Gelston v. Hoyt, 16 U.S. 116 (1818)

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Filed: 1818-02-27Precedential Status: PrecedentialCitations: 16 U.S. 116, 3 Wheat. 116

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16 U.S. 246
3 Wheat. 246
4 L.Ed. 381

GELSTON, et al.
v.
HOYT.
Feb. 27, 1818

[Syllabus from pages 246-248 intentionally omitted]
ERROR to the court for the trial of impeachments and correction of errors
of the State of New-York.
This cause had been removed into that court by the present plaintiffs in
error, by writ of error directed to the supreme court of the said state. In
January, 1816, the court of the state of New-York for the correction of
errors in all things affirmed the judgment which had been rendered by the
supreme court of the state of New-York, in favour of Hoyt, the present
defendant in error. And before the coming of the writ of error issued from
this court, the said court for the correction of errors of the state of NewYork, according to the laws of the state of New-York, and the practice of
that court, had remitted the record, which had been removed from the
supreme court of the state of New-York, to the said supreme court, with a
mandate thereon requiring the supreme court of the state of New-York, to
execute the judgment, which had been so rendered by it in favour of the
defendant in error. And the said record having been so remitted, the court
of errors of the state of New-York upon the coming of the said writ of
error from this court, made the following return thereto: 'State of NewYork, ss. The president of the senate, the senators, chancellor, and judges
of the supreme court, in the court for the trial of impeachments and the
correction of errors; certify and return to the supreme court of the United
States, that before the coming of their writ of error, the transcript of the
record in the cause, in the said writ of error mentioned, together with the
judgment of this court thereon, and all things touching the same, were
duly remitted in pursuance of the statute instituting this court, into the
supreme court of judicature of this state, to the end that farther
proceedings might be thereupon had, as well for execution as otherwise, as
might be agreeable to law and justice; and in which supreme court of
judicature, the said judgment, and all other proceedings in the said suit,

now remain of record; and as the same are no longer before, or within the
cognizance of this court, this court is unable to make any other or farther
return to the said writ. All which is humbly submitted.' Thereupon the
counsel for the plaintiffs in error made an application to the supreme court
of the state of New-York, to stay the proceedings upon said judgment, till
an application could be made to this court in respect to the said writ of
error. To avoid this delay, the counsel under the advice or suggestion of
the judges of the said supreme court of the state of New-York, entered
into the following agreement, viz. 'It is agreed, between the attorneys of
the above named plaintiffs and defendant in error, that the annexed is a
true copy of the record and bill of exceptions, returned by the supreme
court of the state of New-York, to the court of errors of the said state, and
remitted by the said court of errors, in the affirmance of the judgment of
the said supreme court to the said supreme court. And that the said copy
shall be considered by the said supreme court of the United States, as a
true copy of the said record and bill of exceptions, and shall have the same
effect as if annexed to the writ of error in the above cause from the said
supreme court of the United States, and that the clerk of the supreme court
of the state of New-York transmit the same, with this agreement to the
clerk of the supreme court of the United States, and that the same be
annexed by the said clerk of the supreme court of the United States, to the
said writ of error, as a true copy of the said record and bill of exceptions.'
Record and Bill of Exceptions.
City and County of New-York, ss. Be it remembered, that in the term of
January, in the year of our Lord one thousand eight hundred and thirteen,
came Goold Hoyt, by Charles Graham, his attorney, into the Supreme
court of judicature of the people of the state of New York, before the
justices of the people of the state of New-York, of the supreme court of
judicature of the same people, at the capitol, in the city of Albany, and
impleaded David Gelston and Peter A. Schenck, in a certain plea of
trespass, on which the said Goold Hoyt declared against the said David
Gelston and Peter A. Schench in the words following:
City and County of New-York, ss.: Goold Hoyt, plaintiff in this suit,
complains of David Gelston and Peter A. Schenck, defendants in the suit,
in custody, &c.: For that, whereas, the said defendants, on the tenth day of
July, in the year of our Lord one thousand eight hundred and ten, with
force and arms, at the city of New-York, in the county of New-York, and
at the first ward of the same city, the goods and chattels of the said
plaintiff, of the value of two hundred thousand dollars, then and there
found did take and carry away, and other injuries to the said plaintiff then
and there did, to the great damage of the said plaintiff, and against the
peace of the people of the State of New-York. And, also, for that the

defendants, afterwards, to wit, on the same day and year last aforesaid, at
the city and county, and ward aforesaid, with force and arms, to wit, with
swords, staves, hands, and feet, other goods and chattels of the said
plaintiff, to wit, a ship or vessel of the said plaintiff, called the American
Eagle, together with her tackle, apparel, and furniture, five hundred tons of
stone ballast, one hundred hogsheads of water, one hundred and thirty
barrels salted provisions, twenty hogsheads of ship-bread, of the value of
two hundred thousand dollars, at the place aforesaid found, did take and
carry away, and other wrongs and injuries to the said plaintiff then and
there did, to the great damage of the said plaintiff, and against the peace of
the people of the state of New-York: And also, for that the said
defendants, afterwards, to wit, on the same day and year, and at the place
aforesaid, the goods and chattels of the said plaintiff, to wit, a ship or
vessel of the said plaintiff, called the American Eagle, together with her
tackle, apparel, and furniture, five hundred tons stone ballast, one hundred
hogsheads of water, one hundred and thirty barrels of salted provisions,
and twenty hogsheads of ship-broad, of the value of two hundred thousand
dollars, then and there being and found, seised, took, carried away,
damaged, and spoiled, and converted and disposed thereof, to their own
use, and other wrongs to the said plaintiff then and there did, to the great
damage of the said plaintiff, and against the peace of the said people of
the state of New-York: And, also, for that the said defendants, on the
same day and year aforesaid, with force and arms, to wit, with swords,
staves, hands, and feet, to wit, at the city, county, and ward aforesaid,
seised and took a certain ship or vessel of the said plaintiff of great value,
to wit, of the value of two hundred thousand dollars, and in which said
ship or vessel the said plaintiff then and there intended, and was about to
carry and convey certain goods and merchandises, for certain freight and
reward, to be therefor paid to him the said plaintiff; and then and there
carried away the said ship or vessel, and kept and detained the same from
the said plaintiff, for a long space of time, to wit, hitherto, and converted
and disposed thereof to their own use; and thereby the said plaintiff was
hindered and prevented from carrying and conveying the said goods and
merchandises as aforesaid, and thereby lost and was deprived of all the
profit, benefit, and advantage which might and would otherwise have
arisen and accrued to him therefrom, to wit, at the city, county and ward
aforesaid, and other wrongs and injuries to the said plaintiff then and there
did, against the peace of the people of the state of New-York, and to the
great damage of the said plaintiff. And also, for that the said defendants,
afterwards, to wit, on the same day and year last aforesaid, at the city,
county, and ward aforesaid, with force and arms, seised, and took
possession of divers goods and chattels of the said plaintiff, then and there
found, and being in the whole of a large value, that is to say, a ship or
vessel of the said plaintiff, called the American Eagle, together with her
tackle, apparel, and furniture, five hundred tons of stone ballast, one

hundred hogsheads of water, one hundred and thirty barrels of salted
provisions, twenty hogsheads of ship-bread, of the value of two hundred
thousand dollars, and staid and continued in possession of the said goods
and chattels, so by them seized and taken as aforesaid, and the said goods
and chattels afterwards took and carried away, from and out of the
possession of the said plaintiff: whereby, and by reason, and in
consequence of such said seizure, and of other the premises aforesaid, the
said plaintiff not only lost, and was deprived of his said goods and
chattels, and of all profits, benefits, and advantages, that could have arisen
and accrued to him for the use, sale, employment, and disposal thereof,
but was also forced and obliged to, and did actually, lay out and expend
large sums of money, and to be at further trouble and expense in and
about endeavouring to obtain restitution of the property so by the said
defendants seized, as aforesaid, and other wrongs and injuries to the said
plaintiff then and there did, against the peace of the people of the state of
New-York, and to the damage of the said plaintiff of two hundred
thousand dollars; and, therefore, he brings suit, &c.
And the said David Gelston and Peter A. Schenck thereto pleaded in the
words following:
1st. Plea.
And the said David Gelston and Peter A. Schenck, by Samuel B.
Romaine, their attorney, come and defend the force and injury, when, &c.,
and say that they are not guilty of the said supposed trespasses, above laid
to their charge, or any part thereof, in manner and form as the said Goold
Hoyt hath above thereof complained against them, and of this they put
themselves upon the country.
2d. Plea.
And for a further plea in this behalf, as to the several trespasses mentioned
in the first, second, third, fourth, and fifth counts in the declaration of the
said plaintiff mentioned, to wit, in taking and carrying away the goods and
chattels of the said plaintiff, mentioned in the first count in the said
declaration of the said plaintiff; in taking and carrying away the goods and
chattels of the said plaintiff, to wit, a ship or vessel of the said plaintiff,
called the American Eagle, together with her tackle, apparel, and furniture,
five hundred tons of stone ballast, one hundred hogsbeads of water, one
hundred and thirty barrels of salted provisions, and twenty hogsheads of
ship-bread, mentioned in the second count in the said declaration of the
said plaintiff; in seizing, taking, carrying away, damaging, spoiling,
converting, and disposing to their own use, the goods and chattels of the
said plaintiff, to wit, a ship or vessel of the said plaintiff; called the
American Eagle, together with her tackle, apparel, and furniture, five

hundred tons of stone ballast, one hundred hogsheads of water, one
hundred and thirty barrels of salted provisions, and twenty hogsheads of
ship-bread, mentioned in the third count in the said declaration of the said
plaintiff; in seizing, taking, carrying away, keeping and detaining, and
converting and disposing to their own use, a certain ship or vessel of the
said plaintiff, mentioned in the fourth count in the said declaration of the
said plaintiff, and in seizing and taking possession of, and in taking and
carrying from and out of the possession of the said plaintiff, the goods and
chattels of the said plaintiff, to wit, a ship, or vessel of the said, plaintiff,
called the American Eagle, together with her tackle, apparel, and furniture,
five hundred tons of stone ballast, one hundred hogsheads of water, one
hundred and thirty barrels of salted provisions, and twenty hogsheads of
ship-bread, mentioned in the fifth count in the said declaration of the said
plaintiff, above supposed to have been committed by the said David
Gelston and Peter A. Schenck; they, the said David Gelston and Peter A.
Schenck, by leave of the court here for this purpose first had and obtained,
according to the form of the statute in such case made and provided, say,
that the said Goold Hoyt ought not to have or maintain his aforesaid action
against them, because they say that the said ship or vessel, called the
American Eagle, with her tackle, apparel, and furniture, the five hundred
tons of stone ballast, one hundred hogshead of water, one hundred and
thirty barrels of salted provisions, and twenty hogsheads of ship-bread,
mentioned in the second, third, and fifth counts in the said declaration of
the said plaintiff, are the same and not other or different; and that the
seizing, taking, carrying away, keeping, detaining, damaging, spoiling,
converting and disposing thereof to their own use, mentioned in the
second, third, and fifth counts in the said declaration of the said plaintiff,
are the same and not other or different. And the said David Gelston and
Peter A. Schenck further say, that the ship or vessel, mentioned in the
fourth count in the said declaration of the said plaintiff, is the same ship
or vessel, called the American Eagle, mentioned in the second, third, and
fifth counts in the said declaration of the said plaintiff, and not other or
different; and that the seizing, carrying away, keeping and detaining, and
converting and disposing thereof, to their own use, mentioned in the fourth
count in the said declaration of the said plaintiff, is the same seizing,
taking, carrying away, keeping and detaining, and converting and
disposing thereof, to their own use, mentioned in the second, third, and
fifth counts in the said declaration of the said plaintiff, and not other or
different. And the said David Gelston and Peter A. Schenck further say,
that the said ship or vessel, called the American Eagle, with her tackle,
apparel, and furniture, and the five hundred tons of stone ballast, one
hundred hogsheads of water, one hundred and thirty barrels of salted
provisions, and twenty hogsheads of ship-bread, mentioned in the second,
third, and fifth counts in the said declaration of the said plaintiff, are
included in and are the only goods and chattels embraced by the general

description of goods and chattels mentioned in the first count in the said
declaration of the said plaintiff, and that the taking and carrying away
thereof, mentioned in the said first count in the said declaration of the said
plaintiff, is the same taking and carrying away thereof mention in the said
second, third, and fifth counts in the said declaration of the said plaintiff,
and not other or different; and that the several trespasses mentioned in the
first, second, third, fourth, and fifth counts in the said declaration of the
said plaintiff, are the same trespasses, and not other or different. And the
said David Gelston and Peter A. Schenck further say, that before the tenth
day of July, in the year of our Lord one thousand eight hundred and ten, to
wit, on the first day of July, in the year last aforesaid, at the port of NewYork, in the district of New-York, to wit, at the city of New-York, in the
county of New-York, and it the first ward of the said city, the said ship or
vessel, called the American Eagle, with her tackle, apparel, and furniture,
was attempted to be fitted out and armed, and that the said five hundred
tons of stone ballast, one hundred hogsheads of water, one hundred and
thirty barrels of salted provisions, and twenty hogsheads of ship-bread,
were then and there procured for equipment of the said vessel, and were
then and there on board of the said vessel, as a part of her said equipment,
with intent that the said ship or vessel, called the American Eagle, should
be employed in the service of a foreign state, to wit, of that part of the
island of St. Domingo which was then under the government of Petion, to
commit hostilities upon the subjects of another foreign state, with which
the United States of America were then at peace, to wit, of that part of the
island of St. Domingo which was then under the government of
Christophe, contrary to the form of the statute in such case made and
provided. And the president of the said United States, to wit, James
Madison, who was then president of the said United States, by virtue of
the power and authority vested in him by the constitution and laws of the
said United States, did, afterwards, to wit, on the sixth day of July, in the
year last aforesaid, at Washington, to wit, at the city of New-York, in the
county of New-York, and at the ward aforesaid, authorise, empower,
instruct, and direct the said David Gelston and Peter A. Schenck to seize,
take, carry away, and detain, as forfeited to the use of the said United
States, the said ship or vessel, called the American Eagle, with her tackle,
apparel, and furniture, and the said five hundred tons of stone ballast, one
hundred hogsheads of water, one hundred and thirty barrels of salted
provisions, and twenty hogsheads of ship-bread: And the said David
Gelston and Peter A. Schenck further say, that they did afterwards to wit,
on the tenth day of July, in the year last aforesaid, at the port of NewYork, in the district of New-York, to wit, at the city of New-York, in the
county of New-York, and at the ward aforesaid, by virtue of the said
power and authority, and in pursuance of the said instructions and
directions so given as aforesaid to them, the said David Gelston and Peter
A. Schenck, by the said president of the said United States, and not

