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United States Supreme Court

16 U.S. 246

Gelston  v.  Hoyt

[Syllabus from pages 246-248 intentionally omitted]

ERROR to the court for the trial of impeachments and correction of errors of the State of New-York.

This cause had been removed into that court by the present plaintiffs in error, by writ of error directed to the supreme court of the said state. In January, 1816, the court of the state of New-York for the correction of errors in all things affirmed the judgment which had been rendered by the supreme court of the state of New-York, in favour of Hoyt, the present defendant in error. And before the coming of the writ of error issued from this court, the said court for the correction of errors of the state of New-York, according to the laws of the state of New-York, and the practice of that court, had remitted the record, which had been removed from the supreme court of the state of New-York, to the said supreme court, with a mandate thereon requiring the supreme court of the state of New-York, to execute the judgment, which had been so rendered by it in favour of the defendant in error. And the said record having been so remitted, the court of errors of the state of New-York upon the coming of the said writ of error from this court, made the following return thereto: 'State of New-York, ss. The president of the senate, the senators, chancellor, and judges of the supreme court, in the court for the trial of impeachments and the correction of errors; certify and return to the supreme court of the United States, that before the coming of their writ of error, the transcript of the record in the cause, in the said writ of error mentioned, together with the judgment of this court thereon, and all things touching the same, were duly remitted in pursuance of the statute instituting this court, into the supreme court of judicature of this state, to the end that farther proceedings might be thereupon had, as well for execution as otherwise, as might be agreeable to law and justice; and in which supreme court of judicature, the said judgment, and all other proceedings in the said suit, now remain of record; and as the same are no longer before, or within the cognizance of this court, this court is unable to make any other or farther return to the said writ. All which is humbly submitted.' Thereupon the counsel for the plaintiffs in error made an application to the supreme court of the state of New-York, to stay the proceedings upon said judgment, till an application could be made to this court in respect to the said writ of error. To avoid this delay, the counsel under the advice or suggestion of the judges of the said supreme court of the state of New-York, entered into the following agreement, viz. 'It is agreed, between the attorneys of the above named plaintiffs and defendant in error, that the annexed is a true copy of the record and bill of exceptions, returned by the supreme court of the state of New-York, to the court of errors of the said state, and remitted by the said court of errors, in the affirmance of the judgment of the said supreme court to the said supreme court. And that the said copy shall be considered by the said supreme court of the United States, as a true copy of the said record and bill of exceptions, and shall have the same effect as if annexed to the writ of error in the above cause from the said supreme court of the United States, and that the clerk of the supreme court of the state of New-York transmit the same, with this agreement to the clerk of the supreme court of the United States, and that the same be annexed by the said clerk of the supreme court of the United States, to the said writ of error, as a true copy of the said record and bill of exceptions.'

     Record and Bill of Exceptions.
      

City and County of New-York, ss. Be it remembered, that in the term of January, in the year of our Lord one thousand eight hundred and thirteen, came Goold Hoyt, by Charles Graham, his attorney, into the Supreme court of judicature of the people of the state of New York, before the justices of the people of the state of New-York, of the supreme court of judicature of the same people, at the capitol, in the city of Albany, and impleaded David Gelston and Peter A. Schenck, in a certain plea of trespass, on which the said Goold Hoyt declared against the said David Gelston and Peter A. Schench in the words following:

City and County of New-York, ss.: Goold Hoyt, plaintiff in this suit, complains of David Gelston and Peter A. Schenck, defendants in the suit, in custody, &c.: For that, whereas, the said defendants, on the tenth day of July, in the year of our Lord one thousand eight hundred and ten, with force and arms, at the city of New-York, in the county of New-York, and at the first ward of the same city, the goods and chattels of the said plaintiff, of the value of two hundred thousand dollars, then and there found did take and carry away, and other injuries to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of the people of the State of New-York. And, also, for that the defendants, afterwards, to wit, on the same day and year last aforesaid, at the city and county, and ward aforesaid, with force and arms, to wit, with swords, staves, hands, and feet, other goods and chattels of the said plaintiff, to wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels salted provisions, twenty hogsheads of ship-bread, of the value of two hundred thousand dollars, at the place aforesaid found, did take and carry away, and other wrongs and injuries to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of the people of the state of New-York: And also, for that the said defendants, afterwards, to wit, on the same day and year, and at the place aforesaid, the goods and chattels of the said plaintiff, to wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-broad, of the value of two hundred thousand dollars, then and there being and found, seised, took, carried away, damaged, and spoiled, and converted and disposed thereof, to their own use, and other wrongs to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of the said people of the state of New-York: And, also, for that the said defendants, on the same day and year aforesaid, with force and arms, to wit, with swords, staves, hands, and feet, to wit, at the city, county, and ward aforesaid, seised and took a certain ship or vessel of the said plaintiff of great value, to wit, of the value of two hundred thousand dollars, and in which said ship or vessel the said plaintiff then and there intended, and was about to carry and convey certain goods and merchandises, for certain freight and reward, to be therefor paid to him the said plaintiff; and then and there carried away the said ship or vessel, and kept and detained the same from the said plaintiff, for a long space of time, to wit, hitherto, and converted and disposed thereof to their own use; and thereby the said plaintiff was hindered and prevented from carrying and conveying the said goods and merchandises as aforesaid, and thereby lost and was deprived of all the profit, benefit, and advantage which might and would otherwise have arisen and accrued to him therefrom, to wit, at the city, county and ward aforesaid, and other wrongs and injuries to the said plaintiff then and there did, against the peace of the people of the state of New-York, and to the great damage of the said plaintiff. And also, for that the said defendants, afterwards, to wit, on the same day and year last aforesaid, at the city, county, and ward aforesaid, with force and arms, seised, and took possession of divers goods and chattels of the said plaintiff, then and there found, and being in the whole of a large value, that is to say, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, twenty hogsheads of ship-bread, of the value of two hundred thousand dollars, and staid and continued in possession of the said goods and chattels, so by them seized and taken as aforesaid, and the said goods and chattels afterwards took and carried away, from and out of the possession of the said plaintiff: whereby, and by reason, and in consequence of such said seizure, and of other the premises aforesaid, the said plaintiff not only lost, and was deprived of his said goods and chattels, and of all profits, benefits, and advantages, that could have arisen and accrued to him for the use, sale, employment, and disposal thereof, but was also forced and obliged to, and did actually, lay out and expend large sums of money, and to be at further trouble and expense in and about endeavouring to obtain restitution of the property so by the said defendants seized, as aforesaid, and other wrongs and injuries to the said plaintiff then and there did, against the peace of the people of the state of New-York, and to the damage of the said plaintiff of two hundred thousand dollars; and, therefore, he brings suit, &c.

And the said David Gelston and Peter A. Schenck thereto pleaded in the words following:

1st. Plea.

And the said David Gelston and Peter A. Schenck, by Samuel B. Romaine, their attorney, come and defend the force and injury, when, &c., and say that they are not guilty of the said supposed trespasses, above laid to their charge, or any part thereof, in manner and form as the said Goold Hoyt hath above thereof complained against them, and of this they put themselves upon the country.

2d. Plea.

