which it acted, and the situation of the subject on which it acted.

Admitting that the ordinary tribunal erected in St. Domingo was capable of acting as a prize court, and also of taking cognizance of offences against regulations purely municipal, it is material to inquire, in which character it pronounced the sentence of condemnation, in the case now under consideration. In making this inquiry, the relative situation of St. Domingo and France must necessarily be considered.

The colony of St. Domingo, originally belonging to France, had broken the bond which connected her with the parent state, had declared herself independent, and was endeavouring to support that independence by arms. France still asserted her claim of sovereignty, and had employed a military force in support of that claim. A war de facto then unquestionably existed between France and St. Domingo. It has been argued that the colony having declared itself a sovereign state, and having thus far maintained its sovereignty by arms, must be considered and treated by other nations as sovereign in fact, and as being intitled to maintain the same intercourse with the world, that is maintained by other belligerent nations. In support of this argument, the doctrines of Vattel have been particularly referred to. But the language of that writer is obviously addressed to sovereigns, not to courts. 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.

It is not intended to say that belligerent rights may not be superadded to those of sovereignty. But admitting a sove reign who is endeavouring to reduce his revolted subjects to obedience, to possess both sovereign and belligerent rights, and to be capable of acting in either character, the manner in which he acts must determine the character of the act. If as a legislator he publish his law, ordaining punishments for cer

tain offences, which law is to be applied by courts, the nature of the law, and of the proceedings under it, will decide whether it be an exercise of belligerent rights, or exclusively of his sovereign power, and whether the court, in applying this law to particular cases, acts as a prize court, or as a court enforcing municipal regulations.

Let the acts of the French government which relate to this subject be inspected.

The notification given by Mr. Pichon, the French charge des affaires to the American government, which was published in March 1802, interdicts all manner of intercourse with the ports of St. Domingo, in possession of the revolted negroes, and declares that cruisers will arrest all foreign vessels attempting to enter any other port, and to communicate with any of the revolted negroes, to carry either ammunition or provisions to them. Such vessels, he adds, shall be confiscated, and the commanders severely punished, as violating the rights of the French republic and the law of nations.

It might be questioned, under this notice, whether vessels sailing on the high seas, having traded with one of the Brigand ports, would be considered as liable to seizure and to confiscation, after passing the territorial jurisdiction of the government of St. Domingo. A free trade with that colony had been allowed, and the revocation of that licence is made known to the government of the United States. To its revocation, the ordinary rights of sovereignty were sufficient.

The notification, however, refers to the order of the commander in chief of the French republic in St. Domingo, and that order should of course be examined as exhibiting more perfectly the extent and nature of the rights which the French republic purposed to exercise.

The particular order which preceded this notification is in these words: "Every vessel, French or foreign, which shall be found by the vessels of the republic riding at anchor in the ports of the island not designated by these presents, or within the bays, creeks and landing places on the coast, or under sail at a less distance than two leagues from the coast

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and communicating with the land, shall be forfeited." The next decree is dated the 22d of June 1802, and the extract, which is supposed to regulate this particular subject, is in these words: "Every vessel, French or foreign, which shall be found by the vessels of the republic, anchored in one of the ports of the island not designated by the present decree, or in the bays, coves or landings of the coast, or under sail at a distance less than two leagues from the coast and communicating with the land, shall be arrested and confiscated."

Nothing can be more obvious than that these are strictly territorial regulations, proceeding from the sovereign power of St. Domingo, and intended to enforce sovereign rights. Seizure for a breach of this law is to be made only within those limits, over which the sovereign claimed a right to legislate, in virtue of that exclusive dominion, which every nation possesses within its own territory, and within such a distance from the land as may be considered as a part of its territory. This power is the same in peace and in war, and is exercised according to the discretion of the sovereign. The prohibition and the penalty are the same on French and foreign vessels.

