PENHALLOW v. DOANE'S, 3 U.S. 54 (1795)

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 of the case from the Record,
Documents, and Acts, which have been exhibited.

  It appears, that on 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 many
"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 rifled of their
"cargoes, by order of his Majesty's naval and military officers,
"there commanding, without the said vessels having been proceeded
"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 "towns and places
being accessible to the king's ships, in "which any troops shall
be raised or military works erected,
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"under colour of which said orders, the commanders of his
majesty'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
unprovoked "injuries, have at last determined to prevent as much
"as possible a repetition thereof, and to procure some reparation
"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 competent "to determine the
propriety of captures. Therefore resolved,

  "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 the purposes herein after "mentioned.

  "2. Resolved, That all transport 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 merchandize
"for the use of such fleet 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 entitled
"to cruize for, or make prize of any vessel or cargo, before "he
shall have obtained a commission from the Congress, "or from such
person or persons as shall be for that purpose appointed, "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 captures
"to be made as aforesaid, and to provide that all trials in
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"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 resolution
"shall be construed so as to enable the captor to remove "his
prize from any Colony competent to determine concerning "the
seizure, after he shall have carried the vessel so seized "within
any harbor of the same.

  "6. That in all cases an appeal shall be allowed to the
Congress, "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
secretary "during the recess of Congress, then the said appeal to
be "lodged in Congress within twenty days after the meeting

  "7. That when any vessel or vessels, shall be fitted out, at
"the expence of any private person or persons, then the captures
"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 United
"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 so 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 entitled "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 the 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

  That, on the 3d July, 1776, the Legislature of
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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 person or persons who have
been, or shall be concerned in the taking and bringing into this
colony, any vessel or vessels employed or offending, or being the
property as aforesaid, shall jointly, or either of them by
themselves, or by their attornies, or agents, within twenty days
after being possessed of the same in this Colony, file before the
said Judge, a libel in writing, therein giving a full and ample
account of the time, manner, and cause of the taking such vessel
or vessels. But in case of any such vessel or vessels, already
brought in as aforesaid, then such libel shall be filed within
twenty days next after the passing of this act, and at the time
of filing such libel, shall also be filed, all papers on board
such vessel or vessels, to the intent, that the Jury may have the
benefit of the evidence, therefrom arising. And the judge shall
as soon as may be, appoint a day to try by a jury, the justice of
the capture of such vessel or vessels, with their apurtenances
and cargoes; and he is hereby authorized and empowered to try the
same. And the same judge shall cause a notification thereof, and
the name, if known, and description of the vessel, so brought in,
with the day set for the trial thereon, to be advertised in some
newspapers printed in the said Colony (if any such paper there
be) twenty days before the time of the trial, and for want of
such paper, then to cause the same notification to be affixed on
the doors of the Town-House, in said Portsmouth, to the intent
that the owner of such vessel, or any persons concerned, may
appear and shew cause (if any they have) why such vessel, with
her cargo and appurtenances, should not be condemned as
aforesaid. And the said Judge shall, seven days before the day
set and appointed for the trial of such vessel, or vessels, issue
his warrant to any constable or constables within the county
aforesaid, commanding them, or either of them, to assemble the
inhabitants of their towns respectively, and to draw out of the
box, in manner provided for drawing jurors, to serve at the
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Court of Judicature, so many good and lawful men as the said
Judge shall order, not less than twelve, nor exceeding
twenty-four; and the constable or constables shall, as soon as
may be, give any person or persons, so drawn to serve on the jury
in said Court, due notice thereof, and shall make due return of
his doings therein to the said Judge, at or before the day set
and appointed for the trial. And the said jurors shall be held to
serve on the trial of all such vessels as shall have been
libelled before the said Judge, and the time of their trial,
published, at the time said jurors are drawn, unless the Judge
shall see cause to discharge them, or either of them before; and
if seven of the jurors shall appear and there shall not be enough
to compleat the number of twelve (which shall be a pannel) or if
there shall be a legal challenge, to any of them, so that there
shall be seven, and not a pannel, it shall and may be lawful for
the Judge, to order his clerk, the sheriff, or other proper
officer, attending said court, to fill up the jury with good and
lawful men present; and the said jury when so filled up, and
impannelled, shall be sworn to return a true verdict, on any
bill, claim, or memorial which shall be committed to them
according to law, and evidence; and if the jury shall find, that
any vessel or vessels, against which a bill or libel is committed
to them have been offending, used, employed or improved as
aforesaid, or are the property of any inhabitants of
Great-Britain as aforesaid, they shall return their verdict
thereof to the said Judge, and he shall thereupon condemn such
vessel or vessels, with their cargoes, and appurtenances, and
shall order them to be disposed of, as by law is provided: and if
the jury shall return a special verdict, therein setting forth
certain facts, relative to such vessel or vessels (a bill against
which is committed to them) and it shall appear to the said
Judge, by said verdict, that such vessel or vessels, have been
infesting the sea coast of America, or navigation thereof, or
that such vessels have been employed, used, improved, or
offending, or are the property of any inhabitant, or inhabitants
of Great-Britain, as aforesaid, he, the said Judge, shall
condemn such vessel or vessels, and decree them to be sold, with
their cargoes, and appurtenances, at public vendue; and shall
also order the charges of said trial and condemnation, to be paid
out of the money which such vessel and cargo, with her
appurtenances, shall sell for to the officers of the court,
according to the table of fees, last established by law of this
Colony, and shall order the residue thereof to be delivered to
the captors, their agents, or attornies, for the use and benefit
of such captors, and others concerned therein: and if two or more
vessels (the commanders whereof, shall be properly commissioned)
shall jointly take such vessel, the money which she and her cargo
shall sell for (after payment of charges as aforesaid) shall
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be divided between the captors in proportion to their men. And
the said Judge is hereby authorized to make out his precept,
under his hand and seal, directed to the sheriff of the county
aforesaid (or if thereto requested by the captors or agents to
any other person to be appointed by the said Judge) to sell such
vessel and appurtenances, and cargo, at public vendue, and such
sheriff or other person after deducting his own charges for the
same, to pay and deliver the residue, according to the decree of
the said Judge.