And for a further plea in this behalf, as to the several trespasses mentioned in the first, second, third, fourth, and fifth counts in the declaration of the said plaintiff mentioned, to wit, in taking and carrying away the goods and chattels of the said plaintiff, mentioned in the first count in the said declaration of the said plaintiff; in taking and carrying away the goods and chattels of the said plaintiff, to wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsbeads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the second count in the said declaration of the said plaintiff; in seizing, taking, carrying away, damaging, spoiling, converting, and disposing to their own use, the goods and chattels of the said plaintiff, to wit, a ship or vessel of the said plaintiff; called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the third count in the said declaration of the said plaintiff; in seizing, taking, carrying away, keeping and detaining, and converting and disposing to their own use, a certain ship or vessel of the said plaintiff, mentioned in the fourth count in the said declaration of the said plaintiff, and in seizing and taking possession of, and in taking and carrying from and out of the possession of the said plaintiff, the goods and chattels of the said plaintiff, to wit, a ship, or vessel of the said, plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the fifth count in the said declaration of the said plaintiff, above supposed to have been committed by the said David Gelston and Peter A. Schenck; they, the said David Gelston and Peter A. Schenck, by leave of the court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, say, that the said Goold Hoyt ought not to have or maintain his aforesaid action against them, because they say that the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, the five hundred tons of stone ballast, one hundred hogshead of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, are the same and not other or different; and that the seizing, taking, carrying away, keeping, detaining, damaging, spoiling, converting and disposing thereof to their own use, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, are the same and not other or different. And the said David Gelston and Peter A. Schenck further say, that the ship or vessel, mentioned in the fourth count in the said declaration of the said plaintiff, is the same ship or vessel, called the American Eagle, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different; and that the seizing, carrying away, keeping and detaining, and converting and disposing thereof, to their own use, mentioned in the fourth count in the said declaration of the said plaintiff, is the same seizing, taking, carrying away, keeping and detaining, and converting and disposing thereof, to their own use, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different. And the said David Gelston and Peter A. Schenck further say, that the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, and the five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, are included in and are the only goods and chattels embraced by the general description of goods and chattels mentioned in the first count in the said declaration of the said plaintiff, and that the taking and carrying away thereof, mentioned in the said first count in the said declaration of the said plaintiff, is the same taking and carrying away thereof mention in the said second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different; and that the several trespasses mentioned in the first, second, third, fourth, and fifth counts in the said declaration of the said plaintiff, are the same trespasses, and not other or different. And the said David Gelston and Peter A. Schenck further say, that before the tenth day of July, in the year of our Lord one thousand eight hundred and ten, to wit, on the first day of July, in the year last aforesaid, at the port of New-York, in the district of New-York, to wit, at the city of New-York, in the county of New-York, and it the first ward of the said city, the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, was attempted to be fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, were then and there procured for equipment of the said vessel, and were then and there on board of the said vessel, as a part of her said equipment, with intent that the said ship or vessel, called the American Eagle, should be employed in the service of a foreign state, to wit, of that part of the island of St. Domingo which was then under the government of Petion, to commit hostilities upon the subjects of another foreign state, with which the United States of America were then at peace, to wit, of that part of the island of St. Domingo which was then under the government of Christophe, contrary to the form of the statute in such case made and provided. And the president of the said United States, to wit, James Madison, who was then president of the said United States, by virtue of the power and authority vested in him by the constitution and laws of the said United States, did, afterwards, to wit, on the sixth day of July, in the year last aforesaid, at Washington, to wit, at the city of New-York, in the county of New-York, and at the ward aforesaid, authorise, empower, instruct, and direct the said David Gelston and Peter A. Schenck to seize, take, carry away, and detain, as forfeited to the use of the said United States, the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread: And the said David Gelston and Peter A. Schenck further say, that they did afterwards to wit, on the tenth day of July, in the year last aforesaid, at the port of New-York, in the district of New-York, to wit, at the city of New-York, in the county of New-York, and at the ward aforesaid, by virtue of the said power and authority, and in pursuance of the said instructions and directions so given as aforesaid to them, the said David Gelston and Peter A. Schenck, by the said president of the said United States, and not otherwise, seize, take, carry away, and detain the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, as forfeited to the use of the said United States, according to the form of the Statute in such case made and provided: And the said David Gelston and Peter A. Schenck further say, that the seizing, taking carrying away, and detaining of the said ship or vessel, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, by the said David Gelston and Peter A. Schenck, on the tenth day of July one thousand eight hundred and ten, as aforesaid, is the same seizing, taking, carrying away and detaining of the said ship or vessel, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the several counts in the said declaration of the said plaintiff, and not other or different: And this they, the said David Gelston and Peter A. Schenck, are ready to verify; wherefore they pray judgment if the said Goold Hoyt ought to have or maintain his aforesaid action thereof against them, &c.

3d. Plea.

3. And for a further plea in this behalf, as to the several trespasses mentioned in the first, second, third, fourth, and fifth counts in the declaration of the said plaintiff mentioned, to wit, in taking and carrying away the goods and chattels of the said plaintiff, mentioned in the first count in the said declaration of the said plaintiff; in taking and carrying away the goods and chattels of the said plaintiff, to wit; a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the second count in the said declaration of the said plaintiff; in seizing, taking, carrying away damaging, spoiling, converting, and disposing to their own use, the goods and chattels of the said plaintiff, to wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the third count in the said declaration of the said plaintiff; in seizing, taking, carrying away, keeping and detaining, and converting and disposing to their own use, a certain ship or vessel of the said plaintiff, mentioned in the fourth count in the said declaration of the said plaintiff, and in seizing and taking possession of, and in taking and carrying from and out of the possession of the said plaintiff, to wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the fifth count in the said declaration of the said plaintiff, above supposed to have been committed by the said David Gelston and Peter A. Schenk, they, the said David Gelston and Peter A. Schenk, by leave of the court here for the purpose first had and obtained, according to the form of the statute in such case made and provided, say, that the said Goold Hoyt ought not to have or maintain his aforesaid action against them, because they say, that the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, the five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, are the same, and not other or different; and that the seizing, taking, carrying away, keeping, detaining, damaging, spoiling, converting, and disposing thereof to their own use, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, are the same, and not other or different: And the said David Gelston and Peter A. Schenck further say, that the ship or vessel mentioned in the fourth count in the said declaration of the said plaintiff, is the same ship or vessel, called the American Eagle, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different; and that the seizing, carrying away, keeping and detaining, and converting and disposing thereof, to their own use, mentioned in the fourth count in the said declaration of the said plaintiff, is the same seizing, taking, carrying away, keeping and detaining, and converting and disposing thereof, to their own use, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different: And the said David Gelston and Peter A. Schenck further say, that the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, and the five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, are included in, and are the only goods and chattels embraced by the general description of goods and chattels, mentioned in the first count in the said declaration of the said plaintiff, and that the taking and carrying away thereof, mentioned in the said first count in the said declaration of the said plaintiff, is the same taking and carrying away thereof, mentioned in the said second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different; and that the several trespasses mentioned in the first, second, third, fourth, and fifth counts in the said declaration of the said plaintiff, are the same trespass, and not other or different: And the said David Gelston and Peter A. Schenck further say, that before the tenth day of July, in the year of our Lord one thousand eight hundred and ten, to wit, on the first day of July, in the year last aforesaid, at the port of New-York, in the district of New-York, to wit, at the city of New-York, in the county of New-York, and at the first ward of the said city, the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, was attempted to be fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, were then and there procured for the equipment of the said vessel, and were then and there on board of the said vessel, as a part of her said equipment, with intent that the said ship or vessel, called the American, Eagle, should be employed in the service of some foreign state, to commit hostilities upon the subjects of another foreign state, with which the United States were then at peace, contrary to the form of the statute in such case made and provided. And the president of the said United States, to wit, James Madison, who was then president of the said United States, by virtue of the power and authority vested in him by the constitution and laws of the said United States, did afterwards, to wit, on the sixth day of July, in the year last aforesaid, at Washington, to wit, at the city of New-York, in the county of New-York, and at the ward aforesaid, authorize, empower, instruct, and direct the said David Gelston and Peter A, Schenck to take possession of, and detain the said ship or vessel, called the American Eagle, with her tackle, apparel and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, in order to the execution of the prohibitions and penalties of the act in such case made and provided: And the said David Gelston, and Peter A. Schenck further say, that they did afterwards, to wit, on the tenth day of July, in the year last aforesaid, at the port of New-York, in the district of New-York, to wit, at the city of New-York, in the county of New-York, and at the ward aforesaid, by virtue of the said power and authority, and in pursuance of the said instructions and directions so given as aforesaid to them, the said David Gelston and Peter A. Schenck, by the said president of the said United States, and not otherwise, take possession of, and detain the said ship or vessel, called the American Eagle, with her tackle, apparel and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, in order to the execution of the prohibitions and penalties of the act in such case made and provided: And the said David Gelston and Peter A. Schenck further say, that the taking possession of, and detaining of the said ship or vessel, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, by the said David Gelston and Peter A. Schenck, on the tenth day of July, one thousand eight hundred and ten, as aforesaid, is the same seizing, taking, carrying away, and detaining of the said ship or vessel, with her tackle apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread mentioned in the several counts in the said declaration of the said plaintiff, and not other or different: And this they, the said David Gelston and Peter A. Schenck, are ready to verify; wherefore they pray judgment if the said Goold Hoyt ought to have or maintain his aforesaid action thereof against them, &c.

