The State of Georgia v. Brailsford. 3 D.

and doubtless it is so. It has accordingly been treated by the counsel with great learning, diligence, and ability; and on your part it has been heard with particular attention. It is therefore unnecessary for me to follow the investigation over the extensive field into which it has been carried; you are now, if ever you can be, completely possessed of the merits of the cause.

*

[ 4 ]

*The facts comprehended in the case are agreed; the only point that remains, is to settle what is the law of the land arising from those facts; and on that point it is proper that the opinion of the court should be given. It is fortunate on the present, as it must be on every occasion, to find the opinion of the court unanimous. We entertain no diversity of sentiment, and we have experienced no difficulty in uniting in the charge which it is my province to deliver.

We are then, gentlemen, of opinion that the debts due to Hopton & Powell, who were citizens of South Carolina, were not confiscated by the statute of South Carolina; the same being therein expressly excepted. That those debts were not confiscated by the statute of Georgia; for that statute enacts, with respect to Powell & Hopton, precisely the like, and no other degree and extent of confiscation and forfeiture, with that of South Carolina. Wherefore it cannot now be necessary to decide how far one State may of right legislate relative to the personal rights of citizens of another State, not residing within their jurisdiction.

We are also of opinion that the debts due to Brailsford, a British subject, residing in Great Britain, were, by the statute of Georgia, subjected not to confiscation, but only to sequestration; and therefore that his right to recover them revived at the peace, both by the law of nations and the treaty of peace.

The question of forfeiture in the case of joint obligees, being at present immaterial, need not now be decided.

It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand it is presumed that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best judges of law. But still both objects are lawfully within your power of decision.

The State of Georgia v. Brailsford. 3 D.

Some stress has been laid on a consideration of the different situations of the parties to the cause. The State of Georgia sues three private persons. But what is it to justice how many or how few, how high or how low, how rich or how poor, the contending parties may chance to be? Justice is indiscriminately due to all, without regard to numbers, wealth, or rank. Because to

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the State of Georgia, composed of many thousands of [ 5 ] people, the litigated sum cannot be of great moment, you

will not for this reason be justified in deciding against her claim; if the money belongs to her, she ought to have it; but on the other hand no consideration of the circumstances, or of the comparative insignificance of the defendants, can be a ground to deny them the advantage of a favorable verdict, if in justice they are entitled to it.

Go then, gentlemen, from the bar, without any impressions of favor or prejudice for the one party or the other; weigh well the merits of the case, and do on this, as you ought to do on every occasion, equal and impartial justice.

The jury having been absent some time, returned to the bar, and proposed the following questions to the court.

1. Did the act of the State of Georgia completely vest the debts of Brailsford, Powell & Hopton, in the State, at the time of passing the same?

2. If so, did the treaty of peace, or any other matter, revive the right of the defendants to the debt in controversy?

In answer to these questions, the chief justice stated, that it was intended, in the general charge of the court, to comprise their sentiments upon the points now suggested; but as the jury entertained a doubt, the inquiry was perfectly right. On the 1st question, he said it was the unanimous opinion of the judges, that the act of the State of Georgia did not vest the debts of Brailsford, Powell & Hopton, in the State, at the time of passing it. On the 2d question he said, that no sequestration devests the property in the thing sequestered; and consequently, Brailsford, at the peace, and indeed throughout the war, was the real owner of the debt. That it is true the State of Georgia interposed, with her legislative authority, to prevent Brailsford's recovering the debt while the war continued, but that the mere restoration of peace, as well as the very terms of the treaty, revived the right of action to recover the debt, the property of which had never in fact or law been taken from the defendants; and that if it were otherwise, the sequestration would certainly remain a lawful impediment to the recovering of a bona fide debt, due to a British creditor, in direct opposition to the 4th article of the treaty.

Glass v. The Sloop Betsey. 3 D.

After this explanation, the jury, without going again from the bar, returned a verdict for the defendants.

9 H. 10; 13 H. 318.

[ *6 ] GLASS et al. Appellants, v. The Sloop BETSEY et al.

3 D. 6.

Every district court of the United States possesses all the powers of a court of admiralty, both instance and prize, and may award restitution of property claimed as prize of war by a foreign captor.

No foreign power can rightfully erect any court of judicature within the United States, unless by force of a treaty.

The admiralty jurisdiction exercised by consuls of France, in the United States, is not of right.

CAPTAIN Pierre Arcade Johannene, the commander of a French privateer, called the Citizen Genet, having captured as prize, on the high seas, the sloop Betsey, sent the vessel into Baltimore; but upon her arrival there, the owners of the sloop and her cargo filed a libel in the district court of Maryland, claiming restitution, because the vessel belonged to subjects of the king of Sweden, a neutral power, and the cargo was owned jointly by Swedes and Americans. The captor filed a plea to the jurisdiction of the court, which, after argument, was allowed; the circuit court affirmed the decree, and thereupon the present appeal was instituted.