  "And be it enacted by the authority aforesaid, That any person
or persons, claiming the whole, or any part or share, either as
owner or captor of any such vessel, or vessels, against which a
libel is so filed, may jointly, or by themselves, or by their
attornies or agents, five days before the day set and appointed
for the trial of such vessel or vessels, file their claim before
the said Judge; which claim shall be committed to the jury, with
the libel, which is first filed, and the jury shall thereupon
determine and return their verdict, of what part or share such
claimant or claimants, shall have of the capture, or captures;
and every person or persons who shall neglect to file his or
their claim in the manner as aforesaid, shall be forever barred

  "And be it further enacted by the authority aforesaid, That
every vessel, which shall be taken and brought into this Colony,
by the armed vessels of any of the United Colonies of America,
and shall be condemned as aforesaid, the proceeds of such vessels
and cargoes, shall go and be, one third part to the use of the
captors, and the other two thirds, to the use of the colony, at
whose charge, such armed vessel was fitted out.

  "And where any vessel or vessels shall be taken by the fleet
and army of the United Colonies, and brought into this colony,
and condemned as aforesaid, the said Judge shall distribute and
dispose of the said vessels, and cargoes, according to the
resolves and orders of the American Congress.

  "Andwhereas, the honorable Continental Congress have
recommended, that in certain cases an appeal should be granted
from the court aforesaid.

  "Be it therefore enacted, That from all judgments, or decrees,
hereafter to be given in the said court maritime, on the capture
of any vessel, appurtenances or cargoes, where such vessel is
taken, or shall be taken by any armed vessel, fitted out at the
charge of the United Colonies, an appeal shall be allowed to the
Continental Congress, or to such person or persons, as they
already have, or shall hereafter appoint, for the trials of
appeals, provided the appeal be demanded within five days, after
definitive sentence given, and such appeal shall be lodged
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with the Secretary of the Congress, within forty days afterwards;
and provided the party appealing, shall give security to
prosecute said appeal with effect; and in case of the death of
the Secretary, during the recess of the Congress, the said appeal
shall be lodged in Congress, within twenty days, after the next
meeting thereof; and that from the judgment, decrees, or sentence
of the said court, on the capture of any vessel, or cargo which
have been or shall hereafter be brought into this colony, by any
person or persons, excepting those who are in the service of the
United Colonies, an appeal shall be allowed to the superior court
of Judicature, which shall next be held in the county aforesaid.

  "And whereas no provision has been made by any of the said
resolves for an appeal from the sentence or decree of the said
Judge, where the caption of any such vessel or vessels may be
made by a vessel in the service of the United Colonies, and of
any particular colony, or person together:

  "Therefore be it enacted by the authority aforesaid: That in
such cases, the appeal shall be allowed to the then next superior
Court as aforesaid: Provided the Appellant shall enter into bonds
with sufficient sureties to prosecute his appeal with effect. And
such superior Court, to which the appeal shall be, shall take
cognizance thereof, in the same manner as if the appeal was from
the inferior Court of Common Pleas, and shall condemn or acquit,
such vessel or vessels, their cargoes, and appurtenances, and in
the sale, and disposition of them, proceed according to this act.
And the Appellant shall pay the court, and jury, such fees as are
allowed by law in civil actions."

  That, on the 30th January, 1777, Congress resolved, that a
standing committee, to consist of five members, be appointed, to
hear and determine upon Appeals brought against sentences passed
on libels in the courts of Admiralty in the respective states.

  That Joshua Stackpole, a citizen of New-Hampshire,
commander of the armed brigantine called the M'Clary, acting
under the commission and authority of Congress, did, in the month
of October, 1777, on the high seas, capture the brigantine
Susanna, as lawful prize.

  That John Penhallow, Joshua Wentworth, Ammi R. Cutter,
Nathaniel Folsom, Samuel Sherburne, Thomos Martin, Moses
Woodward, Niel M'Intire, George Turner, Richard Champney, and
Robert Furness, all citizens of New-Hampshire, were owners of
the brigantine M'Clary.

  That George Wentworth was agent for the captors.

  That, on the 11th November 1777, a libel was exhibited to the
Maritime Court as New Hampshire, in the names of John
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Penhallow and Jacob Treadwell, in behalf of the owners of the
M'Clary, and of George Wentworth, agent for the captors,
against the Susanna, and her cargo; to which claims were put in
by Elisha Doane, Isaiah Doane, and James Shepherd, citizens
of Massachusetts.

  That, on the 16th December, 1777, a trial was had before the
said court, when the Jury found a verdict in favor of the
Libellants; whereupon judgment was rendered, that the Susanna,
her cargo, &c. should be forfeited, and deemed lawful prize, and
the same were thereby ordered to be distributed according to law.

  That an appeal to Congress was, in due time, demanded, but
refused by the said court, because it was contrary to the law of
the State.

  That then the said Claimants prayed an appeal to the superior
Court of New Hampshire, which was granted.

  That, on the first Tuesday of September, 1778, the superior
Court of New Hampshire, proceeded to the trial of the said
appeal, when the Jury found in favour of the Libellants; that
thereupon the court gave judgment, that the Susanna, with her
goods, claimed by Elisha Doane, Isaiah Doane, and James
Shepherd, were forfeited to the Libellants, and the same were
ordered to be sold at public vendue, for their use and benefit,
and that the proceeds thereof, after deducting the costs of suit,
and charges of sale, be paid to John Penhallow and Jacob
Treadwell, agents for the owners, and to George Wentworth,
agent for the captors, to be by them paid and distributed
according to law.

  That the claimants did, in due time, demand an appeal from the
said sentence to Congress, and did also tender sufficient
security or caution to prosecute the said appeal to effect, and
that the same was lodged in Congress, within forty days after the
definitive sentence was pronounced in the superior court of New

  That, on the ninth of October, 1778, a petition from Elisha
Doane was read in Congress, accompanied with the proceedings of
a Court of Admiralty for the State of New Hampshire, on the
libel, Treadwell and Penha low, versus brig Susanna, &c.
praying, that he may be allowed an appeal to Congress; whereupon
it was ordered, that the same be referred to the committee on
appeals. Fourth Journal of Congress, 586.

  That, on the 26th June, 1779, the commissioners of appeal, or
the Court of Commissioners, gave their opinion, that they had
jurisdiction of the cause.

  That the articles of confederation bear date the 9th July,
1778, and were ratified by all the states on the 1st March,
Page 62

  That, by these articles, the United States were vested with
the sole and exclusive power of establishing courts for receiving
and determining finally appeals in all cases of capture.

  That such a court was established, by the style of "The "Court
of Appeals in cases of capture." By the commission, the Judges
were "to hear, try, and determine all appeals from "the Courts of
Admiralty in the States respectively, in cases "of capture." 6th
Journal of Congress, 14, 21, 75.

  That, on the 24th May, 1780, Congress resolved, "That all
matters respecting appeals in cases of capture, now depending
before Congress, or the Commissioners of Appeals, consisting of
Members of Congress, be referred to the newly erected Court of
Appeals, to be there adjudged and determined according to 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 solemn argument, finally adjudge and decree,
that the sentences or decrees passed by the inferior and superior
Courts of Judicature of New Hampshire, so far as the same
respected Elisha Doane, Isaiah Doane, and James Shepherd,
should be revoked, reversed, and annulled, and that the property,
specified in their claims, should be restored, and that the
parties each pay their own costs on the said appeal.

  Here the cause rested till the adoption of the existing
Constitution of the United States; except an ineffectual
struggle before Congress, on the part of New Hampshire, and an
unavailing experiment, at common law, to obtain redress on the
part of the Appellants. After the organization of the judiciary
under the present government, the representatives of Elisha
Doane, who was one of the Appellants, exhibited a libel in the
District Court of New Hampshire, which was legally transferred
to the Circuit Court, against John Penhallow, Joshua Wentworth,
Ammi R. Cutter, Nathaniel Folsom, Samuel Sherburne, Thomas
Martin, Moses Woodward, Niel M'Intire, George Turner, Richard
Champley, Robert Furness, & George Wentworth.

  This libel, after setting forth the proceedings in the
different courts, states, that the brigantine Susanna, with her
tackle, furniture, apparel and cargo, and also the monies arising
from the sales thereof, came, after the capture, to the hands and
possession of Joshua Wentworth, and George Wentworth, whereby
they became liable for the same, together with the captors and
owners. That after the death of Elisha Doane, letters of
administration of the personal estate of the said Elisha were
granted to Anna Doane, his widow, and Isaiah Doane, and that
the widow afterwards intermarried with David Stoddard
Greenough. The Libellants pray process against the refpondents
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to shew cause, why the decree of the Court of Appeals should not
be carried into execution, and they also pray, that right and
justice may be done in the premises and that they may recover
such damages as they have sustained by reason of the taking of
the Susanna.

  The Respondents, protesting, that they never were owners of the
M'Clary, 2nd that they have none of the effects of the
Susanna, nor her cargo in their possession, say, that the
Susanna was in the custody of the Marshal, and, upon the final
decree of the superior Court of New Hampshire, fold for the
benefit of the owners and mariners of the M'Clary, and
distributed among them according to law; that the decision of the
said court was final; that no other court ever had, or hath, or
ever can have power to revoke, reverse and annul the said decree,
and, in a subsequent part of the pleadings, that the District
Court of New Hampshire hath no authority to carry the decree of
the Court of Appeals into execution, or to give damages.

  To this sort of plea and answer, neither and yet both, the
Libellants reply, that the matters contained in their libel are
just and true, and that they are ready to verify and prove the
same; that the matters and things alleged by the Respondents are
false and untrue; that the Court of Commissioners, and Court of
Appeals were duly constituted, and had jurisdiction of the
subject-matter; that no other Court hath or can have authority to
draw into question the legality of their decisions, and that the
District Court of New Hampshire bath jurisdiction.

  I have extracted and consolidated the material parts of the
libel, plea, answer, replication, rejoinder, sur-rejoinder, &c.
if they may be so termed, without detailing the allegations of
the parties as they arise in the course of procedure.

  Upon these pleadings the parties went to a hearing before the
Circuit Court of New Hampshire, which, after full
consideration, decreed, that the Respondents should pay to the
Libellants their damages and costs, occasioned by their not
complying with the decree of the Court of Appeals; the quantum of
which to be ascertained by Commissioners. This interlocutory
sentence was pronounced the 24th October, 1793.

    The Commissioners reported, that the Lusanna, her cargo, &c.
  were, on the 2d October, 1778, being the assumed time of
  sale, worth                                   £.  5,895 14 10
    That they calculated thereon 16 years
  interest, viz. from the 2d. October 1778,
  to 2d. October 1794, amounting to                 5,659 17  4
                                                £. 11,555 12  2
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  On this report being affirmed, the Circuit Court pronounced
their definitive sentence on the 24th October, 1794, that the
Libellants recover against the Respondents the sum of 38,518
dollars and 69 cents, damages, and 154 dollars, and 30 cents,
costs. The Respondents, conceiving themselves aggrieved, have
removed the cause before this court for revision."