And to which the said foregoing pleas, was subjoined the following notice.

SIR-Please to take notice that the defendants, at the trial of the above cause, will insist upon, and give in evidence, under the general issue above pleaded, that the ship or vessel called the American Eagle, with her tackle, apparel, and furniture, before the tenth day of July, in the year of our Lord one thousand eight hundred and ten, to wit, on the first day of July, in the year last aforesaid, at the port of New-York, in the district of New-York, to wit, at the city of New-York, in the county of New-York, and at the first ward of the said city, was attempted to be fitted out and armed, and was fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread were procured for the equipment of the said vessel and were then and there on board of the said vessel, as a part of her said equipment, with intent that the said ship or vessel, called the American Eagle, should be employed in the service of a foreign prince or state, to wit, of that part of the island of St. Domingo which was then under the government of Petion, to cruise and commit hostilities upon the subjects, citizens, and property of another foreign prince or state with which the United States were then at peace, to wit, of that part of the island of St. Domingo which was then under the government of Christophe, contrary to the form of the statute in such case made and provided: And the said defendants will also insist upon, and give in evidence under the said plea, that the said ship or vessel, with her tackle, apparel, and furniture, on the day and year last aforesaid, at the port of New-York, in the district of New-York, to wit, at the city of New York, in the county of New-York, and at the ward aforesaid, was attempted to be fitted out and armed, and was fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, were procured for the equipment of the said vessel, and were then and there on board of the said vessel, as a part of her said equipment, with intent that the said ship or vessel should be employed in the service of some foreign prince or state, to cruise and commit hostilities upon the subjects, citizens, and property of some other foreign prince or state, with which the United States were then at peace, contrary to the form of the statute in such case made and provided. And the said defendants will also insist upon, and give in evidence under the said plea, that he, the said David Gelston, was collector, and that he, the said Peter A. Schenck, was surveyor of the customs for the district of the city of New-York, on the 10th day of July one thousand eight hundred and ten, and before that time, and that they have ever since continued to be collector and surveyor as aforesaid, and that they, the said David Gelston and Peter A. Schenck as collector and surveyor as aforesaid, and not otherwise, did, on the said tenth day of July, in the year last aforesaid, at the port of New-York, in the district of New-York, to wit, at the city of New-York, in the county of New-York, and at the first ward of the said city, seize, take, and detain the ship or vessel, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one huudred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, according to the form of the statute in such case made and provided, and by virtue of the power and authority vested in them by the constitution and laws of the United States. Dated this 11th day of March, 1813.

And the said Goold Hoyt, to the said first plea, joined issue, and to the second and third pleas the said Goold Hoyt demurred as follows:

And as to the plea of the said David Gelston and Peter A. Schenck, by them first above pleaded, and whereof they have put themselves upon the country, the said Goold Hoyt doth the like, &c.

And as to the pleas by the said David Gelston and Peter A. Schenck, by them secondly and thirdly above pleaded in bar, the said Goold Hoyt saith, that the second and third pleas of the said David Gelston and Peter A. Schenck, or either of them, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient, in law, to bar and preclude him, the said Goold Hoyt, from having and maintaining his action aforesaid, against the said David Gelston and Peter A. Schenck; and that he, the said Goold Hoyt, is not bound by the law of the land to answer the same, and this he is ready to verify; wherefore, for want of a sufficient plea in this behalf, the said Goold Hoyt prays judgment, and his damages by him sustained, on occasion of the committing of the said trespasses, to be adjudged to him, &c.

And the said David Gelston, and Peter A. Schenck thereupon joined in demurrer as follows:

And the said David Gelston and Peter A. Schenck say, that their said pleas, by them secondly and thirdly above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient, in law, to bar and preclude the said Goold Hoyt, from having and maintaining his aforesaid action thereof against them, the said David Gelston and Peter A. Schenck: and that they, the said David Gelston and Peter A. Schenck, are ready to verify and prove the same, when, where, and in such manner as the said court shall direct; wherefore, inasmuch as the the said Goold Hoyt has not answered the said second and third pleas, nor hitherto, in any manner, denied the same, the said David Gelston and Peter A. Schenck, pray judgment, and that the said Goold Hovt may be barred from having, or maintaining, his aforesaid action thereof against them, the said David Gelston and Peter A. Schenck, &c.

And, afterwards, the said demurrer was brought on to be argued before the said supreme Court, at the city hall of the city of New-York, and judgment was given against the said David Gelston and Peter A. Schenck upon the said demurrer.

And afterwards, to wit, at the sittings of nisi prius, held at the city hall of the city of New-York aforesaid, in and for the said city and county, on the fifteenth day of November, in the year of our Lord one thousand eight hundred and fifteen, before the honourable Ambrose Spencer, esq. one of the justice's of the supreme court of judicature of the people of the state of New-York, assigned to hold pleas in the said sittings, according to the form of the statute in such case made and provided, the aforesaid issue, so joined between the said parties as aforesaid, come on to be tried by a jury of the city and county of New-York aforesaid, for that purpose empanneled, that is to say, Walter Sawyer, Edward Wade, William Prior, James M'Cready, Richard Loines, John Rodgers, Asher Marx, Benjamin Gomez, Samuel Milbanks, James E. Jennings, George Riker, and Jacob Latting, good and lawful men of the city and county of New-York, aforesaid, at which day came there as well the said Goold Hoyt as the said David Gelston and Peter A. Schenck, by their respective attornies aforesaid, and the jurors of the jury, empanneled to try the said issue, being called, also came, and were then and there, in due manner, chosen and sworn to try the same issue; and upon the trial of that issue the counsel learned in the law for the said Goold Hoyt, to maintain and prove the said issue on their part, gave in evidence, that at the time of the seizure of the said ship American Eagle, by the said David Gelston and Peter A. Schenck, she was in the actual, full, and peaceable possession of the said Goold Hoyt, and that, on the acquittal of the said vessel in the district court of the United States, for the district of New-York, it was decreed that the said vessel should be restored to the said Goold Hoyt, the claimant of the said vessel, in the said district court: and for that purpose the counsel of the said Goold Hoyt gave in evidence the proceedings in the said district court of the United States, by which it appeared that a libel had been filed in the name of the United States against the said ship American Eagle, in which it was, among other things, alleged, that the said ship had been fitted out and armed, and attempted to be fitted out and armed, and equipped and furnished, with intent to be employed in the service of Petion against Christophe, and in the service of that part of the island of St. Domingo which was then under the government of Petion, against that part of the said island of St. Domingo which was then under the government of Christophe, contrary to the statute in such case made and provided; and that the said Goold Hoyt had filed an answer to the said libel, and a claim to the said vessel, in which the said Goold Hoyt had expressly denied the truth of the allegations in the said libel; and it also appeared by the said proceedings, that in the month of April, one thousand eight hundred and eleven, an application had been made to the said district court, by the said Goold Hoyt, to have the said ship appraised, and to have her delivered up to him on giving security for her appraised value; and it also appeared, by the said proceedings, that appraisers had been appointed by the said court, and that they had appraised the said ship, her tackle, &c. at thirty-five thousand dollars, and that the said appraisement had been filed, and had not been excepted to; and that the sureties offered by the said Goold Hoyt, for the appraised value of the said ship, had been accepted by the said court; and it also appeared, by the said proceedings, that the said cause had been tried before the said district court, and that the said libel had been dismissed, and that the said ship had been decreed to be restored to the said claimant, and that a certificate of reasonable cause for the seizure of the said vessel had been denied. And the counsel of the said Goold Hoyt, to maintain and prove the said issue, did give in evidence that the value of the said ship, her tackle, apparel, and furniture, at the time of her seizure as aforesaid, was one hundred thousand dollars, and did also give in evidence, that the said Peter A. Schenck seized and took possession of the said ship by the written directions of the said David Gelston; but no other proof was offered by the said plaintiff, at that time, of any right or title in the said plaintiff to the said vessel; and here the said plaintiff rested his cause.

