
    (Constitutional and Common Law.)
    Gelston, et al. v. Hoyt.
    Under the judiciary act of 1789', ch. 20. s. 25. giving appellato jurisdiction to iha supreme court of the United States, from the fina! , judgment or decree bf the highest court of law or equity of a state, in certain cases, the writ of error may be directed to any court in which the record and judgment on which it is. to act may bo found , and if the record has been remitted by the highest court, &c. to another court of the state, it may be brought by the .writ of error from that court.
    The courts of the United States have an exclusive cognizance of the questions of forfeiture upon, all seizures made under the laws of the United Staler; and it is not competent for a state court to entertain or decide such question of forfeiture. If a sentence of condemnation be definitively pronounced by tire proper court of the United States, 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 again litigated in any c'ommon 'aw forum.
    Where a seizure is made for a supposed forfeiture, under a law of the Uuited States, no action of trespass lies in any common law tribunal, until a final decree is pronounced upon the-proceeding in rent to en- ' force such forfeiture; for it depends upon the final decree of the court proceeding inrem whether such seizure is to be deemed' rightful or tortious, and the action, if brought before such decree is made, is brought too soon.
    If a suit be brought against the seizing officer for the supposed trespass while tile suit fot the forfeiture is depending, the fact of such pendency may bo pleaded in abatement, or a temporary bar of the action. If after a decree of condemns» in, 'then that fact may be pleaded as a bar; if after an acquittal, with a certificate of reasonable cause of seizure, then that may be pleaded as a bar. If, after.an acquittal without such certificate, then the officer is without any justification for the seizure, and it is definitively settled to be a tortious act. If to an-ac.tiotijof trespass in a state court for a seizure, the seizing officer plead the. fact of forfeiture in his dofotice without averring a lis pen. dens, or a condemnation, or an acquittal with a certificate of reasonable cause of seizure, the plea is bad ; for it attempts to put in issue the question of forfeiture in a state eoqrt.
    At common laay 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 is justified. By the act of the 18 th of February 1793, cb. 8. s. 27. officers of the revenue are authorized to make seizures of any ship or goods for any .breach of the laws of the United States.
    The statute of 1794, oh. 50. s. 3. prohibiting ..me fitting out any ship &c. for the service of any foreign prince or states, to cruise against the subjects, &c. of any other foreign prince or state, does not apply to any now government, unless it has been acknowledged by tho United States, or by thegovernment of the country to which such newfstate belonged. And a p'ea which sets up a forfeiture under that act in fitting out a ship to cruise against such new state, must aver such recog. nition, or it is bad.
    A plea justifying a seizure under this statute need not state the parlienlar prince or state by name, against whom the ship was intended;!® cruise.
    A plea justifying a seizure and detention by virtue of the 7th section of the act of 1794, under the exprese instructions of (lie president, must aver that thtjiaval or military force of the United States was employed for that purpose, and that the' seizor belonged to th.c force so employed. The 7th section of the act was not intended to apply except to cases where a seizure or detention could not he enfoiced by the" ordinary power, and there was a necessity, in the opinion of the President, to employ naval or military power for this purpose.
    To trespass for taking and detaining, and converting property, it is sufficient to plead a justification of the tilting and detention'; and if the plaintiff relies on tile conversion, he should reply it by way of new as signment.
    A plea alleging a seizure for a forfeiture as n justification, should not only state the facts relied oh to establish the forfeiture, but aver that thereby the property became, and was actually, forfeited,, and was seized as forfeited.
    ■ Errqs to tbe court fot the trial of impeachments attd 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, iu favour of Hoyt,, thé 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 New-York, according to the laws of the state of New-York, and the practice of that, court, .h^id remitted the record, which had been removed from the supreme court of the state of .New-York-, to the said su" preme 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, rthe 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 New-York, ss. The president of the senate» the senators, chancellor, ' and judges of the suprem e court, in the court for the trial of impeachments and the correction of errors; certify and return to th§ 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 iij 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 slaté of New-Yorit^ entered into the fallowing agreement, viz. “It is agreed, between the attorneys of th& above'named 'plaintiffs and defendant in error, that the annexéd_isatruecópy of the'record and bill of exceptions, returned by thevsupreme court of the state oF Ne’w-York, to.the court'bf errors of the said state,-and remitted by the said court of errors, in the affirmance of the judgment of the sard.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 sard record and bill of exceptions, and shall have the samé effect as- if annexed fo the writ bi' error in the above cause from the said- supreme court of the United States, and that the clerk of the suprems. court of the state of New-York transmit the same, with this ágreément 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 Slates, to the said writ óf 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. Re 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 impiéaded 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.- Schenckj 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 therg found did take .and carry a,wa}r, 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, fpr 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 chattel's 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 injúHes. to the said plaintiff then, and there dirt, 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, tó wit,, on the same day and year, and at the place aforesaid, the.goods and chattels óf 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 shi|5-broad, of the value of two hundred thous- and dollars, then ..and there being and found, seised, ’took, earned away, damaged, and spoiled, and converted and disposed thereof, to their own usej 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 thátthé said defendants, on the sa;ne 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 s'hip o,r vessel of the said plaintiff of great value* to wit, of the value of two hundred thousand dollars, and 1n which-said ship ot 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 «aid. 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 .fnight and would otherwise have arisen and accrued'to him therefrom, to wit, at the city, county arid 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 datriage of. the said plaintiff. And also, for that the said defendants, afterwards, to wit, ’ ori 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 ofthe said plaintiff, then and there fo.und, and being in the whole ofa large value, that is to say, a ship or vessel of the said plaintiff, called the American Eagle, together, with her tacklé, appar.el, 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 j of the. val ue 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 ana chattels afterwards took and carried away, from and out of the possession of the said plaintiff: whereby, arid by rea-, son, 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 wa,s also forced.and obliged to, and did ‘actually, iay out and expend large, sums oi money, and to be at further trouble and expense in afid 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 suit5 &c„
    And the said David Gelston and Peter A. Schenck thereto pleaded in the words following :
    , 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. '