  The Record being returned, the Plaintiff in error on the 2d
February 1798, assigned the following errors:

  "To the Chief Justice and the Associate Justices of the Supreme
Court of the United States, to be holden at the City of
Philadelphia, on the first Monday of February in the year
of our Lord one thousand seven hundred and ninety-five, John
Penhallow, Joshua Wentworth, Ammi Ruhammah Cutter, Nathaniel
Fulsom, Samuel Sherburne, Sen. Thomas Martin, Moses Woodward,
Neal M'Intire, George Turner, Richard Champney, Robert Furness,
and George Wentworth, Plaintiffs in error, against David
Stoddart Grenough, and Anna his wife, and Isaiah Doane,
Administrators of the estate of Elisha Doane, deceased,

  "HUMBLY SHEW, That in the Record and Process aforesaid, hereto
annexed, and in passing the final Decree, it is manifestly erred
in this, viz. That whereas it was decreed in favour of the said
David Stoddart Grenough, and Anna his wife, and Isaiah
Doane, the said decree ought to have been in favour of the said
John Penhallow, and others, the Plaintiffs: — and for other and
further Errors, they assign the following, viz.

  "Firstly. That by said decree it was ordered, that the said
John Penhallow and others, Plaintiffs, be condemned in damages
for their not performing a certain decree of a Court claiming
Appellate jurisdiction in prize causes, held in the City of
Philadelphia, on the seventeenth day of September, Anno
Domini, 1783, when, in fact, the said last mentioned Court had
no jurisdiction power, or authority whatever, by law, to make and
pass the said decree; and that the said decree was illegal and a

  "Secondly. That there is also manifest Error in this, viz.
That if the said last mentioned Court had at the time of their
passing said decree, Appellate jurisdiction of said cause, yet
said decree was altogether erroneous and impossible to be
performed or executed, because, (as by the said Greenough's and
others own shewing, in their libel aforesaid) the said Elisha
Doane was, at the time of making and passing the said decree,
viz. on the seventeenth day of September, Anno Domini 1783, and
long before that time, dead; when, by the same decree, it is
ordered that restoration of said property be made to said Elisha

  "Thirdly. There is also manifest error in this, viz. That
said cause was not brought before Congress, or the Commissioners
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by them appointed, to hear and try appeals in prize causes,
according to the Resolve of Congress, but repugnant thereto, viz.
by way of complaint, and that no appeal from the said decree of
said Court of New-Hampshire, was allowed by the same Court, or
by Congress.

  Fourthly. There is also manifest error in this, viz. That in
and by the said libel upon which the decree aforesaid in said
Circuit Court is made, damages for not performing the decree of
said Court of Appeals, are not prayed for — wherefore, the said
Circuit Court ought not to have decreed or condemned the
Plaintiffs in damages as is done by said final decree.

  Fifthly. There is also manifest error in this, viz. That said
final decree of said Circuit Court, was not made upon a due trial
and examination of the merits of the capture of the said
Brigantine Susanna, her tackle, apparel and furniture, and of
the goods, wares, and merchandizes, and of the evidences or
proofs which might have been adduced by the Plaintiffs in error
if such 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 said Grenough and others, the libellants,
to the said Brigantine, her tackle, apparel and furniture, and of
the said goods, wares and merchandizes, condemned, and of the
illegality of the capture and condemnation aforementioned in said
libel, which is contrary to the usage and customs of Admiralty,
Maritime and Prize Courts, and altogether unwarranted by law.

  Sixthly. There is manifest error also, in this, viz. — That by
the shewing of the said Libellants, the monies arising from the
sale of said brigantine and cargo, &c. were paid to the said
Joshua Wentworth and George Wentworth as agents, to be
distributed according to law, viz: one half to the owners of the
said privateer, M'Clary, and the other to the captors, viz. to
the officers and seamen on board, which were distributed
accordingly. Whereas in fact by said final decree, they the
Plaintiffs in error, and Joshua and George as agents, and the
other Plaintiffs as owners, are made liable, and condemned in
full damages for the whole value of said brigantine, her tackle,
apparel, and furniture, and of said goods, wares and
merchandizes, which is altogether illegal.

  Seventhly. There is also manifest error in this, viz. — That it
doth not appear by the copy of the record of said Court of
Appeals, filed and used in this cause, how the same cause, in
which that court decreed as aforesaid, came before said court, or
was legally instituted, or had day therein, at the time of
passing said decree.

  Eighthly. There is manifest error in this, also, viz. — That
said Circuit Court, in passing said final decree, and in all the
Page 66
proceedings in the same, acted and proceeded as a Court of
Admiralty, when as such, they, by law, had no jurisdiction of
said cause, and could not legally take cognizance thereof.

  WHEREFORE, for these and other errors in the record and
process, and final decree aforesaid, of the said Circuit Court,
the said Plaintiffs in error, pray, That the final decree
aforesaid, of the said Circuit Court, may be reversed, annulled,
and held to be altogether void, and they restored to all things
which they have lost.

                                               JOHN S. SHERBURNE.

  The Defendants replied in nullo est erratum; and thereupon
issue was joined.

   For the Plaintiffs in error, the arguments were of the
following purport.

