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February 1, 1807


THIS was an appeal from the sentence of the circuit court for the district of Pennsylvania, in a cause civil and maritime, in which Jennings was the libellant, and Carson the respondent; the former claiming to be owner of the sloop George and cargo, captured, in the year 1778, by the American privateer Addition, commanded by Moses Griffin, of which the respondent, Carson, was part owner, and which was libelled and condemned, on the 31st of October, 1778, as lawful prize, by the court of admiralty for the state of New-Jersey; from which sentence of condemnation there was an appeal to the continental court of appeals, established under authority of the old congress, where the sentence of condemnation was, on the 23d of December, 1780, reversed, and restitution ordered, but never obtained. In the mean time, however, the vessel and cargo had been sold by the marshal of the state court of admiralty, for paper money, under an order of the court contained in the sentence of condemnation, and it did not appear what had been done with that money. No measures were taken to enforce the decree of restitution during the old confederation.

On the 19th of May, 1790, after the adoption of the present constitution of the United States, Jennings filed his libel in the district court for the district of Pennsylvania, alleging that he was a subject of the States General of the United Provinces, an inhabitant and domiciled at the island of St. Eustatius, and owner of the sloop George and her cargo, at the time of capture bound to the port of Egg-Harbour in the United States, and consigned to A. and G. Caldwell; in the prosecution of which voyage she was illegally captured by the privateer Addition, owned in part by the respondent, Carson, and praying process for arresting Carson, to answer, &c. A supplemental libel was filed, setting forth the proceedings against the vessel in the court of admiralty of New-Jersey; the sentence of condemnation; the appeal; the reversal of that sentence, and the order of restitution.

Neither the original nor supplemental libel prayed any specific or general relief, other than process for arresting Carson, so that he should appear to answer the libellant 'in his said complaint, of the wrongs and injuries aforesaid, according to the resolutions of the continental congress, the laws of the United States, and of the commonwealth of Pennsylvania, and the laws and usages of nations in this behalf practised, used, and established.'

Carson, being taken upon the writ of arrest, appeared and filed his plea and answer, averring the sloop George to have been the property of a subject of the king of Great, Britain, at the time of capture, and employed in carrying goods to the British army and navy; that the goods were imported directly or indirectly from Great Britain or Ireland, contrary to the regulations of congress and the law of nations; the king of Great Britain then being at war with the United States.

It admits that Carson was the owner of one-third of the privateer. It admits the capture, the condemnation, and sale, the appeal and reversal, and the order of restitution, but denies that any part of the proceeds of the sale ever came to the hands of the owners of the privateer, or either of them, but remained in the hands of the marshal of the court of admiralty of New-Jersey, who alone is answerable for the same. It avers, that Griffin, the commander of the privateer, had probable cause for making the capture, and therefore the owners are not liable.

It denies the jurisdiction of the district court of Pennsylvania to take cognizance of the question, the same belonging exclusively to the court of admiralty of the state of New-Jersey, and to the court of appeals established by the continental congress. It denies the jurisdiction of the court as a prize court in any case, and especially in cases of capture made during the British war, and avers that it has no authority to carry into effect a decree of either of those courts established under the old government.

After filing his plea and answer, Carson died, and Jennings filed a petition, suggesting the death of Carson, and charging his executors with assets, and praying that the suit may stand revived against them; upon which a citation issued, and the executors appeared and answered generally by a reference to the answer and plea of their testator, and further pleaded, that by the law maritime, the law of the land, and the laws and ordinances of the United States, they, as executors, are not liable to be proceeded against in that court for the several matters set forth in the libel, for that they are not answerable for the wrongs and offences, or the pretended wrongs and offences of their testator; and also, for that courts maritime have not authority to intermeddle with the estates and effects, real or personal, of deceased persons, or to give relief against the same, or to seize or take the same effects or estates in execution, or to imprison the bodies of executors for the default of the testator.

To these pleas and answers there were general replications.

