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Penhallow v. Doane's Administrators. 3 D.

the bar, tending to show the superior sovereignty of congress in the instance in question, was not tenable, and therefore that upon that ground the exercise of the authority in question cannot be sup

ported. [ *95] * I have already, however, stated my opinion, that from

the nature of our political situation, it was highly reasonable and proper that congress should be possessed of such an authorty, and this is a consideration of no small weight to induce an inference that they actually possessed it when their powers were so indefinite, and when it seems to have been the sense of all the States that congress should possess all the incidents to external sovereignty, or, in other words, the power of war and peace, so far as other nations were concerned, though the States in some particulars differed as to the construction of the general powers given for that purpose. Two principles appear to me to be clear. 1. The authority was not possessed by congress unless given by all the States. 2. If once given, no State could, by any act of its own, disavow and recall the authority previously given without withdrawing from the confederation. In the case of the Active, ten States out of twelve recognized the authority, New Hampshire voting in support of it. This was in 1779, long after the act of New Hampshire was passed, which has given occasion to the controversy in this cause, and in the same year when the second act of New Hampshire was passed which allowed an appeal to congress in cases, as the act expressed it, “ wherein any subject or subjects of any foreign nation or State, in amity with this and the United States of America, should, in due form of law, claim the whole or any part of the vessel and cargo in dispute.” The resolution of congress was dated the 6th March, 1779; the act of New Hampshire in November following. The vote of the delegates of New Hampshire, in the case of the Active, would not indeed be equivalent to a clear grant of the power, but it is a respectable support of the construction contended for by the defendants in error. It has been properly observed that a court cannot, by its own decision, give itself jurisdiction where it had none before; but if courts are so constituted that one is necessarily superior to another, the decision of the superior must, to be sure, prevail. This, perhaps, is not conclusive as to the court of commissioners, because it cannot be decided whether it was in fact the superior court in respect to New Hampshire, without deciding whether it was constitutionally so in virtue of power from all the States. This point it would be now necessary for this court to decide, if it were not for the decision of the court of appeals in 1783, a court of acknowledged prize jurisdiction, established in virPenhallow v. Doane's Administrators. 3 D. tue of express authority from all the States, New Hampshire included, and made a court in the last resort as to all prize causes, or, in other words, as expressed in the article of confederation itself, in all cases of captures. And the decision of this court, on the subject of the two contending jurisdictions, I * con- [ * 961 sider to be final and conclusive, for the following reasons:

1. At the time the decision was given, it was the only court of final appellate jurisdiction as to cases of captures in the United States. It seems therefore to follow necessarily, that upon all questions of capture, their decision should be final and conclusive, as much as the decision of this court upon a writ of error from the circuit court, or any other branch of its jurisdiction would be so.

2. To the suggestion at the bar, that the court of appeals could have no retrospect, several answers, I conceive, may be given.

1. It is taking for granted the very point in dispute, that this decision was retrospective. If congress possessed this authority before, and the articles of confederation amounted only to a solemn confirmation of it, it was in no manner retrospective. It was in effect a continuance of the same court acting under an express, instead, as before, of acting under an implied authority, and allowing the full benefit of an appeal regularly prayed, and rightfully enforced by the superior tribunal, after an unwarranted disallowance by the inferior.

2. Whether the article in the confederation giving authority to this court, as a superior tribunal in all cases of capture, did authorize them to receive appeals in cases circumstanced like this, was a point for them to decide, since it was a question arising in a case of capture, of all which cases, without any exception, they were constituted judges in the last resort. The merits of their decision we surely cannot now inquire into, but their authority to decide, not being limited, there was no method, by applying to any other court, of correcting any error they might commit, if in reality they should have committed any.

3. Whether their decision was right or wrong, yet nobody can deny that the jurisdiction of the commissioners was at least doubtful; of course the court of appeals found a case then depending in the former court of the commissioners, after a preliminary, but not a final determination, for such I consider it to have been. It was therefore a cause then sub judice, and it being a case of capture and a question of appeal, no other court on earth but that, in my opinion, could decide it. And no objection can be urged in this case against the authority of such a decision, or the propriety of its being final, but such as may be urged against all courts in the last resort, with respect to the merits of whose decisions there may be eternal dis

Penhallow v. Doane's Administrators. 3 D.

putes, but such disputes would be productive of eternal war, if some court had not authority to settle such questions for ever.

I, therefore, have not the smallest doubt that the decision [ *97 ) of * the court in 1783 was final and conclusive as to the par

ties to the decree. And this point appears to me so plain, that I think it useless to take notice of any authorities quoted on either side in relation to it, none of them, I conceive, in any manner contravening the conclusive quality of such decrees upon the principles I have stated, and some of them clearly, and beyond all ques. tion, supporting it.

The decree of September, 1783, being by me thus deemed final and conclusive, the next inquiry is,

Whether it was a decree which the district court of New Hampshire, or the circuit court of New Hampshire acting specially in this cause, for the legal reason alleged, had authority to enforce, either by decreeing a specific execution, or awarding damages for a non-performance of it?