Whereupon the counsel for the defendants did, then and there, insist, before the said justice, on the behalf of the said defendants, that the said several matters so produced and given in evidence on the part of the plaintiff as aforesaid, were insufficient, and ought not to be admitted or allowed as sufficient evidence to entitle the said plaintiff to a verdict; and the said counsel for the defendants did, then and there, pray the said justice to pronounce the said matters, so produced and given in evidence for the said plaintiff, to be insufficient to entitle the said plaintiff to a verdict in the said cause, and to nonsuit the said plaintiff; but to this the counsel learned in the law, of the said plaintiff, objected, and did then and there insist before the said justice, that the same were sufficient, and ought to be admitted and allowed to be sufficient to entitle the said plaintiff to a verdict; and the said justice did then and there declare and deliver his opinion to the jury aforesaid, that the said several matters so produced, and given in evidence on the part of the said plaintiff, were sufficient to entitle the said plaintiff to a verdict, and that he ought not to be nonsuited: whereupon the said counsel for the defendants did, then and there, on the behalf of the said defendants, except to the aforesaid opinion of the said justice, and insisted that the said several matters, so produced and given in evidence, were not sufficient to entitle the said plaintiff to a verdict, and that he ought to be nonsuited.

After the said motion for a nonsuit had been refused, and the opinion of the said justice had been excepted to as aforesaid, the counsel of the said Goold Hoyt, did, in the progress of the trial, give in evidence, on the part of the said Goold Hoyt, that he purchased the said ship of James Gillespie, who had purchased her of John R. Livingston and Isaac Clason, the owners thereof; and that in pursuance of such purchase, by the plaintiff, the said James Gillespie had delivered full and complete possession of the said ship, her tackle, &c. to the said plaintiff, before the taking thereof by the defendants.

And the said motion for a nonsuit having been refused, and the opinion of the said justice accepted to as aforesaid, the said counsel for the said defendants did, thereupon, state to the said jury, the nature and circumstances of the defendant's defence, and did then and there offer to prove and give in evidence, by way of defence, or in mitigation or diminution of damages, that the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, before the tenth day of July, in the year of our Lord one thousand eight hundred and ten, to wit, on the first day of July, in the year last aforesaid, at the port of New-York, in the southern district of New-York, to wit, at the city of New-York, in the county of New-York, and at the first ward of the said city, was attempted to be fitted out and armed, and was fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogshead of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-bread, were procured for the equipment of the said vessel, and were then and there on board of the said vessel, as a part of her said equipment, with intent that the said ship or vessel, called the American Eagle, should be employed in the service of that part of the island of St. Domingo which was then under the government of Petion, to cruise and commit hostilities upon the subjects, citizens, and property of that part of the island of St. Domingo which was then under the government of Christophe, contrary to the form of the statute in such case made and provided.

And the said counsel of the said defendants did, then and there, offer to prove, and give in evidence, by way of defence, or in mitigation or diminution of damages, that he, the said David Gelston was collector, and that he, the said Peter A. Schenck, was surveyor of the customs, for the district of the city of New-York, on the tenth day of July, one thousand eight hundred and ten, and before that time, and afterwards, continued to be collector and surveyor as aforesaid; and that they, the said David Gelston and Peter A. Schenck, as collector and surveyor as aforesaid, and not otherwise, did, on the said tenth day of July, in the year last aforesaid, at the port of New-York, in the southern district of New-York, to wit, at the city of New-York, in the county of New-York, and at the first ward of the said city, seize, take, and detain the said ship or vessel with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of shipbread, according to the form of the statute in such case made and provided, and by virtue of the power and authority vested in them by the constitution and laws of the United States, and for such cause as is herein before stated.

And the said counsel of the said defendants, did, then and there, insist, before the said justice, on the behalf of the said defendants, that the said several matters, so offered to be proved and given in evidence on the part of the said defendants as aforesaid, ought to be admitted and allowed to be proved and given in evidence, in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid.

And the said counsel for the said defendants, did, then and there, pray the said justice to admit and allow the said matters so offered to be proved and given in evidence, to be proved and given in evidence in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed, by the plaintiff as aforesaid; but to this the counsel learned in the law, of the said plaintiff, objected, and did, then and there, insist, before the said justice, that the same ought not to be admitted, or allowed to be proved or given in evidence, in justification of the trespass charged against the said defendants, and that the same ought not to be admitted, or allowed to be proved or given in evidence, in mitigation or diminution of the damages claimed by the plaintiff as aforesaid, inasmuch as the counsel of the said Goold Hoyt admitted, that the defendants had not been influenced by any malicious motives in making the said seizure, and that they had not acted with any view or design of oppressing or injuring the plaintiff. And the said justice did, then and there, declare and deliver his opinion, and did then and there overrule the whole of the said evidence, so offered to be proved by the said defendants, and did declare it to be inadmissible in justification of the trespass charged against the said defendants; and after the admission so made by the counsel of the said Goold Hovt, as aforesaid, did declare and deliver his opinion, that the said evidence ought not to be received in mitigation or diminution of the said damages, as the said admission precluded the said plaintiff from claiming any damages against the defendants by way of punishment or smart money, and that after such admission the plaintiff could recover only the actual damages sustained, and with that direction left the same to the said jury; and the jury aforesaid, then and there gave their verdict for the said plaintiff for one hundred and seven thousand three hundred and sixty-nine dollars and forty-three cents damages: whereupon the said counsel for the said defendants, did, then and there, on the behalf of the said defendants, except to the aforesaid opinion of the said justice, and insisted that the said several matters, so offered to be proved and given in evidence, ought to have been admitted and given evidence in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid.

And inasmuch as neither the said several matters so produced and given in evidence on the part of the said plaintiff, and by the counsel of the said defendants objected to, as insufficient evidence to entitle the said plaintiff to a verdict as aforesaid, nor the said several matters so offered to be proved and given in evidence, on the part of the said defendants, in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid, appear by the record of the verdict aforesaid, the said counsel for the said defendants did, then and there, propose their exceptions to the opinions and decisions of the said justice, and requested him to put his seal to this bill of exceptions, containing the said several matters so produced and given in evidence on the part of the said plaintiff as aforesaid, and the said several matters so offered to be proved and given in evidence, on the part of the said defendants as aforesaid, according to the form of the statute in such case made and provided. And thereupon the said justice, at the request of the said counsel for the said defendants, did put his seal to this bill of exceptions, on the said fifteenth day of November, in the year of our Lord one thousand eight hundred and fifteen, pursuant to the statute in such case made and provided.

If either party shall require the proceedings in the district court to be set out more at length, then it is understood, that such proceedings shall be engrafted into the bill of exceptions, and form part thereof.

(Signed) AMBROSE SPENCER.

[L. S.]

The bill of exceptions being carried before the supreme court of the state of New-York, the exceptions were disallowed by the court. The cause was then carried to the court of errors of the state, where the judgment of the supreme court of the state was affirmed and the cause was brought to this court in the manner before stated.

     March 24th. 1817.
      

The Attorney General, (Mr. Rush,) for the plaintiffs in error, argued, 1. That the special matter offered in evidence by the plaintiffs in error ought to have been admitted as a defence to the action, or at any rate, that it ought to have been admitted. The 27th section of the act of 1793, contains, in general terms, a provision that it shall be lawful for any revenue officer to go on board of any vessel for purposes of search and examination; and if it appear that a breach of any law has been committed, whereby a forfeiture has been incurred, to make a seizure. It has been the wise policy of the law, by enactments and decisions co-extensive with the range of public office, to throw its shield over officers while acting under fair and honest convictions. Thus, under the English statutes, no justice of the peace, or even constable, can be sued for any thing done officially who is not clothed with some protection more than is allowed to ordinary defendants; some relaxation of the rules of pleading, or other immunities are extended to him. It is the same with mayors, bailiffs, churchwardens, overseers, and a variety of other officers. So, also, excise officers may always plead the general issue, and give the special matter in evidence By stat. 24 Geo. II. no justice shall be sued for what he has done officially until notice in writing served upon him a month beforehand; nor then, if he tender amends. It would be easy to multiply analogous examples. Several acts of congress, passed since that of June, 1794, illustrate the same legal principle. By the 11th section of the embargo act of the 25th April, 1808, ch. 170. the collectors of the customs were authorized to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever, in their opinions, there existed any intention to violate on evade any of the provisions of the acts laying an embargo, until the decision of the president could be had upon the seizure. It has been repeatedly determined, that it was sufficient, under this act, for the collectors to have acted with honest convictions; and that the absence of probable cause afforded, in itself, no ground to a claim for damages. [1] So, also, in the law just passed, to preserve more effectually our neutral relations, a principle closely analogous has been introduced. [2] It is provided by the act of the 24th February, 1807, ch. 74. 'That when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares, or merchandise, made by any collector or other officer under any act of congress authorizing such seizure, and judgment shall be given for the claimant or claimants, if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the said court shall cause a proper certificate or entry to be made thereof; and in such case the claimant or claimants shall not be entitled to costs, nor shall the person who made the seizure; or the prosecutor, be liable to action, suit, or judgment, on account of such seizure or prosecution: provided that the ship or vessel, goods, wares, or merchandise, be, after the judgment, forthwith returned to the claimant or claimants.' Here it appears, indeed, that if a certificate be granted, it operates as an absolute bar to an action. But it does not follow, that the refusal of a certificate is to close the ear of a court and jury to all the real merits. It will, perhaps, be said, that the judgment of the district court restoring the vessel, and refusing the certificate, is conclusive; that it was a court of competent jurisdiction, and that, therefore, the matter which it adjudicated could not be reheard, or its propriety examined into collaterally, in any other court. We are aware of the decisions of this court upon this point, and of the English decisions upon the conclusiveness of judgments, from that in Fernandez v. De Acosta, [3] in the time of Lord Mansfield, to the more recent cases. Those, however, who have scrutinized this doctrine see plainly that, in latter times at least, though it be the law, its inconveniences appear to be sometimes felt, and its wisdom perhaps sometimes doubted. It is an intrinsic objection to the doctrine, that while it professes to look with a single eye to the binding nature of the judgment, turning away from the merits, yet, in point of fact, the merits do, in most of the cases, get into view; so difficult it is to thrust them back in discussions where justice only is sought. Already has the doctrine disappeared from the codes of some of the leading states in the union; from that of Pennsylvania by a positive statute, from that of New-York by a judicial decision. [4] In how many more of the states it has been broken down is not known, but it is not supposed to be a doctrine entitled to any peculiar favour in this court. But the difference between a sentence of condemnation and of acquittal is material. An acquittal does not ascertain facts. A conviction does. Its character is positive. The former may have arisen from want of evidence, the latter must always rest upon some foundation of proof. A conviction, says Buller, is evidence of the fact; but the reverse of it is not shown by an acquittal. [5] Even in a common action for assault and battery, the plaintiff cannot rely upon a conviction upon an indictment for the same assault. [6] The consequence is, that the defendant may defend himself against the suit by going into the original facts. The plaintiffs in error asked no more below. So also, to support an action for malicious prosecution, malice in the defendant, and want of probable cause, must both concur. [7] If, in this action, an acquittal has been had upon the indictment, the plaintiff may still lay before the jury the evidence which was heard on the indictment, viz. all the facts and circumstances to show that the prosecution was malicious. [8] This surely opens to the defendant the corresponding right of going into the original facts on his side. Every principle of just reasoning would seem, then, to lead to the conclusion, that the special matter ought to have gone before the jury. If it did not justify the seizure and detention, it might have served to mitigate the damages. The admission of the plaintiff's counsel, that the defendants below were not actuated by any malicious or vindictive motive, was not tantamount to hearing all the special matter, since it might, and no doubt would, have established in the minds of the jury a far stronger claim to mitigation than the mere absence of malice. The great end, therefore, of every law-suit has been over looked. Justice has not been done. Unless the judgments below be abrogated, the defendants below, acting as innocent men, and as vigilant and meritorious public officers, are in danger of being crushed under a load of damages which could scarcely have been made more heavy if levelled at conduct marked by the most undisputed and malignant guilt.-2. The plaintiff below, by demurring to the second plea, was precluded from all right of recovery; and that plea contains matter, which the demurrer itself admits, and which entitled the defendants below to judgment. A demurrer admits all facts that are sufficiently pleaded. What, then, are the facts set forth in this plea? Plainly these: that the American Eagle was fitted out and equipped with intent that she should be employed in the service of a foreign prince or state, to wit, of that part of St. Domingo governed by Petion, to cruise against another foreign prince or state, viz. against that part of St. Domingo governed by Christophe; that this was contrary to the act of the 5th June, 1794, and that the seizure thereupon took place under orders from the president. Is not the case of the defendants below, after these admissions, completely made out? Does it lie with the plaintiff to say that St. Domingo was not a state, or Christophe a prince? Does not the plea affirm both? Does not the demurrer admit both? What besides was it the object of the plea to affirm? What else did the demurrer intend to admit? The former sets them forth as fundamental facts. The latter does not deny, but admits them.-3. In contending that, within the true, scope and intention of the act of the 5th of June, 1794, both Petion and Christophe were to be considered foreign princes, we do not mean to depart from the reverence due to the former decisions of this court in Rose v. Himely, [9] but think that there are solid grounds for distinguishing the present case from that decision. It is important that the different branches of the government should look upon foreign nations with the same eyes, and subject them to the same rules of treatment. The decision in Rose v. Himely, took place in February, 1808. At that epoch, the act of congress specifically cutting off intercourse with St. Domingo, and treating it as a dependency of France, was in full force. For the judiciary to have pronounced this island an independent state, whilst the legislature considered it as a colony, would have disturbed the harmony of the different parts of the governing power. It would not be easy to foresee the mischiefs of such a conflict of authority and opinion. Look to the South American provinces at this moment. Spain claims them as her lawful dominion: no power in Europe has acknowledged their independence: yet, in some of them, the authority of the once mother country is wholly at an end. Now, what embarrassments might not result, if, after the letter of the secretary of state of the 19th of January, 1816, to the Spanish minister, our courts should pronounce Buenos Ayres, for example, to be rightfully in its full colonial dependence upon Spain. Vattel's authority upon this subject is decisive. According to him, we are to look to the state of things de facto taking each party to be in the right. [10] The rule laid down in Rose v. Himely, that such language was to be addressed to sovereigns, not courts, may have been applicable to the condition in which St. Domingo then was. It cannot, however, be conceded, that it is of constant and universal application. The progress of events may create a state of things, of which, as they impress their convictions upon mankind, courts too will take notice. The Netherlands waged a war of more than half a century with Spain. Spain never ceased to call it a rebellion. But what were the sympathies, what the conduct of protestant Europe, towards them during the principal part of the time? What that of England, in particular, who did not scruple to form treaties with them, while Spain was still denouncing them as heretics and insurgents? The fact being now palpable to the world, that St. Domingo is independent of all connexion with France, repudiating her authority, and spurning her power, this positive state of independence de facto may at length well be taken to stand in the place of a formal acknowledgment of it by governments: and if courts of justice are to wait until France relinquishes her claim, that day may be indefinite indeed. The act of congress, which specifically interdicted intercourse with St. Domingo, considered as a colony of France, expired in April, 1808. It was in full force at the time of the decision in Rose v. Himely, which constitutes another marked distinction between that case and the present. As to the condemnations which it may be alleged took place under the general non-intercourse laws passed afterwards, of vessels coming, from St. Domingo, upon the footing of its belonging to France, no inference against the argument can be hence deduced. In the first place, those laws left it wholly indefinite as to what colonies did or did not belong to France. They were couched in general terms only. They prohibited all intercourse with Great Britain and France, and their dependencies, without undertaking to designate in any case what the dependencies of either were. In the next place, as far as is known, it appears that the government remitted the forfeitures in all such cases of condemnation, thereby manifesting its opinion, if any inference is to be drawn, that time, and the progress of events, had at length taken this island out of the true spirit and meaning of these general laws; and that, as the nations of Europe were trading with it as an independent island, the citizens of the United States might fairly be permitted to do the same.-4. A leading object of the act of 1794, was, to preserve the peace as well as neutrality of the United States. Thus, then, although St. Domingo might not be a sovereign state to all intents and purposes, (which it is not necessary to contend,) it was sufficiently independent, whether as to commerce or power, to fall within the mischiefs, and be embraced by the penalties, of the law in question.