otherwise, seize, take, carry away, and detain the said ship or vessel,
called the American Eagle, with her tackle, apparel, and furniture, and the
said five hundred tons of stone ballast, one hundred hogsheads of water,
one hundred and thirty barrels of salted provisions, and twenty hogsheads
of ship-bread, as forfeited to the use of the said United States, according to
the form of the Statute in such case made and provided: And the said
David Gelston and Peter A. Schenck further say, that the seizing, taking
carrying away, and detaining of the said ship or vessel, with her tackle,
apparel, and furniture, and the said five hundred tons of stone ballast, one
hundred hogsheads of water, one hundred and thirty barrels of salted
provisions, and twenty hogsheads of ship-bread, by the said David
Gelston and Peter A. Schenck, on the tenth day of July one thousand eight
hundred and ten, as aforesaid, is the same seizing, taking, carrying away
and detaining of the said ship or vessel, with her tackle, apparel, and
furniture, and the said five hundred tons of stone ballast, one hundred
hogsheads of water, one hundred and thirty barrels of salted provisions,
and twenty hogsheads of ship-bread, mentioned in the several counts in
the said declaration of the said plaintiff, and not other or different: And
this they, the said David Gelston and Peter A. Schenck, are ready to
verify; wherefore they pray judgment if the said Goold Hoyt ought to have
or maintain his aforesaid action thereof against them, &c.
3d. Plea.
3. And for a further plea in this behalf, as to the several trespasses
mentioned in the first, second, third, fourth, and fifth counts in the
declaration of the said plaintiff mentioned, to wit, in taking and carrying
away the goods and chattels of the said plaintiff, mentioned in the first
count in the said declaration of the said plaintiff; in taking and carrying
away the goods and chattels of the said plaintiff, to wit; a ship or vessel of
the said plaintiff, called the American Eagle, together with her tackle,
apparel, and furniture, five hundred tons of stone ballast, one hundred
hogsheads of water, one hundred and thirty barrels of salted provisions,
and twenty hogsheads of ship-bread, mentioned in the second count in the
said declaration of the said plaintiff; in seizing, taking, carrying away
damaging, spoiling, converting, and disposing to their own use, the goods
and chattels of the said plaintiff, to wit, a ship or vessel of the said
plaintiff, called the American Eagle, together with her tackle, apparel, and
furniture, five hundred tons of stone ballast, one hundred hogsheads of
water, one hundred and thirty barrels of salted provisions, and twenty
hogsheads of ship-bread, mentioned in the third count in the said
declaration of the said plaintiff; in seizing, taking, carrying away, keeping
and detaining, and converting and disposing to their own use, a certain
ship or vessel of the said plaintiff, mentioned in the fourth count in the
said declaration of the said plaintiff, and in seizing and taking possession

of, and in taking and carrying from and out of the possession of the said
plaintiff, to wit, a ship or vessel of the said plaintiff, called the American
Eagle, together with her tackle, apparel, and furniture, five hundred tons of
stone ballast, one hundred hogsheads of water, one hundred and thirty
barrels of salted provisions, and twenty hogsheads of ship bread,
mentioned in the fifth count in the said declaration of the said plaintiff,
above supposed to have been committed by the said David Gelston and
Peter A. Schenk, they, the said David Gelston and Peter A. Schenk, by
leave of the court here for the purpose first had and obtained, according to
the form of the statute in such case made and provided, say, that the said
Goold Hoyt ought not to have or maintain his aforesaid action against
them, because they say, that the said ship or vessel, called the American
Eagle, with her tackle, apparel, and furniture, the five hundred tons of
stone ballast, one hundred hogsheads of water, one hundred and thirty
barrels of salted provisions, and twenty hogsheads of ship-bread,
mentioned in the second, third, and fifth counts in the said declaration of
the said plaintiff, are the same, and not other or different; and that the
seizing, taking, carrying away, keeping, detaining, damaging, spoiling,
converting, and disposing thereof to their own use, mentioned in the
second, third, and fifth counts in the said declaration of the said plaintiff,
are the same, and not other or different: And the said David Gelston and
Peter A. Schenck further say, that the ship or vessel mentioned in the
fourth count in the said declaration of the said plaintiff, is the same ship
or vessel, called the American Eagle, mentioned in the second, third, and
fifth counts in the said declaration of the said plaintiff, and not other or
different; and that the seizing, carrying away, keeping and detaining, and
converting and disposing thereof, to their own use, mentioned in the fourth
count in the said declaration of the said plaintiff, is the same seizing,
taking, carrying away, keeping and detaining, and converting and
disposing thereof, to their own use, mentioned in the second, third, and
fifth counts in the said declaration of the said plaintiff, and not other or
different: And the said David Gelston and Peter A. Schenck further say,
that the said ship or vessel, called the American Eagle, with her tackle,
apparel, and furniture, and the five hundred tons of stone ballast, one
hundred hogsheads of water, one hundred and thirty barrels of salted
provisions, and twenty hogsheads of ship-bread, mentioned in the second,
third, and fifth counts in the said declaration of the said plaintiff, are
included in, and are the only goods and chattels embraced by the general
description of goods and chattels, mentioned in the first count in the said
declaration of the said plaintiff, and that the taking and carrying away
thereof, mentioned in the said first count in the said declaration of the said
plaintiff, is the same taking and carrying away thereof, mentioned in the
said second, third, and fifth counts in the said declaration of the said
plaintiff, and not other or different; and that the several trespasses
mentioned in the first, second, third, fourth, and fifth counts in the said

declaration of the said plaintiff, are the same trespass, and not other or
different: And the said David Gelston and Peter A. Schenck further say,
that before the tenth day of July, in the year of our Lord one thousand
eight hundred and ten, to wit, on the first day of July, in the year last
aforesaid, at the port of New-York, in the district of New-York, to wit, at
the city of New-York, in the county of New-York, and at the first ward of
the said city, the said ship or vessel, called the American Eagle, with her
tackle, apparel, and furniture, was attempted to be fitted out and armed,
and that the said five hundred tons of stone ballast, one hundred
hogsheads of water, one hundred and thirty barrels of salted provisions,
and twenty hogsheads of ship-bread, were then and there procured for the
equipment of the said vessel, and were then and there on board of the said
vessel, as a part of her said equipment, with intent that the said ship or
vessel, called the American, Eagle, should be employed in the service of
some foreign state, to commit hostilities upon the subjects of another
foreign state, with which the United States were then at peace, contrary to
the form of the statute in such case made and provided. And the president
of the said United States, to wit, James Madison, who was then president
of the said United States, by virtue of the power and authority vested in
him by the constitution and laws of the said United States, did afterwards,
to wit, on the sixth day of July, in the year last aforesaid, at Washington,
to wit, at the city of New-York, in the county of New-York, and at the
ward aforesaid, authorize, empower, instruct, and direct the said David
Gelston and Peter A, Schenck to take possession of, and detain the said
ship or vessel, called the American Eagle, with her tackle, apparel and
furniture, and the said five hundred tons of stone ballast, one hundred
hogsheads of water, one hundred and thirty barrels of salted provisions,
and twenty hogsheads of ship-bread, in order to the execution of the
prohibitions and penalties of the act in such case made and provided: And
the said David Gelston, and Peter A. Schenck further say, that they did
afterwards, to wit, on the tenth day of July, in the year last aforesaid, at
the port of New-York, in the district of New-York, to wit, at the city of
New-York, in the county of New-York, and at the ward aforesaid, by
virtue of the said power and authority, and in pursuance of the said
instructions and directions so given as aforesaid to them, the said David
Gelston and Peter A. Schenck, by the said president of the said United
States, and not otherwise, take possession of, and detain the said ship or
vessel, called the American Eagle, with her tackle, apparel and furniture,
and the said five hundred tons of stone ballast, one hundred hogsheads of
water, one hundred and thirty barrels of salted provisions, and twenty
hogsheads of ship-bread, in order to the execution of the prohibitions and
penalties of the act in such case made and provided: And the said David
Gelston and Peter A. Schenck further say, that the taking possession of,
and detaining of the said ship or vessel, with her tackle, apparel, and
furniture, and the said five hundred tons of stone ballast, one hundred

hogsheads of water, one hundred and thirty barrels of salted provisions,
and twenty hogsheads of ship-bread, by the said David Gelston and Peter
A. Schenck, on the tenth day of July, one thousand eight hundred and ten,
as aforesaid, is the same seizing, taking, carrying away, and detaining of
the said ship or vessel, with her tackle apparel, and furniture, and the said
five hundred tons of stone ballast, one hundred hogsheads of water, one
hundred and thirty barrels of salted provisions, and twenty hogsheads of
ship-bread mentioned in the several counts in the said declaration of the
said plaintiff, and not other or different: And this they, the said David
Gelston and Peter A. Schenck, are ready to verify; wherefore they pray
judgment if the said Goold Hoyt ought to have or maintain his aforesaid
action thereof against them, &c.
And to which the said foregoing pleas, was subjoined the following
notice.
SIR—Please to take notice that the defendants, at the trial of the above
cause, will insist upon, and give in evidence, under the general issue
above pleaded, that the ship or vessel called the American Eagle, with her
tackle, apparel, and furniture, before the tenth day of July, in the year of
our Lord one thousand eight hundred and ten, to wit, on the first day of
July, in the year last aforesaid, at the port of New-York, in the district of
New-York, to wit, at the city of New-York, in the county of New-York,
and at the first ward of the said city, was attempted to be fitted out and
armed, and was fitted out and armed, and that the said five hundred tons
of stone ballast, one hundred hogsheads of water, one hundred and thirty
barrels of salted provisions, and twenty hogsheads of ship-bread were
procured for the equipment of the said vessel and were then and there on
board of the said vessel, as a part of her said equipment, with intent that
the said ship or vessel, called the American Eagle, should be employed in
the service of a foreign prince or state, to wit, of that part of the island of
St. Domingo which was then under the government of Petion, to cruise
and commit hostilities upon the subjects, citizens, and property of another
foreign prince or state with which the United States were then at peace, to
wit, of that part of the island of St. Domingo which was then under the
government of Christophe, contrary to the form of the statute in such case
made and provided: And the said defendants will also insist upon, and
give in evidence under the said plea, that the said ship or vessel, with her
tackle, apparel, and furniture, on the day and year last aforesaid, at the
port of New-York, in the district of New-York, to wit, at the city of New
York, in the county of New-York, and at the ward aforesaid, was
attempted to be fitted out and armed, and was fitted out and armed, and
that the said five hundred tons of stone ballast, one hundred hogsheads of
water, one hundred and thirty barrels of salted provisions, and twenty
hogsheads of ship-bread, were procured for the equipment of the said

vessel, and were then and there on board of the said vessel, as a part of her
said equipment, with intent that the said ship or vessel should be
employed in the service of some foreign prince or state, to cruise and
commit hostilities upon the subjects, citizens, and property of some other
foreign prince or state, with which the United States were then at peace,
contrary to the form of the statute in such case made and provided. And
the said defendants will also insist upon, and give in evidence under the
said plea, that he, the said David Gelston, was collector, and that he, the
said Peter A. Schenck, was surveyor of the customs for the district of the
city of New-York, on the 10th day of July one thousand eight hundred and
ten, and before that time, and that they have ever since continued to be
collector and surveyor as aforesaid, and that they, the said David Gelston
and Peter A. Schenck as collector and surveyor as aforesaid, and not
otherwise, did, on the said tenth day of July, in the year last aforesaid, at
the port of New-York, in the district of New-York, to wit, at the city of
New-York, in the county of New-York, and at the first ward of the said
city, seize, take, and detain the ship or vessel, with her tackle, apparel, and
furniture, and the said five hundred tons of stone ballast, one hundred
hogsheads of water, one huudred and thirty barrels of salted provisions,
and twenty hogsheads of ship-bread, according to the form of the statute
in such case made and provided, and by virtue of the power and authority
vested in them by the constitution and laws of the United States. Dated
this 11th day of March, 1813.
And the said Goold Hoyt, to the said first plea, joined issue, and to the
second and third pleas the said Goold Hoyt demurred as follows:
And as to the plea of the said David Gelston and Peter A. Schenck, by
them first above pleaded, and whereof they have put themselves upon the
country, the said Goold Hoyt doth the like, &c.
And as to the pleas by the said David Gelston and Peter A. Schenck, by
them secondly and thirdly above pleaded in bar, the said Goold Hoyt
saith, that the second and third pleas of the said David Gelston and Peter
A. Schenck, or either of them, and the matters therein contained, in
manner and form as the same are above pleaded and set forth, are not
sufficient, in law, to bar and preclude him, the said Goold Hoyt, from
having and maintaining his action aforesaid, against the said David
Gelston and Peter A. Schenck; and that he, the said Goold Hoyt, is not
bound by the law of the land to answer the same, and this he is ready to
verify; wherefore, for want of a sufficient plea in this behalf, the said
Goold Hoyt prays judgment, and his damages by him sustained, on
occasion of the committing of the said trespasses, to be adjudged to him,
&c.

