
    * John Baxter and Another versus The New England Marine Insurance Company.
    The decision of a judge at a trial, that the sentence of a foreign Court of Vice-Admiralty is conclusive evidence of the facts alleged in it, does not militate with the rights of parties to a trial by jury, as secured by the fifteenth article of the declaration of rights.
    This cause (vide vol. 6, page 277) was again tried at the last November term, in this county, before Sewall, J., and a verdict being found for the defendants, the plaintiffs filed their exceptions to the opinion of the judge, which being allowed by him, the action stood over to this term for its final decision.
    The action was case upon a policy of insurance, and tried upon the general issue. At this last trial, the plaintiffs proved the loss of the vessel by capture, soon after leaving the port of Cadiz; and that at the time of' her departure it was not known or believed in Cadiz, that the said port was in a state of blockade, and that while the said brigantine was at the said port, and until her departure therefrom, neutral vessels, and especially American vessels, laden with merchandise, were continually arriving at and sailing from said port; whereupon the defendants produced in evidence the decree of the Vice-Admiralty Court, in .Gibraltar, stated in the former report of this cause, and contended that it was conclusive evidence in their favor, and sufficient to preclude the plaintiffs from producing any parole evidence to contradict said decree, and also from maintaining their action.
    Whereupon the plaintiffs contended that, pursuant to the provisions of the constitution of this commonwealth, the said decree ought not to be adjudged to be conclusive evidence against them , and that by the same they were entitled to the benefit of parole testimony, relative to the existence of the blockade, or to any supposed violation thereof, by the said brigantine, during the said voyage and to the verdict of a jury thereon. And they produced, and moved the judge to admit parole testimony to prove that the port of Cadiz was not blockaded at the time referred to, and that the vessel had not, during her said voyage, violated any other existing blockade.
    [ * 276 ] * The judge refused to admit such testimony, and instructed the jury, that they were bound in law to consider the decree aforesaid conclusive evidence against the plaintiffs; and that the said decree could not be legally contradicted or invalidated by any parole testimony whatever.
    This decision of the judge formed the ground of the plaintiffs’ exceptions, and of their motion for a new trial, which came on to be heard at this term.ϯ
    
      Dexter, in support of the motion,
    cited the fifteenth article of the declaration of rights, viz. “ In all controversies concerning property, and in all suits between two or more persons, except in cases in which, it has heretofore been otherwise used and practised, the parties have a right to trial by a jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners’ wages, the legislature shall hereafter find it necessary to alter it.” And he argued that in the present case, the plaintiffs had, in effect, been precluded from this constitutional right to a trial by jury.
    The execution of the policy, and the existence of the loss, were agreed. The defendants, to avoid the claim of the plaintiffs upon them, undertook to prove that the loss arose from the misconduct of the plaintiffs, or their agents, in violating a blockade: this the plaintiffs denied ; and this was, in fact, the whole controversy between them. This controversy has not been tried by the jury, nor has the right to such trial been secured to the plaintiffs, within the plain sense and meaning of the article above cited. The trial in the Court of Vice-Admiralty was between other parties, and that court has no jury. The decree was then no evidence that the plaintiffs had there had the trial contemplated: neither in this Court have they had such a trial; for the decree being considered as conclusive evidence, they have been precluded from contradicting it.
    *It is not denied that the Court are to judge of the [ * 277 ] competency of evidence, or what particular evidence shall be permitted to go to the jury. But if, after admitting evi dence, they go further, and decide, that the same is conclusive, and that no other evidence shall be received to contradict it, they exceed the constitutional limits of their authority; they try the cause, and not the jury. The plaintiffs offered evidence to prove that they had not broken any blockade; and such evidence as would, without any question, independently of the decree produced by the defendants, have been suitable and proper to establish the allegation. This evidence the judge rejected, and thereby deprived the plaintiffs of their right, and the jury of their proper powers and authority, as secured by the constitution.
    Such a decision, resting on a .prior decision, is determining the cause upon the issue of the former trial, to the exclusion of a jury ; it is equivalent to saying, that the question having been once tried, it cannot be here tried again. The phrase “ conclusive evidence ” merely avoids the question. Perhaps there is no evidence, consistently with the provision of the constitution, properly conclusive, except a judgment of one of our own courts; where the party has had, or might have had, a trial by jury. The Court have not authority to determine, that a former trial, not by a jury, and in another country, has excluded the party from a right to a trial by jury in his own country. This is to settle the merits of the very question in controversy, without the intervention of a jury ; and this being all the decision the controversy has had, the plaintiffs insist that they have yet a constitutional right to a fair trial by a jury. When the question between parties is a question of fact, as was the case here, for the Court to decide that the fact is already decided, is to take from the party, against whom the decision is, his right to a trial by jury.
    This cannot be said to be one of the excepted “ cases, in which it has heretofore been otherways used and practised.” The principle, which we are contesting, has never * been [ * 278 ] adopted here, nor did a similar case arise within this province or state, prior to the adoption of the constitution. Neither, if the exception should be construed to extend to the usage and practice of the English courts, will it derive any support from that source. The point was never decided there before the framing of our constitution ; and since that period there has been a great fluctu
    
      ation of opinion upon it, among the judges who have sat in West minster Hall.
    
