is not, their proceedings are distinct from the original capture, and they are plainly trespassers, and must abide the consequences. We are clearly of opinion, that their pretension of right is utterly unfounded, and that the whole conduct of the commanders and crews of the brigs was cruel, unprovoked, wanton, and mala fide. In this very singular and extraordinary case, they have exerted themselves to disable the respondent from proving the capture to be prize; and is the sole question afterwards, to be, prize or not? What necessity is there for determining whether the Betsey was prize or not? Is it not evident from the case of Combs against the hundred of Bradley, in Salkeld's Reports, and of Goss and another against Withers, in Burrow's, and many other cases, that an action will lie on possession by the plaintiff? And with what peculiar force does the reason apply in this case, for the action being maintained merely on the possession? This court and the court of admiralty are competent not only to direct proceedings, but to ascertain facts, judge of them and the law upon them, and assess damages as justice may require. As to the notion of mistake excusing, it is a petitio principii. The mistake does not appear; the crime does. So far from behaving as partners in the capture with the Argo, the commanders of the three brigs who saw the surrender to her, chase her off; send the Betsey as prize to themselves only, for a port distant from the home of the captors, and in the eye of the wind, though in a part of the sea where she was particularly exposed to dangers from the enemy, with orders to avoid certain ports, for fear of the Argo's falling in with her. In fact, it was not a real but a pretended capture as prize, by them. Are we then bound, in such a case, to call it a cause of prize, because the original taking was a capture as prize? Or are we to refuse to call it a trespass, though the second taking was not a capture as prize?

How far soever the learned judges in England have carried the justification of captures, from the circumstance of their being made as prize, yet they never have carried it as far as this case extends. That they have gone a great way is evident. In the cited case of Vanderwoodst and others against Thomp

son; the defendant, in an action of trespass, having a letter of marque, took a vessel that made some resistance, and carried her to Newcastle, where she was seized by the custom-house officers, for having smuggled goods on board, and she was afterwards condemned in the exchequer. It was contended for the plaintiff, that the capture was unlawful, because the defendant did not belong to the custom-house, and he could not justify the seizure under the hovering act of 6 Geo. 1. ch. 11. as king's ships only can seize under such circumstances. It was held, "As there was reason to suppose that the ship was a pirate, though the jury should be satisfied she was not really so, yet the action would not lie." Afterwards, "there was a motion for a new trial, which upon consideration, was denied by the court."

If that cause was cognisable in the prize court, and if that court determines solely by the law of nations and treaties, as is laid down by the judges, how were other nations interested in the principle of such a decision? If it was not cognisable in the prize court, how can it be applied to the present case, in favour of the respondent?

To proceed. If the courts of Westminster-hall, in an action for such a trespass as this, should refuse to take cognisance because the original taking was a capture as prize, or under colour that the second taking was a capture as prize, ought any such decision to have weight with us in this case? It ought not.

Such a decision must turn entirely upon the municipal law of England. It must be founded upon this principle, governing in the cases cited by the counsel for the respondent; "that of a seizure as prize, the common law does not take notice as a trespass." Lecaux and Eden. Admit the principle. It applies not. This is not a common law court. The act of assembly establishing this court makes it "a court of appeals from definitive sentences or decrees of the admiralty." We are therefore a court of admiralty. "If the sentence of the court of admiralty is thought to be erroneous, there is in every maritime country, a superior court of review, &c. to which the parties who think themselves aggrieved may appeal; and this superior

court judges by the same rule which governs the court of admiralty, viz. the law of nations and treaties. This manner of trial and adjudication is supported, alluded to, and enforced by many treaties."* We are a court of admiralty competent to judge by that rule. The act of assembly establishing admiralty jurisdiction in this state, declares that the court shall be governed by "the law of nations." Whatever in the law of nations relates to a court of admiralty, relates to this court, because no treaty has diverted the application.†