   I. ERROR. This is a question between citizens of the United
States; a citizen of one State being a citizen of every State.
Const. Art. s. Questions between subjects of different States,
belong entirely to the law of nations. 3 Bl. Com. 69. but
between citizens of the same State, the municipal law, even in
questions of prize during a war, is of supereminent 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 properly before the Congressional Court of Appeals. Doane
petitioned Congress, and Congress referred the petition to the
Committee of Appeals. 6 Vol. Journ. Cong. 133, 167. In the case
of the Sandwich Packet, a committee was appointed, and upon
their report, Congress allowed the appeal. Regularly, in the
present instance, the appeal ought to have been allowed by the
court below, and the record lodged with the Secretary of
Congress; or there should, at least, appeal a special allowance
of the appeal by Congress, as in the case of the Sandwich
Packet, and not a mere reference to a committee. The court of
New Hampshire, in fact, refused to allow the appeal; and the
appearance of the party in the Congressional Court of Appeals,
could not cure any defect, as he there pleaded directly to the
jurisdiction, and notice signifies nothing against a compulsory
judgment. The legal, customary, modes to compel the return of a
record, by certiorari, and a writ of diminution, &c. might have
been resorted to. 3 Bac. Abr. 204. Conset on courts. 187.
There was no privity between the Court of Appeals and the Circuit
Court; and an inferior Court cannot execute the decrees of a
superior Court. 1 Sid. 418. 1 Vent. 32. 6 Vin. 373. pl.
2. Esp. 87. 1 Lev. 243. Raym. 473. Doug. 580. Cowp.
176. But had the Congressional Court of Appeals jurisdiction in
this case? That court is extinct; and may now be considered in
the light of a foreign court; and the decres of foreign courts
are regarded on
Page 67
a footing of reciprocity. Whether, then, the Congressional Court
of Appeals, was, in this instance, a court of the last resort, is
the gift of the controversy; and we contend that it was not, but
that the superior Court of New Hampshire, was, by the law of
the State, the Court of the last resort. On an appeal, or on a
writ of error, like this, in the nature of an appeal, the
Plaintiff in error may use every defence which he could have
urged below; and the authorities evince that the competency of
the court giving the judgment may be enquired into. 1 Bac. Abr.
630. Doug. 5. 3 Term Rep. 29. 130. 132. 269. Carth. Parke on
Ins. 11 State Trials, 222. 232. 2 Dom. 676 Ayl. 72. 3.
Whether the Congressional Court had any jurisdiction at all, must
depend on a comparison between the resolves of Congress of
November 1775, and the law of New Hampshire, of July 1776;
and to solve that difficulty, three subordinate questions may be
discussed; — 1st. Had Congress exclusive jurisdiction of prize
causes in Nov. 1775? — 2d. Are their resolutions on that subject
mandatory and absolute; or recommendatory — and 3d. Did they
necessarily imply, and authorise, a revision of facts, which had
already been established by the verdict of a Jury. —

   1. Had Congress exclusive jurisdiction of prize causes in
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
resides in each State. Federalist, p. Adams' Def. 162. 3. And
in the histories of Holland and of Germany the rule will be
illustrated and confirmed. 1 Montesq. 263. 7 Vol.
Encyclopœdia, 709. Chesterfield's Works, 1 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 asserted 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
Page 68
sovereign States. Adams' Def. 1 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. 1
Ramsay's Hist. 143. 1 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. 1
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 case 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. 2 Vol. Dall. Edit. 111. Still,
however, it is conceded, that Congress, from the necessity of the
case, 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. 1. s. 1. Now, the fact is, that the New-England
Page 69
colonies had first made war, according to this definition; and at
their instance the other colonies afterwards joined them. 1
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. 1 Vol. Journ. Cong. 81. 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 and 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
consent? 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 cases 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 case. Congress made
treaties, but they could make 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
Page 70
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
act 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 West-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 by 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. Prussian
Treaty. Art. 21. s. 4. Dutch Treaty. Art. 5. Swedish
Treaty, Art. 18. s. 4. But 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 Congress
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
Page 71
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 Congress, 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 presence 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 Justice
(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.
Page 72

   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 Bac. 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, so 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; but 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. Lee 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
Page 73
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[fn*].

   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.

