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court an authority to receive all appeals from the judge of the admiralty, where they were not resigned to a continental court of appeals. This was not resigned. It therefore belongs to this court. We will endeavour to promote justice, according to the intentions of the commonwealth, conveyed in the laws; and not demit any part of her sovereignty, unless we are convinced beyond a doubt, that it is our duty to do so.

We now return to the last of the secondary questions. Did the court of admiralty take cognizance as a prize court? In considering this question, a very strict attention must be had to the proceedings of the court of admiralty in this case. That court was also erected by an act of assembly, prior to the completion and final ratification of the confederation. It is, to be sure, a court of prize, and an instance court, if that mode of expression be preferred; or, in other words, the judge, who has but one commission, may try causes of prize and other matters of admiralty jurisdiction. There is a difference in his proceedings for condemnation in causes of prize, and those in other cases. If his style by law is, “judge of the admiralty,” the reasonable and legal meaning of the third, fourth, and sixth sections of the law, under which he acts, is, that in trying a cause of prize, the vessel or goods taken, must be within his jurisdiction, precinct and power. They are these. “That in cases of prize, capture, or recapture upon the water, from enemies, or by way of reprisal, or from pirates, the same shall be tried, adjudged, and determined, as well to the question whether prize or not, as to the claims of the parties interested or pretending to be interested in the same, by the law of nations and the acts and ordinances of congress, before the said judge, by witnesses, according to the course of the civil law;” and, “ That the captain or commander of any ship or vessel of war, or prizemaster or other person, having charge of any capture or recapture, or other property seized upon the water as aforesaid, who shall conduct or bring the same into port, shall immediately deliver the same, without diminution, to the marshat of the said court of admiralty.”

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The law then goes on to direct the mode of proceeding to the condemnation, ordering, “ that the judge shall cause notice to be published immediately, in some newspaper, of the day appointed for the trial of such prize, inserting therein the name, size, or burden, and other description of the said vessel, so taken and brought into port; the name and surname of the master; the place she last sailed from, the port for which destined, and in a case of recapture, by what ship or vessel taken; to the end that all

persons concerned may appear and show


there be, wherefore such capture, or recapture, goods, merchandize, or other property, should not be condemned and adjudged to the libellants."

Does the present case in any manner resemble the “ cases of prize” described in this law? Where are “claimants interested or pretending to be interested ?" Claimants are voluntary applicants for justice. Shall trespassers, compelled to answer for their wrong, cover themselves with that character? Can there be “claimants,” but in a proceeding in rem? How would the publication before mentioned suit such claimants as the appellants? Were the proceedings of the judge in this case, such as he constantly has observed in cases of prize? They were not. Application was made to him for damages. He proceeded in that line. Here is neither libel nor process against the capture. No monition, " No notice" under the act of assembly.

What could give the judge of the admiralty for this state, jurisdiction to proceed as a court of prize, upon a capture, contested between citizens of different states, which is the case here, rather than any court of admiralty in any other state, when the property captured was not within the power of his jurisdiction? because, it is said some of the offending captains and their vessels came into this port. Does the jurisdiction of a court of prize depend on certain offenders with respect to the capture coming into a port? Where are the authorities of law to show that this circumstance can give such jurisdiction, or, that there can be an institution of a cause of prize, according to the maritime law of nations, for damages only? The

authorities cited, that were thought most apposite, and were most relied on by the counsel for the respondent, were those of Brown and Burton against Franklin, the king's proctor; and of the king against Broom. But they are not in any manner applicable. In the first, the plaintiffs, masters of two vessels, but having no regular letters of marque, took a French ship, cargo and money, upon land, in the East Indies; they being English subjects, it was held, that they acquired no right by this capture, but that it was a perquisite of the admiralty. The king's proctor, upon the usual monition, got a sentence of condemnation for the whole, in order to make them account. In brief, they had effects in their hands, which, by the maritime law England, belonged to the king or his admiralty, and they were obliged to account for them according to that law.* Lord Mansfield calls it a proceeding in remot The second case was of the same kind, and was decided on the same principles. It was further said, by the counsel for the respondent, that the court of admiralty, that first proceeds in such a case as the present, acquires an exclusive right of deciding upon it, in the same manner as the nation that first commences a judicial process against pirates, may pronounce sentence against them. To say no more on this comparison, it is sufficient to observe, that such a right may be attributed to the atrocity of the guilt, the offenders are hostes humani generis.