Upon this branch of the subject a few words will be sufficient, The district court, by the act of congress, hath the whole original jurisdiction in admiralty and maritime causes. Whatever doubt might otherwise have arisen, the decision of this court, upon the writ of error from Maryland, last February, (Glass et al. v. The Betsey et al. 3 Dal. 6,) fully established, that this includes a prize jurisdiction, as well as other eases of a maritime nature. I was not present when the decision was given; had I been so, I probably should have concurred in it, because the words, “all civil causes of admiralty and maritime jurisdiction,” evidently include all maritime causes, whether peculiarly of admiralty jurisdiction or not; because a question of prize on the high seas is clearly of a maritime nature, and therefore the English distinction between an instance (which is strictly an admiralty) court, and a prize court, does not apply to this case; more especially as the district court having as large authority given to it in all maritime causes of a civil nature, as the constitution itself prescribes. If that court does not possess such an authority, no court can be instituted with powers adequate to that purpose; so that, under the present constitution, there could be no prize jurisdiction at all; and the very tenure of all the judges, which is for good behavior, naturally excludes the idea of a temporary and occasional establishment of any courts whatsoever. I mention these reasons not because the authority of the case receives any additional sanction from my opinion, but because I was desirous to take so favorable an opportunity of expressing my concurrence in a decision of so much importance.

Penhallow v. Doane's Administrators. 3 D. It was clearly shown at the bar, that a court of admiralty in one nation can carry into effect the determination of the court of admiralty of another. A court of prize being equally grounded on the law of nations as a court of admiralty, and proceeding also as that does, on the principles of the civil law, * must, [ * 98 1 in common reason, have the same authority. I think it was rightly observed that the sentence consisted, in effect, of two parts, one reversing the decree, and therefore vesting a right to a restitution or a recovery in value in the appellant, the other ordering a specific restitution. If that specific redress is from any cause rendered impracticable, those who have unjustly, and upon a sentence determined to be erroneous, received the property or its value to their own use, must in justice be accountable; otherwise form, which ought only to be the handmaid of right, might prove its treacherous destroyer. The district court having sole original authority in cases of this kind, must have equal power, as to such subjects, with the power possessed by this court in any case where it has original jurisdiction, with this difference only, that in the one case a writ of error is allowed, in the other not. The court of appeals, which passed the final decree, having expired, there seems at least as much reason for a court of similar jurisdiction as to the subject-matter proceeding to give effect to its decisions, as there can be for a court of admiralty of one nation giving effect to the decision of a court of admiralty of another, to which perhaps it is a perfect stranger, and of which it may know little more than that they equally belong to the great family of mankind. I am therefore of opinion that the district court, or the circuit court, acting specially in this instance on account of the incapacity of the former, as the law empowered it to do, had authority to enforce the decree in question, by decreeing damages in lieu of a specific restitution, which was impracticable.

The third question is

Whether the authority hath been exercised properly in this instance, under all the circumstances of the case ?

The material circumstances to be considered, either from facts admitted on the face of the record, or the public proceedings referred to by it, and of which we are judicially to take notice, seem to be as follow:

That the brig M'Clary was fitted out, under the authority, and pursuant to certain resolutions of congress, in consequence of whiclt an act of the legislature had passed, in the State of New Hampshire, which complied partially with those resolutions, but made some regulations apparently intended as a restriction upon them, whatever might be their legal operation; that on the 30th October, 1777, she

captured property the State law, ons are the defe

Penhallow v. Doane's Administrators. 3 D. captured the brig Susanna and cargo on the high seas; that the captured property was libelled in the court maritime of New Hampshire, erected by the State law, on the 11th November, 1767; that Elisha Doane, whose administrators are the defendants in error in

this cause, exhibited his claim on the 1st December follow[ *99 ] ing, and on the 16th the property was condemned, and

ordered to be distributed according to law; that within five days, the time for praying an appeal prescribed by the resolutions of congress, Doane prayed an appeal to congress, which was dissallowed; that he then prayed and obtained an appeal to the superior court of New Hampshire, agreeably to the directions of the State law, which allowed of such an appeal in cases of this kind, the act providing for an appeal to congress, only in case of a capture by an armed vessel fitted out at the charge of the United Colonies; that on the first Tuesday in September, 1778, the superior court adjudged the property to be forfeited, and ordered it to be sold by the sheriff at public vendue for the use of the libellants; and the court further on Jered, “ that the proceeds thereof, after deducting charges, should be paid to John Penhallow and Jacob Treadwell, agents for the owners, and to George Wentworth, agent for the captors, to be by the said agents paid and distributed to the persons mentioned therein, according to the law of the State in that case made."

That an appeal from this decree to congress was prayed within five days, and disallowed; and that afterwards, in obedience to the decree, and in virtue of it, the property was sold and distributed to those entitled under the decree; and the proportionate shares, upon the supposition of a lawful capture, are admitted to have rightly been one half to the owners, and the other half to the officers, mariners, and seamen.

That an application was afterwards made to the commissioners for hearing appeals under the authority of congress; and after due notice to the libellants in the original suit, who appeared and pleaded to the jurisdiction, stating not only the defect of the authority of the court to sustain the appeal under any circumstances, but also special reasons why the appellant was not entitled to the benefit of an appeal under the circumstances of the case, namely, the appellant's waiving the benefit of his appeal to congress, by taking an actual appeal to the superior court of New Hampshire ; that the appeal first demanded was not prosecuted for more than forty days; and that, by the resolution of congress, no appeal should be had from the verdict of a jury, but only the sentence of the judge. The commissioners, on the 26th June, 1779, decreed that they had jurisdiction, but declined any further proceedings at that time in the cause, for a reason they allege.

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