“That on the 27th day of July the said brig, without being "liberated, was sent into Gibraltar, where she arrived the 7th "day of August, 1800; and was there libelled in the Vice-Ad"miralty Court; and on the 27th day of August, the following "sentence of condemnation was pronounced. The Judge "having heard the said claimant, together with the sundry ex"aminations taken in preparatory in the cause and the papers "and documents found on board said brig at the time of the cap"ture and delivered into the register upon oath; and having "further heard the parties, &c. rejected the claim, and de"clared the brig to have been cleared out for Cadiz, a port actually blockaded by the arms of our sovereign lord the king; and "that the master of said brig persisted in his intention of enter“ing that port, after warning from the blockading force not to do so, in a direct breach and violation of the blockade thereby noti"fied; and pronounced the said brig and cargo by virtue thereof, "or otherwise, subject and liable to confiscation, and con"demned the same as good and lawful prize to our sovereign "lord and king.'

"We further find, that the plaintiff duly and seasonably "abandoned to the defendants, all his interests and claim to "the said brig to the amount insured: that the first notice the "said R. Barker had of the blockade aforesaid, was from the "commander of the ship that stopped him off Cadiz as afore"said: that there was no knowledge or report of said blockade แ at Charleston, nor did said blockade exist at the time of the "said brig sailing from thence."

The cause was argued on the 1st, 2d and 3d of February by Mr. Dallas, for the plaintiff in error, and by Mr. Rawle, for the defendants, upon the points stated in the opinion of the court, which was delivered by the Chief Justice in the following terms:

MARSHALL, Chief Justice. This suit is instituted to recover, from the underwriters, the amount of a policy insuring the brig John, on a voyage from Charleston to Cadiz. The vessel was captured on her passage by a British squadron, then blockading that port; was sent into Gibraltar for adjudication; and

was there condemned by the Court of Vice-Admiralty, as lawful prize. The assured warrants the vessel to be American property; and the defence is, that this warranty is conclusively falsified, by the sentence of condemnation. The points made for the consideration of the Court are,

1st. Is the sentence of a foreign Court of Admiralty conclusive evidence, in an action against the underwriters, of the facts it professes to decide? If so,

2d. Does this sentence, upon its face, falsify the warranty contained in the policy? If not,

3d. Does not the special verdict exhibit facts which falsify the warranty?

The question on the conclusiveness of a sentence of a foreign court of admiralty, having been more than once elaborately

* In the Supreme Court of Errors of Connecticut, it has been decided, that the sentence of a foreign court of admiralty is conclusive, and cannot be impeached in this country, until regularly set aside in the country where passed. 1 Day's Cases in Error, 142.

A sentence in a foreign court of admiralty is not even prima facie evidence of any fact, if there appear in it enough to rebut such a presumption. 1 N. Y. Cases in Error, xxx.

In an action on a policy of assurance, the sentence of a foreign court of admiralty is not conclusive on the character of the property in opposition to the warranty. 2 N. Y. Cas. in Err. 217. A foreign sentence as good prize is not conclusive evidence that the legal title to the property was not in the subject of a neutral nation. 3 Cranch, 458.

Judicial acts of foreign tribunals are prima facie to be deemed correct; therefore, no inference to be made against them. 2 N. Y Cas. in Err. 110.

A judgment recovered in another of the United States is not, in all cases, conclusive evidence of a debt, in an action of debt brought in Massachusetts, on such judgment. Although the mode of authenticating such judgments has been provided for by the act of Congress, yet the effect of such authentication is not declared by that act. 1 Mass. Rep. 402. 1 N. Y. T. R. 460. A. brings an action in Connecticut on a judgment recovered against B. in Massachusetts. B. pleads that, at the time the suit was commenced, upon which that judgment was founded, he was not an inhabitant of Massachusetts, nor did he reside there, nor had he any property there; this plea in bar is bad, because there is no averment of the want of legal notice. 1 Day's Cases in Error 168.

Quære, Whether nil debet is a good plea to an action of debt founded on a judgment of a court of one of the co-states? 1 Cranch, 285.]

argued, the Court reluctantly avoids a decision of it at present. But there are particular reasons which restrain one of the Judges from giving an opinion on that point; and another case has been mentioned, in which it is said to constitute the sole question; so that in that case it will of course be determined.

Passing over the consideration of the first point therefore, the Court proceeded to inquire, whether this cause could be decided on the second and third points.

Admitting, for the present, that the sentence of a foreign court of admiralty is conclusive, with respect to what it professes to decide, does this sentence falsify the warranty contained in this policy, that the brig John is American property?

The sentence declares "the said brig to have been cleared out for Cadiz, a port actually blockaded by the arms of our sovereign lord the king; and that the master of the said brig persisted in his intention of entering that port, after warning from the blockading force not to do so, in direct breach and violation of the blockade thereby notified." The sentence, then, does not deny the brig to have been American property; but, it is contended by the counsel for the underwriters, that a ship warranted to be American is impliedly warranted to conduct herself, during the voyage, as an American; and that an attempt to enter a blockaded port, knowing it to be blockaded, forfeits that character. This position cannot be controverted. It remains then to inquire, whether the sentence proves the brig John to have violated the laws of blockade: that is, whether the cause of condemnation is alleged in such terms, as to show that the vessel had forfeited her neutral character; or in such terms as to show its insufficiency to support the

sentence.

The fact of clearing out for a blockaded port is in itself innocent, unless it be accompanied with a knowledge of the blockade. The clearance therefore is not considered as the offence: the persisting in the intention to enter that port after warning by the blockading force is the ground of the sentence. Is this intention, if evidenced by no fact whatever, a breach of blockade? This question is to be decided by a reference to the

law of nations and to the treaty between the United States and Great Britain.

Vattel says, "All commerce is entirely prohibited with a besieged town. If I lay siege to a place, or only form the blockade, I have a right to hinder any one from entering, and to treat as an enemy, whoever attempts to enter the place, or carry any thing to the besieged without my leave." B. 3. s. 177. The right to treat the vessel as an enemy is declared by Vattel to be founded on the attempt to enter; and, certainly, this attempt must be made by a person knowing the fact.

But this subject has been precisely regulated by the treaty between the United States and Great Britain, which was in force, when this condemnation took place. That treaty contains the following clause: "And whereas it frequently happens, that vessels sail for a port or place belonging to an enemy without knowing that the same is either besieged or blockaded or invested; it is agreed, that every vessel so circumstanced, may be turned away from such port or place, but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless after notice she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper." This treaty is conceived to be a correct exposition of the law of nations; certainly it is admitted by the parties to it, as between themselves, to be a correct exposition of that law, or to constitute a rule in the place of it.

Neither the law of nations nor the treaty admits of the condemnation of the neutral vessel, for the intention to enter a blockaded port, unconnected with any fact. Sailing for a blockaded port, knowing it to be blockaded has been, in some English cases, construed into an attempt to enter that port; and has, therefore, been adjudged a breach of the blockade, from the departure of the vessel.* Without giving any

[* If the port to which a vessel assured is destined be actually blockaded, the assured may abandon as for a total loss; the interdiction of commerce with the port of destination by means of a blockade is a peril within the policy. The going to another port, after being warned away, for the purpose of delivering the goods, was considered, after an abandonment, as done for the benefit of all concerned, and would not destroy the right of the assured to recover on the abandonment. 1 Johns. 249.]

opinion on that point, it may be observed, that, in such cases, the fact of sailing is coupled with the intention; and the sentence of condemnation is founded on an actual breach of blockade. The cause assigned would there be a justifiable cause; and it would be for the foreign court alone to determine, whether the testimony supported the allegation, that the blockade was broken. Had this sentence averred, that the brig John had broken the blockade, or had attempted to enter the port of Cadiz after warning from the blockading force; the cause of condemnation would have been justifiable; and without controverting the conclusiveness of the sentence, the assured could not have entered into any inquiry respecting the conduct of the vessel. But this is not the language of the sentence. An attempt to enter the port of Cadiz is not alleged; but persisting in the intention, after being warned not to enter it, is alleged as the cause of condemnation. This is not a good cause under the treaty. It is impossible to read that treaty, without perceiving a clear intention in the parties to it, that, after notice of the blockade, an attempt to enter the port must be made, in order to subject the vessel to confiscation. By the language of the treaty it would appear, that a second attempt, after receiving notice, must be made, in order to constitute the offence, which will justify a confiscation. "It is agreed (says the instrument) that every vessel so circumstanced (that is, every vessel sailing for a blockaded port, without knowledge of the blockade) may be turned away from such port or place; but she shall not be detained, nor her cargo, if not contraband, confiscated, unless, after notice, she shall again attempt to enter." These words strongly import a stipulation, that there shall be a free agency, on the part of the commander` of the vessel, after receiving notice of the blockade; and that there shall be no detention nor condemnation, unless, in the exercise of that free agency, a second attempt to enter the invested place shall be made.

It cannot be necessary to state the testimony, which would amount to evidence of such second attempt. Lingering about the place as if watching for an opportunity to sail into it, or the