condemn property lying in a neutral port, has been freely examined; and although the jurisdiction of the court in such case was admitted, yet no doubt appears to have been entertained of the propriety of examining the question, and deciding it according to the practice of nations.

Since courts which are required to decide, whether the condemnation of a vessel and cargo by a foreign tribunal have effected a change of property, may inquire whether the sentence were pronounced by a court which, according to the principles of national law, could have jurisdiction over the subject, this court must inquire whether, in conformity with that law, the tribunal sitting at St. Domingo to punish violations of the municipal laws enacted by its sovereign, could take jurisdiction of a vessel seized on the high seas for infracting those laws, and carried into a foreign port.

In prosecuting this inquiry, the first question which presents itself to the mind is, what act gives an inchoate jurisdiction to a court?

It cannot be the offence itself. It is repugnant to every idea of a proceeding in rem, to act against a thing which is not in the power of the sovereign under whose authority the court proceeds; and no nation will admit that its property should be absolutely changed, while remaining in its own possession by a sentence which is entirely ex parte. Those on board a vessel are supposed to represent all those who are interested in it, and if placed in a situation which requires them to take notice of any proceedings against a vessel and cargo, and enables them to assist the rights of the interested, the cause is considered as being properly heard, and all concerned are parties to it. But the owners of vessels navigating the high seas or lying in port, cannot take notice of any proceedings which may be instituted against those vessels in foreign countries; and consequently such proceedings would be entirely ex parte, and a sentence founded on them never would be, and never ought to be regarded..

The offence then alleged to have been committed by the Sarah could not be cognizable by the Court of St. Domingo,

until some other act were performed, which should make the owners of the vessel and cargo parties to the proceedings instituted against them, and should place them within the legitimate power of the sovereign, for the infraction of whose laws they were to be confiscated. There must be a seizure in order to vest the possession or the thing in the offended sovereign, and enable his courts to proceed against it. This seizure, if made either by a civil officer or a cruiser, acting under the authority of the sovereign, vests the possession in him, and enables him to inquire by his tribunals constituted for the purpose, into the allegations made against and in favour of the offending vessel. Those interested in the property which has been seized are considered as parties to this inquiry; and all nations admit that the sentence, whether correct or otherwise, is conclusive. Will a seizure de facto, made without the territorial dominion of the sovereign under cover of whose authority it is made, give a court jurisdiction of a thing never brought within the dominion of that sovereign?

This is a question on which considerable difficulty has been felt, and on which some contrariety of opinion exists. It has been doubted whether proceedings denominated judicial are in such a case merely irregular or are to be considered as absolutely void, being coram non judice. If merely irregular, the courts of the country pronouncing the sentence were the exclusive judges of that irregularity, and their decision binds the world; if coram non judice the sentence is as if not pronounced.

It is conceded that the legislation of every country is territorial; that beyond its territory it can only effect its own subjects or citizens. It is not easy to conceive a power to execute a municipal law, or to enforce obedience to that law, without the circle in which that law operates. A power to seize for the infraction of a law is derived from the sovereign, and must be exercised, it would seem, within those limits which circumscribe the sovereign power. The rights of war may be exercised on the high seas, because war is carried on upon the high seas; but the pacific rights of sovereignty must be exercised within the territory of the sovereign.

If these propositions be true, a seizure of a person not a subject, or of a vessel not belonging to a subject, made on the high. seas for the breach of a municipal regulation, is an act which the sovereign cannot authorize. The person who makes this seizure there, makes it on a pretext, which if true, will not justify the act; and he is a marine trespasser. To a majority of the Court it seems to follow that such a seizure is totally invalid; that the possession acquired by the unlawful act is his own possession, not that of the sovereign; and that such possession confers no jurisdiction on the court of the country to which the captor belongs.

This having been the fact in the case of the Sarah, and neither the vessel nor captain, supercargo nor crew having ever been brought within the jurisdiction of the court or within the dominion of the sovereign whose laws were infracted, the jurisdiction of that court over the subject of its sentence never attached, the proceedings were entirely ex parte, and the sentence is not to be regarded.

