caufes; though it is true, that for many years, a commiffion has iffued, at the breaking out of a war, direct ing that court fo to do. The British court of admiralty has two departments, which bear different names: The one being called the inftance court; the other, the prize court; but both bear the common name of, the court of admiralty.

So, in the court of exchequer, there is a common law, and an equity fide, conducted on different principles, and both known by the name of the court of exchequer. Now, if the power of the admiralty, or exchequer, were to be given by a ftatute of the United States to a court here, ought it not to comprehend all which they exercife, from whatever fource derived ? The ingenious reafonings of lord Mansfield, in the cafe of Lindo vs. Rodney, feem rather intended to extend this jurifdiction to an equivocal cafe, where the capture was on land, than to deftroy the general idea, that quereles" arifing on the high feas, were not cognizable in

caufes 66

that court.

But further, as one of the principal objects of our national government is, to prevent difputes with other nations, and thofe difputes more frequently originate from real or fuppofed wrongs done on the high feas, to a nation at peace, when others are at war, than any other, the cognizance of fuch taufes would probably be given, by exprefs terms, to the judiciary, in the article which defines its powers. This however is not done, unless the cognizance of prize caufes is comprehended under the terms, 66 admiralty and maritime jurifdiction." If it is, the fame cognizance is given to the diftrict courts, by the fame terms ufed in the act establishing the judicial

courts of the United States.

Yet, if this queftion is prize, or no prize, and if it is true, that by the law of nations fuch questions can only be tried in the courts of the captors, this court, being bound to proceed by fuch priciples, cannot try it. This principle must be examined with

care. That they are ufually tried in fuch country, is true. It is equally true, that they are ufually carried into ports belonging to fuch country; and, when the prize and its appendants, the papers, and the people captured are there alfo, every thing con curs to make it proper they fhould be tried there, whether they are clearly the property of their enemy, or are claimed by the citizens of neutral powers. All nations, neuters, friends, and allies, are bound by the decifions. Without this, endlefs difputes and wars would be the confequence. Two independent powers, interested in a queftion, who admit no umpire, muft, to avoid thefe evils, fubmit to a rule, which will reciprocally apply, as they may happen to be at war or peace, and admit the jurifdiction of the other party. Which fo proper as the country which has poffeffion of the thing, and of the documents appurtenant to it? And, as they have courts proceeding on the fame principles and nearly the fame rules, it must be prefumed, that the caufe is at least as fairly decided, as it would be by the other party. If any palpable injuftice is done, negociations between the executive powers of both nations become the only peaceable remedy. But, if prizes are brought into the ports of a friend, or neuter, by one of the belligerent powers, are they to be examined, or enquiry made into the legality of the capture, by the judicial courts of the friend, or neuter? If they are not captured within their ports, or near their fhores, nor goods unladen from them or ftored, nor fold within their ports, nor any claim to the prize made by the citizens of the country where they are brought; I apprehend, that it is the custom of nations, and right for the friend, or neuter, to avoid examining into the juftice of the capture, and thereby making himself a party, by deciding between nations to whom he is the common friend. Indeed, it is the practice in most other cafes, to reject the trial of caufes between foreigners, whether founded on torts or con

tracts, not arifing within the jurifdiction of their courts. But the queftion here is-If a friend, at war with another power, with whom we are at peace, fhall fend a veffel, taken as prize, into our own ports, and there unlade and caufe the cargo to be fold, and the fame, or any part thereof, belong to our own citizens, or is claimed by them; are we to examine into it, or remit it, or fuffer it to be remitted to the courts of the country of the captors? Every book on the fubject, which I have been able to read, eftablishes it as a principle, that it is the duty of the fovereign power to protect the rights of the citizens, as well in their controverfies with foreigners as among themselves. Nor can books be neceffary upon this fubject: it must be an effential principle in every focial compact, and, if not expreffed, is always implied.

Where the perfons or things in controverfy are within the domain or territory of the nation, it is done by the judicial authority; when without, by the executive. In this laft cafe, the poffeffion not being within the domain, the right is imperfect.

I have fearched many books, and can find no instance, where the thing in controverfy, and the perfon holding it, were both within the country, that the citizen has been fent for juftice to a foreign jurifdiction, whether the queftion refpected prize, or any other fubject. One of the principal reafons given in the books, for the propriety of the question of prize being tried in the country of the captors, is, that there is the prize, there the veffel's papers, and there the perfons taken on board; to fend, therefore, the citizen who claims the property away from the veffel, without his papers, would be exactly reverf ing the rule and the reason. Lee, in his Treatise on Captures, chap. 18, fays, that the proper and regular court is that of the country to which the captors belong.