This subject was again taken up in October 1802, in an arrêt which in part regulates the coasting trade of the island. The 4th, 5th and 6th articles of this decree respect foreign as well as French vessels, and subject them to confiscation, in the cases which are there enumerated. These are all of the same description with those stated in the arrêt of the 22d of June, and no seizure is authorized but of vessels found within two leagues of the coast.

The last decree is that which was issued by general Ferrand, on the 1st day of March 1804. This deserves the more attention, because it is that on which the courts profess to found their sentence of condemnation in the particular case under consideration, and because general Ferrand uses expressions which clearly indicate the point of view in which all these arrêts were contemplated by the government of the island.

The title of this arrêt is "An Arrêt, relative to vessels taken in contravention of the dispositions of the laws and re

gulations concerning French and foreign commerce, in the colony."

In stating the motives for this ordinance, it is said, "that some French agents, in the neighbouring and allied islands, had mistaken the application of the laws and regulations concerning vessels, taken in contravention upon the coasts of St Domingo, occupied by the rebels, and had confounded those. prizes with those which were made upon the enemy of the state."

Desiring to put an end to all the abuses which might result from this mistake, and which would be as injurious to the territorial sovereignty, as to the rights of neutrality," the commander in chief, after some further recitals, which are not deemed material, ordains the law under which the tribunals have proceeded.

The distinction, between seizures made in right of war and those which are made for infractions of the commercial regulations, established by the sovereign power of the state, is here taken in terms; and that legislation, which was directed against vessels contravening the laws and regulations concerning French and foreign commerce in the colony, is clearly of the latter description.

The first article of this ordinance is recited in the sentence, as that on which the condemnation was founded. It is in these words: "The port of St. Domingo is the only one in the colony of St. Domingo, that is open to the French and foreign commerce; in consequence, all vessels anchored in the bays, harbours and landing-places on the coast occupied by the rebels, those cleared for the ports in their possession coming out with or without a cargo, and generally all vessels sailing in the territorial extent of the island, (except that from Cape Raphael to Ocoa Bay) found at a distance less than two leagues from the coast, shall be retained by the state vessels and privateers having out letters of marque, who shall conduct them, if possible, into the port of St. Domingo, that the confiscation of the said vessels and cargoes may be pronounced."

As this article authorizes a seizure of those vessels only which are "sailing within the territorial extent of the island, found within less than two leagues of the coast," it is deemed by the Court to be sufficiently evident that the seizure and confiscation are made in consequence of a violation of municipal regulations and not in right of war. It is true that the revolt of the colony is the motive for this exercise of sovereign power. Still it is an exercise of sovereign power restricting itself within those limits which are the province of municipal law, not the exercise of a belligerent right.

The tribunal professing to carry this law into execution, though capable of sitting either as a Prize or an Instance Court, must be considered in this case, as acting in the character of an Instance Court, since it is in that character that it punishes violations of municipal law.

The Sarah was captured more than ten leagues from the coast of St. Domingo, was never carried within the jurisdiction of the tribunal of that colony, was sold at Baracoa in the island of Cuba, and afterwards condemned as prize under the arrêt of general Ferrand which has been stated.

If the court of St. Domingo had jurisdiction of the case, its sentence is conclusive. If it had no jurisdiction, the proceedings are coram non judice, and must be disregarded.

Of its own jurisdiction, so far as it depends on municipal rules, the court of a foreign nation must judge, and its decisions must be respected. But if it exercise a jurisdiction which, according to the law of nations, its sovereign could not confer, however available its sentences may be within the dominions of the prince from whom the authority is derived, they are not regarded by foreign courts. This distinction is taken upon this principle, that the law of nations is the law of all tribunals in the society of nations, and is supposed to be equally understood by all.

Thus the sentence of a court, sitting in a neutral territory and instituted by a belligerent, has been declared not to change the property it professed to condemn; and thus the question, whether a prize court sitting in the country of the captor could