The general question was, Whether, under the circumstances of this case, an American court of admiralty has jurisdiction to entertain the complaint, or libel, of the owners, and to decree restitution of the property? It was argued by E. Tilghman and Lewis, for the appellants; and by Winchester, of Maryland, and Du Ponceau, for the appellee.

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The court, having kept the cause under advisement for several days, informed the counsel, that besides the question of jurisdiction as to the district court, another question fairly arose upon the record,—whether any foreign nation had a right, without the positive stipulations of a treaty, to establish in this country an admiralty jurisdiction for taking cognizance of prizes captured on the high seas, by its subjects or citizens, from its enemies? Though this question had not been agitated, the court deemed it of great public importance to be decided; and, meaning to decide it, they declared a desire to hear it

Glass v. The Sloop Betsey. 3 D.

discussed. Du Ponceau, however, observed, that the parties

to the appeal did not conceive themselves interested in *the [ *16 ] point; and that the French minister had given no instruc

tions for arguing it. Upon which JAY, chief justice, proceeded to deliver the following unanimous opinion.

BY THE COURT: The judges being decidedly of opinion, that every district court in the United States possesses all the powers of a court of admiralty, whether considered as an instance, or as a prize court, and that the plea of the aforesaid appellee, Pierre Arcade Johannene, to the jurisdiction of the district court of Maryland, is insufficient: therefore it is considered by the supreme court aforesaid, and now finally decreed and adjudged by the same, that the said plea be, and the same is hereby overruled and dismissed, and that the decree of the said district court of Maryland, founded thereon, be, and the same is hereby revoked, reversed, and annulled.

And the said supreme court being further clearly of opinion, that the district court of Maryland aforesaid has jurisdiction competent to inquire, and to decide, whether, in the present case, restitution ought to be made to the claimants, or either of them, in whole or in part, (that is, whether such restitution can be made consistently with the laws of nations and the treaties and laws of the United States,) therefore it is ordered and adjudged, that the said district court of Maryland do proceed to determine upon the libel of the said Alexander S. Glass, and others, agreeably to law and right, the said plea to the jurisdiction of the said court notwithstanding.

And the said supreme court being further of opinion, that no foreign power can of right institute, or erect, any court of judicature of any kind, within the jurisdiction of the United States, but such only as may be warranted by, and be in pursuance of treaties, it is therefore decreed and adjudged that the admiralty jurisdiction, which has been exercised in the United States by the consuls of France, not being so warranted, is not of right.

It is further ordered by the said supreme court, that this cause be, and it is hereby remanded to the district court for the Maryland district, for a final decision, and that the several parties to the same do each pay their own costs.

3 D. 54, 188; 8 C. 110; 1 W. 238; 8 H. 495.

Bingham v. Cabbot. 3 D.

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*FEBRUARY TERM, 1795.

On the 16th of April, 1794, Chief Justice Jay was nominated, and, on the 19th of April, confirmed as Envoy Extraordinary to England. He did not sit during this term, and there was no Chief Justice until July, 1795.

The UNITED STATES V. HAMILTON.

3 D. 17.

A prisoner committed by a district judge, on a charge of treason, admitted to bail.

THE prisoner had been committed upon the warrant of the district judge of Pennsylvania, charging him with high treason; and I 18] being now brought into court upon a habeas corpus, *the court, after holding the subject for some days under advisement, directed the prisoner to be admitted to bail, himself in the sum of four thousand dollars, and two sureties each in the sum of two thousand dollars.

3 C. 448; 4 C. 75; 3 P. 193; 7 P. 568; 14 P. 614; 5 H. 176; 14 H. 103.

BINGHAM, Plaintiff in Error, v. CABBOT et al.

3 D. 19.

Whether a court of law has jurisdiction of a suit by the owners of a privateer, to recover of a public agent of the United States, in a French port, the proceeds of property captured, but not adjudicated upon, and which went into the hands of such agent, "for whom it might concern," the court was equally divided in opinion.

But if a court of law has jurisdiction, documentary evidence, showing in what character the defendant below received the property, was admissible.

A majority of the court being of opinion that the judgment below was erroneous, but being equally divided whether the court below had jurisdiction, the judgment was reversed, but no venire facias de novo was awarded.

Though the record shows the district judge was on the bench, if it also shows he did not sit in the cause, he was absent in contemplation of law.

The bill of exceptions is conclusive, and the court cannot suspect there was evidence not shown by it.

THIS was a writ of error to the circuit court for the district of Massachusetts. The declaration contained six counts. The first was for goods sold, according to an account annexed, a form in use in the local practice of Massachusetts. The account annexed was: