Peter Lafont v. Bigelow and Proud.

THIS case cannot be distinguished in any respect from the tase of Hudson, Smith and Thomas against P. A. Guestier, and consequently the judgment of the Circuit Court is to be reversed.

Supreme Court of the United States.

Appeal from the Circuit Court of South-Carolina.

Rose et al. v. Himely et al.

THERE were two points upon which this case was decided. 1st. Whether a condemnation in the court at St. Domingo could affect a vessel and cargo captured by a French privateer but carried into the island of Cuba? On this the Chief Justice and Judges Washington, Johnson and Todd thought that they were still sub potestate of the capturing power, and the condemnation was valid both on principle and the modern practice of nations. 2d. Whether a capture on the high seas, for a cause not sanctioned by the law of nations, could give jurisdiction to a prize court? On this question Judges Cushing, Chase and Livingston gave no opinion, as they thought themselves sanctioned in reversing the decree of the Circuit Court upon the first ground, although contrary to the opinion of the majority f the Court. The Chief Justice and Judge Washington thought that such a capture was a mere marine trespass and gave no jurisdiction to the prize court; but admitted, that if that Court had jurisdiction of the case, they could not look into the principles upon which it founded its decision. They also admitted, that if the capture of the vessel had been made in the exercise of belligerent rights, the decree below would have been correct; but contended that the French arrêts excluding other nations from trading with the Brigands, were mere municipal regulations; and a capture for that cause, on

the high seas, was contrary to the law of nations, and could give no jurisdiction to their courts.

Judges Johnson and Todd contended, that the Court of St. Domingo was as competent to decide a question relative to its own jurisdiction, or on the law of nations, as this or any other court; that a violation of the law of nations was what gave jurisdiction to that court instead of taking it away, since to redress such injuries was a principal object of its institution; that this capture was made in the exercise of belligerent rights; that the exclusion of foreign vessels from the island of St. Domingo was not a mere trade law, but expressly intended for the reduction of an enemy; that a state of war existed, in fact, between the French government and the revolters in the island, and had been officially announced to the world, and the right of seizing for trading with the revolters, claimed in a proclamation of Petion; that when a war exists within the territory of a nation, she may assert both her territorial and belligerent rights towards other nations; and in case of actual violation of either, the vessel continued in delicto until her return into a particular jurisdiction; that both Great Britain and the United States asserted this principle in their trade laws, &c. &c. The opinions of the Chief Justice and Judge Johnson were delivered as follows:

MARSHALL, Chief Justice. This is a claim for a

cargo of coffee, which, after being shipped from a port in St. Domingo in possession of the Brigands, was captured by a French privateer, and was carried into Barracoa, a small port in the island of Cuba where it was sold by the captor. The cargo having been brought by the purchaser into the state of South-Carolina was libelled in the Court of Admiralty by the original American owner. The purchaser defends his title by a sentence of condemnation pronounced by a tribunal sitting in St. Domingo, after the property had been libelled in the Court of this country, and by an order of sale made by a person styling himself delegate of the French government of St. Domingo at St. Jago de Cuba.

The great question to be decided is,

Was this sentence pronounced by a court of competent jurisdiction? At the threshold of this interesting inquiry a difficulty presents itself which is of no inconsiderable magnitude. It is this:

Can this Court examine the jurisdiction of a foreign tribunal? The court pronouncing the sentence, of necessity, decided in favour of its jurisdiction, and if the decision were erroneous, that error, it is said, ought to be corrected by the superior tribunals of its own country, not by those of a foreign country.

This proposition can certainly not be admitted in its full extent. A sentence professing on its face to be the sentence of a judicial tribunal, if rendered by a self-constituted body, or by a body not empowered by its government to take cognizance of the subject which it had decided, could have no legal effect whatever. The power of the court there is, of necessity, examinable to a certain extent by that tribunal, which is compelled to decide, whether its sentence have changed the right of property. The power under which it acts must be looked into; and its authority to decide questions which it professes to decide must be considered. But although the general power by which a court takes jurisdiction of causes must be inspected, in order to determine whether it may rightfully do what it professes to do, it is still a question of serious difficulty, whether the situation of the particular thing on which the sentence has passed, may be inquired into, for the purpose of deciding whether that thing were in a state which subjected it to the jurisdiction of the court passing the sentence. For example, in every case of a foreign sentence condemning a vessel as prize of war, the authority of the tribunal to act, as a prize court, must be examinable. Is the question, whether the vessel condemned were in a situation to subject her to the jurisdiction of that court, also examinable? The question, in the opinion of the court, must be answered in the affirmative.