Mr. Hoffman, and Mr. D. B. Ogden, for the defendant in error. 1. This court is not competent to take cognizance of this cause, under the 25th section of the judiciary act of 1789, ch. 20. The court has appellate jurisdiction only from the final judgment or decree of the highest court of law or equity of the state in certain specified cases. But this jurisdiction cannot he here exercised, because the highest court of law and equity of the state of New-York, to whom the writ of error is directed, is no longer in possession of the cause, but has remitted the record and judgment to the supreme court of the state, to whom the writ of error is not, and cannot be directed. The agreement of the parties under which the record is now before this court, reserves this question to be argued. It does not determine the return to be regular and valid, but only that the transcript shall have the same effect as if annexed to the writ of error. But even supposing the cause could be re-examined upon a return to the writ of error by the supreme court of the state, the main foundation of appellate jurisdiction in this court is wanting. The judgment of the state court does not decide against the title, right, privilege, or exemption set up by the defendants below, under the act of congress of 1794, ch. 50. On the contrary the state court has refused to give any construction whatever to the act of 1794, and to decide whether, under the facts of the case, it did or did not afford the defendants below, a legal defence to the action; because, the parties defendant, having declined to argue the demurrer in the supreme court, the court of errors refused, upon grounds of state law and state practice, to hear them in that court. [11] Parties litigant are bound to exercise their rights, according to the law and practice of the forum where they attempt to assert them. If they do not assert them according to the rules prescribed by the lex fori, a decision against the party is not a decision against the right set up by him; but only a decision that he had not claimed that right according to the local law and practice.-2. If, however, the court should be of opinion, that the cause is regularly before it, then we contend, that the testimony offered by the defendants below, upon the trial at nisi prius, and which was over-ruled by the judge, was properly excluded. They did not offer any evidence to show, that the vessel had been, or was intended to be engaged in any illegal trade or employment. The only law to which the testimony offered could have any reference, is an act of congress, which was passed June, 1794, entitled 'an act, in addition to an act, for the punishment of certain crimes against the United States,' made perpetual by a subsequent act. By the third section of the first mentioned act, it is enacted, 'that if any person shall, within any of the ports, harbours, bays, rivers, or other waters of the United States, fit out, and arm or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out and arming, of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or state, to cruise or commit hostilities upon the subjects, citizens, or property of any other foreign prince or state, with whom the United States are at peace, &c. every such ship or vessel, with her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores which may have been procured for the building and equipment thereof, shall be forfeited, one half to any person who shall give information of the offence, and the other half to the use of the United States.' The defendants below merely offered to prove that the ship was fitted out, with intent that she 'should be employed in the service of that part of the island of St. Domingo, which was then under the government of Petion, to cruise and commit hostilities upon the subjects, citizens, and property of that part of the island of St. Domingo which was then under the government of Christophe;' but did not offer to show that either of these parts of the island was a foreign state, or that either Petion or Christophe were foreign princes, with whom the United States were at peace. And even if they had proved these facts, the evidence would have been perfectly immaterial and irrelevant: because, in the words of this court, 'It is for governments to decide whether they will consider St. Domingo as an independent nation, and until such decision shall be made, or France shall relinquish her claim, courts of justice must consider the ancient state of things as remaining unaltered, and the sovereign power of France over that colony as still subsisting.' [12] The same principal has also been recognised by the highest British tribunals, both as applicable to the case of St. Domingo, and to other revolutions of states not recognised by the government of the country where the tribunal is sitting that is required to take notice of them. [13] What would be the absurd consequences of leaving each tribunal to settle this question according to the information it might possess? Nothing can be more opposite and irreconcileable than the views given of the situation of St. Domingo by different writers and travellers. How then should a court decide which has no other sources of information? The government is informed by its diplomatic agents. It has a view of the whole ground, and can judge what considerations ought to influence the decision of this question of complicated policy. Our foreign relations are, by necessary implication delegated to congress and the executive, by the constitution. Neither Petion nor Christophe have ever had any secure, firm possession of the sovereignty in St. Domingo. They have not only been contending with each other, but they have had rivals who have attempted to establish adverse claims to different parts of the island by the sword. The defendants below have themselves acted in their official conduct on these principles. In the year 1809, they seized and prosecuted in the district court, the James and the Lynx, two vessels which had come with cargoes from St. Domingo to New-York, contrary to the provisions of the non intercourse acts, forbidding all commercial intercourse between the United States and Great Britain, France, and their dependencies. In these cases they consider St. Domingo as a colony of France; and whilst the suits were depending, the ship, now in controversy, was seized by them, under an allegation that she was intended for the service of an independent state, which independent state was the same St. Domingo they had just before considered as a French dependency.-3. The testimony offered by the defendants below could not be admitted, because the district court was the proper tribunal to determine whether the vessel in question was or was not liable to seizure and forfeiture for the causes alleged. It having been decided in that court that she was so liable, its judgment is conclusive, and precludes every tribunal, unless upon appeal, from re-examining the grounds of the decision. The authorities on this point are innumerable, and flowing in a uniform current. [14] As to foreign sentences, it is settled in this court that a sentence of condemnation, by a competent court, having jurisdiction over the subject matter of its judgment, is conclusive as to the title of the thing claimed under it. [15] And that the sentence of a prize court, condemning a vessel for breach of a blockade, is conclusive evidence of the fact as between the insurer and insured. [16] But what is still more pertinent to the present case, the court has determined that the question, under a seizure for a breach of the laws of the United States, whether a forfeiture has been actually incurred, belongs exclusively to the courts of the United States, and it depends upon their final decree, whether the seizure is to be deemed rightful or tortious. [17] The distinction which has been suggested between the conclusiveness of condemnations and of acquittals, has been considered in several of the authorities, and it is now perfectly settled, that no such distinction exists. A condemnation may be founded on the oath of the seizing party; and though by the laws of the United States, he cannot share in the forfeiture if he becomes a witness, still he is interested to protect himself by a condemnation. Shall, then, a condemnation founded on such testimony be conclusive, and an acquittal not? The defendants, themselves, applied for time to plead until the district court should decide, on the ground that its decision would be conclusive. [18]-4. The testimony offered by the defendants below could not be admitted in mitigation of damages: Because, if admitted, it would only be to show that there was reasonable cause for the seizure, and, consequently, that the defendants acted without malice, or any intention to oppress the plaintiff below. But the question whether there was or was not reasonable cause of seizure, is a question which is expressly submitted to the district court by the statutes of the United States, [19] and over which this court has declared the district court had exclusive cognizance. A certificate of reasonable cause for the seizure having been denied by the district court, every other tribunal is as much precluded, except on appeal, from examining whether there was or was not reasonable cause for the seizure, as they are from examining whether there was or was not sufficient cause of forfeiture. The plaintiff below admitted upon the trial that the defendants had not been influenced by any malicious motives in making the seizure, and that they had not acted with any view or design of oppressing or injuring the plaintiff. And the judge who tried the cause at nisi prius charged the jury that this admission precluded the plaintiff from claiming vindictive damages, and the jury rendered a verdict only for the actual damages' as proved by uncontradicted testimony. Where a certificate of reasonable cause is refused, or not granted, a party making an illegal seizure, can be in no better state than he would be, if the law had made no provision respecting a certificate. It is well settled that probable cause is no justification of an illegal seizure, unless it be made a justification by statute. Nor can evidence of probable cause be received, to mitigate the damages in cases where there is a disclaimer as to every thing but actual damages. For whether there was or was not malice or probable cause, the actual damages sustained must be recovered for an illegal seizure, or for any other trespass, if any thing whatever is recovered.-5. The second and third pleas of the defendant below are manifestly bad on general demurrer. First. Petion and Christophe were not foreign princes, nor their territories foreign states, and consequently a seizure for fitting out the vessel to be employed in their service could not be justified. [20] Secondly. The president had no authority by law to order the seizure. The 7th section of the act of 1794, does not apply to this cause. If it did, the president's order can only be a justification when applied to an illegal act. If no illegal act be proved, there can be no justification under the order. Were it otherwise, the president would be a despot. The 7th section of the act provides, 'that in every case in which a vessel shall be fitted out or armed, or attempted so to be fitted out or armed, or in which the force of any vessel of war, cruiser, or other armed vessel, shall be increased or augmented, or in which any military expedition or enterprise shall be begun or set on foot, contrary to the prohibitions and provisions of this act; and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States, as above defined, and in every case in which any process issuing out of any court of the United States, shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel, of any foreign prince or state or of the subjects or citizens of such prince or state in every such case, it shall be lawful for the president of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, as shall be judged necessary, for the purpose of taking possession of, and detaining any such ship or vessel, with her prize or prizes, if any, in order to the execution of the prohibitions and penalties of this act, and to the restoring such prize or prizes, in the cases in which restoration shall have been adjudged, and also for the purpose of preventing the carrying on of any such expedition or enterprise, from the territories of the United States, against the territories or dominions of a foreign prince or state with whom the United States are at peace.' Under this provision, the president could not authorize the defendants below to seize. He could only employ the army and navy, or the militia, for that purpose. He could only authorize an arrest or detainment, not a seizure, which is a taking and carrying away. He could only authorize a taking possession of and detaining the vessel, in order to the execution of the penalties and prohibitions of the act. The vessel might have been libelled, and taken into custody of the officers of the court; but the defendants below have not averred themselves to be revenue officers, and as such, authorized to seize by the act of 1790, ch. 153. Thirdly. The 2d plea is not a bar in the court where it was pleaded. What could the plaintiff below have replied to this plea? That there was no forfeiture as alleged? But the state court has no authority to try the question of forfeiture under the laws of the United States. The courts of the United States have exclusive jurisdiction of that question, and their decision is final and conclusive upon every other tribunal. Or suppose that the plaintiff had replied, that Petion and Christophe were not independent princes. No municipal court whatever has power to determine that question. The executive government is alone competent to recognise new states arising in the world, and it would be extremely inconvenient and embarrassing in this age of revolutions, for courts and juries to interfere in the decision of a question of such delicate and complicated policy, depending upon a variety of facts which they cannot know, and of considerations which they cannot notice. Again, if the plaintiff had replied that the president had given no such instructions as mentioned in the plea, the replication would have been immaterial, and a ground of demurrer. Fourthly. Neither of the pleas aver, that the ship was actually forfeited, but only that it was 'seized as forfeited,' which is not an equivalent averment. The case of Wilkins v. Despard, [21] where a similar plea was pleaded, is distinguishable. That was a seizure under the British navigation act, 12 Car. II. ch. 18. s. 1. by which the legality of the seizure, and the question of forfeiture itself might be tried in any court of record in the British dominions, and, consequently, in the court itself, where the plea was pleaded. Fifthly. The 3d section of the act of 1794, after specifying the offences meant to be punished, provides, that 'every such person so offending shall, upon conviction, be adjudged guilty of a high misdemeanour, and shall be fined and imprisoned at the discretion of the court in which the conviction shall be had, so that the fine to be imposed shall in no case be more than five thousand dollars, and the term of imprisonment shall not exceed three years; and every such ship or vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited, one half to the use of any person who shall give information of the offence, and the other half to the use of the United States.' By every just rule of construction, the proceeding by indictment against the offender, and his conviction, must precede the suit in rem, and the forfeiture of the vessel. The phraseology of the act is different from all the other statutes authorizing seizures and creating forfeitures. By those statutes, the revenue officers have power to seize and proceed in rem against the thing seized as forfeited, independent of any criminal proceeding against the offending individual. By this act, the forfeiture of the thing is made to depend upon the conviction of the person, and the president alone has power to seize, and that only as a precautionary measure to prevent an intended violation of the laws. Sixthly The 3d plea is particularly defective, in omitting to state, as is done in the 2d plea, what princes or foreign states were intended: it merely alleges, that the vessel was fitted out with intent to be 'employed in the service of some foreign state, to commit hostilities upon the subjects of another foreign state, with which the United States were then at peace.' It is a sacred rule of pleading, that where an offence is charged or a forfeiture is claimed, the facts must be so alleged as that the court may judge whether there has been an offence committed or forfeiture incurred. [22] To so vague an allegation as this, it would be impossible for the plaintiff below to reply.