And the said David Gelston, and Peter A. Schenck thereupon joined in
demurrer as follows:
And the said David Gelston and Peter A. Schenck say, that their said
pleas, by them secondly and thirdly above pleaded, and the matters therein
contained, in manner and form as the same are above pleaded and set
forth, are sufficient, in law, to bar and preclude the said Goold Hoyt, from
having and maintaining his aforesaid action thereof against them, the said
David Gelston and Peter A. Schenck: and that they, the said David
Gelston and Peter A. Schenck, are ready to verify and prove the same,
when, where, and in such manner as the said court shall direct; wherefore,
inasmuch as the the said Goold Hoyt has not answered the said second and
third pleas, nor hitherto, in any manner, denied the same, the said David
Gelston and Peter A. Schenck, pray judgment, and that the said Goold
Hovt may be barred from having, or maintaining, his aforesaid action
thereof against them, the said David Gelston and Peter A. Schenck, &c.
And, afterwards, the said demurrer was brought on to be argued before
the said supreme Court, at the city hall of the city of New-York, and
judgment was given against the said David Gelston and Peter A. Schenck
upon the said demurrer.
And afterwards, to wit, at the sittings of nisi prius, held at the city hall of
the city of New-York aforesaid, in and for the said city and county, on the
fifteenth day of November, in the year of our Lord one thousand eight
hundred and fifteen, before the honourable Ambrose Spencer, esq. one of
the justice's of the supreme court of judicature of the people of the state of
New-York, assigned to hold pleas in the said sittings, according to the
form of the statute in such case made and provided, the aforesaid issue, so
joined between the said parties as aforesaid, come on to be tried by a jury
of the city and county of New-York aforesaid, for that purpose
empanneled, that is to say, Walter Sawyer, Edward Wade, William Prior,
James M'Cready, Richard Loines, John Rodgers, Asher Marx, Benjamin
Gomez, Samuel Milbanks, James E. Jennings, George Riker, and Jacob
Latting, good and lawful men of the city and county of New-York,
aforesaid, at which day came there as well the said Goold Hoyt as the said
David Gelston and Peter A. Schenck, by their respective attornies
aforesaid, and the jurors of the jury, empanneled to try the said issue,
being called, also came, and were then and there, in due manner, chosen
and sworn to try the same issue; and upon the trial of that issue the
counsel learned in the law for the said Goold Hoyt, to maintain and prove
the said issue on their part, gave in evidence, that at the time of the seizure
of the said ship American Eagle, by the said David Gelston and Peter A.
Schenck, she was in the actual, full, and peaceable possession of the said
Goold Hoyt, and that, on the acquittal of the said vessel in the district

court of the United States, for the district of New-York, it was decreed
that the said vessel should be restored to the said Goold Hoyt, the
claimant of the said vessel, in the said district court: and for that purpose
the counsel of the said Goold Hoyt gave in evidence the proceedings in
the said district court of the United States, by which it appeared that a
libel had been filed in the name of the United States against the said ship
American Eagle, in which it was, among other things, alleged, that the
said ship had been fitted out and armed, and attempted to be fitted out and
armed, and equipped and furnished, with intent to be employed in the
service of Petion against Christophe, and in the service of that part of the
island of St. Domingo which was then under the government of Petion,
against that part of the said island of St. Domingo which was then under
the government of Christophe, contrary to the statute in such case made
and provided; and that the said Goold Hoyt had filed an answer to the said
libel, and a claim to the said vessel, in which the said Goold Hoyt had
expressly denied the truth of the allegations in the said libel; and it also
appeared by the said proceedings, that in the month of April, one thousand
eight hundred and eleven, an application had been made to the said district
court, by the said Goold Hoyt, to have the said ship appraised, and to have
her delivered up to him on giving security for her appraised value; and it
also appeared, by the said proceedings, that appraisers had been appointed
by the said court, and that they had appraised the said ship, her tackle, &c.
at thirty-five thousand dollars, and that the said appraisement had been
filed, and had not been excepted to; and that the sureties offered by the
said Goold Hoyt, for the appraised value of the said ship, had been
accepted by the said court; and it also appeared, by the said proceedings,
that the said cause had been tried before the said district court, and that
the said libel had been dismissed, and that the said ship had been decreed
to be restored to the said claimant, and that a certificate of reasonable
cause for the seizure of the said vessel had been denied. And the counsel
of the said Goold Hoyt, to maintain and prove the said issue, did give in
evidence that the value of the said ship, her tackle, apparel, and furniture,
at the time of her seizure as aforesaid, was one hundred thousand dollars,
and did also give in evidence, that the said Peter A. Schenck seized and
took possession of the said ship by the written directions of the said David
Gelston; but no other proof was offered by the said plaintiff, at that time,
of any right or title in the said plaintiff to the said vessel; and here the said
plaintiff rested his cause.

Whereupon the counsel for the defendants did, then and there, insist,
before the said justice, on the behalf of the said defendants, that the said
several matters so produced and given in evidence on the part of the
plaintiff as aforesaid, were insufficient, and ought not to be admitted or
allowed as sufficient evidence to entitle the said plaintiff to a verdict; and
the said counsel for the defendants did, then and there, pray the said
justice to pronounce the said matters, so produced and given in evidence
for the said plaintiff, to be insufficient to entitle the said plaintiff to a
verdict in the said cause, and to nonsuit the said plaintiff; but to this the
counsel learned in the law, of the said plaintiff, objected, and did then and
there insist before the said justice, that the same were sufficient, and ought
to be admitted and allowed to be sufficient to entitle the said plaintiff to a
verdict; and the said justice did then and there declare and deliver his
opinion to the jury aforesaid, that the said several matters so produced,
and given in evidence on the part of the said plaintiff, were sufficient to
entitle the said plaintiff to a verdict, and that he ought not to be nonsuited:
whereupon the said counsel for the defendants did, then and there, on the
behalf of the said defendants, except to the aforesaid opinion of the said
justice, and insisted that the said several matters, so produced and given in
evidence, were not sufficient to entitle the said plaintiff to a verdict, and
that he ought to be nonsuited.
After the said motion for a nonsuit had been refused, and the opinion of
the said justice had been excepted to as aforesaid, the counsel of the said
Goold Hoyt, did, in the progress of the trial, give in evidence, on the part
of the said Goold Hoyt, that he purchased the said ship of James Gillespie,
who had purchased her of John R. Livingston and Isaac Clason, the
owners thereof; and that in pursuance of such purchase, by the plaintiff,
the said James Gillespie had delivered full and complete possession of the
said ship, her tackle, &c. to the said plaintiff, before the taking thereof by
the defendants.

And the said motion for a nonsuit having been refused, and the opinion of
the said justice accepted to as aforesaid, the said counsel for the said
defendants did, thereupon, state to the said jury, the nature and
circumstances of the defendant's defence, and did then and there offer to
prove and give in evidence, by way of defence, or in mitigation or
diminution of damages, that the said ship or vessel, called the American
Eagle, with her tackle, apparel, and furniture, before the tenth day of July,
in the year of our Lord one thousand eight hundred and ten, to wit, on the
first day of July, in the year last aforesaid, at the port of New-York, in the
southern district of New-York, to wit, at the city of New-York, in the
county of New-York, and at the first ward of the said city, was attempted
to be fitted out and armed, and was fitted out and armed, and that the said
five hundred tons of stone ballast, one hundred hogshead of water, one
hundred and thirty barrels of salted provisions, and twenty hogsheads of
ship-bread, were procured for the equipment of the said vessel, and were
then and there on board of the said vessel, as a part of her said equipment,
with intent that the said ship or vessel, called the American Eagle, should
be employed in the service of that part of the island of St. Domingo which
was then under the government of Petion, to cruise and commit hostilities
upon the subjects, citizens, and property of that part of the island of St.
Domingo which was then under the government of Christophe, contrary to
the form of the statute in such case made and provided.
And the said counsel of the said defendants did, then and there, offer to
prove, and give in evidence, by way of defence, or in mitigation or
diminution of damages, that he, the said David Gelston was collector, and
that he, the said Peter A. Schenck, was surveyor of the customs, for the
district of the city of New-York, on the tenth day of July, one thousand
eight hundred and ten, and before that time, and afterwards, continued to
be collector and surveyor as aforesaid; and that they, the said David
Gelston and Peter A. Schenck, as collector and surveyor as aforesaid, and
not otherwise, did, on the said tenth day of July, in the year last aforesaid,
at the port of New-York, in the southern district of New-York, to wit, at
the city of New-York, in the county of New-York, and at the first ward of
the said city, seize, take, and detain the said ship or vessel with her tackle,
apparel, and furniture, and the said five hundred tons of stone ballast, one
hundred hogsheads of water, one hundred and thirty barrels of salted
provisions, and twenty hogsheads of shipbread, according to the form of
the statute in such case made and provided, and by virtue of the power and
authority vested in them by the constitution and laws of the United States,
and for such cause as is herein before stated.

And the said counsel of the said defendants, did, then and there, insist,
before the said justice, on the behalf of the said defendants, that the said
several matters, so offered to be proved and given in evidence on the part
of the said defendants as aforesaid, ought to be admitted and allowed to be
proved and given in evidence, in justification of the trespass charged
against the said defendants, or in mitigation or diminution of the damages
claimed by the plaintiff as aforesaid.
And the said counsel for the said defendants, did, then and there, pray the
said justice to admit and allow the said matters so offered to be proved and
given in evidence, to be proved and given in evidence in justification of
the trespass charged against the said defendants, or in mitigation or
diminution of the damages claimed, by the plaintiff as aforesaid; but to
this the counsel learned in the law, of the said plaintiff, objected, and did,
then and there, insist, before the said justice, that the same ought not to be
admitted, or allowed to be proved or given in evidence, in justification of
the trespass charged against the said defendants, and that the same ought
not to be admitted, or allowed to be proved or given in evidence, in
mitigation or diminution of the damages claimed by the plaintiff as
aforesaid, inasmuch as the counsel of the said Goold Hoyt admitted, that
the defendants had not been influenced by any malicious motives in
making the said seizure, and that they had not acted with any view or
design of oppressing or injuring the plaintiff. And the said justice did,
then and there, declare and deliver his opinion, and did then and there
overrule the whole of the said evidence, so offered to be proved by the
said defendants, and did declare it to be inadmissible in justification of the
trespass charged against the said defendants; and after the admission so
made by the counsel of the said Goold Hovt, as aforesaid, did declare and
deliver his opinion, that the said evidence ought not to be received in
mitigation or diminution of the said damages, as the said admission
precluded the said plaintiff from claiming any damages against the
defendants by way of punishment or smart money, and that after such
admission the plaintiff could recover only the actual damages sustained,
and with that direction left the same to the said jury; and the jury
aforesaid, then and there gave their verdict for the said plaintiff for one
hundred and seven thousand three hundred and sixty-nine dollars and
forty-three cents damages: whereupon the said counsel for the said
defendants, did, then and there, on the behalf of the said defendants,
except to the aforesaid opinion of the said justice, and insisted that the
said several matters, so offered to be proved and given in evidence, ought
to have been admitted and given evidence in justification of the trespass
charged against the said defendants, or in mitigation or diminution of the
damages claimed by the plaintiff as aforesaid.

And inasmuch as neither the said several matters so produced and given in
evidence on the part of the said plaintiff, and by the counsel of the said
defendants objected to, as insufficient evidence to entitle the said plaintiff
to a verdict as aforesaid, nor the said several matters so offered to be
proved and given in evidence, on the part of the said defendants, in
justification of the trespass charged against the said defendants, or in
mitigation or diminution of the damages claimed by the plaintiff as
aforesaid, appear by the record of the verdict aforesaid, the said counsel
for the said defendants did, then and there, propose their exceptions to the
opinions and decisions of the said justice, and requested him to put his
seal to this bill of exceptions, containing the said several matters so
produced and given in evidence on the part of the said plaintiff as
aforesaid, and the said several matters so offered to be proved and given in
evidence, on the part of the said defendants as aforesaid, according to the
form of the statute in such case made and provided. And thereupon the
said justice, at the request of the said counsel for the said defendants, did
put his seal to this bill of exceptions, on the said fifteenth day of
November, in the year of our Lord one thousand eight hundred and
fifteen, pursuant to the statute in such case made and provided.
If either party shall require the proceedings in the district court to be set
out more at length, then it is understood, that such proceedings shall be
engrafted into the bill of exceptions, and form part thereof.
(Signed) AMBROSE SPENCER.
[L. S.]
The bill of exceptions being carried before the supreme court of the state
of New-York, the exceptions were disallowed by the court. The cause was
then carried to the court of errors of the state, where the judgment of the
supreme court of the state was affirmed and the cause was brought to this
court in the manner before stated.
March 24th. 1817.
The Attorney General, (Mr. Rush,) for the plaintiffs in error, argued, 1.
That the special matter offered in evidence by the plaintiffs in error ought
to have been admitted as a defence to the action, or at any rate, that it
ought to have been admitted. The 27th section of the act of 1793, contains,
in general terms, a provision that it shall be lawful for any revenue officer
to go on board of any vessel for purposes of search and examination; and
if it appear that a breach of any law has been committed, whereby a
forfeiture has been incurred, to make a seizure. It has been the wise policy
of the law, by enactments and decisions co-extensive with the range of
public office, to throw its shield over officers while acting under fair and

honest convictions. Thus, under the English statutes, no justice of the
peace, or even constable, can be sued for any thing done officially who is
not clothed with some protection more than is allowed to ordinary
defendants; some relaxation of the rules of pleading, or other immunities
are extended to him. It is the same with mayors, bailiffs, churchwardens,
overseers, and a variety of other officers. So, also, excise officers may
always plead the general issue, and give the special matter in evidence By
stat. 24 Geo. II. no justice shall be sued for what he has done officially
until notice in writing served upon him a month beforehand; nor then, if
he tender amends. It would be easy to multiply analogous examples.
Several acts of congress, passed since that of June, 1794, illustrate the
same legal principle. By the 11th section of the embargo act of the 25th
April, 1808, ch. 170. the collectors of the customs were authorized to
detain any vessel ostensibly bound with a cargo to some other port of the
United States, whenever, in their opinions, there existed any intention to
violate on evade any of the provisions of the acts laying an embargo, until
the decision of the president could be had upon the seizure. It has been
repeatedly determined, that it was sufficient, under this act, for the
collectors to have acted with honest convictions; and that the absence of
probable cause afforded, in itself, no ground to a claim for damages.1 So,
also, in the law just passed, to preserve more effectually our neutral
relations, a principle closely analogous has been introduced.2 It is
provided by the act of the 24th February, 1807, ch. 74. 'That when any
prosecution shall be commenced on account of the seizure of any ship or
vessel, goods, wares, or merchandise, made by any collector or other
officer under any act of congress authorizing such seizure, and judgment
shall be given for the claimant or claimants, if it shall appear to the court
before whom such prosecution shall be tried, that there was a reasonable
cause of seizure, the said court shall cause a proper certificate or entry to
be made thereof; and in such case the claimant or claimants shall not be
entitled to costs, nor shall the person who made the seizure; or the
prosecutor, be liable to action, suit, or judgment, on account of such
seizure or prosecution: provided that the ship or vessel, goods, wares, or
merchandise, be, after the judgment, forthwith returned to the claimant or
claimants.' Here it appears, indeed, that if a certificate be granted, it
operates as an absolute bar to an action. But it does not follow, that the
refusal of a certificate is to close the ear of a court and jury to all the real
merits. It will, perhaps, be said, that the judgment of the district court
restoring the vessel, and refusing the certificate, is conclusive; that it was
a court of competent jurisdiction, and that, therefore, the matter which it
adjudicated could not be reheard, or its propriety examined into
collaterally, in any other court. We are aware of the decisions of this court
upon this point, and of the English decisions upon the conclusiveness of
judgments, from that in Fernandez v. De Acosta,3 in the time of Lord
Mansfield, to the more recent cases. Those, however, who have