    And for a further pléain this behalf, as to the-several trespasses mentioned in the first, second, third, fodrth¿ 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 s.aid-plaintiff, to wit, a ship or ve'ssel of-the -said plaintiff, called the American Eagle, together With her tackle,, apparel, and furniture, five . hundred, tens 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, takings carrying, away, damaging, spoiling, converting, and disposing .to their own use, the good* and chattels o£,the said, plaintiff,.to ¡yit,-a ship or vessel of*the said plaintiff; called the American Eagle, together with her taclde, apparel, and furniture, five hundred tons-of ston&jballast, one hup'dred hogsheads of waipigpne hundred and thirty .barrels of salted provisions,'and twent-ydiogs beads of ship-bread, mentioned in the. third count in the said declaration of the said plaintiff; in-seizihg, taking, carrying away, keeping, and detaining; and ■converting and disposing to their o wn use, a certain ship or vessel of the said plaintiff, mentioned in the fourth cppnt in the said declaration-of the said plaintiff, and. ip 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,_ men tinned 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. Sdhenck; 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 pía in tain 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 wa- , ter,'one hundred and' thirty barrels of salted provi- . sions, 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 Gels-ton 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 j. and that the seizing, carrying away, keeping and detailing, 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 usej • 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 eount 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 sata second, third, and fifth counts iii 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 Helston 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, iii the district of New-York, to wit, , at the city Of NeW-York, in.the county of New-York, and,' -ft the first ward of the said city, the said ship or vessel, called the American Eagle, with her tackle, appatel, 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 hogs* heads of ship-bread', were- then and there procured for equipment of the said vessel, and were then an-' “there on board of the said vessel, as a 'part of her said equipment, with intent that the said ship or ves* sel,' called the American Eagle, should be employed in the service of a foreign statei 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 Christophs, contrary to the form of the statute in such .case made and pro-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 th& laid United States,.^id, afterwards, to wit, on the sixth day of July, in the year last aforesaid, at Washington, to wit, at the city of NewYórk, 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 Gélston 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-Yorlc, 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 raid 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 previsions, 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 hogs-heads 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 sail David Gejston' 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,
    3'. And for a further plea iri this behalf, ás 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 cháttels- of the, said plaintiff, to- wit; a ship or vessel' of the said plaintiff, called Ahe American Eagle, together with her' tackle, apparel, and1 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 owii use, .the goods and chattels of the said plaintiff; fo wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, gnd 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 ptaintifF; in seizing, taking, carrying away, keeping and detaining, and convert* fng and disposing to' their own use, a Certain ship or vessel of the said plaintiff, mentioned in the fourth gount 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 twen ty 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 f'o the form of the statute in such case made and provided, say, that the said Goold Hoyt ought not to- ha-Ve or maintain' his aforesaid action against th^m, 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 iñ' 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 pwn 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 arid thirty barrels of salted provisions, and twenty hogsheads of ship-bread, mentioned in the second, third, and fifth counts in the -sí id 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 count's 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-Yorlc, 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, thp said ship or vessel, called the American Eagle, with h.er 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 slate, 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 there 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 tne ward aforesaid, authorize, empower, instruct, and direct the said Dayid 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 ston£ ballast, one Hundred hogsheads of water, one hrjndred ahd 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, tó 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 actin' 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 thp -sqid five hundred tons of stone ballast, one hundred . hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogshead's of ship-bread, by the said David Gelston and Peter'A. Schenck, on the tenth day of July, one thousand eight hundred ánd 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 bal-, last, one hundred hogsheads of water, one hundred and thirty banels 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. Sqhenck, are ready to .verify; .wherefore they pray judgment if the said Goold Hoyt ought to have or maintain his aforesaid action thereof against them, &e.
    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^, t hat the ship or vessel called the American Eagle, with her tackle, apparel, and furniture, before1 -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, do wit, at the city of New-York, in thé county of New-York, and at the first ward of the said city, was attempted to he 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 ft part of her said- equipment,' with intent that thé said ship or vess'e'l, 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 thé 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, con? trary to- the form of the statute in such case made . and provided: And the !said‘. defendants will also intist upon, and-give in evidence under the-said plea, that, thfe said ship or vessel, with her tackle, apparel, and furniture, on the day and year last aforesaid, at the port of New-York, ;n 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 oút and armed, and that the said five hundred ^ons 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 thé equipment of the said vessel, and were then and there on board of the said vessel, as a part of her said equipment, withrintent that the said ship or' vessel should he employed in the service of some foreign prince or state, tó 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 ple.a, 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 lQth day of July one thousand eight hundred and ten, and before that time,, and that they have ever since continued to he collector and surveyor as aforesaid, and that they, the said David Gelston and Peter A. Schénck as collector- and surveyor as aforesaid, and , not oth. erwise, 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 pro. visions, and twenty hogsheads of ship-bread, according to the forih of the statutenn such case made and provided, and by virtue of the power and authoiity vested i.n 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 Qelston 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 j)>Tniim>r Peter A. Schenck, "by them secondly and thirdly above' pleaded in Dar, 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 ahovfe pleaded and set forth, áre not sufficient;, in law,’ to bar and precise him,, the said' Goeád Hoyt, from having and maintaining his action aforesaid, against the said David’ Gelston and Peter A- Schenck; and that he, the said Goi^ld Hoyt, is not bound by the law of the land to answer the same, .and this hfe-is ready to verify ;■ wherefore, for want of a sufficient plea in-- this behalf, the said Goold Hoy} prays judgment, an^d his damages by him sustained, On occasion of the .committing of the said trespasses, to he 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 s.aid pleas, by them secondly and third ■ ly 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 h.is aforesaid action i thereof, against, them, the said David Gelston and Peter A.. Schenck: and that-they, the said David Gelston.and Peter A/Schencic, are ready to verify and prove the same, when, where, and in ,se,ch manner as the said coux tsha'Il direct j wherefore, inasmuch, as the said Goold Hoyt has - not answered the saifl second and third pleas, nor hitherto, in any manner, denied the same, -the said David Gel-«ton and Peter A. Schenck. pray judgment, and that the said Gooid Hoyt may be barred from having, or maintaining, his aforesaid .action thereof against them, the said David Gelston and Peter A. Schenck, &c.
    Bill of Ex
    