On the 30th of March, 1792, the judge of the district court gave an opinion in favour of its jurisdiction in general cases as a prize court; but on the 21st of September, 1793, he dismissed the libel, on the ground that the district court was not competent to compel the execution of a decree of the late continental court of appeals.*fn1 * This sentence was affirmed in the circuit court on the 11th of April, 1798, but was reversed by this court at February term, 1799, so far as the same decreed that the district court had not jurisdiction to carry into effect the decree of the court of appeals, and the cause was remanded to the district court for further

'The sale of the vessel and cargo at vendue, and the monies being received by the marshal of the court, in whose hands it is said they now remain in depreciated paper, not having been distributed to and among the captors, and of course the respondents, or their testator, received no part thereof, and therefore they allege that the marshal only is chargeable to the libellant, and not the respondents or the testator. They insist that there was probable cause of seizure, and therefore the captors are not answerable in damages. They also plead in abatement to the jurisdiction of the court, because they assert that the subject of prize or no prize belongs to the admiralty of New-Jersey, and not to this court, which has no cognizance of the question; nor has it power to effectuate its judgment against executors. On the part of the executors particularly, an answer was put in denying their being chargeable for the torts of the testator, which, as well as their consequences, die with his person. But on an explanation on the behalf of the libellant, that he claimed no damages for the tort, merely as a tort, but sought for restitution of his property only, the point was abandoned by the advocates for the respondents.

'The libellant, to repel this defence, and denying, in the usual form, the facts as stated, sets forth the reversal of the judgment of the court of New-Jersey, by the decree of the court of appeals of the United States, the 23d of December, 1780, which contains a direction to the latter court to make restitution of the property, with costs, but not damages. They also join issue on the point of jurisdiction, and distinguish between a suit commenced in the lifetime of the testator, and one brought in the first instance against the executors.

'Five points were made by the advocates of the respondents; 1. The tort dying with the person. 2d. The jurisdiction of this court is not competent, as it is not a prize court. 3d. and 4th. If a prize court, yet, as the cause originally attached in the court of New-Jersey, that was the only court in which the consequences were cognizable, and alone competent to effectuate the decree of the court of appeals. 5th. A capture with probable cause is not a subject of action for damages. proceedings; the respondent being at liberty to contend before that court, as matter of defence to the merits, or to the form of proceedings, that the libel should first

'The first point being waived, brings the question to the competency of jurisdiction, which in order, as well as necessity, should be the first point considered, because, if the court has no jurisdiction, it is nugatory to inquire into the merits of the cause. On this point, as it first struck me, I confess I had doubts. The account given by Lord Mansfield of the arrangement of the court of admiralty in England, as detailed in the case of Lindo & Rodney, produced hesitation, and my respect for the opinion of that great character, as well as the arguments of the advocates in the present cause, induced a deliberate consideration of the subject. The division of the court of admiralty into two sides, prize and instance, was new to me, and it is allowed not to have been generally known, if at all, by the common lawyers in England, before that case was determined. In this country it never was known, nor does it appear that any new commission was ever transmitted to the colonial judge of the admiralty from Great Britain before the revolution, in cases of wars between that kingdom and its enemies. I have traced from records and other authentic information, the proceedings of the admiralty court of Pennsylvania, for a period exceeding fifty years, and I have the best reason for believing that the practice in other colonies was similar. In all the proceedings, the prize suits are called suits civil and maritime. During the late war, when we assumed and effected our independence, the proceedings were unaltered in this point. I do not find that there is any such distinction in any other nation, except it should be found in Holland, and of this I much doubt. The authority out of Bynkershoek, (177.) produced by one of the advocates for the respondents, founded on an ordinance of the Earl of Leicester, shows that there is a court there whose authority is entirely confined to captures as prize, and it has no jurisdiction even of other maritime cases. This, therefore, is not applicable to a question concerning the powers of a court of admiralty, which is allowed, even in the case of Lindo & Rodney, to possess jurisdiction in all maritime causes, though in England it is said to act under a peculiar (and therefore not generally known) organization. I take it, therefore, for granted, because the contrary has not been shown, that in England alone are these distinct branches of the same court to be found. In all the books of reports in which cases of prohibitions to the admiralty are mentioned, precedent to the case of Lindo & Rodney, these prohibitions are moved for and granted generally to the court of admiralty; and though in a case in Term Reports, (long after the case of Lindo & Rodney,) the distinction is taken, and the prohibitions moved for to the prize court, this very instance shows it to be a novelty in the common law books there, for if it had been known as an old practice, the particular designation of the prize court would have been unnecessary, and the prohibition would have been required to the admiralty generally, as it ever had been in former cases. have been filed in the district court of New-Jersey, but not to make the decision of the judge on that point a ground of excepting to the jurisdiction of the district court of Pennsylvania, and that costs should await the event of the cause.

