author: Mr. Chief Justice TANEY

text:
    Cornelius W. Lawrence, Plaintiff in error, v. John Caswell and Solomon T. Caswell.
    By the Tariff of 1846, the duty of one hundred per cent., ad valorem, upon brandy, - ought to be charged only upon the quantity actually imported, and not on the con-’ tents stated in the invoices.
    Duties illegally exacted arc those which are paid under protest, and where there is an appeal to the judicial tribunals.
    The Revenue Act of 1799, (I Stat. at Large, 672,) directed that an allowance of two per cent, for leakage, should bo made on the quantity of liquors which wero subject to duty by the gallon. Where brandy was subjected to a duty ad valorem, it, was no longer within the provisions of this act, and the allowance of two per cent, ceased;
    -This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.
    It was a suit brought by John Caswell and Solomon T. Caswell). merchants of New York, against Lawrence, the collector, to recover an excess of duties upon brandy, paid under protest. The whole case is set forth in the-bill of exceptions, which was as follows:

      Bill of Exceptions. The counsel for the plaintiffs, after proving that the plaintiffs were partners, engaged in trade and commerce in the city of New York, further to maintain the issue on their part,’¡gave in evidence divers warehouse entries, and withdrawal entries, and calculations of duties thereon, invoices, and gaugers’ returns of certain importations of brandy, made by the plaintiffs into the port of New York, by the several vessels in the table, or statement, hereinafter set forth, particularly mentioned-; which said several vessels arrived in the said port of New York at the respective dates, also in said table, or statement, mentioned ; in and by which said documents it appeared that said several importations of bfandy were, on the arrival thereof, respectively deposited in the public stores in said port of New York, in pursuance of the act of Congress establishing a warehousing system, approved August 6th, 1846; that upon the gauging of said several importations of brandy by the United States gaugers, made at the time of the arrival thereof respectively, the actual contents of each of said importations were found to be less than the contents stated in the invoices thereof respectively; the difference in each case between such invoice contents, and the actual contents as ascertained by the said gaugers, being specified in the said table or statement; that the said goods so imported were afterwards, from time to time, withdrawn from such public stores, and duties paid thereon by the plaintiffs to the defendant, as collector of the port of New York, who demanded, as such duties, under schedule A of the Tariff Act of July 30,1846, one hundred per centum ad valorem upon the cost of the contents of said importations as such contents were stated in the invoices thereof respectively, amounting in the whole, as also appears in said table, to the sum of $41,-658 ; which said duties, so exacted, were paid by the plaintiffs to the said defendants as such collector, under protest in writing, (indorsed on the withdrawal entries,) against the payment thereof, the said plaintiffs claiming that the duties should be computed not upon the said invoice contents of said importations, but upon the actual contents thereof, as shown by the aforesaid gaugers’ returns, after deducting from the actual contents shown by such returns the allowance of two per' centum thereon, directed by the 59th section' of the Revenue Collection Act of March 2, 1799.
    The following is the form of the protests referred to, and they were all alike : —
    “We claim deduction for all deficiency from the quantity shipped, also two per cent, allowance for leakage as heretofore customary, and. protest against the collector exacting the whole amount of the invoice. John Caswell & Co.”
    The counsel for the said plaintiffs also proved that the duties so as aforesaid paid to and received by the said defendant, as such collector, were by him duly paid, at the time of the receipt thereof, into the Treasury of the United States.
    The table, or statement, above referred to, contained also a specification of the excess of duty alleged by the plaintiffs to have been exacted by the defendant, as such collector, upon each of the said several importations, amounting, in the aggregate, to the sum of $1,609 ; the said table, or statement; being in the words and figures following.
    (The table .is omitted, as not being necessary to be inserted.)
    The plaintiffs’ counsel then proved, that under the act of March, 1799, and from the passage of said act until the Tariff Act of July 30, 1846, took effect, it was the uniform practice in the New York custom-house, upon the entry of such importations of liquors subject to duties, to proceed as follows:
    # 1st. The United States gaugers, after ascertaining the' capacity of each cask, deducted the “ outs,” or number of gallons deficient, and, from the actual contents thus ascertained, made a further, deduction of two per cent, on such actual contents for the allowance of leakage, directed by the 59th section of said act of March 2, 1799, and made a return to the collector, ex-hibiting the result.
    2d. The duties were then calculated and exacted upon the net dutiable quantity so exhibited by the gaugers’ return, and upon that quantity only, and without regard to any statement of quantity in the invoice.
    To-this evidence the counsel for the defendant objected, in. due season, as inadmissible; but his honor, the presiding judge, then and there overruled the said objection, and decided that such evidence was admissible: to which ruling and-decision of the said judge, the counsel "for the said defendant then and there excepted.
    The plaintiffs’ counsel claimecf to reeóver against the defend-, ant the sum of $1,609, above stated, and interest thereon to the day of trial, amounting in the whole to $2,039.35.
    The counsel for the plaintiffs there rested.
    The counsel for the defendant then insisted that the only allowances which could be considered in this case for deficiencies in said brandy, had been provided for by acts of Congress, and had already been made at the custom-house, and that by law the plaintiffs were not entitled to recover; and he prayed the court so to charge the jury.
    But the court charged the jury that the United States were only entitled to collect duties upon the importations in question upon the quantity remaining, after deducting from the actual contents Ascertained and exhibited by the gaugers’ returns ‘the aforesaid allowance of two per cent, for leakage; and that the plaintiffs were therefore entitled to recover the amount so as aforesaid claimed by them.
    ' To which charge of his honor the judge, and to every part thereof, the defendant’s counsel then and there excepted.
    The jury thereupon found a verdict for the plaintiffs for the sum of $2,039.35 damages and six cents costs.
    And because the prayer of the said defendant, by their said counsel, and the several rulings and decisions, and instructions and charge of the said judge, and the several exceptions, taken to the same, do not appear by the record of the verdict aforesaid, the defendants have caused the same to be written on this bill of exceptions, to be annexed to such record, and have prayed the said judge to set his hand and seal to the same.
    Whereupon the said Samuel R. Betts, the judge before whom the said issues were tried, and the said exceptions taken, has hereunto set his hand and seal, the 6th day of February, in the year of our Lord, 1852. Samuel R. Betts, [l. s.]
    Upon this exception, the case came up to this court, and was argued by'Mr. Qrittenden, (Attorney-General,) for the plaintiff in error, and Mr. Butler, for the defendants in error.

      Mr., Crittenden, for plaintiff in error.
    I. (First point omitted.)
    II. In the cases of Marriott v. Bruñe, and The United States v. Southmayd, (9 How. 619, 637,) cases of dr.ainage of sugars in the course of the voyage from the place of production, this court held that the duties were to be assessed on the actual quantity or weight which .arrived in the United States; and the same rale would seem to be applicable to the case of brandy.
    The further question in this case, however, is, whether importers of brandy are entitled to the additional allowance of two per cent., on the actual quantity imported, which the court below directed to be made ? This allowance is claimed under the 59th section of the Collection Act of 1799, (1 Stat. at Large, 672,) which is as follows: “ That there shall be an allowance of two per cent, for leakage on the quantity which shall appear by the guáge to be contained in any cask of liquors subject to dirty by the gallon; and ten per cent, on all beer, ale, and porter in bottles ; and five per cent, on all other liquors in bottles, to be deducted from the invoice quantity in lieu of breakage; or it shall ‘ be lawful to compute the duties on the actual quantity to be ascertained by tale, at the option of the importer, to'be made at the time of entry.”
    The late Mr. Justice Woodbury, in delivering the opinion of the court in the sugar cases, above cited, refers to the above section of the act of 1799, and says: “ The former cases referred to for illustration rest on their peculiar principles, and allowances in them are made by positive provisions in acts of Congress, even though the quantity and weight of the real article meant to be imported, should arrive here. Because, well knowing that the whole is not likely to arrivé, and being able to fix by_ a general average the ordinary loss in those cases with sufficient exactness, the matter has been legislated on expressly.”
    The learned judge referred to these instances merely as illustrations ; and it will not be here contended that the dutiable quantity of brandy in the present case is the invoice quantity, less the allowance of two per cent.; for the court will observe that the section .enacts that the two per cent, is to be allowed “ on the quantity'which shall appear by the gauge.” But, on the part of the United States, it is contended that the allowance cannot be made on importations of brandy under the ad valorem tariff of 1846, because the operation of the section is limited and confined to cases of specific tariffs. The law has so commanded ; the words are express and positive. The allowance is to be made on liquors “ subject to duty by the gállon.”
    Besides, the claim for the allowance cannot be maintained under the act of 1846, because it is repugnant to the principle of that act. Thus this court has held, that import's cover only what is brought within our limits and goes into the consumption of the country. Now, as by the act the duties upon these imports are to be assessed at so much per eent. upon the foreign value, how can it be said that they are so assessed upon that value if the whole quantity actually imported is not taken' into account? '
    Mr. Secretary Walker, in a treasury circular of -30th January, 1847, (1. Mayo, 391,) seems to have considered the 59th section of the act of 1799 in force, and directed the allowance therein mentioned to be continued. Subsequently, however, by a circular of the 24th March, 1847, he seems to have reconsidered the subject, and instructed the collectors as contended for in this paper. 1 Mayo, 360. The importations in tin's case were made during the time this circular was in force. See also another circular, of 31st December, 1847, voce, Allowances. 1 Mayo,. 405.
    It is therefore submitted, on behalf of the United States, that the claim for the allowance of two per cent, on the quantity ascertained by the gauge, is not sanctioned b.y law,.and the jury, •ought to have been so instructed.