    
      Hall, to show the vacillations of the English courts, upon the question of the conclusiveness of foreign sentences, referred the Court to the cases of De Souza vs. Ewer, Marsh. 326.—8 D. & E. 444, note (a), Lord Kenyon's acknowledgment.—Ibid. 192, Christie vs. Secretan.—7 D. & E. 681, Geyer vs. Aguilar.— 3 Bos. & Pul. 499, Lothian vs. Henderson. — 1 Camp. N. P. R. 418, Fisher vs. Ogle.—Ibid. 429.
    
      Jackson, for the defendants,
    believed that all the authorities pertinent to the question had been suggested to the Court at the former argument, or adverted to by them in forming their opinion ; and he thought it but idle to trouble them with a repetition of the authorities or points formerly as well as now relied on. As to the objection from the declaration of rights, which had now been pressed upon the Court, he believed it had occurred in the former argument, although no great weight seemed to be then attributed to it either at the bar or on the bench. The plain intention of the article cited is, that questions of fact are to be decided by a jury. But the question in this case is not of fact; for the defendants substantially admit every fact alleged by the plaintiffs: it is wholly a question of law, arising out of the construction of the contract, on which the plaintiffs have brought their action.
   The Court took time until the next morning, when their opinion (excepting the chief justice, who did not sit in the cause) was delivered as follows, by

Sedgwick, J.

The objection now made to the opinf * £79 ] ion * which has, in this case, been delivered by the Court, is, that the jury, by the direction of the judge who tried the cause, were prevented from trying a question of fact, which ought to have been submitted to their consideration. The question of fact on the trial, it is said, was, whether the loss, for which the plaintiffs seek a remedy, was or was not incurred by a breach of blockade; and it is insisted that the plaintiffs ought to have been permitted to prove that there was no breach of blockade. The judge, in conformity to the opinion of the Court, determined that the decree of the Court of Vice-Admiralty was conclusive evidence of this fact; whereas, it is said, that the jury ought to have been permitted to receive other proper evidence to show that the fact, in truth, was otherwise.

The argument of the counsel for the plaintiffs is founded on the fifteenth article of the declaration of rights.

The first answer to be given to this objection is, that the parties had in fact a trial by jury. The action was assumpsit, and the plea non assumpsit, and an issue was founded upon it. On the trial of this issue, a sentence of a Court of Vice-Admiralty was produced, and ruled by the judge, in conformity to the opinion of this Court, to be conclusive evidence of a- fact decisive between the parties. Now, there are certain species of evidence, which, by the known and established rules of law, are conclusive; and it is the duty of a judge conducting a trial, whenever such evidence is produced, to pronounce it so. Ad questiones legis judices, et non juratores respondent. Other evidence is called prima facie, which, unless contradicted or explained, becomes conclusive; and there is other evidence to be weighed by the jury. In each of these instances, the nature of the evidence must be stated and explained to the jury by the judge. Now, it is believed that it was not the intention of the article of the declaration of rights, which has been cited, to alter, or in any degree affect those rules which the law had established for the security of our rights and property, or the relative rights and powers of judges and juries.

* In the next place, at the trial of this cause, there [ * 280 ] was, in truth, no fact in controversy between these parties. This is frequently the case when the trial, in form and appearance, is a controversy of fact. Innumerable instances might be given, but sufficient will occur to every one acquainted with legal proceedings. In such cases the only question is the legal inference to be deducted from the fact. Such was the case here. If the loss sustained by the plaintiffs was incurred by a breach of blockade, they could never recover. To prove this fact, the defendants relied on the decree of the Court of Vice-Admiralty ; and if that was conclusive evidence of the fact, their defence was complete. Whether it was or was not conclusive, was merely a question of law, wholly within the province of the Court, and certainly without that of the jury.

Again ; the opinion of the Court was, that in such a contract ot insurance, as that in this case, it is the understanding of the parties, that if there shall be a condemnation for a breach of neutral duties, the underwriters shall be discharged. If this opinion be correct, — and it cannot now be called in question,—then the decree in this case was conclusive against the plaintiffs.

Upon the whole, we are all of opinion that judgment ought to be rendered on the verdict. 
      
       When this motion was first broken, and the grounds of it suggested to the Court, Sedgwick, J., said he was totally opposed to hearing it, considering the subject to nave been exhausted, and the point settled, by the former decision.
     