    And, afterwards, .the said demurrer was brought pn tobe 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 - •said,' in and for the said city and county, on the fifteenth day of November, m 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 of1 judicature of the pe.ople the stale"' of New-York, assigned to hold pleas in the «aid sittings, according to the forra of the statute in such case made and provided, the aforesaid issue, «p joined between ihe said 'parties as aforesaid, came on to be tried by'a jury of the city and county of New? York aforesaid, for that purpose empanneled, .that 13 ■to say, Walter Sawyer, Edward Wade. William Prjpr, James M‘Cready, Richard Loines, John Rodgers, Ásher Marx, Benjamin Gomez, Samuel Milbanks, James E. Jennings, George Riker, and Jacob Batting, good and lawful men of the city and county.of N.ew-York, aforesaid, at which day came 'thpr.e as well the. said Gooid Hoyt as the, said David Gelston •and Peter A.. Schenck, by their respective attorniys ¡afoyesaid, and the jurors of the jury, empanpeled lo 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 purpos.e the counsel" of the said-Goold Hoyt gave' in evidence the proceedings in the said district court of thfe 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 at-, tempted tó be fitted out and armed, and equipped and furnished, with intent to be employed in the. service ojf Petion against Christophe, and in the service of that part of the island óf St. Domingo which was then under the-government of Petion, against that' part of the said island . of St; Domingo whieh was. then under the government of Christophe, contrary to ,the statute in such case made arid 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 staid 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 elevep; an application had been made to the .said district court, by me said Goold Hoyt, to have the said ship appraised, and to have her delivered up to him on giving security fo'r her apprised 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 béen 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 bis 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 I he part of. the jblaintiff as aforesaid, were insufficient, and ought not io 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, prav the said justice io 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 tot 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, fhé same were sufficient, and ought to be admitted and ai~ ióWed'to be sufficient to entitle .the said plaintiff to a Verdict; a'nd the said justice did then and there declare Urid 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 ¿aid jústicé, 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 oiight to be nonsuited.
    After the said motion for a nonsuit had been refused, and the opinion-of the said justice1 had been excepted to as aforesaid, the . counsel of the said. ©bold 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 an 1 tén, to wit, on the first day of duly, 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 cityf was attempted to be fitted out and armed, and w^s 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 prócuréd 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 (he American Eagle, shonlcf 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 ease made and provided.
    And the- said - counsel of the said defendants did, then and ’ thercj 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, asr .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 New1-York, in the -southern- district of New-York, to -wit, at the city of New-York,' in the eounty'of New-York, And at the first ward .of-the said-city, seize, take, and detain thé said ship or- vessel with' her táckle, apparel,. and furniture, and the. said five hundred tops of stone .ballast, hue.' hundred hogsheads of water, one hundred and thirty barrels ofs.álted provisions, and twenty hogsheads of ship-bread, according to the form óf the statute in suck, ©a-se made and provided, and by'Virtue of the. power, ■asad 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 be half 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 of 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, tha.t the same ought not -to be admitted, or allowed to be proved or given- in evidence, iti • justification of ihe trespass charged against the said defendants,' atlá 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 defendant^- had not been influenced by any malicious motives in making the said .-seizure, - aád that they had not acted With any view or design of oppressing or injuring the P^a*nt^- -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 hot 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 apd seven thousand three hundred and sixtj'-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 irhevidence, ought to have been admitted and given ¿vidence 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 thé said several matters so produced and given in evidence on the part of the -«aid plaintiff, and by the. counsel of the said defeacfonts objected to, as insufficient evidence to entitle the said plaintiff to a verdict as aforesaid, nor the said several matters'.so offered to bp 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 da-, marres claimed by the plaintiff as aforesaid, appear by the record of the verdict aforesaid, me said counsel for the said defendants did, then and there, propose their exceptions to the opinions an<^ 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 cáse 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 he district court.to be set out more at length, then it is, understood,that such proceedings shall be engrafted isleto the bill of exceptions, and form part , thereof.
    (Signed) AMBROSE SPENCER,
    tL.S.j
    
      The bill of exceptions being carried before the su-> preme court of the state of New-York, the exception-^' were disallowed by the. court. The. cause w’as 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 tiras 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, jn general terms, a.provision that it shall be-lawful for any revenue officer to go on board of any vessel for purposes of search an<. examination ; and if it appear that a-breach of any Jaw has been committed, whereby a forfeiture has been incurred, to make"a seizure.. It has been the wise-policy oYthe 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 j some relaxation of the rules of pleading, or other immunities are extended to- him. It is the same With mayors,, bailiffs, churchwardens, overseers, anda 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. ÍI. nojustice 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, geveíál 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, T70. the collectors of the customs were authorised to detain any1 vessel ostensibly bound with-S cargo to some other port of the United States, - whenever, in their opiuions, there existed any intention to'* violate-on evade any of the provisions of the acts laying- an embargo,- until the decision of the prfesideht cotild'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. So,also, in fhé law.just passed, to pieserve more 'effectu-. ally our. neutral relations, a principle closely analogous has been introduced 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'merchan-dise, made by-aiiy collector or other qffieer under say 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 proseeution 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; aud 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 tc all the real merits. Jt will, perhaps, be said, that the judgment of the district court restoring the vessel, and refusing the certificabais 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 décisions upon the conclusiveness of judgments, fr.om that in Fernandez v. Be Acosta', 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 law1, 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 pf the judgment, turning away from thé 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. In how many more of the states it has been -broken down is not known, but -it is not supposed to be a doctrine enti-. fled to any peculiar favour in this court, But the difference between a sentence of condemnation and of acquittal is material. An acquittal does not ascer-. ■ -tain factb, A conviction does. Its character is posi-. five. 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 tíie reverse of it is not shown by an acquittal. Even in a common action for assault and-battery, the. plaintiff cannot rely upon 3 conviction upon an indictment for the same assault. The consequence is, that the defendant may defend himself against the suit by going into the original facts. The plaintiffs in error asked no riiore'below. So also, to .support an action for malicious prosecu-' fion, malace in the defendant, and want of probable cause, must both" concur. If, in this action, an acquittal has bee ] had upon the'indictment., the plaintiff may still lay before the jury the eyidence which was heard on the indictment, viz. all the facts and circumstances to show that the prosecution was mali-’ cious, 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 léad to the conclusion,that the special matter ought to have gone before the jury. If it did nót justify the seizure and detention, it might have served to mitigate the damage?. The admission of the plaintiff’s counsel, that the defendants below were pot actuated by any malicious or vindictive motive, was not tantamount to hearing all the special matter, since it might, and no doubt would, have estab- ' lished 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 meritoria ous public officers, are in danger of being crushed urn der 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 pleg contains -matter, which the demurrer itself admits* and which entitled the defendants below to iudg-. ■ nmnt. 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 oi t 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.,Domjngo was not a state, or Christophe a prince1? 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?1 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 la the former decisions of this court in Rose- v. Himelyy but think' that there are solid grounds for distinguishing thé 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. Himelyy took place in February, 1808. At that époch, Ih.é act of congress specifically cutting off intercourse with St Domingo, and treating it as á. dependency of France, was in full, force. For the judiciary to have pro» nóuncéd this island an independent state, whilst the legislature considered it as a colony, wóuíd have disturbed the harmony' of thé differént parts of the governing power. It would not- be e'^sy fd forésee the -mischiefs of such a conflict of authority and opinión. Look jo the South American provinces at this? moment. Spain claims them as her. lawful dominion": no power in . ¡Europe has acknowledged their independence':. , yetj in- some of them, the authority óf the once-mother .country, is wholly át 'án end. Now* what embarrassments might hot result^ if, after the letter of ‘the secretary of state of the 19th bf Janu*-ary,. 1816, to the Spanish minister, our courts should pronounce Buenos- Ayres, for example, to be fíghtfu-lly in its full colonial, dependence Upon Spain. Vattel’S «"^hofity upon this subject-is decisive* According to him, we are. tó 1‘óok to the state of -things de facto taking each party to be in the right. The rule laid down in Rbse v, Himely, that such language was to be addressed to, sovereigns, not courts, may have .been applicable to the condition in whieh St. Domingo then was. It cannpt, 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 wat of more than 'half a century with Spain. Spain never ceased to call it a rebellion. Rut what were the sympathies, what the conduct of protestant Europe, towards them during the principal part of the time? What that of Fngianu, in particular, wno aia not scruple tó 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:1 and if courts Of justice are - to wait until France relinquishes her claim, that day .may. be indefinite indeed. The act. of congress, 'whichspecifically. interdicted intercourse with St. • Domingo, considered as a colony of France, expired in April, 18G8: It was v in full force at the timepf the .decision in Rose v.-Himely, which Con - stitutes another marked distinction between that casé and the present. As to the condemnations which it may be alleged took pláce under the general non-in» tercourse laws passed afterwards, of vessels coming, Brom St. Domingo, upon the footing of its belonging to France, no inference against the argument can be hence deduced. In , the first place, those láws left it Wholly indefinite as to. what Colonies did or did not belong '.to Francej 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 nextplaép^ as . far as is known, it ..appears that the government remitted the forfeitures in all such cases of.condemn nation, thereby manifesting its opinion, if qny inference is to be drawn, that time, and the progress,of evfentsyhad. at -length taken -tins' island out .of the ,'tttttt 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. Alead-’ ing 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 questiori.
    Mr. Hoffman, and Mr. D. B. Ogden, for the defendant in error.
    1. This court is riot competent to take cognizance of this cause, under the 25th section of the judiciary act of 1789, ch. 20. Tbe 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. J3ut 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. SO*Gn 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 coutt. Parties litigant are bound to exercise their rights, according to the law and practice of the forum where' they attempt to assert them., If fhey- 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 ■has not claimed that right according to the local law and practice. — 2. If, however, the couft 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 but, and arm or attempt, to fit out and arm, or. procure to he 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 ox. vessel shall be employed in the service of any foreign prince orstate, 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, ike. <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 1 thereof; shall be forfeited, one half to any person who shall give inhumation of- the offence, and. the other half to th-e use of t he United States.” The defendr ants' below merely - offeréd ' 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 govern-, mént of Petion, to cruise and commit hostilities un-i on 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 pf these parts of the island was %, 
      ioreign 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 un» altered, and the sovereign power of France oyer that colony as still subsisting.” The same principal has also been .recognised by the highest British tribunals, both as applicable tó the case S>f St. Domingo, and to other revolutions of states not re .cognised by the government of the country where the tribunal is sitting that is required to take notice of them. What would be the absurd con- , sequences of leaving each tribunal tq 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 1 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 coif» stitution. ' 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 ot the island by the swórd. 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. — 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 tor 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. 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. 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. But what is still more pertinent to the present case, the court has deteimined that the ques-. tion, 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. 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. — 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 iüalice, or any intention to oppress the plaintiff below. But the question whether there was or was not reasonable cause of seizure, isa question which is expressly submitted to the district court by the statutes of the United States, and over which this court has declared the district court had exclusive cognizance. A certificate of reasonable causo for tne seizure having been denied by the district court, every other tribunal is. as much precluded, except. pa appeal, from examining whether there was or was not reasonable cause for the seizure, as they ate from examining Urhether' there was or was nbt 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 uncohtradicted 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 set-', tied that probable causé is no justification of an illegal seizure,- unless it be made- a justification- by sta tute. Nor can evidence of probable cause be re ce'ived, to mitigate the damages in cases where there is a disclaimer as'to every thing hut actual damages. For whether there was or was not malice or proba, ble cause, the actual damages sustained must' he recovered for ah illegal,, seizure, or for any other tres' pass, if any thing whatever is recovered. — 5. The second and third pleas of the defendant below ar.e manifestly- had on' general demurrer. First. Fer tion 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.® 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 á-n-illegal, act: If no illegal act be. proved, thére can be no - justification under the order. Were it otherwise, thé president would be a despot. The 7th. section óf 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 0f 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- Stales, 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 statp 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 haye empowered, for that purpose, to employ such part of the lan'd 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, pith her prize or prizes, if anyi in order to the execution of the prohibitions and penalties of this act, and. to the. restoring such prize of prizes-, in the cases in which restoration . shall have been adjudged, apd 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 d minions of a foreign prince or state with whom the. United States are at peace.” Under" this provision, the president could not authorize - thé defendants below to seize; He, could, only employ the army and havy, of 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 >nly au thorize a taking possession of and detaining the vessel, in order to the execution of the penalties and' prohibitions of the act. The vessel migh, 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 17S0, 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 decisión, is final and-conclusive upon every other tribunal.' Or suppose that the plaintifi had replied, that Petion. and Christ’ophe 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 m 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 con-r siderations which they cannot notice. Again; iff the plaintiff had .replied that the president had given n<* . 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, 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 itselfj where the plea was pleaded. Fifthly. The 3d section of the act of ,1794, after specifying'the offences meant tobe pun-, ■ished,- 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 ithe term of imp isonment shall not exceed three, years; and every such ship or vessel, her tackle, ap._ parel, 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 measuré 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 ser vice of some foreign state, to commit hostilities upon the subjects of another foreign state,- with which the United States #ere 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. 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 be intended to have advantage of it. The forfeiture was well pleaded* The offence being committed, the forfeiture instantly attaches. The plea here states, that the ship was seized £4as forfeited,” in the same manner with that which was held good in Wilkins v. Despard, 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 tne act of 1794, evidently contemplates the employment of- that description of force, only when, in the opinion of the oresident, 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!-»» 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 Cbristophe 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 ^nodes. 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 j to in dicate 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 defacto 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 isl ■ and 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 apt; by an executive proclamation; by sending to, or receiving from the new state, a public, minister or other diplomatic agent. Thirdly. Théir independence may also be recognized, by a treaty of cession from the patent 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 he deposited in the archives of a foreign, or of our own government. It may, require tó he 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 oí fact? to be tried by the jury, and, consequently, the plaintiff ought to have replied, that Petíon and Christophe were not independent princes ox 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 unreveised 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 he conclusive as to other persons than those claiming titld to the property; 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' nó precise facts. It only shows that sufficient evidence did not appeár to the court to authorize a condemnation. Why is a decree of condemnation held to he conclusive? Because it isa basis of the title to the thing condemned. But an acquittal forms no part of the title to the thing acquitted, which is restoréd to the former proprietor, who holds it. by the same title ns before. The case, said to have been decided before Baron Price, in the year 1716, is not pertinent. The elementary writers dp not consider this.as.an adjudged point in any of the cases; and their authority, which is of great weight, makes' a distintinction, founded in reason and the nature of things, between a sentence of condemnation and a sentence of acquittal. All the authorities confine the cpnclusiveness 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 á 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. So, ip this case, the defendants below were Pot 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 goverhment and by its law officers; the defendants had no control over if, and could not appeal from the decision of the. district court. They ought not, therefore, to be concluded by it.
    