But, upon examining his authorities, it appears, that this chapter is

copied almoft verbatim from the report of fir George Lee, and others, to his Britannic majefty, on the reference of the memorial of the king of Pruffia to them. In this report, it is true, that it is laid down as a rule, that the queftion of prize is to be tried in the courts of the captors; but, as that cafe appears to have had relation to the particular cafes of a number of Pruffian veffels, all of which were brought into Great Britain, and is oppofed to a doctrine affumed by the king of Pruffia, "That he had as good a right to determine on the question, in his courts, as the king of Great Britain had in his," although neither the captors, nor prizes, were within his dominions; I cannot think, that it ought to be extended beyond a cafe under like circumftances. We are often mifled by quotations of general fayings of learned men, if we do not look into the particular cafes in which they were faid; and learned men are too apt to exprefs themselves generally, when confidering a particular cafe. It is only in this opinion of fir George Lee, and others, and citations from it, that I can find this general pofition; and I apprehend, when ufed, it is always prefumed, that the prizes are within the territories of the country where they are tried. In an ordonnance of Louis XIV. the courts and officers of France are prohibited from interfering with prizes fent into the ports of that country, by nations at war, except only where the goods of Frenchmen are found on board; in which cafe, they are directed to restore them, when claimed, without fuffering the other parts of the prize to be touched.

This ordonnance was made more than a century ago, and does not ap pear to be complained of, as contrary to the law of nations, although the writers on that fubject ufually remark, on fuch regulations of fovereigns as contravene thofe laws. The courts of all nations, which are governed in their decifions by the law of nations, appear equally competent

to the trial of fuch matters, when they are within the domains of their country; nor do I fee, why they should not have as much weight with liberal and enlightened foreigners, as they expect their courts fhould have with others.

It is juftly faid, that admitting thefe principles are well founded, yet that they may be controuled by treaties; and that by the 17th art. of the treaty of commerce between France and the United States, it is provided, "That it shall be lawful for the ships of war of either party, and privateers, freely to carry whitherfoever they pleafe, the goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty, or any other judges; nor fhall fuch prizes be arrested, or feized, when they come to, or enter the ports of the party; nor fhall the fearchers, or other officers of thofe places, fearch the fame, or make enquiry into the lawfulness of fuch prizes; but they may hoift fail and depart, at any time, and carry their prizes to the places expreffed in their commiffions." It is not neceffary to determine, whether this article ought to be conftrued to reftrain the principles above laid down, if prizes taken by veffels of France from their enemy, fhould be brought into our ports, having goods of our citizens on board, under the circumftances which these are alledged to be by the libellant; if their commanders are difpofed to carry their prizes in ftatu quo out of the ports, without landing, or felling their cargoes-but if they do in fact land and fell them, can it be true that no duties are to be paid? and that the officers of the customs have no right to fearch them?

I prefume it is not-nor do I conceive, that a citizen is prevented from inftituting process in the proper court here, or the court from taking cognizance of his complaint. By the exception in the 14th article, on which the libel is founded, the property of the citizen is to be reftored to him.But if, as the libellant fuggefts, the

Much ftrefs has been laid upon the terms of the treaty and confular convention with France, as giving jurif diction of the fame fubject to the tribunal, faid to be established here under the confular authority; which authority is faid to be implied and confirmed by the right to fell prizes in our ports, which must have at least a provifional trial, with an appeal to a court conftituted for that purpofe in France. On thefe points, I have had no doubts from the beginning. I could never discover any right, given by the treaty with France, for armed cruizers to fell their prizes in our ports, nor any colour for the exercife of jurifdiction over them, by their confuls in our ports, or our's in their's. It does not appear by the treaty, that it was in the contemplation of the contracting parties to make a common caufe in any future wars, in which either of them might happen to be engaged;-if it had been, very different terms would have been used, and the mutual guarantees would not have been confined to fo few objects. The preamble to the treaty, fully explains the intentions of the parties, and precludes a conftruction of fuch a nature. If they have a right to carry their prizes into each other's ports, and there exercise admiralty jurifdiction, I can hardly conceive any thing fhort of direct violence, which a neutral power can permit, or do, more inconfiftent with the ideas of neutrality, laid down in books hitherto confidered of authority. And if books are rejected, and the principles of reafon alone confulted, I conceive the fame refult will follow. The effential difference of favour, which, by this conftruction, will be given by

one nation to another, relating di rectly to war, by which fhelter is firft granted, then protection, then jurif diction, and lastly, accommodation and fecurity from re-capture by fale, and this too, of property just taken from a friend, and perhaps near our own fhores; while the fame favour is refufed to another; is a preference not confiftent with neutrality;-nor does the treaty, or confular convention give (as I apprehend) colour for fuch conftruction. The right to bring prize es into port, does not imply the right to fell there; otherwife the treaty between Great Britain and France would not have precluded us fuch a right in France. It is certainly fairer to give fuch a conftruction to both treaties, as will preclude the idea of intention on the part of France, to be perfidicus to either of the nations with whom we were making treaties.