Much has been said of a distinction in England, between the instance court and the prize court, though the powers of both are exercised by the same person; and it is urged that only the latter judges by the law of nations and treaties. We are told, "it is no more like a court of admiralty, than it is to any court of Westminster-hall; that the manner of proceeding is totally different; that the appeal is different, to delegates from the ad miralty, to commissioners consisting of privy counsellors from the court of prize; that to constitute the authority of the prize court, or to call it forth in every war, a commission under the great seal issues," &c. Such a distinction may prevail in England, but is it known or regarded in other nations? The words" to call it forth," are material. It seems only a solemn, official notification to the admiralty, that there is a war, and that it may proceed accordingly, as a declaration of war is a notification to the people in general. But this declaration does not make the war in the one case, nor, perhaps does the commission constitute the authority in the other. It is confessed, "that the most ancient instrument shows a prize jurisdiction. either inherent or by commission in the admiral. It is a letter from Edward the Third to the king of Portugal," and "that since the reign of queen Elizabeth, the judge of the admiralty, either by virtue of an inherent power, or the king's commission, or both, has solely exercised the jurisdiction of prize, and that

Answer of the British court, &c.

† Answer of the British court, &c. Vattel, b. 2. ch. 7. 3 Blackst. 69.

‡ Lord Mansfield delivering the resolution of the court, in the case of Lindo against Rodney and another,

as far back as particular cases can be traced, which is for a century, the admiralty has judged of and condemned goods taken on land, as prize, as well as goods taken on sea."*

What do treaties, ancient and modern, stipulate for in order to guard against violences on the seas? A trial in the court of admiralty as soon as possible, before the effects taken are in any manner to be disposed of. Why? because by the maritime law of nations, that court judges by the law of nations and treaties. Sir George Lee, doctor Paul, sir Dudley Ryder, and Mr. Murray, now lord Mansfield, in their report, which forms the principal part of the answer of the British court, and is so celebrated by Messrs. Montesquieu and Vattel,‡ say, " By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be or not lawful prize. Before the ship or goods can be disposed of by the captor, there must be a regular judieial proceeding, wherein both parties may be heard, and condemnation thereupon, as prize, in a court of admiralty, judging by the law of nations and treaties. The proper and regular court for these condemnations, is the court of that state to whom the captor belongs."

Are we then, because in England they call the admiralty court a prize court, when it acts in a cause of prize, and it then proceeds in a different manner, with an appeal to the privy council, to reject" the universal and immemorial" compact of mankind? There was a time when we listened to the language of her senates and her courts, with a partiality of veneration, as to oracles. It is past; we have assumed our station among

Lord Mansfield, delivering the resolution of the court, in the case of Lindo against Rodney and another.

†The very great antiquity of the court of admiralty in England, and the extent of its jurisdiction, may be known from the learned Selden's Notes on Fortescue De laudibus, p. 67. Zouch, 44, &c. Godolph. p. 22, &c. Though the authority of this court, with respect to matters in which foreign nations may be concerned, and particularly to captures jure belli, is treated of, yet. no distinction is made by these authors, as to the court of admiralty and the court of prize.

Montesquieu's Letters, 5 March, 1753. Vattel, b. 2, ch. 7. § 84.

the powers of the earth, and must attend to the voice of nations; the sentiments of the society into which we have entered.

Lord Mansfield, in the cause of Lindo v. Rodney and another, said, "the end of a prize court is to suspend the property till condemnation; punish every sort of misbehaviour in the captors; to restore instantly, velis levatis, if upon the most summary examination, there does not appear a sufficient ground; to condemn finally (if the goods really are prize) against every body, giving every body a fair opportunity of being heard: a captor may, and must force every person interested, to defend; and every person interested, may force him to proceed to condemn without delay. These views cannot be answered in any court of Westminster-hall, and therefore the courts of Westminster-hall never have attempted to take cognizance of the question, prize or no prize; not from the locality of being done at sea, but from their incompetence to embrace the whole of the subject."

These views are answered here in the court of admiralty, and with as good cautions as in England; and as far as a court of appeals is concerned, they can be answered in this court as fully as in a court of appeals to commissioners there.

It seems proper, here, to take notice of the objection against the authority of this court, founded on the words of the law by which it was established, prior to the completion and final ratification of the confederation. It is constituted " a court of appeals for reviewing, reconsidering, and correcting the definitive sentences and decrees of the court of admiralty, other than in cases of capture upon the water in time of war, from the enemies of the United States," &c.

The construction of these words depends upon the resolutions of congress, the confederation, and the law by which the admiralty jurisdiction is stablished, taken together. If the principles of our preceding construction are right, they apply as aptly here, and the appeal is regular. If not, there will be a defect of justice. The legislature intended to give this