      Feb. 23d.
    Feb. 27th.
    The cause was again argued at the present term, by Mr, Baldnmn for the plaintiffs in error, and by Mr. D. B. Ogden and by Mr. Jones for the defendant in- error
    
      
       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 seo the this cause m the court of errors, cjpiqion of Chancellor Kent in 13 Johns. Rep. 576.
    
    
      
      
         Rose v. Himely, 4 Cranch, 292.
    
    
      
      
         1 Edwards, 1. and Appendix, G. The city of Berne v The Bank of England, 8 Ves. 347.
    
    
      
      
         Vanderheuval v. The United Ins. Co. 2 Johns Cas. 127, and the authorities there cited. The authorities collected in the same case, t Caines' Cases in Error, 217, and by Mr. Chief Justice (notv Chancellor) Kent, iq his opitiicin 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 Feb. 1807. ch. 74.
    
    
      
      
        5 T. R. 112.
    
    
      
      
         Com. Dig. tit. Action on v. Robe. 2 Strange, 999. 2 Stat. (A. 3.) pl. 1. Davy v. Saund. 379. Radford v. Baker, 4 Burr. 2471. Rex M'Intosh, 3 T. R. 636.
    
    
      
      
         Taylor v. Cole, 3 T. R. 292.
    
    
      
       The Mars, 8 Cranch, 417.
      
    
    
      
      
         Vahdenheuvel v. The United Ins. Co. 2 Caines’ Cas. 212. S. C. 1 John. 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 oh Evid. 228, 229. 2 Evan’s Pothier, 354.
    
    
      
       2 Evans’ Pothier, Ib.
      
    
   Mr. Justice Story

delivered the opinion qf the fcourt. This is a writ of error to the highest court o. 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 p.urview of the 25th1 section of. the judiciary act of 1789, ch. 20.

Under thassih section of uta judiciary act ofl789.ch.S0 the writ ofer directed to any which the re mm<mta^Jrnf may **

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

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

. By the judicial System of the state óf New-York, the decisions of their supreme court are revised and corrected in a court of errors, after which the record . 7 is returned to the supreme cauri, where the ludgment . , , , ’ v , . as corrected is entered, and where the record remains, In this case the writ of error was received by court of errors, after the record had been transmitted to the supreme, court, whose judgment was affirmed.

It Is contended that, the record being ho longer the court of the last resort in the state, can, by ho cess, he removed into this court.

The judiciary act, allows the party who thinks, him" self aggrieved by the decision of any inferior court, five years, within which he may sue out his writ ‘of er. ror, and bring his cause into this court. The satne 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.

The words of the act are, “ that a final judgment tor 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-examinod 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 cars execute'll; to that in which the record and judgment to he 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 low requires a thing to he 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 he examined- must be that of the highest court of the state having cognizance of the case,- but the record- of that, judgment may he brought from any court in which it may be legally deposited, and in which it may he found by the writ

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 thiags the parties consented to waive all ob_ jections to the direction of the writ, and to consider the record as properly brought up, it, in the opinion of this court, it could be now properly brought up on a writ of error directed to the supreme court of Ne>v-York, The court being of opinion that this may be done, the case' stands as if the" writ of error had been properly directed.

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 con verting.to their own use, the ship American Eagle, and her appurtenances, and certain ballast and articles of pro-, visions, &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 boárd 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 statej 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 ofChristophe, contrary to the. form of the statute .in ,auch case roadeand provided; and that the original defendants, by virtue of the power and authority, awd in pursuance of the instruction sand directions of the president of the United1 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 aftd penalties of the act in such case made and provided, and except'. that ,it omits the allegations lintifer the videlicets in the first plea, specifying the? foreign state b'y or Against whom the said ship was ,to.,be employed. To these pleas tfieFe is a general deihurret, and joinder in demurrer, updn .which thfe state court gayé judgment ih favour, of the original. plaintiff. Upon the trial of the general issue, a'bill o£ 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 tjie seizure, had been duly" libelled for the alleged offence in the district eonrt of New-York• thát the original plaintiff appeared and duly claimed! the said, ship; and upon the trial she was duty 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 sáid ship had -beair deiutd. The plaintiff -then gavéin evldence, that the Value of the ship at the timé 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 laid several matters, so produced and given in evidencé on the part of the original plaintiff, were hot 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^ thaf 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 bad purchase her of John R. Livingston and Isaac Glason, the owners thereof, and Uiat in pursuance of such purchase, the said Gillespie had delivered full ahd cóm-† píete possession of the said ship, &c. to the original' plaintiff, before the taking thereof by the original defendants.