'Acting, as we now do, in a national, and not a dependent capacity, I cannot conceive that we are bound to follow the practice in England, more than that of our own or any other nation. Customs purely colonial, were parts of our laws, even in the time of our connection with Britain. I need instance only one, viz. that of the mode of conveyance of feme-coverts' estates, contrary to the laws of England. This is a case at common law, in which we then were and now are particularly called to follow their rule and practice, in general. The admiralty proceeds by a law which considers all nations as one community, and should not be tied down to the precedent of one nation, though it were more clearly ascertained. I shall, therefore, conclude, that if the powers of an admiralty and maritime court are delegated by congress to this court, those of a prize court are mixed in the mass of authority with which it is invested, and required no particular specification. They are called forth (if generally delegated) by the occasion, and not by repeated and new interferences of government. Nor do I believe that even in England, any new authority is vested, though a kind of legal and solemn notice is given of a war, in which subjects for the prize authority of the admiralty may occur. It does not begin with their wars, but was pre-existent. It does not end with the commencement of peace, for their books show it to be exercised at any time afterwards. Government never interferes to put an end to it; how then can its power be repeatedly necessary to begin it? The fact is, it is inherent in a court of admiralty, and not lost, but torpid, like other authorities of the court, when there are no occasions for their exercise.

'But here the question arises, have congress, by their judiciary laws, vested this court with general or special admiralty powers? Congress have authority (delegated by the people in the constitution) in 'all cases of admiralty and maritime jurisdiction.' The words of that part of the judiciary law affecting this subject, in which the authorities of the court are described will be seen in the 9th section of that law. 'It shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including seizures under laws of impost, navigation, or trade of the United States.' It is said prize or no prize is a question of military, not of a civil nature. But I find no such distinction in the books. Blackstone, in his division of courts, does not class that of the admiralty as a military, but a maritime court, and it will appear that the jurisdiction of prize is within its powers, though he points out, in cases of prizes in the then colonies, that appeals were to members of the privy council, and others, in consequence of treaties and domestic arrangements. But he says 'the original court to which this question is permitted in England, is the court of admiralty,' without any distinction as to the nature of its powers, whether instance or prize, military or civil. In Book 3. p. 108. he mentions the exclusive and undisturbed jurisdiction of the courts of admiralty, in cases of prize; and that court determines, not according to British laws or practice, but 'according to the law of nations.' Should I confine my attention merely to the inquiry whether this could be classed under the description of a 'civil cause,' I should think there were grounds to support the idea of its being comprehended. In the case of Acheson & Everett, (Cowp. 382.) some light is thrown on this view of the subject, because it appears that a civil suit may, in substance, but not in form, partake of criminal ingredients. So, by parity of reason, may a civil cause of admiralty and maritime jurisdiction, be mixed with, or grounded on, transactions of a military nature. But I do not think it necessary merely to fix this point. What is, perhaps, of most consequence, is to ascertain the intention of congress in distributing a power, clearly in them, to their judiciary departments. And what was said by one of the advocates for the libellant, strikes me as being just and proper, viz. that the construction should be made from a consideration of all the laws on the subject, Upon the second hearing of the cause, on the 2d of April, 1802, the judge decreed in favour of the libellant, for the amount of sales of the sloop and cargo, reduced by the scale of depreciation, with interest until two months after the order of restitution by the court of appeals; and from the time of the institution of the present suit until the day of final decree; which decree was, on the 10th of May, 1804, reversed by the circuit court, and the libel dismissed with costs.–From which sentence, the libellant appealed to this court.

E. Tilghman, for appellant.

No delay can be imputed to the appellant. There was no limitation by law. The federal court of appeals was unpopular in those states who were attached to the trial by jury, and its jurisdiction was opposed with great warmth. He cited the case of the sloop Active, and Mr. Olmstead's case, and an act of the legislature of Pennsylvania in support of that assertion. The jurisdiction of that court was not finally settled, until the case of Doane & Penhallow, 3 Dallas, 54. 85, 86.

He considered the case under six heads.

1. That if the appellant was entitled to redress, he was right in applying to the district court of Pennsylvania, and was not obliged to resort to that of New-Jersey.

2. That if his suit was rightly commenced in the district court of Pennsylvania, that court had authority to decide finally on the case.

3. That the district court has jurisdiction of the question of prize.

4. That, if the appellant is entitled to redress, his remedy survives against the executors of Carson.

5. That it is immaterial whether there was or was not probable cause for the capture.

in pari materia. 'The court shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including,' &c–that is, being invested with criminal powers in certain cases, it shall also have civil powers, as opposed to criminal, in admiralty and maritime cases. By recurring to the 12th, 13th, 19th, 21st, and 30th sections of the judiciary law, it will appear that congress meant to convey all the powers, (and in the words of the constitution,) as they possessed them in admiralty cases; and actions or suits in these cases can originate only in the district courts.