      Mr. Butler, for defendants in error.
    I. Upon the facts proved upon the trial, the plaintiffs in the court below were at least entitled to recover back the amount of duties exacted by the collector upon the differénces between 'the invoice contents and the actual contents of the several importations of brandy, mentioned in the record.
    (a.) The cases of Marriott v¡ Bruñe, (9 How. 619,) and The United States v. Southmayd, (Id. 637,) decide,.—
    1st. That ad valorem duties, under the act of 1846, should be assessed, not upon the quantity whicn appears by the invoice to have been shipped, but only on the quantity which actually arrives in our ports; and
    ' 2d. • That the proviso in the 8th section,. “ that under no circumstances shall the duty be assessed upon an amount less than the invoice value,” is' not in hostility with the above construction, because the proviso refers only to the. price and not to the quantity.
    (b.) In respect to the point now under consideration, there is no ground whatever for distinguishing the present case from the cases in 9 Howard, above referred to.
    II. ' The plaintiffs in the court below were entitled to the fur-ther .deduction of two per cent, on the actual contents of the importations in- question, as ascertained and exhibited by the gaugers’ returns, for the allowance of leakage directed by the 59th section of the Revenue Collection Act of March 2d, 1799. 1 Stat. at Large, 672.
    1st. JBy the very words .of the- section, “ that- there be an allowance of two per cent, for leakage on the quantity which shall appear by the guage to be contained in any cask of liquors subject to duty by the gallon,” this allowance is to be computed and made upon the actual contents ascertained by the gauger.
    2d: This allowance of two per cent., as manifestly appears by the words quoted, was not intended to coyér leakage on the voyage of importation, but to cover that which will occur after the arrival of the liquor, and before its actual sale by the importer.
    (a.) Leakage on the voyage was already provided for by requiring the actual contents at the port of importation, to be ascertained by the United States gauger.
    . (b.) In commercial language, “leakage”, is an allowance granted to importers of liquors for the waste the goods are supposed to receive by keeping after their arrival and before their sale. McCulloch’s Commercial Dictionary, title “ Leakage,” and title “ Warehousing System,” Eng. ed. of 1834, p. ! 223.
    (c.) The 59th section of the act'of 1799, (following in this respect the 36th section bf the act of 1790, T Stat. at Large, 166,) conforms to this commercial sense by directing the allowance in question to be made on the quantity which shall-appear by the gauge to have arrived in the United States.
    See, in connection with this section, the following sections of the same act: § 2Í, (p. 642,) as to the duties ■ of the surveyor. Also, §§ 37 to 43, (pp. 655, 660,) as to entry, inspection, and landing of liquors. Also act of April 20th, 1818, (3 Stat. at Large, 469,) “ providing for the deposit of wines grid distilled spirits in public warehouses.”
    • 3d. The 59th section of the act of 1799 is not repealed by any thing contained in the Tariff Act of 1846; but the import-, ers of liquors are still entitled .to the allowance given thereby.
    (a.) There is. no express repeal of sect. 59 in the act of 1846.
    (b.) Repeals by implication are not favored, and are only allowed when the provisions of the old law are plainly repugj naiit to those of the new. 6 Bacon’s Abr. title Statute D., p. 373; Dwarris on Statutes, pp. 673, 674; Wood v. The United States, 16 Pet. 362, 363.
    (c.) The only part of the 59th section of the act of 1799-which is claimed to be.repugnant to the act of 1846 is the clause which directs the allowance of two per cent, to be made on “liquors subject to duty by the'gallon,” which, it has been sug-. gested,'renders the section inapplicable to liquors imported under a law subjecting them to an' ad valorem rate of duty.

      4th. The repugnancy suggested is only apparent, and not sufficient to work the repeal of this part of the law of 1799.
    (a.) There is nothing in the change from a specific duty to an ad valorem duty on liquors, which should abrogate the allowance of two per cent, directed by the act .of 1799.
    (b.) If this allowance was just and proper under specific duties, it is also equally just and proper under ad valorem duties.
    (c.) If this allowance be not made, the importer may, under the act of 1846, be subjected to a higher duty upon liquors than that prescribed by the preexisting Tariff Act' of August 30th, 1842, contrary to the main object of the act of 1846, which, as expressed in its title, was to “ reduce the duty on imports.”
    5th. The act of 1846 contains several provisions strongly implying an intention in its framers.to retain allowances of this nature given by preexisting laws.
    (a.) The fourth section expressly provides “ that in all cases in which the invoice or entry shall not contain the weight, or quantity, or measure of goods, wares, or merchandise now weighed, or measured, or gauged, the same shall be weighed, gauged, or measured at the expense of the owner, agent, or consignee.”
    (b.) The eighth section requires the collectors, in the particular case therein mentioned, to cause the dutiable value to be estimated and ascertained, as well as to be appraised, “in accordance with the provisions of the existing laws.”
    (c.) These. enactments refer to and retain in force, among other provisions contained in the prior laws, the 59th section of the act of 1799, above referred to.
    See report of Secretary ’Walker to House of Representatives, dated Dec. 30th, 1846, (Exec. Docs, of H. of R. No. 25, 2d Sess. 29th Cong.) showing it still necessary, notwithstanding the change in the mode of assessing duties, to employ weighers, gaugers, and measurers. Pages 2, 4, 5, 9; Treas. Cir. Nov. 25th, 1846, pp. 176 to 182.
    6th. The Warehousing Act of August 6th, 1846, (9 Stat. at Large, 53,) extends the principle of the act of April 2d, 1818, in relation to the deposit of liquors in public warehouses, to all imported goods.
    This act being passed contemporaneously with the Tariff Act of July 20th, 1845, the two should be construed together as parts of one system; and the allowances made by the act of 1799 in respect to liquors deposited in the public stores under' the act of 1818, must be deemed applicable to liquors deposited' under the Warehousing Act of 1846.
    7th. The foregoing view has in effect been acquiesced in by the Treasury Department, and established by this court.
    (a.) It was deliberately and distinctly adopted and promulgated by the Treasury Department in its instructions to collectors issued immediately after the Tariff Act of 1846 took effect. See instructions to the Collector of New Orleans, under date of 30th January, 1847, given at length in 9 How; 620.
    (b.) This instruction was afterwards modified by the department, but the principle on which it proceeded was established as correct by .the decisions of this court in Marriott v. Bruñe, 9 How. 619, and The United States v. Southmayd, Id. 637.
    (c.) In those cases the court decided that the ad. valorem duties under the act of 1846 should be assessed on the quantity which actually arrives in our ports. The “ quantity ” of liquors can be reckoned only by the measure, — the( number of gallons. To take duty on the “ quantity ” imported is therefore to take duty on the number of gallons imported. Liquors being subject to duty by the “ quantity ” or number of gallons, are therefore “ subject to duty by the gallon,” The difference between previous laws and the act of 1846 is, that under previous laws liquors were “ subject to duty bv the gallon,” without regard to the value of the gallon; while under the act of 1846 they are still “ subject to duty by the gallon,” but according also to the value of the gallon. This is a difference merely of form and not of substance, and cannot work a repeal of the former law.
    (d.) The decisions of the court in 9 Howard do, therefore, control and dispose of this point, as well as the former one; and such was, at first, admitted by the Treasury Department to be its legitimate effect. See Treasury Circulars of July 5thj 1850, August 10th, 1850, and June 14th, 1851.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This is an action brought by the defendants in error against the collector of the port of New York, to recover certain sums of money alleged to have been illegally exacted as duties.