Upon principle it would seem that the operation of every judgment must depend on the power of the court to render that judgment, or in other words, on its jurisdiction over the subject-matter which it has determined. In some cases that jurisdiction unquestionably depends as well on the state of the thing as on the constitution of the court. If by any means whatever, a prize court should be induced to condemn, as prize of war, a vessel which was never captured, it would not

be contended that the condemnation operated a change of property. Upon principle then it would seem, that, to a certain extent, the capacity of the court to act on the thing condemned, arising from its being within or without their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence.

Passing from principle to authority, we find that in the courts of England, whose decisions are particularly mentioned, because we are best acquainted with them, and because, as is believed, they give to foreign sentences as full effect as are given to them in any part of the civilized world, the position that the sentence of a foreign court is conclusive, with respect to what is proper to decide, is uniformly qualified with the limitation, that in the given case it has jurisdiction of the subject-matter.

This general dictum is explained by particular cases.

The case of the Flad Oyen, 1 Rob. 114. was a vessel condemned by a belligerent court, sitting in a neutral territory. Consequently the objection to that sentence turned entirely on the default in the constitution of the court. The Christopher, 2 Rob. 173. was condemned while lying in the port of an ally; the jurisdiction of the court passing the sentence was affirmed, but no doubt seems to have been entertained at the bar, or by the judge himself, of his right to decide the question, whether a court of admiralty, sitting in the country of the captor, could take jurisdiction of a prize lying in the port of an ally. The decision of the tribunal of Bayonne, in favour of its own jurisdiction, was not considered as conclusive in the Court of Admiralty in England; but that question was treated as being perfectly open and as depending on the law of nations. The case of Kialighet, 3 Rob. 82. is of the same description with that of the Christopher, and establishes the same principle. In the case of Hendrick and Maria, 4 Rob. 35. Sir William Scott determined that a condemnation, by the court of the captor, of a vessel lying in a neutral port, was conformable to the practice of nations, and therefore valid; but in that case the right to in

quire whether the situation of the thing, the locus in quo, did not take it out of the jurisdiction of the court, was considered as unquestionable.

The case of the Comet, 5 Rob. 255. stands on the same principles. The Helena, 4 Rob. 3. was a British vessel, captured by an Algerine corsair owned by the Dey, and transferred to a Spanish purchaser by a public act, in a solemn manner before the Spanish consul. The transfer was guaranteed by the Dey himself. The vessel was again transferred to a British purchaser, under the public sanction of the Judge of the Vice Admiralty Court of Minorca, after that place had surrendered to the British arms. On a claim in the Court of Admiralty, by the original British owner, Sir William Scott affirmed the title of the purchaser, but expressed no doubt of the right of the court to investigate the subject.

The manner, in which this subject is understood in the courts of England, may then be considered as established on uncontrovertible authority. Although no case has been found, in which the validity of a foreign sentence has been denied, because the thing was not within the ports of the captor, yet it is apparent, that the courts of that country hold themselves warranted in examining the jurisdiction of a foreign court, by which a sentence of condemnation has passed, not only in relation to the constitutional powers of the court, but also in relation to the situation of the thing on which those powers are exercised; at least so far as the right of the foreign court to take jurisdiction of the thing is regulated by the law of nations and by treaties. There is no reason to suppose that the tribunals of any other country whatever deny themselves the same power. It is therefore, at present, considered as the uniform practice of civilized nations, and is adopted by this Court as the true principle which ought to govern in this case.

In pursuing the inquiry then, whether the tribunal erected in St. Domingo, were acting on a case of which it had jurisdiction, when the Sarah was condemned, this court will examine the constitutional powers of that tribunal, the character in