'For the foregoing reasons, and some others which might be added, I am of opinion that this court possesses all the powers of a court of admiralty, and that the question of prize is cognizable before it. I have gone thus far into the discussion of this point, because I believe it is the first time it has been agitated in a federal court.

'I do, therefore, decree, adjudge and determine, that the plea to the jurisdiction of the court, as not being competent to determine on prize questions, be, and the same is hereby overruled.'6. That the owners of the privateer are answerable for the acts of the captors, their agents.

1. As to the first point.

One court of admiralty is competent to carry into effect the sentence of another; even of a foreign court, and a fortiori of a domestic court. Douglass, 1. Walker v. Witter. 1 Vent. 32. Jurado v. Gregory. 1 Lev. 267. S. C. 6 Vin. 535. pl. 20. 1 Salk. 32. Broom's case. Carth. 398. S. C. 2 Lord Raym. 935. Ewer v. Jones. 3 Dall. 97. and 118. Penhallow v. Doane. 2 Browne's Civ. & Ad. Law, 120.

The sentence of the court of appeals consists of three parts. 1st. Restitution. 2d. Costs. 3d. An order to the court below to carry the sentence into effect.

The sentence was for restitution of the thing itself, not of its value; nor of the amount for which it was sold. The appellant was not obliged to take any thing in lieu of the thing itself.

If a judgment at common law is rendered against a plaintiff in the circuit court, and that judgment reversed in the supreme court, and a mandate issues to the circuit court to execute the judgment of the supreme court, the plaintiff is not bound to take out his execution under the mandate, but may bring an action of debt upon the judgment, in any district of the United States where the defendant may be found. So in this case, the claimant may libel the captors in any district where they may be found. We are not bound to take the proceeds of the sale in continental money. The reversal was on the 23d of December, in the year 1780, when paper money was a mere ghost, and worth nothing. It is immaterial what became of the money, and whether it sunk in the hands of the marshal, or not. If our cargo had been suffered to arrive, we might have sold it so as to avoid the effect of depreciation.

The resolution of congress, which provides that captured vessels should be libelled in the district into which they should be brought, applies only to libels by the captors against the property, and not to libels by the claimant against the captors. These, ex necessitate, must be brought where the captors may be found. We cannot now proceed in the original court of admiralty of New-Jersey, for it does not exist. It was a court deriving its authority from the state of New-Jersey alone. By the constitution, all admiralty powers are now vested in the courts of the United States, and to those only can we now apply.

2. If the suit was rightly commenced in the district court of Pennsylvania, that court had authority to decide finally on the case.

The words of the decree of restitution are all powerful–'the vessel and cargo SHALL BE restored.' We are therefore entitled to the thing itself, or its full value.

If it be objected that the loss by depreciation is not chargeable to the respondents, we say that it is a fundamental rule that he who does the first wrong shall be liable to all the damages.

The act of the marshal was the act of the captors. His sale, made after the appeal, was or was not regular. If regular, the proceeds, were received to the use of the captors; if irregular, although under the order of the court, the captors are liable. 12 Mod. 639. Roswell v. Prior. 5 Vin. Ab. 405. 1 Vernon, 297-307. Childerns v. Saxby. 6 Mod. 179. Regina v. Tracy.

At common law, if the judgment be reversed after goods sold under a fi. fa. the writ of restitution is to the plaintiff, and not to the officer; and the plaintiff must answer the value, not what they actually sold for. 2 Salk. 588. Cro. Eliz. 209. Rook v. Wilmot. 390. Atkinson v. Atkinson. 11 Mod. 36. Clerk v. Withers. Vin. Ab. Tit. Distress, 171. pl. 1, 2. Bro. Ab. Distress, pl. 72.

The sentence of the court of appeals is conclusive that the capture was wrongful. It was a marine trespass. If the sloop had been taken by the British out of the hands of the captors, they would still have been liable. 1 Dall. 95. Talbot's Case. 3 Dall. 333. Del Col v. Arnold. 3 T. R. notis, Livingston and Welch v. M'Kenzie.

3. The third point, viz. that the district courts of the United States have jurisdiction in questions of prize, was admitted by the opposite counsel.

4. If the libellant is entitled to redress, his remedy survives against the executors of the owners of the capturing vessel.

The decree of the court of appeals is for restitution only, and the prayer of the libellant is for general relief, which is in all cases sufficient. 3 Dall. 86, 87. 107. 118. Penhallow v. Doane.

It is a rule in the civil law, that if the ancestor has appeared to the suit, the heir will be liable, and it is a maxim in equity that the heir shall be liable, even in cases of tort. Domat. 605. 607, 608, 609. Cowper, 374, 376. Hambly ...

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