scrutinized this doctrine see plainly that, in latter times at least, though it
be the law, its inconveniences appear to be sometimes felt, and its wisdom
perhaps sometimes doubted. It is an intrinsic objection to the doctrine, that
while it professes to look with a single eye to the binding nature of the
judgment, turning away from the merits, yet, in point of fact, the merits
do, in most of the cases, get into view; so difficult it is to thrust them back
in discussions where justice only is sought. Already has the doctrine
disappeared from the codes of some of the leading states in the union;
from that of Pennsylvania by a positive statute, from that of New-York by
a judicial decision.4 In how many more of the states it has been broken
down is not known, but it is not supposed to be a doctrine entitled to any
peculiar favour in this court. But the difference between a sentence of
condemnation and of acquittal is material. An acquittal does not ascertain
facts. A conviction does. Its character is positive. The former may have
arisen from want of evidence, the latter must always rest upon some
foundation of proof. A conviction, says Buller, is evidence of the fact; but
the reverse of it is not shown by an acquittal.5 Even in a common action
for assault and battery, the plaintiff cannot rely upon a conviction upon an
indictment for the same assault.6 The consequence is, that the defendant
may defend himself against the suit by going into the original facts. The
plaintiffs in error asked no more below. So also, to support an action for
malicious prosecution, malice in the defendant, and want of probable
cause, must both concur. 7 If, in this action, an acquittal has been had upon
the indictment, the plaintiff may still lay before the jury the evidence
which was heard on the indictment, viz. all the facts and circumstances to
show that the prosecution was malicious.8 This surely opens to the
defendant the corresponding right of going into the original facts on his
side. Every principle of just reasoning would seem, then, to lead to the
conclusion, that the special matter ought to have gone before the jury. If it
did not justify the seizure and detention, it might have served to mitigate
the damages. The admission of the plaintiff's counsel, that the defendants
below were not actuated by any malicious or vindictive motive, was not
tantamount to hearing all the special matter, since it might, and no doubt
would, have established in the minds of the jury a far stronger claim to
mitigation than the mere absence of malice. The great end, therefore, of
every law-suit has been over looked. Justice has not been done. Unless the
judgments below be abrogated, the defendants below, acting as innocent
men, and as vigilant and meritorious public officers, are in danger of
being crushed under a load of damages which could scarcely have been
made more heavy if levelled at conduct marked by the most undisputed
and malignant guilt.—2. The plaintiff below, by demurring to the second
plea, was precluded from all right of recovery; and that plea contains
matter, which the demurrer itself admits, and which entitled the
defendants below to judgment. A demurrer admits all facts that are
sufficiently pleaded. What, then, are the facts set forth in this plea?

Plainly these: that the American Eagle was fitted out and equipped with
intent that she should be employed in the service of a foreign prince or
state, to wit, of that part of St. Domingo governed by Petion, to cruise
against another foreign prince or state, viz. against that part of St.
Domingo governed by Christophe; that this was contrary to the act of the
5th June, 1794, and that the seizure thereupon took place under orders
from the president. Is not the case of the defendants below, after these
admissions, completely made out? Does it lie with the plaintiff to say that
St. Domingo was not a state, or Christophe a prince? Does not the plea
affirm both? Does not the demurrer admit both? What besides was it the
object of the plea to affirm? What else did the demurrer intend to admit?
The former sets them forth as fundamental facts. The latter does not deny,
but admits them.—3. In contending that, within the true, scope and
intention of the act of the 5th of June, 1794, both Petion and Christophe
were to be considered foreign princes, we do not mean to depart from the
reverence due to the former decisions of this court in Rose v. Himely,9 but
think that there are solid grounds for distinguishing the present case from
that decision. It is important that the different branches of the government
should look upon foreign nations with the same eyes, and subject them to
the same rules of treatment. The decision in Rose v. Himely, took place in
February, 1808. At that epoch, the act of congress specifically cutting off
intercourse with St. Domingo, and treating it as a dependency of France,
was in full force. For the judiciary to have pronounced this island an
independent state, whilst the legislature considered it as a colony, would
have disturbed the harmony of the different parts of the governing power.
It would not be easy to foresee the mischiefs of such a conflict of authority
and opinion. Look to the South American provinces at this moment. Spain
claims them as her lawful dominion: no power in Europe has
acknowledged their independence: yet, in some of them, the authority of
the once mother country is wholly at an end. Now, what embarrassments
might not result, if, after the letter of the secretary of state of the 19th of
January, 1816, to the Spanish minister, our courts should pronounce
Buenos Ayres, for example, to be rightfully in its full colonial dependence
upon Spain. Vattel's authority upon this subject is decisive. According to
him, we are to look to the state of things de facto taking each party to be in
the right.10 The rule laid down in Rose v. Himely, that such language was
to be addressed to sovereigns, not courts, may have been applicable to the
condition in which St. Domingo then was. It cannot, however, be
conceded, that it is of constant and universal application. The progress of
events may create a state of things, of which, as they impress their
convictions upon mankind, courts too will take notice. The Netherlands
waged a war of more than half a century with Spain. Spain never ceased to
call it a rebellion. But what were the sympathies, what the conduct of
protestant Europe, towards them during the principal part of the time?
What that of England, in particular, who did not scruple to form treaties

with them, while Spain was still denouncing them as heretics and
insurgents? The fact being now palpable to the world, that St. Domingo is
independent of all connexion with France, repudiating her authority, and
spurning her power, this positive state of independence de facto may at
length well be taken to stand in the place of a formal acknowledgment of
it by governments: and if courts of justice are to wait until France
relinquishes her claim, that day may be indefinite indeed. The act of
congress, which specifically interdicted intercourse with St. Domingo,
considered as a colony of France, expired in April, 1808. It was in full
force at the time of the decision in Rose v. Himely, which constitutes
another marked distinction between that case and the present. As to the
condemnations which it may be alleged took place under the general nonintercourse laws passed afterwards, of vessels coming, from St. Domingo,
upon the footing of its belonging to France, no inference against the
argument can be hence deduced. In the first place, those laws left it wholly
indefinite as to what colonies did or did not belong to France. They were
couched in general terms only. They prohibited all intercourse with Great
Britain and France, and their dependencies, without undertaking to
designate in any case what the dependencies of either were. In the next
place, as far as is known, it appears that the government remitted the
forfeitures in all such cases of condemnation, thereby manifesting its
opinion, if any inference is to be drawn, that time, and the progress of
events, had at length taken this island out of the true spirit and meaning of
these general laws; and that, as the nations of Europe were trading with it
as an independent island, the citizens of the United States might fairly be
permitted to do the same.—4. A leading object of the act of 1794, was, to
preserve the peace as well as neutrality of the United States. Thus, then,
although St. Domingo might not be a sovereign state to all intents and
purposes, (which it is not necessary to contend,) it was sufficiently
independent, whether as to commerce or power, to fall within the
mischiefs, and be embraced by the penalties, of the law in question.
Mr. Hoffman, and Mr. D. B. Ogden, for the defendant in error. 1. This
court is not competent to take cognizance of this cause, under the 25th
section of the judiciary act of 1789, ch. 20. The court has appellate
jurisdiction only from the final judgment or decree of the highest court of
law or equity of the state in certain specified cases. But this jurisdiction
cannot he here exercised, because the highest court of law and equity of
the state of New-York, to whom the writ of error is directed, is no longer
in possession of the cause, but has remitted the record and judgment to the
supreme court of the state, to whom the writ of error is not, and cannot be
directed. The agreement of the parties under which the record is now
before this court, reserves this question to be argued. It does not determine
the return to be regular and valid, but only that the transcript shall have
the same effect as if annexed to the writ of error. But even supposing the

cause could be re-examined upon a return to the writ of error by the
supreme court of the state, the main foundation of appellate jurisdiction in
this court is wanting. The judgment of the state court does not decide
against the title, right, privilege, or exemption set up by the defendants
below, under the act of congress of 1794, ch. 50. On the contrary the state
court has refused to give any construction whatever to the act of 1794, and
to decide whether, under the facts of the case, it did or did not afford the
defendants below, a legal defence to the action; because, the parties
defendant, having declined to argue the demurrer in the supreme court,
the court of errors refused, upon grounds of state law and state practice, to
hear them in that court.11 Parties litigant are bound to exercise their rights,
according to the law and practice of the forum where they attempt to
assert them. If they do not assert them according to the rules prescribed by
the lex fori, a decision against the party is not a decision against the right
set up by him; but only a decision that he had not claimed that right
according to the local law and practice.—2. If, however, the court should
be of opinion, that the cause is regularly before it, then we contend, that
the testimony offered by the defendants below, upon the trial at nisi prius,
and which was over-ruled by the judge, was properly excluded. They did
not offer any evidence to show, that the vessel had been, or was intended
to be engaged in any illegal trade or employment. The only law to which
the testimony offered could have any reference, is an act of congress,
which was passed June, 1794, entitled 'an act, in addition to an act, for the
punishment of certain crimes against the United States,' made perpetual by
a subsequent act. By the third section of the first mentioned act, it is
enacted, 'that if any person shall, within any of the ports, harbours, bays,
rivers, or other waters of the United States, fit out, and arm or attempt to
fit out and arm, or procure to be fitted out and armed, or shall knowingly
be concerned in the furnishing, fitting out and arming, of any ship or
vessel, with intent that such ship or vessel shall be employed in the service
of any foreign prince or state, to cruise or commit hostilities upon the
subjects, citizens, or property of any other foreign prince or state, with
whom the United States are at peace, &c. every such ship or vessel, with
her tackle, apparel, and furniture, together with all materials, arms,
ammunition, and stores which may have been procured for the building
and equipment thereof, shall be forfeited, one half to any person who shall
give information of the offence, and the other half to the use of the United
States.' The defendants below merely offered to prove that the ship was
fitted out, with intent that she 'should be employed in the service of that
part of the island of St. Domingo, which was then under the government
of Petion, to cruise and commit hostilities upon the subjects, citizens, and
property of that part of the island of St. Domingo which was then under
the government of Christophe;' but did not offer to show that either of
these parts of the island was a foreign state, or that either Petion or
Christophe were foreign princes, with whom the United States were at

peace. And even if they had proved these facts, the evidence would have
been perfectly immaterial and irrelevant: because, in the words of this
court, '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.' 12 The same principal has also
been recognised by the highest British tribunals, both as applicable to the
case of St. Domingo, and to other revolutions of states not recognised by
the government of the country where the tribunal is sitting that is required
to take notice of them.13 What would be the absurd consequences of
leaving each tribunal to settle this question according to the information it
might possess? Nothing can be more opposite and irreconcileable than the
views given of the situation of St. Domingo by different writers and
travellers. How then should a court decide which has no other sources of
information? The government is informed by its diplomatic agents. It has
a view of the whole ground, and can judge what considerations ought to
influence the decision of this question of complicated policy. Our foreign
relations are, by necessary implication delegated to congress and the
executive, by the constitution. Neither Petion nor Christophe have ever
had any secure, firm possession of the sovereignty in St. Domingo. They
have not only been contending with each other, but they have had rivals
who have attempted to establish adverse claims to different parts of the
island by the sword. The defendants below have themselves acted in their
official conduct on these principles. In the year 1809, they seized and
prosecuted in the district court, the James and the Lynx, two vessels which
had come with cargoes from St. Domingo to New-York, contrary to the
provisions of the non intercourse acts, forbidding all commercial
intercourse between the United States and Great Britain, France, and their
dependencies. In these cases they consider St. Domingo as a colony of
France; and whilst the suits were depending, the ship, now in controversy,
was seized by them, under an allegation that she was intended for the
service of an independent state, which independent state was the same St.
Domingo they had just before considered as a French dependency.—3.
The testimony offered by the defendants below could not be admitted,
because the district court was the proper tribunal to determine whether the
vessel in question was or was not liable to seizure and forfeiture for the
causes alleged. It having been decided in that court that she was so liable,
its judgment is conclusive, and precludes every tribunal, unless upon
appeal, from re-examining the grounds of the decision. The authorities on
this point are innumerable, and flowing in a uniform current.14 As to
foreign sentences, it is settled in this court that a sentence of
condemnation, by a competent court, having jurisdiction over the subject
matter of its judgment, is conclusive as to the title of the thing claimed
under it.15 And that the sentence of a prize court, condemning a vessel for

breach of a blockade, is conclusive evidence of the fact as between the
insurer and insured.16 But what is still more pertinent to the present case,
the court has determined that the question, under a seizure for a breach of
the laws of the United States, whether a forfeiture has been actually
incurred, belongs exclusively to the courts of the United States, and it
depends upon their final decree, whether the seizure is to be deemed
rightful or tortious.17 The distinction which has been suggested between
the conclusiveness of condemnations and of acquittals, has been
considered in several of the authorities, and it is now perfectly settled, that
no such distinction exists. A condemnation may be founded on the oath of
the seizing party; and though by the laws of the United States, he cannot
share in the forfeiture if he becomes a witness, still he is interested to
protect himself by a condemnation. Shall, then, a condemnation founded
on such testimony be conclusive, and an acquittal not? The defendants,
themselves, applied for time to plead until the district court should decide,
on the ground that its decision would be conclusive.18—4. The testimony
offered by the defendants below could not be admitted in mitigation of
damages: Because, if admitted, it would only be to show that there was
reasonable cause for the seizure, and, consequently, that the defendants
acted without malice, or any intention to oppress the plaintiff below. But
the question whether there was or was not reasonable cause of seizure, is a
question which is expressly submitted to the district court by the statutes
of the United States, 19 and over which this court has declared the district
court had exclusive cognizance. A certificate of reasonable cause for the
seizure having been denied by the district court, every other tribunal is as
much precluded, except on appeal, from examining whether there was or
was not reasonable cause for the seizure, as they are from examining
whether there was or was not sufficient cause of forfeiture. The plaintiff
below admitted upon the trial that the defendants had not been influenced
by any malicious motives in making the seizure, and that they had not
acted with any view or design of oppressing or injuring the plaintiff. And
the judge who tried the cause at nisi prius charged the jury that this
admission precluded the plaintiff from claiming vindictive damages, and
the jury rendered a verdict only for the actual damages' as proved by
uncontradicted testimony. Where a certificate of reasonable cause is
refused, or not granted, a party making an illegal seizure, can be in no
better state than he would be, if the law had made no provision respecting
a certificate. It is well settled that probable cause is no justification of an
illegal seizure, unless it be made a justification by statute. Nor can
evidence of probable cause be received, to mitigate the damages in cases
where there is a disclaimer as to every thing but actual damages. For
whether there was or was not malice or probable cause, the actual
damages sustained must be recovered for an illegal seizure, or for any
other trespass, if any thing whatever is recovered.—5. The second and
third pleas of the defendant below are manifestly bad on general demurrer.