Mr. Baldwin, for the plaintiffs in error, in reply, insisted on the validity of the special pleas. The defendants below were not bound to answer the conversion, because the trespass was complete without it. This defect, if any, ought to have been newly assigned by the plaintiff below, if he intended to have advantage of it. [23] The forfeiture was well pleaded. The offence being committed, the forfeiture instantly attaches. [24] The plea here states, that the ship was seized 'as forfeited,' in the same manner with that which was held good in Wilkins v. Despard, [25] and it alleges the offence in the words of the statute. An allegation that the seizure was made for a violation of the law, that the thing seized was taken as forfeited, is equivalent to an allegation that it was actually forfeited. Nor was it necessary to aver that the seizure was made by a military or naval force. The 7th section of the act of 1794, evidently contemplates the employment of that description of force, only when, in the opinion of the president, it might become necessary to carry into effect the law. In other cases the seizure might be made by the ordinary means of the revenue officer. Nor is a conviction, on an indictment or information in personam, necessary before the proceedings in rem are commenced. None of the objections to the special pleas are available on general demurrer. The plaintiff below should have replied, that Petion and Christophe were not independent princes or states, and so have had that question tried as a question of fact. The existence of new states in the world may commence in various modes. First. Colonies may become independent of the parent state by means of force, and an acquiescence in the effects of that force on the part of the mother country for a sufficient length of time, to indicate a relinquishment of all hopes of recovering possession of the dominion. The pride of princes and nations will not always permit them openly and expressly to recognise the independence of rebellious subjects, until long after they have relinquished all hope of subduing them. When the case of Rose v. Himely was determined, a war de facto existed between France and St. Domingo; and the former, so far from relinquishing her sovereignty over the latter, was actually attempting to assert it by force of arms. A long period of time has since elapsed, and the attempt has not been renewed. The people of the island have settled down under governments, the conduct of which is a pledge of their stability, and whose policy and institutions would do honour to more civilized and ancient communities. Secondly. The existence of new states may be recognised by the supreme power of every country, in whose courts of justice the question of their independence may arise, and that even while the civil war still rages between the new people and its former sovereign. When thus recognised by the legislative or executive authority of other countries, the tribunals of those countries are bound to take notice of their existence as independent states. This recognition may be made in various modes: by treaty; by a legislative act; by an executive proclamation; by sending to, or receiving from the new state, a public minister or other diplomatic agent. Thirdly. Their independence may also be recognized by a treaty of cession from the parent country. This treaty may not have become a public, historical fact, of which courts of justice will take notice without other evidence than its own notoriety. It may be deposited in the archives of a foreign, or of our own government. It may require to be proved in the same manner as foreign written laws are proved. In any of these views, the question as to the independence of St. Domingo is a question of fact, to be tried by the jury, and, consequently, the plaintiff ought to have replied, that Petion and Christophe were not independent princes or states, as alleged in the defendants' pleas. The instruction of the president, in this very case, implies that he recognised the independence of the island; the instruction could not otherwise have been legally given. As to the conclusiveness of the decree of restitution in the district court, it is founded on principles which push the doctrine of the conclusiveness of sentences, to a degree of extravagance irreconcileable with reason and common sense. That every sentence of a court having jurisdiction of the subject matter, so long as it remains unreversed by the appellate tribunal, is conclusive as to the title of the thing claimed under it, is conceded. But, according to the jurisprudence of the state of New-York, the sentences of foreign courts of admiralty are held not to be conclusive as to other persons than those claiming title to the property, [26] and the conclusiveness of the sentences of domestic courts of peculiar and exclusive jurisdiction depends upon precisely the same principle. But supposing a sentence of condemnation to be conclusive, for all purposes, and against all persons; it does not follow that a sentence of restitution ought to have the same effect. A judgment of acquittal is of a negative quality merely, and ascertains no precise facts. [27] It only shows that sufficient evidence did not appear to the court to authorize a condemnation. Why is a decree of condemnation held to be conclusive? Because it is a basis of the title to the thing condemned. But an acquittal forms no part of the title to the thing acquitted, which is restored to the former proprietor, who holds it by the same title as before. The case, said to have been decided before Baron Price, in the year 1716, [28] is not pertinent. The elementary writers do not consider this as an adjudged point in any of the cases; and their authority, which is of great weight, makes a distinction, founded in reason and the nature of things, between a sentence of condemnation and a sentence of acquittal. [29] All the authorities confine the conclusiveness of the res judicata to parties and privies. The defendants below were neither. Mr. Evans, in commenting upon the decision of Baron Price, reported in Viner, says that, 'upon principle, I should conceive that the opposite determination would be more correct, as such an acquittal would be warranted upon the mere negative ground, that the crown had not adduced sufficient evidence to support the seizure; and an individual, having a collateral interest in supporting the legality of the seizure, is not a concurrent party with the crown in supporting the condemnation, and asserting the claim of property on the one side, in the same manner as every person having an interest in opposing such condemnation, is in contemplation of law a sufficient party on the other. [30] So, in this case, the defendants below were not concurrent parties with the United States in supporting the condemnation. It does not appear that the defendants were informers, and so entitled to one half the forfeiture; the prosecution was carried on in the name of the government and by its law officers; the defendants had no control over it, and could not appeal from the decision of the district court. They ought not, therefore, to be concluded by it.