The defendants in error are merchants of New York, and imported a large quantity of brandy in the year? 1847 and 1848, which were deposited in the public stores, under the Warehousing Act of 1846. Upon gauging these several importations, at the time of their arrival, the contents were found to be less than the quantity stated in the several invoices.

As the brandy was from time to time withdrawn by the importers, the collector demanded the duty of one hundred per cent, ad valorem upon the whole invoice quantity, and it was paid by the importers under protest.

The importers claimed in their protest that the duties should be computed upon the actual contents, as shown by the gauger’s returns, after deducting two per cent, from such contents. And the court was of opinion, and so directed the jury, that this was the correct mode of ascertaining the duties ; and a verdict was accordingly rendered and judgment given for the amount overcharged. This writ of error is brought to revise that judgment.

Two questions arise in the case: 1st, whether the duty ought to be computed on the quantity stated in the invoices, or on the contents as ascertained by the gauger’s returns: and 2dly, whether the two per cent, ought to have.been deducted for' leakage.

As relates to the first question, it is substantially the same with that decided by the court in the case of Marriott v. Brune, 9 How. 619. The duty of 100 per cent, ad valorem was chargeable on the quantity of brandv actually imported, and not on the contents stated in the invoices. This overcharge was therefore illegally exacted, and the defendants in error were entitled to recover back the amount. The judgment of the Circuit Court is in this respect correct.

But it is proper to say, in order that the opinión of the court may not be misunderstood, that when we speak of duties illegally exacted, the court mean to confine the opinion to cases like the present, in which the duty demanded was paid under protest, stating specially the ground of objection. Where no such protest is made, the duties .are not illegally exacted in- the legal sense of the term. For the law has confided to the Secretary of the Treasury the power .of deciding in the first instance upon the amount of duties due on the importation. And if the party acquiesces, and does not by his prbtest appeal to the judicial tribunals, the duty paid is not illegally exacted, but is paid in obedience to the decision of the tribunal to which the law has confided the power of deciding the question.

Money is often paid under the decision of an inferior court, without appeal, upon the construction of a law which is after-wards, in.some other, case in a higher and superior court, determined to have been an erroneous construction. But money thus paid is not illegally exacted. Nor are duties illegally exacted whére they are paid under the decision of the collector, sanctioned by the Secretary of the Treasury, and without appealing from that decision to the judicial tribunals by a proper and legal protest. Nor are they within the principle decided by the court in the case before us.

We proceed to the second point — that is, to the claim of a further deduction of two per cent.

The Revenue Collection Act of 1799, c. 22, § 59, under which it is claimed, provides, “ That there • shall be an allowance of two per cent, for leakage, on the quantity which shall appear by the gauge to be contained in any cask of lique - subject to duty by the gallon.”

At the time this law passed, brandy and sundry kinds of wine were subject to a specific duty upon the gallon; but various other wines were charged with an ad valorem duty, not to exceed in amount a certain rate per gallon, specified in the law. And as the two per cent, deduction was made to depend on the character of the duty, and not upon the nature of the liquor imported, the brandy and wines which then paid a duty by the gallon, were entitled to it — but the wines which paid an- ad valorem. duty were not entitled. The right to the allowance did not depend'upon the fact that the importation consisted of brandy or wines of a particular description, but upon the duty to which the article was subject. If it was charged by the gallon, this deduction was to be made, but otherwise if charged ad valorem. After-wards, bjr the act of May 13, 1800, the ad valorem duties, which were before charged on certain kinds of wine, were changed to specific duties; and all wines were charged with duty by the gallon. And from the passage of this act until the act of 1846, all importations of liquors of any description paid a specific duty. This will account for the usage in the custom-house to allow the deduction on, all liquors, as stated in the record. For, when the ad valorem duty on certain wines was changed to a duty by the gallon, these wines, like' brandy and other wines, came within the provision in the act of 1799, and consequently were entitled to the two per cent, deduction.

So, also, when the act of 1846 changed the duty upon brandy from a specific one upon the gallon, to a duty ad valorem, it was no longer within the provision of the act of 1799, and consequently no longer entitled to the deduction of two per cent. The provision in the act of 1799 is not repealed; but brandy is not now within it, because it is pot subject to a duty by the gallon. .

It is said there is the same reason for allowing this'deduction for loss by leakage, whether the duty is ad valorem or specific; and that it would be unjusi-tp make any discrimination between them. But, without stopping to inquire whether this argument is well founded or not, or whether sufficient reasons may not be assigned for the difference, it is sufficient for the court to say, that the law makes the distinction.' And it is not within the province of the Treasury Department or the eourt to decide upon the reasonableness or unreasonableness of a tariff which it is evident Congress intended to impose: The words of the law are plain. And, since brandies do not pay a duty by the gallon, they are not entitled to the'deduction of two per cent.

The judgment of the Circuit Court must therefore be reversed, with costs, and a mandate issued directing it- to proceed to judgment upon the principles stated in this opinion.

Order.

. This pause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel. On consideration whereof, it is now here ordéred and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo, and to proceed therewith in conformity to the opinion, of this court.


source: Caselaw Access Project

license: Public Domain

text:
    Juan Bautista Jecker, Luis Jecker, Thomas de la Torre, Geidero de la Torre, and Jose E. Fernandez, Merchants, trading, under the name and style of Jecker, Torre & Company, Appellants, v. John B. Montgomery. — And John B. Montgomery, Appellant, v. Juan Bautista Jecker, Luis Jecker, Thomas de la Torre, Geidero de la Torre, and Jose E. Fernandez, Merchants, trading under the name and style of Jecker, Torre & Company.
    During the war with Mexico, the Admittance, an American vessel, was seized in a port of California, by the commander of a- vessel of war of the United States,. ' upon suspicion of trading with the enemy. She was condemned as a lawful prize by. the chaplain belonging to one of the vessels of war upon that station, who had been authorized by the President of the United States to exercise admiralty jurisdiction in cases of capture.
    The owners of the cargo filed a libel against the captain of the vessel of war, in the Admiralty Court for the District of Columbia. Being carried to the Circuit Court, it was decided:
    1. That the condemnation in California was invalid as a defence for the captors.
    2. That the answer of the captors, having averred sufficient probable cause for the seizure of the cargo, and the libellants having demurred to this answer, upon the 1 ground that the District Court had no right to adjudicate, because the property had not been brought within its jurisdiction, the demurrer was overruled, and judg-. ment was entered against the libellants.
    The .judgment of the Circuit Court, upon the first point, was' correct,.and upon the second point, erroneous.
    The Prize Court established in California was.not authorized by the laws of the United States or the laws of nations.
    The grounds alleged for the seizure of the vessel and cai-go in the answer, viz., that the vessel sailed from New Orleans with the design of trading with the enemy, and did, in fact, hold illegal intercourse with them, are sufficient to subject both to condemnation, if they are supported by testimony.
    And, if they were liable to capture and condemnation, the reasons assigned in the answer for not bringing fhem into a port of the United States and libelling’them for condemnation, viz., that -it was impossible do so consistently with the public interests, are sufficient, if supported' by proof, to justify the captors in selling ves-, sel and cargo in California, and to exempt them from damages on that account.

      The Admiralty Court in the district had jurisdiction of the case, and it jv(is the duty of the court to order the captors to institute proceedings in that court, to condemn the property as prize, by a day to be named in the order; and in default'thereof, to be proceeded against upon the libel for an unlawful seizure.
    The Admiralty Court, in the District of Columbia, had jurisdiction of such a libel for condemnation, although the property was not brought within its jurisdiction; and, if they found it liable to condemnation, might proceed to condemn it, although it was not brought within the custody or control of the court.
    The necessity of proceeding to condemn as prize, does not arise from any difference between the Instance Court and the Prize Court, as kpown in England. The same court here" possesses the instance and prize jurisdiction. But because the property of the neutral is not divested by the capture, but by the condemnation in a prize court; and it is not divested until condemnation, although, when condemned, the condemnation relates back to the capture.
    As this libel is for the restitution of the property or the proceeds, probable cause of seizure is no defence. It is a good defence against a claim for damages, when the • property has been restored, or lost after seizure without the fault of the captor. But, while the property or proceeds is withheld by the captor, and claimed as prize, probable cause of seizure is no defence.
    The Circuit Court, therefore, erred in deciding that probable cause of seizure was a good defence.
    These were appeals from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.
    The facts, are fully stated in the opinion of the court.
    The cases were argued together by Mr. Coxe and Mr. Nelson, for Jecker, Torre & Company, and by Mr. Key and Mr. Johnson, •for Captain Montgomery.
    The arguments on both sides took a wide range, and it is impossible to insert the entire views of the case ,taken by the respective counsel. The following are given "as those bearing upon what appear to be the principal points.
    The arguments were divided into two heads :
    1st. The ground of defence taken in the answer of the respondent, that the property had been carried into the port of Monterey, a town in California, then occupied by the American forces, within the limits of Mexico, and there had been regularly proceeded against and condemned as prize of war, by'a court exercising at that' place admiralty jurisdiction.
    The libellants demurred to this plea or defence, and both.the District and Circuit Courts sustained the demurrer; and from this decision the respondent appealed. The arguments of; the counsel upon this branch of the case, although of an interesting character, áre omitted for want of room.
    The second demurrer was also to a part of the answer, and was as follows :' ‘
    “ The libellants, as to so' much of the answer of the respondent, filed in this case, as alleges and sets up any act or thing on the part of the captain arid crew of the said ship Admittance, or any of omission or commission of any sort or kind, as a justification of the said seizure of said ship or her cargo as lawful prize of war, or which might amount to probable causé of said seizure, demurs to the same; and- for cause of demurrer avers and says, that this court in this cause has no rightful jurisdiction or- au-. thority to examine or adjudicate upon any question of prize, or of probable, causé of capture as prize of war, but that the same belongs exclusively to the courts of the United States exercising prize jurisdiction, and having within its jurisdiction and control the property so seized or captured as prize, which this court has not, and, in consequence' of the tortious and illegal acts of. said respondent, as alleged and set forth in said libel, cannot have.
    “ Wherefore, and for other causes, these libellants do demur to so much of said answer as is above set forth.
    “ Coxe, Advocate and Proctor for Libellants A

    This demurrer was also sustained by the District Court, .but the judgment was reversed' by the Circuit Court, and from this decision the libellants appealed.
    Upon this point the argumént .of the counsel for the libellants was'as follows:
    The respondent, however, insists that he has in this action a right to show —
    1. An actual and sufficient case of prize of war, as a bar to the remedy asked in the libel.
    2. Probable cause of seizure, as a bar to the action.
    1st. This is a civil suit to'recover back property originally belonging to libellants, of which they have been forcibly divested by defendants, under whose authority it has been sold- and con-5 verted into money. Can the party in such a. suit aver legal cause of capture and condemnation as prize without producing a valid decree of condemnation as prize by a court of competent jurisdiction? ■
    ■ If he can, then this singular anomaly and most dangerous precedent will be exhibited, that a captor may disregard the injunctions of the law, and his own paramount duty; omit to bring his prize into court; to institute prize proceedings; — but may retain the property in his own hands, or at his1 pleasure convert it into money; .and when called upon to answer in a civil suit, set up as a defence' an original cause of condemnation.
    It will scarcely be doubted that the jurisdiction of the prize courts, in cases of prize, is exclusive. The nature and extent of this jurisdiction, as it exists in England, are distinctively given by Lord Mansfield in Lindo v. Rodney, Dougl. 613. .1 Kent, 353 ;" Conkl. 354; Dunl. Ad. Pr. 26; 12 Wheat. 1, 11. In every respect it differs from the ordinary Court of Admiralty. “ The manner of proceeding is totally different, the whole' system of litigation and jurisprudence in the Prize Court is peculiar to itself; it is no more like the Court of Admiralty than it is to any court in Westminster' Hall.” . See particularly the language of Lord Mansfield, p. 616.
    The claimant of the property cannot himself institute prize proceedings. They must always be had in ■ the name of the government, to whom all prizes primd .facie belong. The only, remedy the captured has is by monition, a proceeding in personam to compel the captors to perform their duty.
    The ordinary Court, of Admiralty has no moré authority to condemn a prize than a court of common law; and should the doctrine asserted for this defendant prevail, these singular results-must inevitably follow —
    1st. The captors can never acquire any legal right to the property; unless by a decree of a prize courj;. This is, throughout, recognized in Home v. Camden, in 1 PL Bl. 476 ; 4 T. R. 382.; and especially in 2 H. Bl. 541, 542, in the unanimous opinion of the twelve judges.
    2d. The United States can assert no right, for its right depends also upon a sentence of condemnation, which alone can divest the former title.
    3d. The .original proprietor is forbidden by. this doctrine from, asserting his title.
    The only party in whom the law -recognizes a title, is forbidden to assert it, and the government, and the sub-officers, and crew of the capturing vessel, have no rights cognizable in a court. This property, therefore, on this doctrine, must remain in the hands of the present defendant, subject to no responsibility.
    The only mode of avoiding these absurd consequences is to enforce the law as above stated. 2 Wheat. Appx. 9. When a ship is captured, it is the duty of . the captors to send her -into some convenient port for adjudication. Citing the Huldah;- and other cases; the Mentor, 1 Rob. 151; the Susanna, 6 Rob. 4,8.
    ■ In the Madonna del Burso, (4 Rob.' 171,) Sir W. Scott says: —: “ However justifiable the seizure may have been, the first obligation which the seizor has to discharge, is that of accounting' why he did not institute proceedings • against the vessel and cargo immediately; and unless he can exculpate himself with respect-to delay in this matter, he is guilty qf no inconsiderable breach of duty. It would be highly injurious to the commerce . of other countries, and disgraceful to the jurisprudence of this,, if any persons, commissioned or non-commissioned, could lay their hands upon valuable ships and cargoes in our harbors, and keep their hands upon them without bringing such an- act to judicial notice in any mariner for the- space of three ok four months.”

      “ A belligerent nation which is in the exercise of these rights of war, is bound to find tribunals for the regulation of them; tribunals clear in their authority, as well as pure in their administration; and if from causes of private internal policy, arising out of the peculiar relation of the component parts of the belligerent State, difficulties arise,'the neutral 'is not to be prejudiced oh that account; he has a right to speedy and unobstructed justice, and has nothing to do with such difficulties created by questions of domestic constitution.” Id. 177.
    This view furnishes an answer to the suggestion of the necessity of creating and resorting to such a court as was-erected in California. So, in page 147, will be found an equally decisive answer to the suggestion of counsel, that the master of the Admittance appeared before the Alcalde at Monterey. These libellants were not present, nor had the captain any authority to represent them; and he, as Sir W. Scott says, “ only follow /ed where he was led.”
    In the case of the St. Juan Baptista, (5 Rob. 33,) the prize was brought into England on the 12th of August, and proceedings were instituted on the 12th September, and the court held that it was bound to require a satisfactory cause for this delay. “' Grievous,” says Sir W. Scott, “ would be the injury to neutral-trade, and highly disgraceful to the honor of our country, if cap-, tors could bring in ships at their own fancy, and detain them any length of time without bringing the matter to the cognizance of a court of justice. In the present instance this first and fundamental duty has not been performed.” ■ “ Persons venturing to take out a commission of war must instruct themselves in their own duty, and if any inconvenience arises from their neglect, the neutral claimant is not to suffer.” In the case at bar, no prize proceedings have to this day been instituted; this fundamental duty, as Sir W. Scott calls it, has been wholly neglected. The property has never been brought within' the United States, — another fundamental duty. The papers and- documents on board have never been transmitted^ to any District Court, a peremptory requisition of the law is thus disregarded. It is intimated they are in the possession of the Navy Department. How did the captors procure them from the- pseudo court at Monterey, and under what authority are they lodged in the Navy Department ? The property no longer remains specifically; it has been converted into money, and no prize court can now proceed to adjudication.
    In the Wilhelmsberg, (5 Rob. 143,) the same learned judge, observing upon the duty of the captor to send his prize to some convenient port, says that “ in that consideration the convenience of the claimant, in proceeding to adjudication,- is (among) one of the first things to which the attention of the captor ought to be addressed.” “ He considered that the port selected in that case was not such a port,' a place where the captor cannot get advice, much less can the claimant learn in what manner to proceed, or where to resort for justice.”
    If such was the character of that port, what shall be said of Monterey, a place not within the .jurisdiction of any court of the United States ; a port of the very enemy with whom we were at war, occupied, it is true, so far as their guns could reach, by an American force; where no tribunal existed which could direct its process, or exercise jurisdiction; no judge responsible for the performance of judicial function; where the protecting arm and supervising power of the Circuit or Supreme Court could not réach; where no counsel could be found competent to give cor-, rect advice. How infinitely further from the shadow of right than in the case of the Wilhelmsberg, already cited, or that of the Lively, (1 Gall. 315,) where the court condemned the captor for carrying the property captured in the neighborhood of Machias River, to Salem. The Lively was a case in which the claimants had filed a libel for restitution, as. here, and in which a monition to proceed to adjudication issued against the captors, who accordingly libelled the property as prize. It was not attempted there, as here, to bar the relief sought in the Instance Court by setting up a lawful cause for condemnation as prize of war, or a probable cause to justify the seizure. Before that learned court no such ground of defence would be offered or admitted. There it was the well-known Jaw, that the Prize Court could only alone adjudicate upon these questions.
    Had the captured property been brought within the jurisdiction of the District Court, having power to proceed as in a prize case, and such proceedings had. been commenced, the claimant might have proceeded by petition in that court to compel the captors to proceed to adjudication. Such was the course in the case of the William, 4 Rob. 214. When, however, the property is beyond the jurisdiction of the Prize Court, so that no prize jurisdiction can be exercised, then a monition issues from the instazice side of the court, proceeding personally against the captors, commanding them to perform the duty enjoined on them by law, or to restore the property.'
    It must be borre in mind, that in this case no claim is pre-. sented for vindictive damages ; the captor is not sought to be zrzolested for his acts of wrong, or for his omission to perform a duty. The simple demazid is, that, having seized our property, having failed to perform the fundamental duty imposed on him by law,, having failed to show his right to capture, having omitted to permit us to assert our rights and rnaintain our innocence in the only court having jurisdiction to decide the question of prize, he shall restore the property specifically; or if he has put it out of his power by any means, of doing this, then that he shall respond in value. Our proceeding .is more nearly assimilated to the common-law actions of trover or replevin, than of trespass. The/ issue presented is simply of a right to- property. If the property belongs to libellants, they are entitled to a decree of restitution; if that property has been divested, and the right now belongs to the defendant, he is entitled to judgment.
    This conclusion cannot be avoided by adopting a principle asserted bythe learned counsel for the respondent, viz., that condemnation as prize is not necessary to vest the title to the' property captured, in the captors. He asserts that a forfeiture attaches in rem, when the offence is committed, and the property is instantly divested.
    (The counsel then proceeded to comment upon this position, and concluded as follows.)
    If, in this proceeding, the question of prize cannot be raised, or decided; if the court cannot proceed to condemn, and therefore, will not permit defendant, collaterally and incidentally, to avail himself of such a ground of defence, as little ground „is there for the analogous defence upon which the ■ Circuit Court seems to have rested that portion of the decree from which we have appealed, viz., that the pleadings disclose a case of probable cause of capture which justified the seizure and bars this action.
    This point, it is believed, was not argued in the court below, but was gratuitously taken bythe learned judges themselves, the chief judge not sitting in the cause.
    •It is apprehended, that in deciding ims to be a bar to the action, the whole principle of the law as to probable cause, has been lost sight X)f. Probable cause is recognized as a justifiable ground of seizure, either as prize jure belli, or for a statute forfeiture. In the first class of -cases, where, the capture has been made as prize of war, the general principles of the law of nations provides this defence; where made for an alleged forfeiture under a statute, such protection must be conferred by statute, or it is not available. But, whether in the one case or the other, these principles are believed to be incontrovertible and universal.
    1. The question of probable cause belongs exclusively to the court which had- jurisdiction to condemn or to decree forfeiture.
    2. It can be adjudged in that court only in a' proceeding to obtain condemnation.
    3. Only in such court, after a decree refusing ■ condemnation and directing restitution.

      4. The only legal operation of a certificate of probable cause is to bar a recovery of damages for an unlawful seizure.
    The general principles which govern cases of this character, are embodied in our statute book. 1 Stat. at Large, 696, 122.' The 89th sect, of the act of March 2,1799, provides for cases of seizures under the collection laws, and enacts that ‘1 when any. prosecution shall be commenced on account of the seizure of any ship or vessel, goods, &c., and judgment shall be ‘given for the claimant or claimants ; if .it shall appear to the court before whom such • prosecution shall be tried, that there was. a reasonable cause of seizure, the said court shall cause a proper certificate or entry to be made thereof, and in such case, the claimant or .claimants shall not be entitled to costs, nor shall the person who made the seizure,, or the prosecutor,'be liable to action, suit, or judgment, on account of such seizure and prosecution.” Similar provisions may be found in other statutes inflicting forfeitures.
    The act of June 26,1812, (2 Stat. at Large, 759, c. 107,) concerning lettérs of marque, prizes, and prize goods, in its 6th section,provides ■“ .that before breaking bulk of any vessel Which shall be captured as aforesaid, or other disposal or conversion thereof, of of any article which shall be found on board the same, such captured vessel, goods, or effects, shall be brought into some port of the United States, and shall be proceeded against before a competent tribunal; and after condemnation and forfeiture’ thereof, shalbbelong- to the owners and captors thereof, and be* distributed as aforesaid ; and in the case of all captured vessels, goods, and effects, which shall be brought within the jurisdiction, of the United States, the District Courts of the United States shall have exclusive original jurisdiction thereof, as in civil cases of admiralty and maritime jurisdiction; and the said courts, or the courts being courts of the United States, tato which said cases shall be removed, and in which they shall be finally decided, shall and may decree restitution in whole or in part, when the capture shall have been made, without just cause; and, if made without probable cause, or otherwisé unreasonably, may order and decree damages and costs to the. party injured.”
    These provisions embody the correct doctrine of the law relating to probable cause; and it is confidently asserted that no case can be produced in which even a certificate of probable cause, given by a court exercising exclusive jurisdiction, was ever thought to'present a bar to a claim for restitution- -of property.
    The argument of the counsel for the respondent, viz., the competency of the court in California, is omitted.
    Upon the question presented by the second demurrer, viz., “ Can the respondent, defend himself in this suit by the matters and things stated in his answer?” a part of the argument of the counsel was' as follows. •
    It is contended, by the learned counsel for the libellants, that the respondent cannot defend himself in this suit by showing any “ act or thing on the part of the captain or crew of the ship Admittahce,'or any act of omission or commission of any sort or kind as a justification of the said seizure of said.ship or her cargó, as lawful prize of war, or which might amount to probable cause for said seizure, etc.”
    It is thought this position cannot be maintained; it indicates a fear upon the part of the libellants,.themselves admitted wrongdoers, to meet the respondent upon fair ground, the merits of the. case. They ^.sk for heavy damages, and at the same time admit that they accrued by reason of their own illegal acts.
    What is there in the nature of this suit that should exclude the defence set up by the respondent ? What is the injury complained of? It is, as stated in the libel, that the respondent, “ without any lawful cause or' probable cause of suspicion,” seized and took possession of the ship Admittance, her cargo, and papers, and that the same were not brought nor sent within the jurisdiction of any court of the United States for adjudication, and that the libellants “ have been, for more than a twelvemonth, deprived of the use, possession, management, and control of the said property,” and that the same has been “ illegally sold and disposed of.” The remedy pursued, is a proceeding instituted to compel the respondent to bring in the. property, and proceed to adjudication, or in default thereof, that restitution in value should be decreed against.him. It is a very common proceeding in the admiralty courts, and by looking into its nature and object, it will be perceived that the defence contended for, is necessarily granted. It will be found that the mere failure of a captor to proceed to adjudication, is not enough to entitle a claimant to restitution in value, but that the court will look back to the original cause of seizure, and if the claimant has violated- any law which rendered his property liable to condemnation, restitution in value will not be decreed.
    Various authorities are cited to show that the distinction between the prize and instance side of-the District Courts, as Courts of Admiralty, has an important bearing upon this question.
    It is stated, in the arguinent of the learned' counsel, that “ this is a suit instituted on the instance side of fRe admiralty for an alleged marine trespass,” and also, “ that-it is not a suit for damages.” I would ask what is a decree of restitution in value, but á decree of damages for a marine trespass ? And is the respondent, merely because the proceedings are instituted on the instance side of the admiralty, to be ousted of his. defence, and not to be permitted, to show that no trespass was committed.
    What is a tort of which a court of admiralty has jurisdiction ?„ Vide Conkling’s United States Admiralty, p. 21, where Judge Story enumerates the different injuries redressed by a court of admiralty. See also, p. .334, 336, note a. The passages referred to describe the various injuries for which legal' redress can be obtained, and point out the particular remedies ; and yet there is nothing like a claim for damages because the property was not condemned, but they refer to the legality or illegality of the seizure; and in the last reference'it is said, “if no proceeding is instituted, as is sometimes the case when the captor himself has become convinced of the invalidity of the capture, or.the. captured property has been- lost by recapture or otherwise, the •injured party may, in such case, himself' become the primary actor, .by calling on the captor to’ proceed to adjudication, and at the same time invoking the justice of the court to award damages, if the capture shall be adjudged to have been tortious ; ” not because the captor -had not proceeded'to adjudication.
    In Wheaton on Captures, p. 280, sect. 18, the same redress is pointed out. “If the captors omit or delay to proceed.to .the. adjudication of the property, any person' claiming an interest in the captured property may maintain a monitiórí against .them, - citing them to proceed to adjudication, which, if they do not do, or show cause why the property should be condemned, it will be restored to the claimants proving an interest therein; and this process is often resorted to when the property is lost or destroyed through the fault-or negligence of the captors, in order to obtain a compensation in damages for the unjust seizure and detention.”
    In 2 Wheaton’s Rep. App. p. 11, it is said, “ If the captors unjustifiably neglect to proceed, to adjudication, the court will,. in case of restitution, decree demurrage against them,” and cites the Madonna del Burso, 4 Rob. 169; The Córier Maratimo, 1 Rob. 287; The Peacock, 4 Rob. 185; The Anna Catherina, 6 Rob. 10.
    Hence, whenever a restitution in value is decreed, it is, upon the ground that there would have been a restitution of the property valued, and no case cited by the learned counsel controverts this position.
    (The counsel then proceeded to comment upon the following cases : The Lucy, 3 Rob. 208 ; The Huldah, 3 Rob. 235; The Madonna del Burso, 4 Rob. 169; The St. Juan' Baptista, 5 Rob. 33 ; The Wilhelmsberg, 5 Rob. 143;. The Lively, 1 Gallison, 315 ; The Felicity, 2 Dodson, 381; The Rover, 2 Gallison, 239.)
    Various acts of Congress have been referred to to show that’ it is the duty of a captor to- bring in captured property, and proceed to adjudication. This general principle, it has been before stated, is admitted. It is not contended, in behalf of respondent, that a captor 'may, at his pleasure, under any circumstances, disregard the injunctions of the law,-omit to' bring his prize into court, convert ■ it into money, and retain it in his own hands. The maintenance of such principles is not necessary to his de-' fence in this suit.
    But I would ask, is a veil to be thrown over the conduct of the libellants or their agents 1 Is the fact to be kept out of - view, that the master of the Admittance sailed from New Orleans with the intent to trade with the enemy, and did in fact trade with the enemy % ' Will this court aid an unworthy claimant 1 “ It is a good moral and legal principle, that a man must come into a court of justice with clean hands, and that the law will' not lend its aid to a pérson setting up a violation of law on the face of his claim.” Wheaton on Captures, 225.
    The Anna Maria* 2 Wheaton, 328. Chief Justice Marshall says : “ To sustain the claim of the libellants, the first point to be established is the fairness of the voyage.”
    The Gran Para, 7 Wheaton, 483. “A claim founded on piracy, or any other act, which, in the general estimation of mankind, is held to be illegal or immoral, might, I presume, be rejected in any court on that ground alone.” And is not the present claim founded on an illegal act ? The demurrer admits the illegal act, and yet th.e claim is for restitution.
    The Bello Corrunes, 6 Wheaton, 169. “But can a citizen of this country, who has violated its laws, ever be recognized in our courts as a legal claimant of the fruits of his own wrong ? ”
    It will be perceived, by referring to the answer of the respondent, and the amendment to the answer, that the seizure may be justified on two grounds: first, a trading with the enemy; and, second, that it was the property of the enemy. The Rugen, 1 Wheaton, 74. It is important, in the view now about to be taken, to ascertain the national character of the libellants. The libel states they were neutrals, some of them subjects of the Queen of Spain, and the others subjects of France. This is denied by the answer, which avers that they were resident merchants of Mexico, conducting there a commercial establishment — a fact beyond dispute. “ If a. person has a residence in a hostile country, and conducts a commercial- establishment there, notwithstanding his place of birth, he will be considered as an enemy -in regard to his commercial operations.” 1 Kent, 74, 75.
    Then the libellants must be considered as belligerents, and this must be taken as admitted by the demurrer.
    Was condemnation necessary to divest the libellants of the property ?

      .In .Gelston v. Hoyt, 3 Wheaton, it was decided that a forfeiture attached' im fern at. themoment the offence was committed, and the property was instantly divested, so that no action could be maintained for the subsequent.seizure. This, it is said, was a case of a. statute forfeiture; and has no analogy to the question under consideration; but it is submitted that it has an .important bearing, inasmuch as it shows, that whatever may be the subsequent conduct of. a captor, an action cannot be main-. táined against him.
    The MarS, 1 Gallison, 192. In this case it will be found, that upon principles of common law the following propositions were discussed by Judge* Story:
    1. ' What is the interest or right which, attaches to the government in forfeitures of property,' before any act done to vindicate its claims ? . - ’
    2. What is the operation of such act,, done to vindicate its claim, as. to the offender and as to strangers ?
    And the conclusions he arrived at were —
    1st. “ That an absolute property vested in the United States when actual seizure was made.”
    2d. “ That, as against the offender or his representatives, upon seizure, the title, by operation of’laW, relates back'to. the. time of the,offence, so as to avoid all mesne acts.”
    • Then, upon the authority of this case, it is submitted,-.that the libellants were absolutely divested of their property upon the commission -of the offence. A captor: may destroy property. 1 Kent, 104. “ Sometimes circumstances will' not permit property, captured, at sea to be se,nt into port, and-the baptors . in such cases may either, destroy it, or permit the original-owner to' ransom it.”
    ■ There are decisions to the effect that it requires a sentence of condemnation to . change the property, but this applies to a neutral purchaser; as in the case of the Fiad. Oyen, (1 Rob. 117,) the substance of. which decision was, that the owner could have restitution of his property from ' a neutral vendee, unless it had been condemned to the captors; and the- reason of this is obvious, the neutral. purchaser can only take that which his condition of neutrality permits him, to., take, ahd when he takes .the property without condemnation from the captors, he occupies the position.of. a. captor, which is inconsistent with-his-neutrality. ....
    In Goss v. Withers,. (2 Burr. 694,) Lord Mansfield says,'“ the property is • not changed so as to bar the owner, in favor of a vendee, or recaptor, till there has been a sentence Of condemnation,” intimating that it is changed without condemnation so as to bar the owner in a claim against the captor.
    In 1 Kent, 101, it is said: “ When a prize is taken at sea, it must be brought with due care into some convenient port for adjudication by a competent court; though, strictly speaking, as between the belligerent parties, the title, passes and is vested when the capture is complete ; and “ this question never arises but between the original owner and a neutral purchasing from the captor, and between the original owner and a re-captor.”
    ’ The Adventure, 8 Cranch, 226. The Adventure was an English snip, seized by the French. The French captors made a donation of her to the brew of an American brig, who brought her into Norfolk, and claimed her as their property, acquired by the donation of the captors. 'Mr. Justice Johnson, in delivering the opinion of this court, says: “ As between the belligerents, the capture undoubtedly produces a complete divestiture of property.”
    ■ Admitting the principle supposed to be decided in the case of Price v. Noble, (4 Taunt. 123,) to be correct, that the property was not changed, because there was a spes recuperando it would not affect this case, the property having been brought infra presidia: and this may be also observed of the reference to 15 Vin. Abr. 51.
    In the case of Camden v. Home, (6 Bro. P. C., 2 H. B.) the statute expressly vested the right in the captor after adjudication.
    On these/grounds it is submitted that condemnation was not necessary to' divest the libellants of their property.
    It is urged, in behalf of the libellants, that the government has asserted and can assert no rights here; and if the defence is held available, it will place the “ whple proceeds of this valuable cargo in the pocket of the respondent.” What will or will not go into the pocket of the respondent, is a question hot pertinent to the issues presented by the record; but, it may be observed, that one half of the property in question, if lawful prize, belongs to the governmentand upop the institution of this suit it .asserted its rights so far as. to employ counsel for the respondent.
    By directions from the Navy Department, the proceeds of the sale of the, ship and cargo were not distributed, but were sent into the United States, and jplaced in the treasury, where they ,now are, a circumstance which, it is believed, was known tó the libellants ; and if- they had thought proper to institute proceedings calling, on the respondent to bring in the proceeds, they would have been .forthcoming. The property has not been “illegally or unjustifiably” converted, and, under the authority of the case of the Eole, (6 Rob. 224,) the proceeds are entitled to the privilege .of prize property, and subject to the'judgment of the court.
    There is not - a single- circumstance,1 connected with this seizure, which can justify the imputation of misconduct. For reasons, which were conclusive in the mind of the respondent, he directed an officer to board and seize, the Admittance. Upon the examination of her papers, it was at once seen that his reasons. were well founded. The deceptive clearance, the erasures -upon the bills of lading, the false entries in-the log-book, .the position of the ship on the coast of Mexico when she had cleared for Honolulu, were all circumstances indicáting guilt. -The subsequent testimony of the mate of -the Admittance, that she had been sailing under false colors, answering private signals given from various points on the shore, receiving and answering written communications," her name oh the stern conce_aled with canvas, the captain expressly avowing his intention of discharging his cargo at some port or place in possession pf the enemy, and expressing a fear of falling in with an Amerieah man-of-war, affords the most conclusive evideriee, that to have acted otherwise, the respondent would have been justly chargeable with a violation of his duty. ■
    The condition of the ship, the want' of stores, and his inability to furnish a prize, crew, rendered it impossible to send her into any port of the United States, a state of .things which had been contemplated by the instructions he received from His superior in command. He, therefore, proceeded to Monterey, and libelled the ship in the aforementioned! court, which he had every reason to believe was a competent tribunal. .The papers of. the .Admittance were, there filed, and finally transmitted to "the Navy Department, copies of which have been furnished the jeounsei of the libellants, and they are referred to and made a part of the respondent’s.answer.
    There are two grounds, either of which, if it is competent for this court to consider, as the case is presented, must be conclusive against the libellants.
    1st. What authority have the' libellants to appear and claim an interest in the cargo ? They were belligerents. The libel states that the cargo “ was purchased by order of Messrs. Rubio, Brothers'& Co., subjects of the ..Queen of Spain; the bills of lading were made out. in their name, .and were subsequently indorsed and transferred to the libellants; ” .that “ the cargo was shipped at New Orleans in October, 1846.” The answer avers that- Messrs. Rubio, Brothers & Co. were also belligerents, a fact which cannot be. denied. 1 Then, how could they acquire property by a purchase at' New Orleans during the war? Was a right of property ever vested in either Rubio, Brothers & Co. or the libellants ? Vide 1 Kent, 67, and the authorities there cited.