First. Petion and Christophe were not foreign princes, nor their territories
foreign states, and consequently a seizure for fitting out the vessel to be
employed in their service could not be justified. 20 Secondly. The president
had no authority by law to order the seizure. The 7th section of the act of
1794, does not apply to this cause. If it did, the president's order can only
be a justification when applied to an illegal act. If no illegal act be proved,
there can be no justification under the order. Were it otherwise, the
president would be a despot. The 7th section of the act provides, 'that in
every case in which a vessel shall be fitted out or armed, or attempted so
to be fitted out or armed, or in which the force of any vessel of war,
cruiser, or other armed vessel, shall be increased or augmented, or in
which any military expedition or enterprise shall be begun or set on foot,
contrary to the prohibitions and provisions of this act; and in every case of
the capture of a ship or vessel within the jurisdiction or protection of the
United States, as above defined, and in every case in which any process
issuing out of any court of the United States, shall be disobeyed or resisted
by any person or persons having the custody of any vessel of war, cruiser,
or other armed vessel, of any foreign prince or state or of the subjects or
citizens of such prince or state in every such case, it shall be lawful for the
president of the United States, or such other person as he shall have
empowered for that purpose, to employ such part of the land or naval
forces of the United States, or of the militia thereof, as shall be judged
necessary, for the purpose of taking possession of, and detaining any such
ship or vessel, with her prize or prizes, if any, in order to the execution of
the prohibitions and penalties of this act, and to the restoring such prize or
prizes, in the cases in which restoration shall have been adjudged, and also
for the purpose of preventing the carrying on of any such expedition or
enterprise, from the territories of the United States, against the territories
or dominions of a foreign prince or state with whom the United States are
at peace.' Under this provision, the president could not authorize the
defendants below to seize. He could only employ the army and navy, or
the militia, for that purpose. He could only authorize an arrest or
detainment, not a seizure, which is a taking and carrying away. He could
only authorize a taking possession of and detaining the vessel, in order to
the execution of the penalties and prohibitions of the act. The vessel might
have been libelled, and taken into custody of the officers of the court; but
the defendants below have not averred themselves to be revenue officers,
and as such, authorized to seize by the act of 1790, ch. 153. Thirdly. The
2d plea is not a bar in the court where it was pleaded. What could the
plaintiff below have replied to this plea? That there was no forfeiture as
alleged? But the state court has no authority to try the question of
forfeiture under the laws of the United States. The courts of the United
States have exclusive jurisdiction of that question, and their decision is
final and conclusive upon every other tribunal. Or suppose that the
plaintiff had replied, that Petion and Christophe were not independent

princes. No municipal court whatever has power to determine that
question. The executive government is alone competent to recognise new
states arising in the world, and it would be extremely inconvenient and
embarrassing in this age of revolutions, for courts and juries to interfere in
the decision of a question of such delicate and complicated policy,
depending upon a variety of facts which they cannot know, and of
considerations which they cannot notice. Again, if the plaintiff had replied
that the president had given no such instructions as mentioned in the plea,
the replication would have been immaterial, and a ground of demurrer.
Fourthly. Neither of the pleas aver, that the ship was actually forfeited,
but only that it was 'seized as forfeited,' which is not an equivalent
averment. The case of Wilkins v. Despard,21 where a similar plea was
pleaded, is distinguishable. That was a seizure under the British
navigation act, 12 Car. II. ch. 18. s. 1. by which the legality of the seizure,
and the question of forfeiture itself might be tried in any court of record in
the British dominions, and, consequently, in the court itself, where the
plea was pleaded. Fifthly. The 3d section of the act of 1794, after
specifying the offences meant to be punished, provides, that 'every such
person so offending shall, upon conviction, be adjudged guilty of a high
misdemeanour, and shall be fined and imprisoned at the discretion of the
court in which the conviction shall be had, so that the fine to be imposed
shall in no case be more than five thousand dollars, and the term of
imprisonment shall not exceed three years; and every such ship or vessel,
her tackle, apparel, and furniture, together with all materials, arms,
ammunition, and stores, which may have been procured for the building
and equipment thereof, shall be forfeited, one half to the use of any person
who shall give information of the offence, and the other half to the use of
the United States.' By every just rule of construction, the proceeding by
indictment against the offender, and his conviction, must precede the suit
in rem, and the forfeiture of the vessel. The phraseology of the act is
different from all the other statutes authorizing seizures and creating
forfeitures. By those statutes, the revenue officers have power to seize and
proceed in rem against the thing seized as forfeited, independent of any
criminal proceeding against the offending individual. By this act, the
forfeiture of the thing is made to depend upon the conviction of the
person, and the president alone has power to seize, and that only as a
precautionary measure to prevent an intended violation of the laws. Sixthly
The 3d plea is particularly defective, in omitting to state, as is done in the
2d plea, what princes or foreign states were intended: it merely alleges,
that the vessel was fitted out with intent to be 'employed in the service of
some foreign state, to commit hostilities upon the subjects of another
foreign state, with which the United States were then at peace.' It is a
sacred rule of pleading, that where an offence is charged or a forfeiture is
claimed, the facts must be so alleged as that the court may judge whether
there has been an offence committed or forfeiture incurred.22 To so vague

an allegation as this, it would be impossible for the plaintiff below to
reply.
Mr. Baldwin, for the plaintiffs in error, in reply, insisted on the validity of
the special pleas. The defendants below were not bound to answer the
conversion, because the trespass was complete without it. This defect, if
any, ought to have been newly assigned by the plaintiff below, if he
intended to have advantage of it.23 The forfeiture was well pleaded. The
offence being committed, the forfeiture instantly attaches.24 The plea here
states, that the ship was seized 'as forfeited,' in the same manner with that
which was held good in Wilkins v. Despard,25 and it alleges the offence in
the words of the statute. An allegation that the seizure was made for a
violation of the law, that the thing seized was taken as forfeited, is
equivalent to an allegation that it was actually forfeited. Nor was it
necessary to aver that the seizure was made by a military or naval force.
The 7th section of the act of 1794, evidently contemplates the
employment of that description of force, only when, in the opinion of the
president, it might become necessary to carry into effect the law. In other
cases the seizure might be made by the ordinary means of the revenue
officer. Nor is a conviction, on an indictment or information in personam,
necessary before the proceedings in rem are commenced. None of the
objections to the special pleas are available on general demurrer. The
plaintiff below should have replied, that Petion and Christophe were not
independent princes or states, and so have had that question tried as a
question of fact. The existence of new states in the world may commence
in various modes. First. Colonies may become independent of the parent
state by means of force, and an acquiescence in the effects of that force on
the part of the mother country for a sufficient length of time, to indicate a
relinquishment of all hopes of recovering possession of the dominion. The
pride of princes and nations will not always permit them openly and
expressly to recognise the independence of rebellious subjects, until long
after they have relinquished all hope of subduing them. When the case of
Rose v. Himely was determined, a war de facto existed between France
and St. Domingo; and the former, so far from relinquishing her
sovereignty over the latter, was actually attempting to assert it by force of
arms. A long period of time has since elapsed, and the attempt has not
been renewed. The people of the island have settled down under
governments, the conduct of which is a pledge of their stability, and
whose policy and institutions would do honour to more civilized and
ancient communities. Secondly. The existence of new states may be
recognised by the supreme power of every country, in whose courts of
justice the question of their independence may arise, and that even while
the civil war still rages between the new people and its former sovereign.
When thus recognised by the legislative or executive authority of other
countries, the tribunals of those countries are bound to take notice of their

existence as independent states. This recognition may be made in various
modes: by treaty; by a legislative act; by an executive proclamation; by
sending to, or receiving from the new state, a public minister or other
diplomatic agent. Thirdly. Their independence may also be recognized by
a treaty of cession from the parent country. This treaty may not have
become a public, historical fact, of which courts of justice will take notice
without other evidence than its own notoriety. It may be deposited in the
archives of a foreign, or of our own government. It may require to be
proved in the same manner as foreign written laws are proved. In any of
these views, the question as to the independence of St. Domingo is a
question of fact, to be tried by the jury, and, consequently, the plaintiff
ought to have replied, that Petion and Christophe were not independent
princes or states, as alleged in the defendants' pleas. The instruction of the
president, in this very case, implies that he recognised the independence of
the island; the instruction could not otherwise have been legally given. As
to the conclusiveness of the decree of restitution in the district court, it is
founded on principles which push the doctrine of the conclusiveness of
sentences, to a degree of extravagance irreconcileable with reason and
common sense. That every sentence of a court having jurisdiction of the
subject matter, so long as it remains unreversed by the appellate tribunal,
is conclusive as to the title of the thing claimed under it, is conceded. But,
according to the jurisprudence of the state of New-York, the sentences of
foreign courts of admiralty are held not to be conclusive as to other
persons than those claiming title to the property,26 and the conclusiveness
of the sentences of domestic courts of peculiar and exclusive jurisdiction
depends upon precisely the same principle. But supposing a sentence of
condemnation to be conclusive, for all purposes, and against all persons; it
does not follow that a sentence of restitution ought to have the same effect.
A judgment of acquittal is of a negative quality merely, and ascertains no
precise facts.27 It only shows that sufficient evidence did not appear to the
court to authorize a condemnation. Why is a decree of condemnation held
to be conclusive? Because it is a basis of the title to the thing condemned.
But an acquittal forms no part of the title to the thing acquitted, which is
restored to the former proprietor, who holds it by the same title as before.
The case, said to have been decided before Baron Price, in the year
1716,28 is not pertinent. The elementary writers do not consider this as an
adjudged point in any of the cases; and their authority, which is of great
weight, makes a distinction, founded in reason and the nature of things,
between a sentence of condemnation and a sentence of acquittal.29 All the
authorities confine the conclusiveness of the res judicata to parties and
privies. The defendants below were neither. Mr. Evans, in commenting
upon the decision of Baron Price, reported in Viner, says that, 'upon
principle, I should conceive that the opposite determination would be
more correct, as such an acquittal would be warranted upon the mere
negative ground, that the crown had not adduced sufficient evidence to

support the seizure; and an individual, having a collateral interest in
supporting the legality of the seizure, is not a concurrent party with the
crown in supporting the condemnation, and asserting the claim of property
on the one side, in the same manner as every person having an interest in
opposing such condemnation, is in contemplation of law a sufficient party
on the other.30 So, in this case, the defendants below were not concurrent
parties with the United States in supporting the condemnation. It does not
appear that the defendants were informers, and so entitled to one half the
forfeiture; the prosecution was carried on in the name of the government
and by its law officers; the defendants had no control over it, and could
not appeal from the decision of the district court. They ought not,
therefore, to be concluded by it.
Feb. 23d.
The cause was again argued at the present term, by Mr. Baldwin for the
plaintiffs in error, and by Mr. D. B. Og1en and by Mr. Jones for the
defendant in error.
Feb. 27th.
Mr. Justice STORY delivered the opinion of the court.

1

This is a writ of error to the highest court of law of the state of New-York; and
the questions which are re-examinable upon the record in this court are such
only as come within the purview of the 25th section of the judiciary act of
1789, ch. 20.

2

But a preliminary question has been made, which must be discussed before
proceeding to consider the merits of the cause.

3

It is contended that the record is not, and cannot be brought, before this court.

4

By the judicial system of the state of New-York, the decisions of their supreme
court are revised and corrected in a court of errors, after which the record is
returned to the supreme court, where the judgment as corrected is entered, and
where the record remains. In this case the writ of error was received by the
court of errors, after the record had been transmitted to the supreme court
whose judgment was affirmed.

5

It is contended that, the record being no longer in the court of the last resort in
the state, can, by no process, be removed into this court.

6

The judiciary act allows the party who thinks himself aggrieved by the decision
of any inferior court, five years, within which he may sue out his writ of error,
and bring his cause into this court. The same rule applies to judgments and
decrees of a state court, in cases within the jurisdiction of this court. As the
constitutional jurisdiction of the courts of the union cannot be affected by any
regulation which a state may make of its own judicial system, the only inquiry
will be, whether the judiciary act has been so framed as to embrace this case.

7

The words of the act are, 'that a final judgment or decree in any suit in the
highest court of law or equity of a state in which a decision could be had, where
is drawn in question,' &c. 'may be re-examined and reversed or affirmed in the
supreme court of the United States upon a writ of error, the citation being
signed,' &c. The act does not prescribe the tribunal to which the writ of error
shall be directed. It must be directed either to that tribunal which can execute it;
to that in which the record and judgment to be examined are deposited, or to
that whose judgment is to be examined, although from its structure it may have
been rendered incapable of performing the act required by the writ. Since the
law requires a thing to be done, and gives the writ of error, as the means by
which it is to be done, without prescribing in this particular the manner in
which the writ is to be used, it appears to the court to be perfectly clear that the
writ must be so used as to effect the object. It may then be directed to either
court in which the record and judgment on which it is to act may be found. The
judgment to be examined must be that of the highest court of the state having
cognizance of the case, but the record of that judgment may be brought from
any court in which it may be legally deposited, and in which it may be found by
the writ.