The case of the Helena already cited may, at first view, be thought a case which would give validity to any seizure whereever made, and would refer the legality of that seizure solely to the sovereign of the captor. But on a deliberate consideration of that case, the majority of the court is of opinion, that this inference is not warranted by it. Several circumstances were concerned in producing the decision which was made, and those circumstances vary that case materially from this.

The captured vessel was carried into port, and, while in the power of the sovereign, was transferred by his particular authority in solemn form. In such a case Sir William Scott conceived, that a sentence of confiscation conformably with the laws of Algiers was to be presumed. But his decision did not turn singly on this point. The vessel, after passing in this formal manner to a Spanish purchaser, had, with equal solemnity, been again transferred to a British purchaser; and the judge considered this second purchaser, with how much reason may perhaps be doubted, as in a better situation than the original purchaser.

This case is badly reported; the points made by counsel on one side are totally omitted; and the opinion of the judge is not given with that clearness which usually characterizes the opinions of Sir William Scott. But the seizure was presumed to be made by way of reprisal for some breach of the treaty between the two powers; so that the possession of the captor was considered as legitimately the possession of his sovereign; and from the subsequent conduct of the Dey himself, a condemnation according to the usages of Algiers was presumed. But in presuming a condemnation, this case does not, it is thought, dispense with the necessity of one; nor is it supposed, in presuming a legitimate cause of seizure, to declare that a seizure made without authority by a commissioned cruiser, would vest the possession in the sovereign of the captor, and give jurisdiction to his courts.

If this case is to be considered as if no sentence of condemnation were ever pronounced, the property is not changed; and this court, having no right to enforce the penal laws of a foreign country, cannot inquire into any infraction of those laws. The property in this particular case was purchased under circumstances which exclude any doubt respecting its identity, and respecting the full knowledge of the purchaser and of the nature of the title he acquired.

The sentence of condemnation being considered as null and invalid, the property is unchanged, and therefore ought to be recovered by the libellants in the Court below. But those libellants ought to account with the defendants for the freight, insurance and duties on importation, and for such other expenses as would have been properly chargeable on themselves as importers; and each party is to bear his own costs.

The sentence of the Circuit Court is reversed, and also the sentence of the District Court so far as it contravenes this opinion; and the cause is to be remanded to the Circuit Court for the district of South Carolina for a final decision thereon.

LIVINGSTON, Justice.-Without expressing an opinion on the invalidity of the seizure on the high seas, under a munici

pal regulation, if the property be immediately carried into a port of the country to which the capturing vessel belongs, and there regularly proceeded against, I concur in the judgment just delivered; because the Sarah and her cargo were condemned by a French tribunal sitting at St. Domingo, without having been carried into that or any other French port, and while lying in the port of Charleston, South Carolina, whither they had been carried by and with the consent of the captor.

JOHNSON, Justice. This cause comes up on appeal from the Circuit Court of South Carolina, acting in the capacity of an Instance Court of Admiralty. The doctrines which regulated the decision of the Circuit Court are not overruled by a majority of the Bench; but the decree of that court is rescinded, because, to three of the five judges who concur in sustaining the appeal, it appears that the property could not be condemned in the court of St. Domingo, while lying in a neutral port, and to the other two, that the capture on the high seas, for a breach of a municipal regulation, was contrary to the law of nations, and, therefore, vested no jurisdiction in the Court of St. Domingo. On the former doctrine it is not necessary to make any observations, because in the case of the Sea-Flower, argued together with this as one cause, and decided on the same day, that doctrine is expressly overruled. But on the latter point, I think it proper briefly to state the reasons upon which I found my disapprobation, both of the doctrine and its application to this

case.

It would have been some relief to us, in determining this question, had it been made a point by counsel, either in their argument in this Court, or in the Court below; but it appears to have been wholly unnoticed by them.

Most of the difficulties, which have occurred in the investigation of this case, appear to have resulted from an indistinct view of the nature, origin and object of Prize Courts. Conducted by the same forms, and very generally blended in the same persons, it is not easy to trace upon the mind the discriminating line between the Instance and Prize Courts; yet the

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