The original defendants (having given previoas notice of the special matter of defence to be given in evidence on the trial under the general issue, accordlng 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 «aid Gelston was collector, and the said. SchencR was surveyor of the customs of the district of’ rsewYork, 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 ofiered 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 he proved by the original defendants, and did declare it to be inadmissible in justification of the trespass charged against the defendants;' fend after'the admission so madé by the original plaintiff’s counsel, that the said evidence ought not to be received in mitigation or diminution of the said drimages, 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.

From this summary of the pleadings, and of the facts in controversy at the trial, it is apparent that, this court has appellate jurisdiction ofthis cause, only so far as is drawn in question the validity ot an ■ authority exercised under, the United Stales, . and the decision is against the validity thereof arid 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' nbthing 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.

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 hhn to a verdict, no err^r has been shown upon the argument; and certainly none is perceived by this qourt. 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.

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 n6 doubt that this court has appellate jurisdiction,-if by law that evidence ought to have'béén , admitted in justification of "the trespass charged on the .-‘Original defendants;.for it iftf httbS the construction of a statute of, and an autjihnty derived from, and exercised under, the United States.

At common lw any son may,at. his peril, seize for the01 'govern-went.

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 wás 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.

Upon'the last' point, there does not seem to be rocm for doubt. At common law, any person . _ J may at his peril, seize fora 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,) thére can be no doubt, that he is entitled in that character to seize. (Roberts v. Witherhead, 12 Mod. 92.) In the absénce 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 ve.sseis and goods liable to seizure by virtue of any act J J . of the United. States, respecting the revenue, and . , , , r , assuming the statute of 1794, ch. 50. not to be a revenue law within the meaning of this clause, still the'pase falls within the broader language of the' act- of the 18th of February 1793, ch. 8. s. 27. which authorizes thp 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 béen, abové stated, and upon -the express enactment of the statute, the defendants, supposing thereto have been an actual, forfeiture, might justify'themselves in the seizure. There Is this strong additional reason in support of the sition, that the forféiture' must be. deemed to attach at the moment-of the-commission'of the offence, and consequently, fronji that moment, the title of the plaintiff would he completely devested, so that he could maintain.no action for the subsequent seizure. This the doctfine 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.)

B}r s[atute °®cers'°^ revenue- may seize where the laws of the United States }^|bee" Ti<^

attaches^'i»^ m<* fence is com propeny^irt dev“t'

States’ Courts j^^Hf " of quest’0118 derthelawsof the . United States, Their. condemnation*" “

In the next place, can a state ' court of common law, entertain and decide the question of forfeiture inf 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 Unite.d 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. 2(X s. 9. the district courts are invested with easeful• give 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 term's of the- statutes, exclusively belongs to the proper court .of the United States; and it depends upon its.final decree,.proceeding m rem, whether the seizure is to' be adjudged rightful or tortious. If.a sentence of condemnation bq 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 adhére.

The reasonableness 'of this doctrine results from the very nature of proceedings in rem. All persons haying an interest in the subject mfitter,.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 •iii controversy, and settles the title of the property it" •elf, 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 dqcide, the consequences would be most mischievous to the public. In case oí 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 mav not be exclusive. But it applies with greater -force to tt court ot exclusive jurisdiction;, since an attempt to re-examing its decree, or deny its conclusiveness, is .a manliest 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 ñas pronounced to be valid until vacated or reversed on appeal by a superior tribunal.

An action fir the seizure cannot bo stategcourt of beforeTi^de“si.on th# United States*1 rm?e S **

The argument against this doctrine, which has been . , urged at tñe bar, is, that an action of trespass will in cáse 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 J , . defence. But at what.time and under what stances 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 ascértained whether it be a trespass or not, since the decree can alone decide whether he taking be rightful dr 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-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 . . seizure, then m the former case by the general law, and 111 the latter case by the special enactment of the statute of the 25th of April, 1810, ch. 64. S.T. the de- and certificate are each good bars to the action, , . y But if there be a decree of acquittal and a denial'of such certificate, then the seizure is established conclusively . / ' he tortious, and the party is entitled to bis: full.dama- . ,, . . ges for the injury.

If the ter a^etfndem"nation, or pcquitthi with a certificate eausq"of seizor0’ cer^Icate may be ed m bar.

_ But if upon the acquittal, a certificate is ..refused, the Súsivcly estaWished to be tortious j and the-fact of forfenfire cannot be pleaded in íguBU,draTO in question in the state court.

Thé cases also- of Wilkins v. Despard, (6. T. R. 112.) and Roberts v. Witherhead (12 Mod. 92. Salk. 323.) have been relied on to shd.w that a court of , , - common . law many entertain the question of lorfeiture> notwithstanding the exclusive jurisdiction 'of 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 sire for the same in amj court óf record” So that at js apparent that in respect to forfeitures under this statute, the exchequer had not ®ji exclusive jurisdiction, 'but that; the other courts of common law had At least a concurrent jurisdiction! And if these cases clid 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 oww courts.

The decision exclusive junsdietion, is completely the "judgment ^[^vhe» íh® *am® sub" jedt matter comesIncidenverey.in oontr°

Tt is, therefore, clearly our opinion, that a state court .hhs no legal authority to entertain the quesfion of foffeiture in this cas,e; and that it.exclusively belonged to the cognizance of the proper court of the United States. Indeed no principie of general law seems better settled, than that the decision oi a court of a peculiar and exclusive jurisdiction must be completely hind- . . • .. mg upon, the judgment of every other court, m which the snrdie subject matter comes incidentally in controwersy. It is familiarly known in its application tó the sentences Of ecclesiastical courts, in the probate of . drills and granting of administrations of.personal estate; te the sentences of prize courts in all matters of prize jurisdiction ; and to the sentences of eodrts of admiralty and other courts acting in rem, either to. enforce forfeitures or to decide civil rights.

In the preceding discussion, we have been unavpidably 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 ili a case where there is an exclusive jurisdiction. In clases of condemnation the authorities are so distinct and pointed, that it would, after the Very: learned discussions in tha state courts, be a. vtaste of time to examine them at large. . Nothing caji be better settled, than that a sentence of condemnation is, in an action of trespass for the . property ttite0, 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, 340 to 367.).