The coufular convention, fo far from giving a right to exercife fuch a jurifdiction, confines the interference of the confuls to cafes altogether arifing between citizens of their own ftates, not allowing them coercive authority even in fuch cafes--but providing for the interpofition of the courts of the country where they refide, in the only cafes where it is thought beft, that fuch an authority fhould be exercised at all.

Nor does the reference to the Dutch treaty help the business; that relates to cafes where both parties are engaged against a common enemy, when the ports of the allies are always open to armed veffels, and to prizes taken by each other; and even then, as I conftrue this treaty, the trial is to be had, not in the courts of the captors, but of that power, into whofe ports the prizes are conducted: This is more evident by a comparison with a like article in the treaty with Pruffia. But the refpondent here contends, not only for the existence of fuch a jurifdiétion, but alfo that it extends to cafes, in which our own citizens are one of the parties.

Such a foreign jurifdiction, I prefume, is not to be found in any in

dependent ftate that ever has or does now exist.

The next objection is of a delicate and important nature. That there are cafes in which the executive, bound by the conftitution to fee the laws put into execution, and to preferve peace, muft fo far judge of the existing ftate of things, as may be neceffary for purfuing his own duty, it would be a political folecifm to deny.

But as in every fociety there exist, the legislative, judicial, and executive powers, and as in moft civilized ftates, the perfons with whom they are depofited are diftinctly marked, and in the best conftructed governments, they are cautiously kept feparate; it is proper to examine this queftion with care.

I conceive, that in all nations or ftates, the judicial power is Co-extenfive with their dominion, and embraces all queftions arifing within that dominion, whether between citizens and citizens, or citizens and foreigners, and in many cafes between foreigners and foreigners.-That it extends to queftions which originate in foreign countries, or upon the high feas, which are confidered the " cornmon field" of all nations (except in the cafe of foreigners and foreigners) when the parties contending are within the dominion, efpecially if the thing about which the contention is, is there alfo; and that it is, the univerfal acquiefcence in these principles, which is the barrier against the conflict of jurifdictions-which is the foundation of the principle, that faith and confidence is to be given to the judicial decifions of a country, by other nations interested in fuch decifions; and that the fuppofed maxim, that prize, or no prize, is to be decided in the country of the captors (although the captured veffel may not be in the ports of the captors, but at a diftance in the port of a friend claiming the property) is unfounded. For, in this laft cafe, how is the af fumed jurifdiction to be carried into effect," in rem" its decrees, or in perfonam its judgments? Will any

independent nation fuffer foreign officers to execute them? Or muit they apply to thofe of the country in which the fubject matter is? In which cafe the right is imperfect. Under this head, I am not deciding to which branch of the judicial, fuch decifions belong. In our government, where the judicial power is by the conftitution extended to all matters, arifing under the conftitution or laws of the Union, I have no doubt that it embraces this object.

It has been faid, that as this cafe involves queftions arifing under the laws of nations, and treaties, the executive alone fhould interfere; but are not the laws of nations, and treaties, the laws of the land? And who but the judiciary are to interpret, decide upon, and carry into effect the laws of the land? If the courts of a country act corruptly, or with evident prejudice in cafes of foreigners, my idea is, that the executive of a nation, whofe citizens complain, fhould begin the negotiation for redrefs, and not that the executive of the nation where are the parties controverting, and thing controverted, fhould fend them to a nation equally interested in the queftion, and negotiate for their return. In fhort, that the line marked between the exercise of the

executive and judicial powers, is the one above ftated.

The last objection is, that by the ftatute which eftablishes judical courts, there is a faving to fuitors of the right to a common-law remedy, where the common law is complete to give it.

From this phrafe, it is inferred, that an action at common law, and not a libel in this court, is the proper remedy. The true meaning of this phrafe, to me, is fomewhat obfcure; but it does not certainly intend to exclude admiralty jurifdiction in cafes fo peculiarly from their nature appertaining thereto. I have not undertaken to say, that although the treaty of commerce with France, gives no right to the contracting parties, to fell their prizes in each other's ports, that fuch fale is unlawful; nor

As

S I have formerly had the honour of giving my fentiments to the house of delegates, on the measures now under their confideration, and the mortification too of feeing thofe fentiments difregarded, I fhould hardly think of lending them again the aid of my feeble exertions, if I were not too thoroughly perfuaded of their importance, to imagine I had done my duty by giving them my approbation in filence.

That I have every poffible reafon to be difcouraged from the profecution of regulations of this fort, it would be folly in me to doubt; for I have more than once been forry to find, that in a country which has fet even diftant Europe in a ferment, and lavifhed the blood of thoufands in defence of its liberties, against the encroachments of an arrogant and aban