8

In this case, the writ was directed to the court of errors, which, having parted
with the record, could not execute it. It was then presented to the supreme
court; but, being directed to the court of errors, could not regularly be executed
by that court. In this state of things the parties consented to waive all objections
to the direction of the writ, and to consider the record as properly brought up,
if, in the opinion of this court, it could be now properly brought up on a writ of
error directed to the supreme court of New-York. The court being of opinion
that this may be done, the case stands as if the writ of error had been properly
directed.

9

The original suit was brought by the defendant in error against the plaintiffs in
error for an alleged trespass for taking and carrying away, and converting to
their own use, the ship American Eagle, and her appurtenances, and certain
ballast and articles of provisions, &c. the property of the defendant in error.
This is the substance of the declaration, although there are some differences in
alleging the tort in the different counts. The original defendants pleaded, in the
first place, the general issue, not guilty, to the whole declaration; and then two

special pleas. The first special plea, in substance, alleges, that the said ship was
attempted to be fitted out and armed, and that the ballast and provisions were
procured for the equipment of the said ship, and were put on board of the said
ship as a part of her said equipment, with intent that the said ship should be
employed in the service of a foreign state, to wit, of that part of the island of St,
Domingo which was then under the government of Petion, to commit hostilities
upon the subjects of another foreign state, with which the United States were
then at peace, to wit, of that part of the island of St. Domingo which was then
under the government of Christophe, contrary to the form of the statute in such
case made and provided; and that the original defendants, by virtue of the
power and authority, and in pursuance of the instructions and directions of the
president of the United States, seized the said ship, &c. as forfeited to the use
of the United States, according to the statute aforesaid, &c. The second special
plea is like the first, except that it does not state that the ship was seized as
forfeited, but alleges that the ship was taken possession of, and detained, under
the instructions of the president of the United States, in order to the execution
of the prohibition and penalties of the act in such case made and provided, and
except that it omits the allegations under the videlicets in the first plea,
specifying the foreign state by or against whom the said ship was to be
employed. To these pleas there is a general demurrer, and joinder in demurrer,
upon which the state court gave judgment in favour of the original plaintiff.
Upon the trial of the general issue, a bill of exceptions was taken to the opinion
of the court. By that bill of exceptions, among other things, it appears, that the
original plaintiff, at the trial, gave in evidence, that at the time of the seizure
the ship was in his actual full and peaceable possession; that the ship, upon the
seizure, had been duly libelled for the alleged offence in the district court of
New-York; that the original plaintiff appeared and duly claimed the said ship;
and upon the trial she was duly acquitted, and ordered to be restored to the
original plaintiff by the district court; and that a certificate of reasonable cause
for the seizure of the said ship had been denied. The plaintiff then gave in
evidence, that the value of the ship at the time of her seizure was 100,000
dollars; and that the said Schenck seized and took possession of the said ship by
the written directions of the said Gelston; but no other proof was offered by the
plaintiff, at that time, of any right or title in the said plaintiff to the said ship;
and here the original plaintiff rested his cause. The original defendants then
insisted before the court, that the said several matters, so produced and given in
evidence on the part of the original plaintiff, were not sufficient to entitle him
to a verdict, and prayed the court so to pronounce, and to nonsuit the plaintiff.
But the court refused the application, and declared, that the said several matters
so produced and given in evidence were sufficient to entitle the plaintiff to a
verdict, and that he ought not to be nonsuited. To which opinion the original
defendants then excepted; and the original plaintiff then gave in evidence that
he purchased the said ship of James Gillespie, who had purchase her of John R.
Livingston and Isaac Glason, the owners thereof, and that in pursuance of such
purchase, the said Gillespie had delivered full and complete possession of the

said ship, &c. to the original plaintiff, before the taking thereof by the original
defendants.
10

The original defendants (having given previous notice of the special matter of
defence to be given in evidence on the trial under the general issue, according
to the laws of New-York,) offered to prove and give in evidence, by the way of
defence and in mitigation of damages, the same matter of forfeiture alleged in
their first special plea, with the additional fact that the said Gelston was
collector, and the said Schenck was surveyor of the customs of the district of
New-York, and as such, and not otherwise, made the seizure of the ship, &c.
And the original defendants did, thereupon, insist that the said several matters,
so offered to be proved and given in evidence, ought to be admitted in
justification of the trespass charged against the defendants, or in mitigation of
the damages claimed by the plaintiff, and prayed the court so to admit it. But
the counsel for the plaintiff, admitting that the defendants had not been
influenced by any malicious motive in making the said seizure, and that they
had not acted with any view or design of oppressing or injuring the plaintiff, the
court overruled the whole of the said evidence so offered to be proved by the
original defendants, and did declare it to be inadmissible in justification of the
trespass charged against the defendants; and after the admission so made by the
original plaintiff's counsel, that the said evidence ought not to be received in
mitigation or diminution of the said damages, as the said admission precluded
the plaintiff from claiming any damages by way of punishment or smart
money, and that after such admission the plaintiff could only recover the
damages actually sustained, and with that direction left the cause to the jury.

11

From this summary of the pleadings, and of the facts in controversy at the trial,
it is apparent that this court has appellate jurisdiction of this cause, only so far
as is drawn in question the validity of an authority exercised under the United
States, and the decision is against the validity thereof and so far as is drawn in
question the construction of some clause in a statute of the United States, and
the decision is against the title, right, privilege, or exemption specially set up or
claimed by the original defendants, for to such questions, (so far as respects this
case,) the 25th section of the judiciary act has expressly restricted our
examination. Whether such a restriction be not inconsistent with sound public
policy, and does not materially impair the rights of other parties as well as of
the United States, is an inquiry deserving of the most serious attention of the
legislature. We have nothing to do but to expound the law as we find it; the
defects of the system must be remedied by another department of the
government.

12

The cause will be first considered in reference to the bill of exceptions. In
respect to the proof of the original plaintiff's cause of action, and the opinion of
the court that such proof was sufficient to entitle him to a verdict, no error has
been shown upon the argument; and certainly none is perceived by this court.
If, however, there were any error in that opinion, we could not re-examine it,
for it is not within the purview of the statute. It does not draw in question any
authority exercised under the United States, nor the construction of any statute
of the United States.

13

In respect to the rejection of the evidence offered by the original defendants to
prove the forfeiture, and their right of seizure, there can be no doubt that this
court has appellate jurisdiction, if by law that evidence ought to have been
admitted in justification of the trespass charged on the original defendants; for
it involves the construction of a statute of, and an authority derived from, and
exercised under, the United States.

14

In order to establish the admissibility of the evidence offered by he defendants,
it is necessary for them to sustain the affirmative of the following propositions.
1. That a forfeiture had been actually incurred under the statute of 1794, ch. 50.2. That it was competent for a state court of common law to entertain and
decide the question of forfeitures. 3. That the sentence of acquittal in the district
court was not conclusive upon the question of forfeiture; and, 4. That the
defendants as officers of the customs, had a right to make the seizure.

15

Upon the last point, there does not seem to be much room for doubt. At
common law, any person may at his peril, seize for a forfeiture to the
government; and if the government adopt his seizure, and the property is
condemned, he will be completely justified; and it is not necessary to sustain
the seizure, or justify the condemnation, that the party seizing shall be entitled
to any part of the forfeiture. (Hale on the Customs. Harg. Tracts, 227. Roe v.
Roe, Hardr. R. 185. Malden v. Bartlet, Park. R. 105.; though Horne v. Boozey,
2 Str. 952. seems contra.) And if the party be entitled to any part of the
forfeiture, (as the informer under the statute of 1794, ch. 50. is by the express
provision of the Law,) there can be no doubt that he is entitled in that character
to seize. (Roberts v. Witherhead, 12 Mod. 92.) In the absence of all positive
authority, it might be proper to resort to these principles, in aid of the manifest
purposes of the law. But there are express statuteable provisions, which directly
apply to the present case. The act of the 2d of March, 1799, ch. 128. s. 70.
makes it the duty of the several officers of the customs, to make seizure of all
vessels and goods liable to seizure by virtue of any act of the United States
respecting the revenue, and assuming the statute of 1794, ch. 50. not to be a
revenue law within the meaning of this clause, still the case falls within the
broader language of the act of the 18th of February 1793, ch. 8. s. 27. which
authorizes the officers of the revenue to make seizure of any ship or goods,
where any breach of the laws of the United States has been committed. Upon
the general principle then, which has been above stated, and upon the express
enactment of the statute, the defendants, supposing there to have been an actual
forfeiture, might justify themselves in the seizure. There is this strong
additional reason in support of the position, that the forfeiture must be deemed
to attach at the moment of the commission of the offence, and, consequently,
from that moment, the title of the plaintiff would be completely devested, so
that he could maintain no action for the subsequent seizure. This is the doctrine
of the English courts, and it has been recognised and enforced in this court,
upon very solemn argument. (U. S. v. 1960 Bags of Coffee, 8 Cranch, 398. The
Mars, 8 Cranch, 417. Roberts v. Witherhead, 12 Mod. 92. Salk. 223. Wilkins v.
Despard, 5 T. R. 112.)

16

In the next place, can a state court of common law, entertain and decide the
question of forfeiture in this case. This is a question of vast practical
importance; but in our judgment, of no intrinsic legal difficulty. By the
constitution, the judicial power of the United States extends to all cases of law
and equity arising under the constitution, laws, and treaties of the United States,
and to all cases of admiralty and maritime jurisdiction; and by the judiciary act
of 1789, ch. 20. s. 9. the district courts are invested with exclusive original
cognizance of all civil causes of admiralty and maritime jurisdiction, and of all
seizures on land and water, and of all suits for penalties and forfeitures incurred
under the laws of the United States. This is a seizure for a forfeiture under the
laws of the United States, and, consequently, the right to decide upon the same,
by the very terms of the statutes, exclusively belongs to the proper court of the
United States; and it depends upon its final decree, proceeding in rem, whether
the seizure is to be adjudged rightful or tortious. If a sentence of condemnation
be pronounced, it is conclusive, that a forfeiture is incurred; if a sentence of
acquittal, it is equally conclusive against the forfeiture; and in either case, the
question cannot be litigated in another forum. This was the doctrine asserted by
this court, in the case of Slocum v. Mayberry, (2 Wheat. R. 1.) after very
deliberate consideration, and to that doctrine we unanimously adhere.

17

The reasonableness of this doctrine results from the very nature of proceedings
in rem. All persons having an interest in the subject matter, whether as seizing
officers, or informers, or claimants, are parties or may be parties to such suits,
so far as their interest extends. The decree of the court acts upon the thing in
controversy, and settles the title of the property itself, the right of seizure, and
the question of forfeiture. If its decree were not binding upon all the world upon
the points which it professes to decide, the consequences would be most
mischievous to the public. In case of condemnation no good title to the property
could be conveyed, and no justification of the seizure could be asserted under
its protection. In case of acquittal, a new seizure might be made by any other
persons toties quoties for the same offence, and the claimant be loaded with
ruinous costs and expenses. This reasoning applies to the decree of a court
having competent jurisdiction of the cause, although it may not be exclusive.
But it applies with greater force to a court of exclusive jurisdiction; since an
attempt to re-examine its decree, or deny its conclusiveness, is a manifest
violation of its exclusive authority. It is doing that indirectly, which the law
itself prohibits to be done directly. It is, in effect, impeaching collaterally, a
sentence which the law has pronounced to be valid until vacated or reversed on
appeal by a superior tribunal.

18

The argument against this doctrine, which has been urged at the bar, is, that an
action of trespass will in case of a seizure, lie in a state court of common law,
and therefore the defendant must have a right to protect himself by pleading the
fact of forfeiture in his defence. But at what time and under what circumstances
will an action of trespass lie? If the action be commenced while the
proceedings in rem for the supposed forfeiture are pending in the proper court
of the United States, it is commenced too soon; for until a final decree, it
cannot be ascertained whether it be a trespass or not, since the decree can alone
decide whether he taking be rightful or tortious. The pendency of the suit in
rem would be a good plea in abatement, or a temporary bar of the action, for it
would establish that no good cause of action then existed. If the action be
commenced after a decree of condemnation, or after an acquittal, and there be a
certificate of reasonable cause of seizure, then in the former case by the general
law, and in the latter case by the special enactment of the statute of the 25th of
April, 1810, ch. 64. s. 1. the decree and certificate are each good bars to the
action. But if there be a decree of acquittal and a denial of such certificate, then
the seizure is established conclusively to be tortious, and the party is entitled to
his full damages for the injury.

19

The cases also of Wilkins v. Despard, (6. T. R. 112.) and Roberts v.
Witherhead (12 Mod. 92 Salk. 323.) have been relied on to show that a court of
common law many entertain the question of forfeiture, notwithstanding the
exclusive jurisdiction of the exchequer in rem. But these cases do not sustain
the argument. They were both founded on the act of navigation, 12 Car. 2. Ch.
18 s. 1. which among other things, enacts that one third of the forfeiture shall
go to him 'who shall seize, inform, or sue for the same in any court of record.'
So that it is apparent that in respect to forfeitures under this statute, the
exchequer had not an exclusive jurisdiction, but that the other courts of
common law had at least a concurrent jurisdiction. And if these cases did not
admit of this obvious distinction, certainly they could not be admitted to govern
this court in ascertaining a jurisdiction vested by the constitution and laws of
the United States exclusively in their own courts.

20

It is, therefore, clearly our opinion, that a state court has no legal authority to
entertain the question of forfeiture in this case; and that it exclusively belonged
to the cognizance of the proper court of the United States. Indeed no principle
of general law seems better settled, than that the decision of a court of a
peculiar and exclusive jurisdiction must be completely binding upon the
judgment of every other court, in which the same subject matter comes
incidentally in controversy. It is familiarly known in its application to the
sentences of ecclesiastical courts, in the probate of wills and granting of
administrations of personal estate; to the sentences of prize courts in all matters
of prize jurisdiction; and to the sentences of courts of admiralty and other courts
acting in rem, either to enforce forfeitures or to decide civil rights.

21

In the preceding discussion, we have been unavoidably led to consider and
affirm the conclusiveness of the sentence of a court of competent jurisdiction
proceeding in rem as to the question of forfeiture; and a fortiori to affirm it in a
case where there is an exclusive jurisdiction. In cases of condemnation the
authorities are so distinct and pointed, that it would, after the very learned
discussions in the state courts, be a waste of time to examine them at large.
Nothing can be better settled, than that a sentence of condemnation is, in an
action of trespass for the property seized, conclusive evidence against the title
of the plaintiff. (See Harg. Tracts, 467. and cases there cited. Thomas v.
Withers, cited by Mr. Justice Buller, in Wilkins v. Despard, 5 T. R. 112. 117.
Scott v. Shearman, 2 W. Black. 977. Henshaw v. Pleasance, 2 W. Black. 1174.
Geyer v. Aquilar, 7 T. R. 681. and case cited by Lord Kenyon, Id. 696.
Meadows v. Dutchess of Kingston, Ambler's Rep. 756. 2 Evans' Potheir on
Obligations, 346 to 367.)