Feb. 23d.

The cause was again argued at the present term, by Mr. Baldwin for the plaintiffs in error, and by Mr. D. B. Og1en and by Mr. Jones for the defendant in error.

Feb. 27th.


Mr. Justice STORY delivered the opinion of the court.

NotesEdit

^1  Cronell et al. v. M'Fadon, 8 Cranch, 94; Otis v. Watkins, 9 Cranch, 337. Otis v. Walter. 2 Wheat. 18.

^2  Act of March, 3d. 1817. ch. 58.

^3  Park on Ins. 178. 3d ed.

^4  Vandenheuvel v. The United Ins. Com. 2 Johns. Cas. 451

^5  N. P. 245

^6  Jones v. White, 1 Strange, 68.

^7  Bull. N. P. 14.

^8  Bull, N. P. 14.

^9  4 Cranch, 241, 272.

^10  Vattel, L. 3, ch. 3, s. 18.

^11  For these grounds see the opinion of Chancellor KENT in this cause in the court of errors 13 Johns. Rep. 576.

^12  Rose v. Himely, 4 Cranch, 292.

^13  1 Edwards, 1, and Appendix, G; The city of Berne v. The Bank of England, 9 Ves. 347.

^14  Vanderheuval v. The United Ins. Co. 2 Johns Cas. 127, and the autborities there cited. The authorities collected in the same case, 2 Caines' Cases in Error, 217, and by Mr. Chief Justice (now Chancellor) KENT, in his opinion in Ludlow v. Dale, Id. 217. Wheaton on Capt. 274, 278. Peake's Law of Evidence. (3d London ed.) 78, 79. and the cases here cited in a note. Cooke v. Stholl, 5 T. R. 255. Lane v. Degburgh, Buller's N. P. 244. Opinion of Mr. Justice JOHNSON in Rose v. Himely, in the circuit court, 4 Cranch, 508. Appendix, Note C. 12 Vin. Abr. 95; Ev. A., c. 22.

^15  Rose v. Himely, 4 Cranch, 241.

^16  Croudson et al. v. Leonard, 4 Cranch, 434.

^17  Slocum v. Mayberry, 2 Wheat. 1.

^18  See 8 Johns. Rep. 179.

^19  Act of the 24th February, 1807, ch. 74.

^20  See the authorities cited ante, p. 269.

^21  5.T.R. 112.

^22  Com. Dig. tit. Action on Stat. A. 3, pl. 1, Davy v. Baker, 4 Burr. 2471; Rex v. Robe. 2; Strange, 999; 2 Saund. 379; Radford v. M'Intosh, 3 T. R. 636.

^23  Taylor v. Cole, 3 T. R. 292.

^24  The Mars, 8 Cranch, 417.

^25  5 T. R. 112.

^26  Vahdenheuvel v. The United Ins. Co. 2 Caines' Cas. 212, S.C.. 1 Johns. Cas. 127. 451.

^27  Buller's N. P. 245, Peake's Law of Ev. 48, 1 Hargr. Law Tracts, 742.

^28  12 Vin. Abr. 95, Ev. A b. 22.

^29  Peake's Law of Ev. 48. Phillips on Evid. 228, 229. 2 Evan's Pothier, 354.

^30  2 Evan's Pothier, Ib.

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