aims made thereon.

It would be a waste of time to quote authorities to prove that the question of prize or no prize is exclusively of Admiralty cognizance : a position that seems to admit of no controversy ¿ and the only enquiry here is, whether that question must necessarily be decided, before it can be ascertained whether the Defendant has committed a wrongful conversion. The brig had been provided Avith Spanish papers to guard against a capture by the British, the only maritime enemy the United States then had ; and she thus assumed the character of the only nation, against the vessel of Avhich, the schooner, sailing under the Carthagenian flag, and bearing a commission, Avas authorized to cruize. That the province of Carthagena was in a state of revolt and rebellion to her former sovereign, and that her armed. cruisers were scouring the seas, to make capture of Spanish vessels, arc facts of public notoriety. Whether there-vo^eq s^a^e, claiming' to exercise the right of sovereignty, could lawfully issue commission for that purpose, and whether her cruizers could rightfully make captures, are questions depending upon the laws of war, and they are to be determined by the laws of nations, and not by the municipal laws of any country. The jurisdiction of a Common Law Court, administering a code not common to other nations, is ousted, whenever it appears that the capture was made in a hostile character, whether properly acted upon or not: and whenever the jurisdiction of the Admiralty has once attached by the taking as prize, nothing subsequent can take it away.

But assuming the principle that this Court was at liberty to examine the authority of the commission under which the capture was made, and to pronounce it illegal, because the Carthagenian sovereignty was not recognised by our government, still, as the capture was made in a hostile form, it would be piratical and equally within the Admiralty jurisdiction. This was decided upwards of two hundred years ago, and has been recently confirmed in the great case of Le Caux v. Eden, Douglas 594 ; to which case and to Cro. Eliz. I refer, as clearly establishing the principles on which the Court rely.

The objection that the Plaintiff would be without redress, if a Common Law Court refuse it, inasmuch as only the Prize Courts of the nation to which the captor belongs can take cognizance of the case, is completely answered by several adjudications in the Coui’ts of the United States. Iñ Talbot v. Jansen, 3 Dallas 133, it was decided that a Prize Court of the United States has cognizance of the capture as prize, where the property is brought within the jurisdiction ; and if the capture were made without a commission, or the vessel illegally fitted out in the neutral country, is bound to make restitution. The same principle is established by the case of the Alerta, 9 Crunch, 359, and of the L'Invincible, 1 Wheaton, 257, 8. But a more decisive answer is, that in this case, the Court of Admiralty did exercise its j urisdiction by a restitution of the vessel, and a sale of the return cargo; and would doubtless have given damages for the illegal capture, had the Bibellant thought proper to proceed for them. 3 Wheat. 546.

Two plainer propositions cannot be stated than that this subject is exclusively of Admiralty jurisdiction $ and that the Prize Court ivas fully competent to administer complete relief and justice to the Plaintiff, upon proper application. If this Court has not jurisdiction of the subject matter, the Court cannot perceive how jurisdiction is’ given by the circumstance of the privateer’s being fitted out in a port of the United States, in violation of an act of Congress. There is nothing in that act v.hich can have the effect of enlarging the jurisdiction of this Court $ for the offences defined in it are triable and punishable solely in the Courts of the United States. The maxim which precludes a person from availing himself of his own wrong, or setting up a defence founded in a violation of the law, pre-supposes that the Court has jurisdiction of the matter against which such defence is brought forward; but can never operate so as to confer a jurisdiction on the Court. If a person were indicted for a trespass in talcing away property, in a Court having no jurisdiction of such a crime, and it should appear in the course of the evidence relied upon by him, that he committed a felcny instead of a trespass, could the Court on that account convict and punish for the trespass f Or if a hill were instituted in Chancery, which, upon the face of it, shewed that there was a complete and exclusive remedy at law, would the Court sustain the bill, because the answer shewed that the Defendant had violated a positive law ? I apprehend the answer to both of these questions must be in the negative.

The Court are of opinion, that a Court of Common Law has no jurisdiction of the case, and that judgment be ren~ dcred for the Defendant.