22

A distinction, however, has been taken and attempted to be sustained at the bar,
between the effect of a sentence of condemnation and of a sentence of acquittal.
It is admitted that the former is conclusive; but it is said that it is otherwise as
to the latter, for it ascertains no fact. It is certainly incumbent on the party who
asserts such a distinction to prove its existence by direct authorities, or
inductions from known and admitted principles. In the Duchess of Kingston's
case, (11 State Trials, 261. Runnington Eject. 364. Hale. Hist. Common Law by
Runnington, note, p. 39, &c.) Lord Chief Justice De Grey declares that the rule
of evidence must be, as it is often declared to be, reciprocal; and that in all
cases in which the sentences favourable to the party are to be admitted as
conclusive evidence for him, the sentences, if unfavourable, are, in like manner,
conclusive evidence against him. This is the language of very high authority,
since it is the united opinion of all the judges of England; and though delivered
in terms applicable strictly to a criminal suit, must be deemed equally to apply
to civil suits and sentences. And upon principle, where is there to be found a
substantial difference between a sentence of condemnation and of acquittal in
rem? If the former ascertains and fixes the forfeiture, and, therefore, it is
conclusive, the latter no less ascertains that there is no forfeiture, and, therefore,
restores the property to the claimant. It cannot be pretended that a new seizure
might, after an acquittal, be made for the same subposed offence; or if made,
that the former sentence would not, as evidence, be conclusive, and, as a bar, be
peremptory against the second suit in rem. And if conclusive either way, it must
be because the acquittal ascertains the fact that there was no forfeiture. And if
the fact be found, it is strange that it cannot be evidence for the party if found
one way and yet can be evidence against him, if found another way. If such
were the rule, it would be a perfect anomaly in the law, and utterly subversive
of the first principles of reciprocal justice. The only authority relied on for this
purpose is a dictum in Buller's Nisi Prius, (245.) where it is said that though a
conviction in a court of criminal jurisdiction be conclusive evidence of the fact,
if it afterwards come collaterally in controversy in a court of civil jurisdiction;

yet an acquittal in such court is no proof of the reverse, for an acquittal
ascertains no fact as a conviction does. The case relied on to support this
dictum, (3 Mod. 164.) contains nothing which lends any countenance to it.
(Peake's Evid. 3d ed. p. 47, 48.) But assuming it to be good law in respect to
criminal suits, it has nothing to do with proceedings in rem. Where property is
seized and libelled as forfeited to the government, the sole object of the suit is
to ascertain whether the seizure be rightful, and the forfeiture incurred or not.
The decree of the court, in such case, acts upon the thing itself, and binds the
interests of all the world, whether any party actually appears or not. If it is
condemned, the title of the property is completely changed, and the new title
acquired by the forfeiture travels with the thing in all its future progress. If, on
the other hand, it is acquitted, the taint of forfeiture is completely removed, and
cannot be re-annexed to it. The original owner stands upon his title discharged
of any latent claims, with which the supposed forfeiture may have previously
infected it. A sentence of acquittal in rem does, therefore, ascertain a fact, as
much as a sentence of condemnation; it ascertains and fixes the fact that the
property is not liable to the asserted claim of forfeiture. It should therefore be
conclusive upon all the world of the non-existence of the title of forfeiture, for
the same reason that a sentence of condemnation is conclusive of the existence
of the title of forfeiture. It would be strange indeed, if, when the forfeiture ex
directo could not be enforced against the thing, but by an acquittal was
completely purged away, that indirectly the forfeiture might be enforced
through the seizing officer; and that he should be at liberty to assert a title for
the government, which is judicially abandoned by, or conclusively established
against, the government itself.

23

One argument farther has been urged at the bar on this point, which deserves
notice. It is, that the sentence of acquittal ought not to be conclusive upon the
original defendants, because they were not parties to that suit. This argument
addresses itself equally to a sentence of condemnation; and yet in such case the
sentence would have been conclusive evidence in favour of the defendants. The
reason, however, of this rule is to be found in the nature of proceedings in rem.
To such proceedings all persons having an interest or title in the subject matter
are, as we have already stated, in law, deemed parties; and the decree of the
court is conclusive upon all interests and titles in controversy before it. The title
of forfeiture is necessarily in controversy in a suit to establish that forfeiture;
and therefore all persons having a right or interest in establishing it (as the
seizing officer has) are, in legal contemplation, parties to the suit. It is a great
mistake to consider the seizing officer as a mere stranger to the suit. He
virtually identifies himself with the government itself, whose agent he is, from
the moment of the seizure up to the termination of the suit. His own will is
bound up in the acts of the government in reference to the suit. For some
purposes, as for instance to procure a decree of distribution after condemnation
where he is entitled to share in the forfeiture, or to obtain a certificate of
reasonable cause of seizure after an acquittal, he may make himself a direct
party to the suit, and in all other cases he is deemed to be present and
represented by the government itself. By the very act of seizure he agrees to
become a party to the suit under the government; for in no other manner can he
show an authority to make the seizure, or to enforce the forfeiture. If the
government refuse to adopt his acts or waive the forfeiture, there is an end to
his claim: he cannot proceed to enforce that which the government repudiates.
In legal propriety, therefore, he cannot be deemed a stranger to the decree in
rem; he is at all events a privy, and as such must be bound by a sentence which
ascertains the seizure to be tortious. But if he were a mere stranger, he would
still be bound by such sentence, because the decree of a court of competent
jurisdiction in rem is, as to the points directly in judgment, conclusive upon the
whole world.

24

Upon principle, therefore, we are of opinion that the sentence of acquittal in
this case, with a denial of a certificate of reasonable cause of seizure, was
conclusive evidence that no forfeiture was incurred, and that the seizure was
tortious: and that these questions cannot again be litigated in any other forum.
And if the point had never been decided, we should from its reasonableness
and known analogy to other proceedings, have had entire confidence in the
correctness of the doctrine. But there are authorities directly in point which
have never been overruled, nor as far as we know ever been brought judicially
into doubt. Above a century ago it was decided by Mr. Baron Price, (12 Vin.
Abridgment, A B. 22. p. 95.) that an acquittal in the exchequer was conclusive
evidence of the illegality of the seizure, and he refused in that case (which was
trover for the goods seized) to let the parties in to contest the fact over again.
This case was cited as undoubted law by Mr. Justice Blackstone, in his
elaborate opinion, in Scott v. Shearman, (2 W. Bl. 977.;) and the doctrine was
fully recognized by the court, and particularly by Lord Kenyon, in Cooke v.
Sholl, (5 T. R. 255.) although that cause finally went off upon another point. In
all the cases which have been decided on this subject, no distinction has ever
been taken between a condemnation and an acquittal in rem, and the manner in
which these cases have been cited by the court, obviously show that no such
distinction was ever in their contemplation. If to these decisions we add the
pointed language of Lord Chief Justice De Grey, (in the Dutchess of Kingston's
case, 11 State Trials, 218. &c.) 'that the rule of evidence must be, as it is often
declared to be reciprocal;' the declaration of Lord Kenyon, in Geyer v. Aguilar,
7 T. R. 681. 996.) that 'where there has been a proceeding in the exchequer, and
a judgment in rem, as long as that judgment remains in force it is obligatory
upon the parties who have civil rights depending on the same question;' and the
general rule laid down by Lord Apsley, (Meadows v. Dutchess of Kingston,
Amb. Rep. 756.) that where a matter comes to be tried in 'a collateral way, the
decree of a court having competent jurisdiction shall be received as conclusive
evidence of the matter,' ex directo determined; there seems a weight of
authority in favour of the doctrine, which it is very difficult to resist. We may
add, that in a recent case which was not cited at the argument. (The Bennet, 1
Dodson's Rep. 175. 180.) where a ship had been captured as a prize, as being
engaged in an illegal voyage and acquitted by the sentence of a vice-admiralty
court, Sir. W. Scott held, that by such sentence of a competent tribunal, the
question had become res adjudicata, and might be opposed with success as a
bar to any inquiry into the same facts upon a second capture during the same
voyage. Yet here the parties, who were, captors, were different; and the
argument might have been urged, that the acquittal ascertained no fact. The
learned judge, however, considered the acquittal conclusive proof against the
illegality of the voyage, and that all the world were bound by the sentence of
acquittal in rem. And the same doctrine was held by Mr. Justice Buller, in his
very learned opinion in Le Caux v. Eden, (Doug. Rep. 594. 661, 612.)31

25

This view of the case would be conclusive against the admission of the
evidence offered by the original defendants at the trial, as a justification of the
asserted trespass. But the other point which has been stated, and which involves
the construction of the act of 1794, ch. 50, s. 3. is not less decisive against the
defendants. That act inflicts a forfeiture of the ship, &c., in cases where she is
fitted out and armed, or attempted or procured to be fitted out and armed, with
the intent to be employed 'in the service of any foreign prince or state, to cruise
or commit hostilities upon the subjects, citizens or property of another foreign
prince or state with whom the United States are at peace.' The evidence offered
and rejected, was to prove that the ship was attempted to be fitted out and
armed, and was fitted out and armed, with intent that she should be employed in
the service of that part of the island of St. Domingo which was then under the
government of Petion, to cruise and commit hostilities upon the subjects,
citizens, and property of that part of the Island of St. Domingo which was then
under the government of Christophe. No evidence was offered to prove, that
either of these governments was recognised by the government of the United
States, or of France, 'as a foreign prince or state;' and if the court was bound to
admit the evidence, as it stood, without this additional proof, it must have been
upon the ground that it was bound to take judicial notice of the relations of the
country with foreign states, and to decide affirmatively, that Petion and
Christophe were foreign princes within the purview of the statute. No doctrine
is better established, than that it belongs exclusively to governments to
recognise new states in the revolutions which may occur in the world; and until
such recognition, either by our own government, or the government to which
the new state belonged, courts of justice are bound to consider the ancient state
of things as remaining unaltered. This was expressly held by this court in the
case of Rose v. Himely, (4 Cranch, 241.) and to that decision on this point we
adhere. And the same doctrine is clearly sustained by the judgment of foreign
tribunals. (The Manilla, 1 Edwards R. 1. The city of Berne v. The Bank of
England, 9 Ves. 347. Dolden v. Bank of England, 10 Ves. 353. 11 Ves. 283.) If,
therefore, this were a fact proper for the consideration of a jury, and to be
proved in pais, the court below were not bound to admit the other evidence,
unless this fact was proved in aid of that evidence, for without it no forfeiture
could be incurred. If, on the other hand, this was matter of fact, of which the
court were bound judicially to take cognizance, then the court were right in
rejecting the evidence, for as far as we have knowledge, neither the government
of Petion nor Christophe have ever been recognised as a foreign state, by the
government of the United States, or of France.

26

In every view, therefore, of this case, the state court were right in rejecting the
evidence, so far as it was offered in justification. Was it then admissible in
mitigation of damages? Upon this point we really do not entertain the slightest
doubt. The evidence has no legal tendency to show that any forfeiture had been
incurred, and upon the proof already, in the cause, the seizure was established
to be tortious. The plaintiff admitted that the defendants had acted without
malice, or an intention of oppression. Under such circumstances, he waived any
claim for vindictive damages, and the state court very properly directed the
jury, that the plaintiff could only recover the actual damages sustained by him.
And in no possible shape, consistently with the rules of law, could the evidence
diminish the right of the plaintiff to recover his actual damages. We have taken
notice of this point the more readily, because it was pressed at the bar with
considerable earnestness. But in strictness of law, the point is not subject to our
revision. We have no right, on a writ of error from a state court, under the act of
congress, to inquire into the legal correctness of the rule by which the damages
were ascertained and assessed. There is no law of the United States, which
interferes with, or touches, the question of damages. It is a question depending
altogether upon the common law; and the act of congress has expressly
precluded us from a consideration of such a question. Whether such a restriction
can be defended upon public policy, or principle, may well admit of most
serious doubts.

27

We may now pass to the consideration of the second plea, which asserts, as a
defence, a seizure under the laws of the United States, by the express
instruction of the president, for a supposed forfeiture in rem, and attempts to put
in issue the question whether such forfeiture was incurred or not. If this plea
was well pleaded, then a question may properly be said to arise within the
meaning of the 25th section of the judiciary act, and as the state court decided
against the right and authority set up thereon, the decision is re-examinable in
this court. Several objections have been urged at the bar against the sufficiency
of this plea upon technical grounds; and if these objections are well founded,
then it may be admitted that the court below may have given judgment on these
special grounds, and not have decided against the right and authority set up
under the United States. In the first place, it is argued, that this plea is bad,
because it does not answer the whole charge in the declaration, the plea
justifying only the taking and detention, and containing no answer to the
damaging, spoiling, and conversion of the property charged in the declaration.
We are, however, of opinion, that the plaintiff can take nothing by this
objection. The gist of the action in this case was the taking and detention, and
the damaging, spoiling, and conversion were matter of aggravation only; and it
is perfectly well settled, that a plea need answer only the gist of the action, and
if the matter alleged in aggravation be relied on as a substantive trespass, it
should be replied by way of new assignment. (Taylor v. Cole, 3 T. R. 292. S. C.
H. Bl. 555. Dye v. Leatherdale, 3 Wils. R. 20. Fisherwood v. Carman, cited 3 T.
R. 297. Gates v. Bayley, 2 Wils. R. 313. 1 Saund. R. 28. note 3. Cam. Dig.
Plead. E. 1. Monprivatt v. Smith, 2 Camp. R. 175.) Independent, however, of
this general ground, there is, in this particular case, a decisive answer to the
objection; for if the matter of the plea were true and well pleaded, then by the
forfeiture the property was completely divested out of the plaintiff; and,
consequently, neither the conversion nor damage were any injury to him.