   VIII. 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

   I. ERROR: — The objection that the appeal was not properly
before the Congressional Court, ought not at this stage to be
sustained, since the party appeared there, and pleaded to the
jurisdiction; and the court took cognizance of the cause. The
court ad quem, and not the court a quo, the proceeding is
brought, must determine whether the appeal lay. A certified
Page 74
copy of the decree of the Court of New Hampshire was lodged
with Congress; and the case was treated in the same way that
Congress (who were not bound down to particular forms) treated
other similar cases. Nor can it injure the Defendant in error,
that he took his first appeal to the superior Court of New
Hampshire; for, that State had certainly a right to establish
different Courts of Appeal, provided the last resort was made to
Congress. But an appeal was tendered and refused; and a
certiorari only lies to Courts of Record, which was not the
case with the inferior Court of New Hampshire. The act of
Congress directs a removal by writ of error in all cases and
therefore takes away all objections not appearing on the record.
Nor is it effectual to say, that an inferior court cannot execute
the judgment of a superior Court; for, we had no remedy at common
law; the question of prize or no prize being solely of Admiralty
jurisdiction. Dall. Rep.: the only remedy was in the District
Court of New Hampshire. It has even been contended, that a
Court of Admiralty of England may grant execution on a judgment
in Friezland against an Englishman. 6 Vin. 513. pl. 12. 1
Lev. 267. 1 Vent. 32. Godb. 260. and a Court of Admiralty
may proceed to give effect to its own sentence upon a new libel
being filed. 4 T. Rep. 385. We contend then, that Congress had
jurisdiction to determine the appeal as well before, as after,
the ratification of the articles of confederation: — before the
ratification, from the nature and necessity of the case; and
after the ratification from the force of the compact. Congress
was chosen by the representatives of the people; and when war
commenced, it could not have been prosecuted, without vesting
that body with a jurisdiction, which, should pervade the whole
continent. A formal compact is not essential to the institution
of a government. Every nation that governs itself, under what
form soever, without any dependence on a foreign power, is a
sovereign state. In every society there must be a sovereignty.
1 Dall. Rep. 46, 57. Vatt. B. 1. ch. 1. s. 4. The powers
of war form an inherent characteristic of national sovereignty;
and, it is not denied, that Congress possessed those powers. As,
therefore, the decision of the question, whether prize, or no
prize, is a part of the power and law of war, Doug. 585. 6. and
must be governed by the law of nations, 3 Bl. Com. 68, 69. 2
Wood. 139. 4 Term Rep. 394, 400, 401, it follows, as a
necessary consequence, that if Congress possessed the whole power
of war, it possessed all the parts; — the incidents, as well as the
principal jurisdiction. Under this impression, Congress
recommended the institution of prize courts in the several
States; but reserved to itself the right of appeal; and its
journals are filled with the exercise of powers derived from the
same source, and having
Page 75
no greater pretensions to validity. On the 2d May, 1775, the
militia are directed to be trained for defence. On the 1st June,
Congress declare that they stand on the defensive merely, and the
invasion of Canada by any of the Colonies is objected to. On the
14th June, an army is directed to be raised. On 15th June, a
General is appointed. On the 6th July, war is, in effect,
declared. On the 7th November, the articles of war, inflicting
death in certain cases, were passed. On the 25th Nov. the
resolutions concerning prizes were adopted. On the 28th
November, rules and orders were established for the government
of the navy. On the 5th December provision was made for salvage
in the case of re-captured vessels. On the 13th December a
fleet was established. On 20th December it was declared that
the law of nations should regulate the proceedings in prize
causes. On 22d December, the Naval Committee act. On 26th
Dec. the United Colonies are pledged for the redemption of the
paper money. On the 23d March and 24th July, 1776, the
equipment of privateers is authorised. On 2d and 3d April, the
form of a commission for privateers is settled. On the 4th
July, Independence is declared. On 26th Aug. half pay was
allowed to disabled officers. On 5th September, it was resolved
that propositions for peace should only be made to Congress. On
the 9th September, a committee is appointed on an appeal in the
case of the schooner Thistle, and the stile of the
confederation was changed from "United Colonies "to" United
States." On 16th September, additional battalions were raised.
On 20th September, a new set of articles of war were
substituted instead of the former. On the 21st October, the
oath to be taken by officers in the Continental service was
prescribed. On 30th January and 8th May, 1777, a standing
committee was appointed, to hear and determine appeals. On 31st
January, a decree of a committee was set aside on an appeal. On
8th May, a new commission for privateers was settled. On the
14th October, Congress resolved to retaliate by condemning as
prize, the enemy's vessels, brought in by their own mariners. On
the 6th February, 1778, Congress formed a treaty of alliance
with France. On 9th July, 1778, the articles of confederation
were ratified and signed by all the states, except New-Jersey,
Delaware, and Maryland. On 27th July, 1778, new members were
added to the committee of appeals. On 14 January, 1779,
Congress resolved 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 jurisdiction of
Congress, as to facts found by a jury, was urged by
Pennsylvania in the case of the sloop Active. On 15th Jan.
1780, and 24th May, a court of appeals in the case of captures
was instituted. On 21st January and 30th March, 1784, the
proceedings in the case of the Susanna, came
Page 76
before Congress. On 24th May, 1780, the stile of the court of
appeals was settled. On 26th June, 1786, a court of review was
instituted. After so extensive a display of power and
jurisdiction, it is absurd to oppose theory to practice, and to
reason in the abstract, instead of adopting the evidence of
facts. But on principle as well as practice, the old
commissioners of appeals had jurisdiction. Congress had an
imperfect sovereignty previous to the declaration of
independence; and the articles of confederation are only a
definement of rights, before vague and uncertain. The acts of
Congress were either performed by virtue of delegated powers, or
of subsequent ratifications, and the acquiescence of the state
legislatures and the people. On the declaration of independence,
a new body politic was created; Congress was the organ of the
declaration; but it was the act of the people, not of the state
legislatures, which were likewise nothing more than organs of the
people. Having, therefore, a national sovereignty, extending to
all the powers of war and peace, including, as a necessary
incident, the right to judge of captures, the commissioners of
appeals were lawfully instituted; and it is absurd to say that
both the Federal and State governments held sovereignty in the
same points, nor can the jurisdiction of the court of appeals
that succeeded the commissioners be now questioned. There would,
indeed, be no end of disputes, if the judgments of a Supreme
Court, on the point of jurisdiction, could be enquired into. Lee
on Cap. 242. Collec. Jurid. 153. 139. 3 Bl. Com. 411. 57. 1
Bac. Abr 524. That point was lawfully before the court of
appeals; and the court of appeals, when they made their decree,
in 1783, were clearly the supreme court of admiralty under the
consederation. The court of appeals took the cause up, as it had
been left by the commissioners of appeals; and not on a new
appeal from New-Hampshire; they, therefore, virtually decided,
that the commissioners of appeals had jurisdiction. If, then,
this court may now enquire into the judgment of the court of
appeals, every district court in the Union may do the same; and
the controversy would never be at rest.

   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
not 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
Page 77
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 a 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 be 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 in 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

   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 to
support a judgment. 1 Wils. 2. 2 Stra. 1180. Regularly,
Page 78
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, therefore, the life of the party was not material. Ayliff.
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. 2
Lev. 6. And this being a court of civil law, the principle
equally applies. The present record states that the appellant and
appellee appeared by their advocates; and if any error in this
respect occurred in the court of appeals, a court of review 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 judgment 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. Judgment 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 by 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.
Page 79

   VI. ERROR: — The damages, it is contended, 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 judgment of the Circuit Court
should be deemed erroneous in the mode of decreeing damages, this
court will correct it, and give such a judgment 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 case of Glass et al
v. the sloop Betsey[fn*].

[fn*] Page 73
PATERSON, Justice: — If the damages were improperly given,
jointly, by the Circuit Court, can this court rectify the
error, or direct the Circuit Court to do it?

   Bradford: — This Court cannot do it, because they are not
possessed of evidence to shew in what proportions the damages
ought to be paid by the Respondents.

[fn*] Page 79
See ant. p. 4.

   On the 24th of Feb. 1795, the Judges delivered their
opinions seriatim.

   PATERSON, Justice:

   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
sound 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
Page 80

   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 institute 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 sun of the political system. To
determine what their powers were, we must enquire what powers
they exercised. Congress raised armies, fitted 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 sent 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 vested, 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
Page 81
wills as there were states, 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 great 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 Susanna; and for the legality of
that capture he must ultimately be responsible to Congress, or
their constituted 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
Page 82
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 Susanna. But I am,
notwithstanding, of opinion, that New-Hampshire was bound, and
Congress supreme, for the reasons already assigned, and that the
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 the 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

   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 Jour. 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 sleep 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 passed 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 reversing the sentence of
the Court of Admiralty, making a new decree, and ordering process
Page 83
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 declared, that the finding of a
jury shall establish the facts in all trials in the Courts of
Admiralty, without re-examination or appeal, and that an appeal
is permitted only from the decree of the judge:

   "That having examined the said act, which is entitled, "an act
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 vested in the sovereign supreme power of war and peace:
Page 84

   "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

   "That 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

   "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 Active, was duly
constituted and authorised to determine the same:"

   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

   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
Page 85
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

   "The members chosen, Mr. Paca, Mr. Burke, and Mr. R.H.

   I shall close this head of discourse with observing, that it
is with diffidence I have ventured to give an opinion on a
questien so novel and intricate, and respecting which, men,
eminent for their talents, their literary attainments, and skill
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 consederation were
ratified, the Court of Appeals had jurisdiction of the subject

   However problematical the opinion, which has been delivered on
the preceding point, may be, I apprehend, that little doubt or
difficulty can arise on the present question. By the 9th
article of the Consederation, the United States, in Congress assembled,
are vested, 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
reversed and annulled, and the property be restored. This decree
being made by a court, constitutionally 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
Page 86
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

   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 facts 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 be at 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 court, 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 far as
it goes, is conclusive to all persons.

   The most formidable objections have been levelled against the

   1. It is said, that the damages ought not to have been given,
because they were not prayed. The answer to this objection
Page 87
is satisfactory — the prayer is for general relief, and therefore

   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

   If any Agent pay over, after notice, he pays wrongfully, and
shall not be excused. In this case George Wentworth was a party
to the suit, he appeared as one of the Libellants, and must be
liable to all the legal consequences resulting from such a
situation. As a party, he was before the court, and privy to the
appeal, which was made in due season. The appeal did, from the
moment it was made, suspend the execution of the decree, and that
whether it was received or not;[fn*] especially in cases like the
present, where George Wentworth was a party to the suit, before
the court, and had notice of its having been tendered or made. In
such a predicament, he ought not to have paid over; but should
have awaited the ultimate decision of the Court of Appeals. If he
paid, it was at his peril; he took the risk upon himself, and in
case 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. The decree
is for restoration. If the Court of Appeals had issued process to
carry their definitive sentence into effect, or
Page 88
had directed the Maritime Courts of New Hampshire to have done
so, would it, in the instance of George Wentworth, have been a
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 Penhallow 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

   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
Page 89
mingle in the administration of justice. Judges, in the exercise
of their functions, have frequent occasions to exclaim, "durum
valde durum, sed sic lex est."

     To conclude, the sum of   —      —      —  £.5,895 14 10
  appears, on the record, to be the aggregate
  value of the Susanna, her cargo, &c.

     On this sum interest should be calculated
  from 17th September, 1783, till 24th October,
  1794, which will amount to   —      —      —    3,920 13  4
  Making in the whole    —      —     —      —  £.9,816  8  2

   Equal 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.

   I am also of opinion, that the parties should bear their
respective costs, which have arisen on the prosecution of the
appeal in this court.

[fn*] Page 87
2 Dom. 686.

   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. I
have listened with the most 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 so, 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 enforce, either by decreeing a
specific execution, or awarding damages for a non-performance of

   3. Whether, if the District or Circuit Court had such an
authority, it has been executed properly in this instance, under
all the circumstances of the case?

   4. Whether, in case the Libellants were entitled to a decree
in their favour, but it 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

   Under the first head it will be proper previously to consider
if either of the decrees was final and conclusive, because if
that point should be decided in the affirmative, it will render
Page 90
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 same
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, so 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, because the Members of Congress did
Page 91
vote individually, but the votes given in 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 sit 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 of
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
Page 92
"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,
and 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 he 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 redress 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
occasion, 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 Congress, 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 so, 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
Page 93
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 sort of Federal union
whatever. A distinction was taken at the bar between a state
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 so 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 so 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
Page 94
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 practised (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, whole 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.
Page 95

   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 consideration 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 occasion to the controversy 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 necessary 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
Page 96
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 follow 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

   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 no 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 dissallowance 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 a case of capture and a question of appeal, no other
court on earth, 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 whose 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 for ever.

   I, therefore, have not the smallest doubt, that the decision
Page 97
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
fide, 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 alleged, had
authority to enforce, 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, because the words, "all civil causes of
admiralty and maritime jurisdiction," evidently include all
maritime causes, 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 possess 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 occasional 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 so much importance.[fn*]

   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,
Page 98
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 case 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 decrecing damages in lieu of a
specific restitution, which was impracticable.

   The third question is,

   Whether the authority hath been exercised properly in this
instance, under all the circumstances of the case?

   The material circumstances to be considered, either from facts
admitted on the face of the record, or the public proceedings
referred to by it, and of which we are judicially to take notice,
seem 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, the captured the brig Susanna and cargo on the high
seas: 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
Page 99
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 sold
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 Penhallow "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 sold, 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.
Page 100

   "It is hereby considered, and finally adjudged and decreed by
"this court, that the sentences or decrees passed by the inferior
"and superior courts of judicature for the county of
"Rockingham, in the above cause, so far as the same have
relation "to the property specified in the claims of Elisha
Doane, "Isaiah Doane, and James Shepherd, be, and the same are
"hereby revoked, reversed, and annulled, and that the said
property "specified in the said claims, be restored to the said
claimants "respectively; and it is hereby ordered, that the
parties to "the appeal each pay their own costs, which have
accrued "in the prosecution of the said appeal in this court."

   In this case considerable difficulty has arisen from the
peculiar manner of pleading, which is said to be warranted by
local practice, but which certainly has very much contributed to
embarrass the question in the cause. There is neither a complete
demurrer, nor, I conceive, a regular issue; and it may be deemed
doubtful, whether what is termed a plea, ought to be considered
as a plea or an answer. I had, therefore, at first strong doubts
whether there was sufficient matter before us to ground a final
decree: But upon reflection it seems to me, that as the case has
been argued on both sides, upon a supposition that a final decree
could be made; as there has been no application on either, for
the examination of testimony, but the hearing took place without
objection upon the pleadings as they stand, and consequently, we
can regard the facts, only as stated on the record; as an express
consent that the cause should be decided on this footing, would
undoubtedly have been binding, and the circumstances in this case
evidently prove an implied one; I think the pleadings as they
stand, will afford sufficient foundation for a decree, especially
according to those principles of practice, which we are told
prevail in the state from which this record comes — a practice
which, until altered, we undoubtedly ought to pursue, when it is
not substantially inconsistent with justice.

   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 Appellant Doane was dead, before
the final decision which was given in September, 1783; and this
it 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.
Page 101

   1. 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 other 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 case. 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 into a fact, perhaps
any thing of this kind may be shewn, and, is so, there surely
ought to be an opportunity of doing it.

   3. There seems great reason in what was alleged 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 allege (had that been
the fact) that they had sustained any prejudice by their being
heard ex parte.
Page 102

   It is a rule at common law (the reason applies in equity and
other civil law cases) that is a party can plead a fact, material
to his defence, 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 alleged 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 fact, 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 alleged for another purpose.

   It is said, that the decree is to restore to Elisha Doane,
which was impossible, because 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, is 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.
Page 103

   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 I 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 be 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 these particulars:

   1. In decreeing interest 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 satisfaction for
detention, but did not. They did not even decree costs, but
ordered each party to pay his own costs. These things were
altogether discretionary 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 conclusive as to the
Page 104
subject matter, it must be so as completely in respect to the
detention, which formed one part of the case, as to the
restoration, which formed the principal object of it.

   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 alleged, 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 non-compliance
with the decree.

   2. 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, is 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 wanton 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, so 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, ought to be jointly against
all the owners.
Page 105

   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, may be 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 alleged 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 cases 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.
Page 106
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 more
agent, an attorney in fact, and for aught I can fee, as
little liable to refund in a case of this sort, 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, whose
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 circumstances. 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 case, 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 serious doubts, are really entertained. Is a court,
therefore, because its judgments may be finally diffented from,
by a superior tribunal, to be considered as flying in the face of
the law, so that parties before it, shall not
Page 107
only be protected in disobeying it, but punished for their
obedience? If this be the case, the old maxim, cedunt arma
togœ, 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 case, 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, he 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 George 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

   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
Page 108
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.

[fn*] Page 97
See Glass et al. versus The Betsey et al. ant.

   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,
Page 109
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 Consideration 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 slects, 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 necessity
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 fast to a
crisis, and for some time before the battle of 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,
Page 110
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 may be deemed 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 my 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 co-operation of her
enemy, to reduce her colonies to obedience. But Great-Britain
was too wife 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,
Page 111
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 fort, they had a right to
extend their authority to the desired 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 war; and at all this
I find not 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 faviours 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 fame
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,
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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
controuling, 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 such long and anxious expectation, 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
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any authority she may have consented to give to Congress, and
that by her acts of assembly she did in fact revoke it, if it
were ever given. To this a very satisfactory answer was made: if
she had such a right, there was but one way of exercising it,
that is, by withdrawing herself from the confederacy; while she
continued a member, and had representative in Congress, she 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
unsound, and if the decree stand in need of some better support,
it will probably find it in the consederation, by which authority
is given to Congress, to erect Courts of Appeal in all cases; and
from that time the authority of the court of Appeals 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 consederation, 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 fee 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
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of the Susanna 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
indiscriminately, to the payment of all the damages, although
their interests 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 of 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, sought only a
compensation in damages equivalent to a restitution at 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 sued
out, in which time, if nothing had antecedently suspended the
sentence, it might be carried
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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 Domat, 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 deliberation; then preferred the
decree as it stands, I am clearly now, of a different opinion.
Upon the whole, I think the decree of the
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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

   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 the 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 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
consederation 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 a prohibition, in the case cited, respecting the decree in

   If the decree of the court of Appeals must he 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
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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 Consederation, 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 necessary
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
both sides. I have no doubt of the sovereignty of the states,
saving the power 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 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 case in Chancery Cases, p. 122, is more in point —
where money was made payable by the decree to a man that
Page 118
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 question of consequence is, whether Mr. George
Wentworth, being agent for the captors, and having paid over,
can be answerable jointly with the other libellants for the
whole, or, in any way, for any part. If it was simply the case of
an agent regularly paying over, I should suppose he could not
justly be called upon to refund. But it seems he was an original
libellant, a party through the whole course of the suit; and an
appeal being claimed in time, at the court and term, at which the
libellants obtained the decree (of which, therefore, he had legal
notice) the appeal, if a lawful one, in my opinion, suspended the
sentence and must make him answerable for whatever monies he
should receive under that decree, in case of reversal: 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 mis-applying
the property. For it appears to me absurd to suppose, that an
inhibition taken out seven or eight months after the
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appeal (nine months being allowed for the pnrpose) 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

   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 exactly 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 circumstances of the case, 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 may be a reasonable and just
construction, conformable to the spirit of the original libel,
then the decree of the Circuit Court is in that respect
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Also as to damages, I suppose, interest ought not to have been
allowed farther back than the decree. The only question 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.