      2d. Does not the intervention of peace bar the claimants? “ Captured property remains in the same condition in which the treaty finds it, and- it is, tacitly conceded to. the possessor. The intervention of peace cures all defects of -title.” 1 Kent, ch. 5, 111; ch. 8,169;
    The schooner Sophie, 6 Rob. 138. Sir William Scott says, “ I am of opinion that the title of the former owner is completely barred by’ the intervention of peace, which has the effect of quieting all titles of possession • arising from the war,” and this was decided in a cause Where the captured vessel claimed had not been condemned.
    Upon these views, the respondent prays that so much of the judgment of the Circuit Court as sustains the first demurrer may be. reversed, and that the residue of said judgment may be affirmed with costs.

         This case moré particularly applies to the first ground of seizure, — “trading -with the enemy.” '

   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case arises upon the capture of the ship Admittance during the late war with Mexico, by the United States sloop of war Portsmouth, commanded by Captain Montgomery.

The Admittance was an American vessel, and after war .was declared, sailed from New Orleans with a valuable cargo, shipped at that place. ' She cleared out for Honolulu, in the Sandwich Islands; and.was found by the Portsmouth at Saint Jose, on the coast of California,, trading, as it is alleged, with the enemy.

Before this- capture was made, a prize court had been established at Monterey, in California, by thé military officer, exercis-ing the functions of governor of that province, which had béen taken possession of by the American forces. A chaplain, belonging to one of the ships of war on that station, was appointed Alcalde of Monterey, and authorized to exercise admiralty jurisdiction in, cases of capture. The court was established at the request of Commodore Biddle, the naval commander on that station, and sanctioned by the President of the United States, upon the ground that prize' crews could not be spared from the squadron'' to bring captured vessels into a port of the United States. Arid the officers of the squadron were ordered to carry their pfjzes to Monterey, and libel them for condemnation-in the court above mentioned, instead of sending them to the United States.

In pursuance of this order the Admittance was' carried to Monterey, and condemned by the court as lawful prize; and the vessel arid .cargo s61d under this sentence*. The seizure at Saint. Jose was made on the 7th of April, 1847, and the ship and cargo condemned on the 1st of June, in the same year.

The odder of the-President, authorizing the establishment of the court, required that the proceeds, arising from the sale of prizes, should hot be distributed, until a copy of the record was sent to the Navy Department, and orders in relation to the prize-money received from the secretary. No order appears to have been given in this casé, and it would be presumed, from the pleadings, that it is still in the custody of the commander of the Portsmouth. It has, however, been stated in the argument, and we understaftd is admitted, that the money was sent to the United States, and placed in the custody of the Treasury Department, where it still remains. But it is not material in this ease to inquire, whether it is still in possession of Captain Montgomery, or in the custody of the Secretary of the Treasury. - It could not, in either case, affect the decision. This is the case as it-appears on the record, and admissions in thé argument. It comes before the court on the following pleadings.

The claimants, on the 6th of June, 1848, filed a libel in the Admiralty Court for*.'the -District of Columbia, against the captor, stating that ,they were the owners of the cargo of the Admittance ; that they were subjects of Spain, and neutrals in the war between this country and Mexico; that the Admittance sailed on a lawful voyage; that the vessel and cargo were seized át Saint Jose by Captain Montgomery as prize of war, without any lawful or probable cause; that the vessel and cargo were not brought to the United States, nor proceeded against as prize of war in any court having jurisdiction to adjudicate upon the lawfulness of the capture, but were unlawfully sold and disposed óf by Captain Montgomery, whb thereby, had put it out. of his power to proceed to any lawful adjudication upon the legality of the capture, and had thus made himself a trespasser ab initio, independently of any lawful or probable cause for the original seizure. They pray, therefore, that he may be compelled to bring the cargo within' the jurisdiction of the court, or of some other court of the United States, and institute proceedings against the property, and show that there was lawful or probable cause for the seizure, and have the same adjudicated upon by some court of the United States having full jurisdiction in the matter; and that restitution of the goods or the value thereof may be awarded to the libellants, with damages for the unlawful seizure.

Captain' Montgomery appeared and answered, and, admitted that, as commander of the United States ship Portsmouth, he seized and took the Admittance at Saint Jose as lawful prize; and justifies the seizure upon the ground that she sailed from New Orleans with the design of trading with the enemy; that she did in fact hold illegal intercourse with them, and discharged a part of her cargo at Saint Jose. And the respondent exhibits with his answer, and as a part of it, sundry papers received from Peter Peterson,.the master of the Admittance, together with her log-book'and the deposition of her mate.

The respondent further states that it was impossible for him, consistently with the public interests, to send the Admittance to any port qf the United States; and that he carried her before the prize court hereinbefore mentioned, at Monterey, where she was condemned with her cargo as lawful prize; and exhibits the proceedings of that court as a part of his answer, and relies on this condemnation as a bar to the present proceedings on behalf of the claimant's.. ’

To this answer the libellants put in two demurrers.

1. To so much of the answer as relies upon the condemnation at Monterey as a bar.

2. To so much of the answer as relies upon the acts of the captain and crew of the Admittance as a justification for the seizure of the ship or cargo as lawful prize of war, or furnishing probable cause for seizure; and, as the ground for this demurrer, avers that the Admiralty Court for the District of Columbia had no jurisdiction to adjudicate upon the question of prizes or probable cause, of seizure, as the property was not within its control, and could riot be brought within it in consequence of the sale in California. The respondent joined in these demurrers.