28

But there are other defects in this plea which, in our judgment, are fatal. In the
first place it is not alleged that the ship and her equipments were forfeited for
any offence under the laws of the United States. It is true that it is stated, that
the ship was attempted to be fitted out and armed, with intent that she should be
employed in the service of a foreign state, &c. to commit hostilities upon the
subjects of another foreign state, &c. contrary to the statute in such case made
and provided. But it is not added, whereby and for the cause aforesaid she
became and was forfeited to the United States. Nor is this deficiency supplied
by the subsequent averment, that the ship was, by the instructions of the
president, seized 'as forfeited to the use of the United States;' for the manner
and cause of the forfeiture ought to be directly stated. The plea is, therefore, not
only argumentative, but it omits a substantive allegation, without which it could
not be sustained as a bar.

29

In the next place, the plea is bad, because it does not aver that the governments
of Petion and Christophe are foreign states which have been duly recognised, as
such, by the government of the United States, or of France, which, for reasons
already stated, was necessary to complete the legal sufficiency of the plea.

30

And in our judgment a still more decisive objection is, that the plea attempts to
draw to the cognisance of a state court a question of forfeiture under the laws of
the United States, of which the federal courts have, by the constitution and laws
of the United States, an exclusive jurisdiction. For the reasons already
mentioned, if the suit for the forfeiture was still pending when the action was
brought, that fact ought to have been pleaded in abatement, or a temporary bar
to such action: If the action was brought before proceedings in rem had been
instituted, that fact ought to have been pleaded, with an allegation that the
jurisdiction of the question of forfeiture exclusively belonged to the district
court of the district where the seizure was made, which would have been a plea
in the nature of a plea to the jurisdiction of the state court: If the suit were
determined, then a condemnation, or an acquittal with a certificate of
reasonable cause of seizure, ought to have been pleaded, as a general bar to the
action. These are all the legal defences which the mere seizure could justify;
and if these all failed, then the seizing officer must have been deemed guilty of
the trespass. The plea then stops short of the allegations which the seizing
officer was bound to make to sustain his defence, and it attempts to put in issue
matter which, standing alone, no court of common law is competent to try. The
demurrer then may well be sustained to this plea, since the party demurring
admits nothing except what is well pleaded, and the plea being bad in
substance, there is, in point of law, no confession of any forfeiture.

31

The third plea differs in several respects from the second, and is that on which
the court have felt their principal difficulty. It asserts that the ship was
attempted to be fitted out and armed, with intent that she should be employed in
the service of some foreign state, to commit hostilities upon the subjects of
another foreign state with which the United States were then at peace, contrary
to the form of the statute in such case made and provided; and that the
defendants by virtue of the instructions of the president, 'did take possession of,
and detain,' the said ship, &c. 'in order to the execution of the prohibitions and
penalties of the act in such case made and provided.' It omits to allege any
forfeiture of the ship, or that she was seized as forfeited. So far then as the plea
may be supposed to rely on such forfeiture as a justification, it is open to the
same objections which have been stated against the second plea.

32

Another objection has been urged at the bar against this plea, which does not
apply to the second. It is, that it does not specify the foreign state in whose
service, or against whom, the ship was intended to be employed. As the
allegation follows the words of the statute, it has sufficient certainty for a libel
or information in rem for the asserted forfeiture under the statute; and,
consequently, it has sufficient certainty for a plea. Indeed, there is as much
certainty as there would have been, if it had been averred that it was in the
service of or against, some foreign state unknown to the libellant, which has
been adjudged in this court, to be sufficient in an information of forfeiture.
(Locke v. The United States, 7 Cranch, 339.

33

But the main objection to this plea is that it attempts to justify the taking
possession, and detaining of the ship, under the instructions of the president,
when the facts stated in the plea do not bring the case within the purview of the
statute of 1794, ch 50, which is relied on for this purpose. This statute, in the
seventh section, provides, that in every case in which a vessel shall be fitted out
and armed, or attempted to be fitted out and armed, or in which the force of any
vessel of war, cruiser, or other armed vessel, shall be increased or augmented,
or in which any military expedition or enterprise shall be begun, or set on foot,
contrary to the prohibitions and provisions of that act, and in every case of the
capture of a ship or vessel within the jurisdiction or protection of the United
States, and in every case in which any process issuing out of any court of the
United States shall be disobeyed or resisted by any person or persons, having
the custody of any vessel of war, cruiser, or other armed vessel of any foreign
prince or state, or of the subjects or citizens of any such prince or state; in every
such case, it shall be lawful for the president of the United States, or such other
person as he shall have empowered for that purpose to employ such part of the
land or navel forces of the United States, or of the militia thereof, as shall be
judged necessary for the purpose of taking possession of and detaining any
such ship or vessel, with her prize or prizes if any, in order to the execution of
the prohibitions and penalties of the act, &c. It is to be recollected that this third
plea does not allege any forfeiture, or justify the taking and detaining of the
ship for any forfeiture; and that it does not allege that the president did employ
any part of the land or navel forces, or militia of the United States for this
purpose, or that the original defendants, or either of them, belonged to the navel
or military forces of the United States, or were employed in any such capacity,
to take and detain the ship, in order to the execution of the prohibitions and
penalties of the act. But the argument is, that as the president had authority by
the act to employ the navel and military forces of the United States for this
purpose, a fortiori, he might do it by the employment of civil force. But upon
the most deliberate consideration, we are of a different opinion. The power thus
entrusted to the president is of a very high and delicate nature, and manifestly
intended to be exercised only when, by the ordinary process or exercise of civil
authority, the purposes of the law cannot be effectuated. It is to be exerted on
extraordinary occasions, and subject to that high responsibility which all

executive acts necessarily involve. Whenever it is exerted, all persons who act
in obedience to the executive instructions, in cases within the act, are
completely justified in taking possession of, and detaining the offending vessel,
and are not responsible in damages for any injury which the party may suffer
by reason of such proceeding. Surely it never could have been the intention of
congress, that such a power should be allowed as a shield to the seizing officer,
in cases where that seizure might be made by the ordinary civil means? One of
the cases put in the section is, where any process of the courts of the United
States is disobeyed and resisted; and this case abundantly shows, that the
authority of the president was not intended to be called into exercise, unless
where military and naval force were necessary to ensure the execution of the
laws. In terms the section is confined to the employment of military and naval
forces; and there is neither public policy nor principle to justify an extension of
the prerogative, beyond the terms in which it is given. Congress might be
perfectly willing to entrust the president with the power to take and detain,
whenever, in his opinion, the case was so flagrant that military or naval force
was necessary to enforce the laws, and yet with great propriety deny it, where,
from circumstances of the case, the civil officers of the government might,
upon their private responsibility, without any danger to the public peace,
completely execute them. It is certainly against the general theory of our
institutions to create great discretionary powers by implication; and in the
present instance we see nothing to justify it. The third plea is, therefore, for this
additional reason, bad in its very substance, and the state court were right in
giving judgment on the demurrer for the original plaintiff.
34

The judgment of the court for the correction of errors of the state of New-York,
is affirmed with damages at the rate of 6 per cent. upon the judgment, from the
rendition thereof, and costs.

35

Mr. Justice JOHNSON.

36

As the opinion delivered in this case goes into the consideration of a variety of
topics which do not appear to me to be essential to the case, I will present a
brief view of all that I consider as now decided.

37

Three pleas are filed to the action. The first is the general issue, under which,
according to the practice of the state from which the case comes, notice was
given that the forfeiture would be given in evidence.

38

The second plea is a justification, on the ground of a seizure under the order of
the president, for the forfeiture incurred under the third section of the act of
1794.

39

The third is a justification under the order of the president, to detain for the
purpose of enforcing the prohibitions and penalties incurred under the third
section. And this order is supposed to have been issued under authority given in
the seventh section.

40

On the first plea issue was taken; and on the trial the state court refused to
admit evidence of the forfeiture, on the ground that the acquittal in the district
court was conclusive against the forfeiture. And on this point this court is of
opinion that the state court decided correctly. This court is also of opinion, that
the state court could not have tried the question of forfeiture arising under the
laws of the United States. But this point would have been fatal to the suit, not to
the defence, had it been properly pleaded.

41

To the second and third pleas the defendant demurred: but as the second plea
contained only an argumentative, and, of course, defective averment of the
forfeiture, viz. 'seized as forfeited,' that is 'because forfeited,' that plea did not
bring up the question of forfeiture, or any question connected with it.

42

Neither does not third plea bring up the question of forfeiture: for the
justification therein relied on is wholly independent of the forfeiture, and rests
upon the order of the president to detain for trial, in effect. And hence the only
other point in the case is, whether the seventh section of the act empowered the
president to issue such an order. And on this point we are of opinion, that there
is no power given by that act to authorize a seizure, but only to call on the
military or naval forces to enforce a seizure when necessary. The defence set up
is not founded upon the exercise of such a power, but upon a supposed order to
the defendants, in their private individual character, to take and detain. The act,
therefore, does not sustain the defence.

43

Judgment affirmed.

44

Mr. D. B. Ogden inquired to which of the state courts the mandate to enforce
the judgment was to be transmitted.

45

Mr. Chief Justice MARSHALL.

46

We must consider the record as still remaining in the supreme court of NewYork, and consequently the mandate must be directed to that court.

47

Mandate to the supreme court of New-York.

48

JUDGMENT. This cause came on to be heard on the transcript of the record of
the supreme court of judicature of the people of the state of New-York,
returned with the writ of error issued in this case, and was argued by counsel.
On consideration whereof, it is adjudged and ordered, that this court having the
power of revising, by writ of error, the judgment of the highest court of law in
any state, in the cases specified in the act of congress, in such case provided, at
any time within five years from the rendition of the judgment in the said courts,
have the power to bring before them the record of any such judgment, as well
from the highest court of law in any state, as from any court to which the record
of the said judgment may have been remitted, and in which it may be found,
when the writ of error from this court is issued. And the court, therefore, in
virtue of the writ of error in this cause, do proceed and take cognizance of this
cause upon the transcript of the record now remaining in the supreme court of
judicature of the people of the state of New-York; and they do hereby adjudge
and order, that the judgment of the court for the trial of impeachments and
correction of errors in this case, be, and the same is hereby affirmed, with costs
and damages, at the rate of six per centum per annum on the amount of the
judgment of the said court, for the trial of impeachments and correction of
errors of the state of New-York, to be computed from the time of the rendition
of the judgment of the said court for the trial of impeachments and correction of
errors of the state of New-York.

1
2
3
4
5
6
7
8
9
10
11
12

Cronell et al. v. M'Fadon, 8 Cranch, 94; Otis v. Watkins, 9 Cranch, 337.
Otis v. Walter. 2 Wheat. 18.
Act of March, 3d. 1817. ch. 58.
Park on Ins. 178. 3d ed.
Vandenheuvel v. The United Ins. Com. 2 Johns. Cas. 451
N. P. 245
Jones v. White, 1 Strange, 68.
Bull. N. P. 14.
Bull, N. P. 14.
4 Cranch, 241, 272.
Vattel, L. 3, ch. 3, s. 18.
For these grounds see the opinion of Chancellor KENT in this cause in the
court of errors 13 Johns. Rep. 576.
Rose v. Himely, 4 Cranch, 292.

13
14

15
16
17
18
19
20
21
22

23
24
25
26
27
28
29
30

1 Edwards, 1, and Appendix, G; The city of Berne v. The Bank of
England, 9 Ves. 347.
Vanderheuval v. The United Ins. Co. 2 Johns Cas. 127, and the autborities
there cited. The authorities collected in the same case, 2 Caines' Cases in
Error, 217, and by Mr. Chief Justice (now Chancellor) KENT, in his
opinion in Ludlow v. Dale, Id. 217. Wheaton on Capt. 274, 278. Peake's
Law of Evidence. (3d London ed.) 78, 79. and the cases here cited in a
note. Cooke v. Stholl, 5 T. R. 255. Lane v. Degburgh, Buller's N. P. 244.
Opinion of Mr. Justice JOHNSON in Rose v. Himely, in the circuit court,
4 Cranch, 508. Appendix, Note C. 12 Vin. Abr. 95; Ev. A., c. 22.
Rose v. Himely, 4 Cranch, 241.
Croudson et al. v. Leonard, 4 Cranch, 434.
Slocum v. Mayberry, 2 Wheat. 1.
See 8 Johns. Rep. 179.
Act of the 24th February, 1807, ch. 74.
See the authorities cited ante, p. 269.
5.T.R. 112.
Com. Dig. tit. Action on Stat. A. 3, pl. 1, Davy v. Baker, 4 Burr. 2471;
Rex v. Robe. 2; Strange, 999; 2 Saund. 379; Radford v. M'Intosh, 3 T. R.
636.
Taylor v. Cole, 3 T. R. 292.
The Mars, 8 Cranch, 417.
5 T. R. 112.
Vahdenheuvel v. The United Ins. Co. 2 Caines' Cas. 212, S. C. 1 Johns.
Cas. 127. 451.
Buller's N. P. 245, Peake's Law of Ev. 48, 1 Hargr. Law Tracts, 742.
12 Vin. Abr. 95, Ev. A b. 22.
Peake's Law of Ev. 48. Phillips on Evid. 228, 229. 2 Evan's Pothier, 354.
2 Evan's Pothier, Ib.

31

In a recent case, in the court of exchequer in England, it has been
determined, that a judicial sale of a vessel found at sea and brought into
port as derelict, under an order of the instance court of admiralty, on the
part of the salvors and claimant, (without fraud and collusion,) is available
against the crown's right of seizure for a previous forfeiture incurred by the
ship having been guilty of a forfeitable offence against the revenue laws:
although the crown was not a party to the proceeding in the admiralty
court, other than by the king's procurator-general claiming the vessel as a
droit of admiralty; and although no decision of droit or no droit was
pronounced, and the sale took place pendente lite under an interlocutory
order. It was held, that the crown should have claimed before the court,
either as against the ship in the first instance, or subsequently against the
proceeds of the sale, which were paid into the registry to answer claims
under the order of sale, or have moved a prohibition. That the warrant for
arresting the ship by the admiralty, and the process of citation, was notice
to all the world of the subsequent proceedings: And that in pleading such
sale, in defence to an information in the exchequer, the facts should be put
specially on the record, so that the attorney-general might demur to, or
traverse them. The Attorney General v. Norstedt, (claiming the ship
Triton,) 3 Price's Exchequer Rep. 97. See Wynne's History of the Life of
Sir Leoline Jenkins, vol. II, p. 762.

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