If the coming of trespassers, or of the vessels in which they trespassed upon the high seas, within the power of a judge's jurisdiction, authorizes him to proceed against them, to what confusion may it lead? A capture is made from an enemy; afterwards friends trespass against the prize, and arrive in different ports, the fate of the prize being unknown. They are prosecuted in one or more courts of admiralty. The prize at length arrives, in a different port, and is libelled in a different court of admiralty, for condemnation in the usual manner. What contests for jurisdiction must ensue? “ Quad inconveniens est non licitum est.

* 12 Mod. 135.

Le Caux and Eden in the notes.

We are unanimously of opinion, that the judge of the admiralty for this state had jurisdiction in this cause, and that the appeal to us is regular. We decree, that the respondent recover and have of the appellants, 11,141/. 5s. 4d. with costs, except those in this court, of which each party is to pay a moiety..

Supreme Court of Pennsylvania.

Commonwealth v. William Cobbett. Dec. 1800.*

Present SHIPPEN, Chief Justice; YEATES, SMITH and BRACKENRIDGE, Justices.

DEBT ON RECOGNIZANCE FOR GOOD BEHAVIOUR. In Pennsyivania an action of debt lies sur recognizance for good behaviour, without a previous conviction, or indictment, for libellous matter, which has been published subsequent to the date of the recognizance.

But I understand that a different decision of this important point was made in Virginia in the case of Callender.


HIS was an action of debt, grounded upon a recognizance of two thousand dollars, in which the defendant had been bound on the 18th August 1797, by M'Kean, the late chief justice. The condition was that the defendant should be of "good behaviour towards the commonwealth and all the liege subjects," until the next sessions of oyer and terminer, to be held by the justices of the supreme court. The breach assigned was, the publication of a number of libels by the defendant in "Porcupine's Gazette," of which the defendant was the editor, subsequent to the date of the recognizance and prior to the institution of this suit. These publications, which

*[It was brought to December Term 1797, and was tried 13th, 15th, and 16th December 1800.]

were complained of as being libellous, respected the late governor Miffin, the board of health of the city of Philadelphia, the memory of Dr. Franklin and Dr. Rittenhouse, the Spanish and French governments, the people of Virginia and other states of the United States, &c.

The defendant pleaded nil debet, and it was agreed by the counsel on each side that the cause should be argued on the merits.

M Kean attorney general and Ingersoll late attorney general appeared for the commonwealth. Lewis for the defendant.

M'Kean opened the case by some remarks on the law of libels and a statement of the circumstances of the present suit. He concluded by reading the various publications which were charged as libellous.

Lewis raised three points. He inquired,

1. Whether the chief justice possessed authority to take a recognizance for good behaviour?

2. If he had, whether this recognizance is conformable to the stat. Edw. 3.

3. Whether the defendant has incurred a forfeiture of the recognizance?

The counsel contended that the chief justice and justices of the supreme court had no authority to take recognizances for good behaviour under the stat. 34 Edw. 3. chap. 5. and that if they did possess this power, yet that the chief justice had not taken this in conformity to the statute. It should be “ of good behaviour towards the commonwealth and all the liege people of the commonwealth,” The words of this recognizance are too general and indefinite, since they might be construed to extend to the people of any other government than those of Pennsylvania, to which they ought to be restricted. From the very terms of the warrant, under which the defendant was brought before the late chief justice, being for libels on the king of Spain and his minister, the chevalier d' Yrujo, on Messrs. Fox, Sheridan and other foreigners, as well as the specification of libellous publications which are now charged as breaches of the condition of the recognizance, it is evident that


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