After these .issues in law had' been joined, the respondent, by leave- of the court, amended his answer, averring in the amendment that the libellants, at the time of the shipment at New Orleans and at the time of the seizure, were domiciled in Mexico and conducting a commercial establishment in that country; and also, that the libellarits were the owners of only a small portion of the cargo. - But there is no replication to this amend-; .ment, noris it embraced in the issues of law made by the demurrers. The omission to dispose of it, however, forms ho objection to this appeal, as the judgment of the Circuit Court was final, and disposed of the whole Ce.se, independently of these new allegations.

In this state of the pleadings, a decree -was entered in the District Court sustaining both of the demurrers, and directing the respondent to bring the cargo within the jurisdiction of some District Court of the United States, and institute proceedings against it as prize of war,, on or before the day mentioned in the decree; and that in default .thereof the libellants should recover its value.

This decree was entered pro found in order to bring the case before the Circuit Court, to which the respondent accordingly appealed. And upon the argument in.the last-mentioned court, the first demurrer was. sustained,- and the decree of the District Court in that respect affirmed; but so much of the decree as-sustained the demurrer to the answer of the respondent, averring sufficient probable cause for the seizure of the cargo, was reversed, and a final decree upon that ground rendered against the libellants.

From: this decree both parties have appealed to this court.

In relation .to the proceedings in the court at Monterey, which, is the subject of the first demurrer, the decision of the Circuit Court 'is correct.

All captures jure belli are for the benefit of the sovereign under whose; authority they are made; and the validity of the seizure and the question of prize or-no prize can be determined in his own courts only, upon which he has conferred jurisdiction to try the question. And under the Constitution of the United States the judicial power of the general government is vested in one- Supreme Court, and,in such inferior courts as Congress shall from time to time ordain and establish. Every court of the United States, therefore, must derive its jurisdiction and judicial authority from the Constitution or the laws of the United States. And neither the President nor any military officer can establish a court in a conquered country, and authorize it to decide upon the rights- of the United States, or of individuals in -prize cases, nor to administer the laws of nations.

The courts, established or sanctioned in. Mexico during the war by the commanders of the American forces, were nothing' more than the agents of the military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property while it was occupied by the American arms. Tjiey were subject to the military power, and their decisions under its. control,’whenever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question óf prize or no prize. And the sentence of condemnation in the court at Monterey is a nullity, and can have no effect upon the rights of any party.

The second demurrer denies the authority of the District Court to adjudicate, because the property had not been brought within its jurisdiction. But that proposition cannot be maintained ; and a prize court, when a proper case is made for its interposition, will proceed to adjudicate and condemn the captured property or award restitution,'although it is not actually in the control of the court. It may always proceed in rem whenever the prize or proceeds of the prize can be traced to the hands of any person whatever.

As a general rule, ft is the duty of the captor to bring it within the jurisdiction of a prize court of the nation to which he belongs, and to institute proceedings to have it condemned.. This is required by .the. act of Congress in cases of capture by. ships of war of .the United States; and this act merely enforces the performance of .a duty imposed upon the captor by the law of nations, which in- all civilized countries secures, to'the capr tured a trial in a court of competent jurisdiction before Jfie can finally be deprived of his property.

But .there are cases where, from existing circumstance^, the captor may be excused from the performance of this duty, and may sell or otherwise disposé of. the property before condémnation.- And where the commander of a national ship cannot, without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured vessel; or where the orders of hi|> government prohibit him from doing so, he may lawfully sell< Or otherwise dispose of the captured property in a foreign county; and may afterwards proceed to adjudication in a court of the United States. 4 Cr. 293; 7 Id. 423; 2 Gall. 368; 2 Wheat. App. 11, 16; 1 Kent’s Com. 359 ; 6 Rob. 138, 194, 229, 257.

But if no sufficient cause is shown to justify the sale, and the conduct of the captor has been unjust and oppressive, the court may refuse to adjudicate upon the validity of the capturé, and. award restitution and damages against the captor, although -the seizure as prize was originally lawful, or made upon probable cause.

And the same rule prevails where the sale was justifiable, and the captor has delayed, for an unreasonable time, to institute proceedings to condemn it. Upon a libel filed by the captured, as for a marine trespass, the court will refuse to award a monition to proceed to adjudication on the question of prize or no prize, but will treat the captor as a wrongdoer from the beginning.

But, in the case before us, sufficient cause for capture and condemnation is stated in the answer; and the reason assigned therein is a full justification for not sending the Admittance and her cargo to the United. States. And as to the delay, he had reasonable ground for believing that no further proceedings were necessary after the condemnation at Monterey. The court had been constituted with the sanction of the executive department of the government,- under whose orders he 'was acting; and it had condemned the vessel and cargo as prize, and ordered them to be sold. And if, as seems to be conceded in the argument, the proceeds were paid over to the government to await its further orders, and still remain in its hands, certainly no laches or neglect of duty in any respect can be imputed to the respondent.

Inasmuch, therefore, as the answer alleges á sufficient cause for selling the property before condemnation, and also for not proceeding against it in a.court of competent jurisdiction, the respondent has forfeited none of the rights which he acquired by the capture. And, as the District Court had jurisdiction, the second demurrer ought to have been overruled, and an order passed directing Captain Montgomery to institute proceedings by a certain day to condemn the property, (giving him reasonable time,) and that; upon his failure to comply with the order, the court should proceed on the libel filed against him for a marine trespass, and award such damages as the libellants might .show themselves entitled to demand.

The necessity of proceeding to condemnation as prize, does not arise from any distinction between the Instance Court of Admimiralty and, the Prize Court. In England, they'are different courts; and, although the jurisdiction of each of them is always exercised by the same person, yet he holds the offices by different commissions. But, under the Constitution of the United Stat.es, the Instance Court of Admiralty and the Prize Court of Admiralty are the same court, acting under one commission. Still, how: ever, the property cannot be condemned as prize, upon this libel; nor would its dismissal be equivalent to a condemnation, nor recognized as such in foreign courts. The libellants allege that the goods were neutral, and not liable to capture; and their right to them cannot be divested until there is a sentence of condemnation against them as prize of war. And, as that sentence cannot be pronounced in the present form of the proceeding, it becomes necessary to proceed in the prize jurisdiction of the court, where the property may be condemned or acquitted by the sentence of the court, and the whole controversy be finally settled. 4 Cr. 241; Rose v. Himely; 2 Wheat. App. 41, 42; 1 Kent’s Com. 101, 102; 6 Rob. 48 ; 3 Id. 192; 2 Gall. 368; 2 Id. 240.

But the Circuit Court erred in giving final judgment against the libellants, upon the ground that the answer showed probable grounds for the seizure. The question of probable cause is not presented in' the present stage of the proceedings, and cannot arise until the validity of the capture is determined. If it turn out, upon the final hearing upon the question of prize or no prize, that the vessel and cargo were liable to capture and condemnation, it would necessarily follow that there was not only probable cause, but good and sufficient cause, for the seizure. And if, on the contrary, it should be found that they were not liable to capture, as prize of war, the libellants would be entitled to restitution, or the value in damages, although the strongest probabilities appeared against them at the time of the seizure. Probable cause or not becomes material only where restitution is awarded, and the libellants claim additional damages, for the injury and expenses sustained from the seizure and detention." It applies only to these additional damages; and, however strong the grounds of suspicion may have been, it is no bar to restitut’cn, if the claimant can show that the goods which he claims belonged to him, were neutral, and that nothing had been done that subjected them to capture and condemnation.

The judgment of the Circuit. Court must therefore be reversed, and a mandate, awarded, directing the case to be femanded to the District Court, to be there proceeded in, according to the rules and principles stated in this opinion.

The appeal on the part of the respondent is dismissed. Tjie decision upon the matter in controversy was'in his favor,.and the question -of law decided against him on the first demurrer, was open for argument upon the appeal of the libellants. There was no ground, therefore,, for this appeal.

Order in Jecker et al. v. Montgomery.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county óf Washington, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the sáid Circuit Court in this cause be, and the s.ame is. hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to the opinion of this court.

Order in Montgomery v. Jecker et al.

This cause came on to be heard on the transcript of the record 'from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued-by'counsel ; on. consideration whereof,, it is now here ordered, adjudged, and decreed, by this cburt, that this cause be, and the same is hereby, dismissed, with.costs.