_ ... PttjaSietSa conclusive, «entena eondemnation <3f acquittal.

A. distinction, . however; ha», been taketi >b4 *t-tempted to. be sustaifaed'at the bar* between the effect , . . , „ ,. * of a’ eeritepee ofconderanatfon and ,óf á sentence of It.ia admitted that the former i» c.onclug;ve . bnt it is said that it is. otherwise aft, to the latter, for it Ascertains no fact; It is; certainly incumbent on .the par ty-who asserts such a distinction to prove jtg existence by direct, authorities, or induction» 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 J)e Grey declare»' that' the rufo of evidence must1 be,r as it is often, declared tó be, reciprocal;, and' that, in all cases.in which• the .sentences favourable to the party are to b§ admitted as conclusiyf? 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 ; apd though,.delivered, in .terms applicable strictly .to. a criminal suit, must-he doomed equally to apply to civil suits and sentences. And upon principle, where is there to be found a subsfaatial difference between a sentence of condemnstion and of acauittal in rern ? If the former ascertains and fixes the forfeiture, and, therefore, it is conclusive, the latter no less ascertains that mere 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 tor the same sub-posed; offence;. or if made, mat the former sentence Would not,'as evidence, be conclusive, and, as a bar, be peremptory against the second suit in rent. 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 hbi evidence against him, if found another way. If such were the rule, it would be a perfect anomaly in the láw, and utterly subversive of the first principles of re ciprocal justice. The only authority relied on for this purpose is a dictum in. Butter's Nisi Prius, (245.) where it is said that though a conviction in a court of •criminal jurisdiction be conclusive evidence of the fact, ilit aCterwaids come collaterally in 'Controversy in a -coart of Civil, jurisdiction; yet an acquittal in such wxurt is no proof of .the reverse, for an acquittal ascertains ho 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 forfeit" ure. It should therefore d>e 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 indirect», ly. the forfeiture might be enforced through the seizing officer; and that he should be at liberty to asseit a twtie for the government, which is judicially abandoned by,.or conclusively established against, the government itself.

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 seatehcé of condemnation and yet in such case .this sentence would have been conclusive evidence in fa-r voiir of the defendants. The reason, however, of this ruleis.to be found in the nature of proceedings in rem. To.such proceedings all persons having an - interest 'pi title in the subject matter are, as we have already star ted, m 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 - necessary ly 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, inlegq]! contemplation, parties to the suit. It is a great mis? tákie to consider the seizing officer as a mere stranger to the suit. He virtually identifies himself- with the government itself, whose asrent he is, from the ípoment 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 ipstan.ee to procure a decree of distribution after condemnation, where he is entitled to share in the forfeiture, or to óbtain .a. certificate of reasonable • causé of seizure after an acquittal, he may ihake himself a direct' party to .-the suit, and in. all other cases hie. is deemed to be ■ present and represented by the government itself, ¿By the very, act of seizure he agrees to. become a, party †» the suit under the government; for in no other H&ttner can he show an authority to make thp seizure, or to enforce the forfeiture. If the government ret fuse 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 the decree in rem; he is at all events a privy, and'an 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, concht- . sive upon the whole world.

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 proceed^ ingS} have had entire confidence in the correctness of the doctrine. But there are authorities directly ¡hit point which have never been overruled, potas far „as we know ever been brought judicially «into doubt. Above a century ago it was decided by Mr. Baron Price, (12 Vin.- Miridgmitotj A B, 22. p. 95.) that an acquittal ,in the 'exfchequer was conclusive evidence of the illUgi&ty Of the feeizuré, and he refused in thát case (whifch was trover fot 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 fay Lord Kenyon, in Cooke v. Sholl, (5 T. R. 255.) although that cause finally went off uponi another point. . In all the cases which have been decided on this subject, no -distinction has ever been tajeen between a condemnation and an acquittal in rem, and the manner in which these cases have been cited by bhe 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.) “tnat the rule of evidence must be, as it is often declared tobe reciprocalthe 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 generul 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 conclúsive evidence of the mátter,” ex dirbeto 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 whick was not cited at the argument, (The Bennet, 1 Dodson’s Rep. 175. 180.) where a.ship had been.capture<3 as a prize, as being engaged in an illegal voyage an<^ actlu^ed ^y tbe .sentence of a vice-admiralty court, Sir. W. Scott held, that by such sentence .of a-competent tribunal, the question had become res adjudícala, 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 sanie doctrine was held by Mr. Justice Buller, in his very learned opinion in Le Caux v. Eden, (Doug. Rep. 594. 611, 612.)

This view of the case would be conclusive agaipst the admission of the evidence offered by the original defendants at the trial, as a justification of the as-• serted 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 indicts a forfeiture of the ship, áte., in cases where she is fitted out and armed, or attempted or procured tó 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 pro ve 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 ser-' vice of that part of the island of St. Domingo which was then under the government of Pelion, to cruise and coanmit 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 óf the United States, or of France, “ as a foreign prince or stateand 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 withJ foreign states, and to decide affirmatively, that Petion and Christophe were foreign princes within tjjg purview of the statute. No doct ne is better r ... . established, than that it belongs-exclusively to go- „ , . ,, ¶ to recognise new states m the revolutions which, may' occur in the world; and until such i«cognition, either by our own government, or. the go vernment to which the new state belonged, court* . _ . - . of justice ‘are bound to consider the ancient state of things as remaining unaltered. This vías ex. pr ss2y 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 tribuna¡g> (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. 11 283.) If, e ' ’ . .. therefore, this were a fact proper for the consideration of a. jury, and to be proved itypais, the court below not fr°un(f to admit the other evidence, unless ^jg fact Was proved in aid qf 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 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.

It is theexdusive. right of governmentsto acknowledge new voiuüon s of the tll°suchand ? nition by our government,or bythattowhich previously bel longed, courts of justice bound to con aider thé an cient order of máimng^ un changed,

The rival ehiefs m the island of St. notforeignplin °fi794, ch. 5°. prohibiting the fitting out any vice fofanySfo etafe.^to cruise Bjgaínstany

• 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 rfealíy do not entertain the slighest doubt. The evidence has no legal tendency to show that any forfeiture had been incurred, and upon the. proof, already) in the causé, 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 rindiCr tive damages, and the state court very properly:direcceá the jury, that the plaintiff could only recover the actual damages sustained by him; And in rio pOssihld shape, consistently1 with the rules of law, could the-cvidence 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. Hut in strictness of laV) the point is not subject to our revision. We have n© right j on a writ of érror from a. state court, under the act of congress, to inquire into the legal correctness 6f the rule by which the damages were ascertained and assessed. There'is ho law of the United States, which interferes withj or touches, the question of damages; It is a question depending altogether upon the common lawi and the act of congress . has expressly preciutied us frrtm a consideration qf such a question. Wheth* .er such a restriction can be defended upon public policy, or principle, may well admit of most serious doubts.

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 setup 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 thq 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.

t^e'gist of the action, and if the matter al aggra x¡ed va as a A plea need it, ■ of new assign

p^^na^h*8

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 thé United States. It is true that it is stated, that the ship was attempted to he fitted out and armed,'with intent that she should be employed in the service of a foreign state, See. to commit'hostilities-upon the subjects óf 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 t'o thé use of the United States;” for Ihe manner and’cayse 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.

In the next place, the plea is bad, because it does pot aver that the governments of PetioP and Christoph? are foreign states which have been duly recognised, ás such, by the government of the United States, or of France, which, for reasons already stated, was tfpcesspry to complete the legal sufficienóy of the plea.

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 oy 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 wh'étí the action was brought, that fact ought to have beep pleaded in abatement, or a temporary bar to such action: If the action was brought before.proceediñgs inrem 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 gui, -y 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 had in substance, there is, in point pf lajvs no confession of any forfeiture.

under the act of 1794, ch. so. state the partícula prince or state theshipwM*. sruwe,.

The third plea differs iri several respects from the second, and is that on which the couit 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 j 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 vocond nlesi secona piea.

Another objection has been urged’at the bar . i , . , , , , , ^ this plea, which does not apply to the second; It is, that it does not specify the foreign state in whose vice, or against whom, the ship was intended to be cmployed. As the allegation follows the words- of the statute, it has sufficient certainty fora 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 er 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.

But the main objection to this plea js 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 á 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 bégun, 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 State's shall be disobeyed or resisted by any person or persbns, having the custody of any vessel of war, cruiser-, ar other, armed vessel of any foreign prince or state, or of the subjects or citizens of any such-orince or state; in every sucji case, it shall be lawful for the president of the United Slates, 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 malitia thereof, as shall be judged necessary for the purpose of'taking possession of and detaining any such ship or véssel, 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 ofcivil force. But'upon the most deliberate consideration, we are of a different opinion. The power Hips entrusted to the . . , . ‘ V , , , .. . / . president is of-a very high and delicate nature, and iféstly intended to be-exercised only when, by the qrdinary process or exercise of civil authority, the.pur.por ses of the law cannot- be effectuated. It is .to be erted On extraordinary occasions, and subject, to that high responsibility which all executive acts necessarily Involve. Whenever it is exerted, all-persons Who afef in Obedience to the executive: instructions, ill cases-within the act, are completely justified in taking pbS* session of,..and detaining the offending vessel, and'arfe not responsible in damages for any injury Which the .party may Suffer by reason of such proceeding! Stifely it never could have been the. intention 0-f congress, 'that such a power should be allowed as a shield to thfe 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 thfe president was riot, intended to be called into exercise, unless where military and naval force were necessary to ensure the execution of the laws. In terms thfe section is confined to, -the employment of military and naval forces; and there is neither public policy ndi principíe lo justify án extension of the prerogative, beyond the terms in which it is given. Congress might he perfectly willing to entrust the president With the power to take and detain, whenever, in his opinion, the case was. So-fiagratit that military or haval force was necessary to enforce the lawá, and yet yritli great propriety deny it, where, From circumstances of the case, the civil '' officers of the gó^Verntnent 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 preseiit ill-stance we see nothing to justify it. The Ihird plea is, therefore, for this' additional reasbn, bad in its Very siibs'tance, and the state court were right in giving judgment on the demurrer for the Original plaintiff.

The 7th sec on794,yh.so! except tocase» where a rei or. deten b^nforMd'by h wasne cessnry m the president’s o ploy "na-ral'or raiktary jxrtf er.

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»

Mr. Justice Johnson.

As the opinion delivered ift 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.

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 eti • dence.

The second pleá 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.

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.

On the first plea issue was taken ; and on the trial the state court refused to admit evidence of the fo? • feiture, oh 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 opi- . J . . 1, mon, that the state court could not have tried the of forfeiture arising under the laws of the States. But this point would have been fatal suit, n°t to the defence, had it been properly pleaded.

Acquittnl in the district court Se*ques°tionoft0 forfeiture.

Defect of the contafnnig;8

The seventh section of the act of 1794 did not authorize orfer^private sebse'but'oníy rnilitary°^Qnd naval force to sureT* * 861

To the second and third pleas the defendant ciemurbut as the second plea contained only an argu- and, of course, defective averment of the forfeiture, viz. u seized as forfeited,” that is u because forfeited,” that plea did not bring up the question of forfeiture,.or any.question connected with it.

Neither does the third plea bring up the question of forfeiture : for the justification therein relied on is wholly • independent of the forfeiture, and rests upon order of the president to detain for trial, in effect. \ . . Aftd 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 °P^n^on> 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-nece’ssary. The defence set up is-not founded upon the exercise of s ch a power, but upon a supposed order -tp the defendants, in their private individual character, to take and detain. The act, therefore, does not sustain the defence.

Judgment affirmed.

Mr. D. 1?. Ogden inquired to which of the state courts the mandate to enforce the judgment was tobe transmitted.

Mr. Chief Justice Marshall.

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

Mandate to the supreme court óf New-York,

Jvogment. 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 5 and they do hereby adjudge and order, that the judg. ment 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 tne judgment of the said court, fo.r the' trial of impeach-. ments and correction of errprs of the. state of New-York, to be computed from the time o-f the rendition of the judgment of the said court for the trial of impeachments and correction of errors of the -state of New York. 
      
      
         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 erawn. was not a party to the proceeding in the admiralty court, other than by the king’s' procurator-general- claiming th® 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 before1 the court, either as against the ship in the first instance, or subsequently against the proceeds of tbe sale, which- were-paui 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 shoul be put specially on the record, so that the attorney-genera! 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.763.
     
      
      
         See the authorities cited ante, p. 289.
     
      
      
         5 T. R. 112
     