United States v. Crosby. 7 C.

THE UNITED STATES V. JONAH CROSBY.

7 C. 115.

The title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate.

THIS case is fully stated in the following opinion of this court, which was delivered by

STORY, J., on the 24th of February, all the judges being present,A writ of intrusion was brought by the United States, against the defendant in error, to recover possession of an undivided part of certain land lying within the district of Maine. Upon the trial of the cause in the district court of that district, a special verdict was found by the jury, upon which the same court gave judgment in favor of the defendant in error. This judgment was afterwards affirmed in the circuit court of Massachusetts, and is now before the supreme court for a final decision.

By the special verdict, it appears that the claim of the United States to the land in controversy is under one* Nathan- [* 116 ] iel Dowse, who derived his title, if any, from an instrument stated at large in the same verdict, and executed in his favor by one John Nelson. The instrument is without a seal, and was executed at the Island of Grenada, in the West Indies, before a notary public, according to the mode prescribed by the existing laws to pass real estate in that colony; and both parties were, at that time, residents therein.

By the laws of Massachusetts, no estate of freehold in land can be conveyed unless by a deed or conveyance, under the hand and seal of the party'; and to perfect the title as against strangers, it is further requisite that the deed should be acknowledged before a proper magistrate, and recorded in the registry of deeds for the county where the land lies.

The question presented for consideration is, whether the lex loci contractus or the lex loci rei sita is to govern in the disposal of real estates.

The court entertain no doubt on the subject; and are clearly of opinion that the title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate. The judgment of the circuit court must, therefore, be affirmed.

9 W. 565; 10 W. 192; 5 H. 233.

Schooner Exchange v. M'Faddon. 7 C.

The Schooner EXCHANGE v. M'FADDON and others.

7 C. 116.

A public armed vessel, in the service of a sovereign at peace with the United States, is not within the ordinary jurisdiction of our tribunals while in a port of the United States. But the sovereign power of the United States may interpose, and impart such a jurisdiction.

[ * 117 ]

APPEAL from the sentence of the circuit court of the United States for the district of Pennsylvania.

The case was this; on the 24th of August, 1811, John M'Faddon, and William Greetham, of the State of Maryland, filed their libel in the district court of the United States, for the district of Pennsyl vania, against the schooner Exchange, setting forth that they were her sole owners, on the 27th of October, 1809, when she sailed from Baltimore, bound to St. Sebastians, in Spain. That while lawfully and peaceably pursuing her voyage, she was, on the 30th of December, 1810, violently and forcibly taken by certain persons, acting under the decrees and orders of Napoleon, Emperor of the French, out of the custody of the libellants, and of their captain and agent, and was disposed of by those persons, or some of them, in violation of the rights of the libellants, and of the law of nations in that behalf. That she had been brought into the port of Philadel phia, and was then in the jurisdiction of that court, in possession of a certain Dennis M. Begon, her reputed captain or master. That no sentence or decree of condemnation had been pronounced against her, by any court of competent jurisdiction; but that the property of the libellants in her remained unchanged and in full force. They therefore prayed the usual process of the court, to attach the vessel, and that she might be restored to them.

Upon this libel the usual process was issued, returnable on the 30th of August, 1811, which was executed and returned accordingly, but no person appeared to claim the vessel in opposition to the libellants. On the 6th of September, the usual proclamation was made for all persons to appear and show cause why the vessel should not be restored to her former owners, but no person appeared.

On the 13th of September, a like proclamation was made, but no appearance was entered.

[* 118 ]

On the 20th of September, Mr. Dallas, the attorney of the United States, for the district of Pennsylvania, appeared, and (at the instance of the executive department of the government

Schooner Exchange v. M'Faddon. 7 C.

of the United States, as it is understood,) filed a suggestion, to the following effect:

Protesting that he does not know, and does not admit the truth of the allegations contained in the libel, he suggests and gives the court to understand and be informed,

That inasmuch as there exists between the United States of America, and Napoleon, Emperor of France, and King of Italy, &c., &c., a state of peace and amity; the public vessels of his said imperial and royal majesty, conforming to the law of nations, and laws of the said United States, may freely enter the ports and harbors of the said United States, and at pleasure depart therefrom without seizure, arrest, detention, or molestation. That a certain public vessel described, and known as the Balaou, or vessel No. 5, belonging to his said imperial and royal majesty, and actually employed in his service, under the command of the Sieur Begon, upon a voyage from Europe to the Indies, having encountered great stress of weather upon the high seas, was compelled to enter the port of Philadelphia, for refreshment and repairs, about the 22d of July, 1811. That having entered the said port from necessity, and not voluntarily; having procured the requisite refreshments and repairs, and having conformed in all things to the law of nations, and the laws of the United States, was about to depart from the said port of Philadelphia, and to resume her voyage in the service of his said imperial and royal majesty, when on the 24th of August, 1811, she was seized, arrested, and detained, in pursuance of the process of attachment issued upon the prayer of the libellants. That the said public vessel had not, at any time, been violently and forcibly taken or captured from the libellants, their captain and agent, on the high seas, as prize of war, or otherwise; but that if the said public vessel, belonging to his said imperial and royal majesty as aforesaid, ever was a vessel navigating under the flag of the United States, and possessed by the libellants, citizens thereof, as in their libel is alleged, (which, nevertheless, the said attorney does not admit,) the property of the [*119 ] libellants in the said vessel was seized and divested, and the same became vested in his imperial and royal majesty, within a port of his empire, or of a country occupied by his arms, out of the jurisdiction of the United States, and of any particular State of the United States, according to the decrees and laws of France, in such case provided. And the said attorney submitting, whether, in consideration of the premises, the court will take cognizance of the cause, respectfully prays, that the court will be pleased to order and decree, that the process of attachment, heretofore issued, be quashed; that the libel be dismissed with costs; and that the said public ves

Schooner Exchange v. M'Faddon. 7 C.

sel, her tackle, &c., belonging to his said imperial and royal majesty, be released, &c. And the said attorney brings here into court the original commission of the said Sieur Begon, &c.

On the 27th of September, 1811, the libellants filed their answer to the suggestion of the district attorney, to which they except, because it does not appear to be made for, or on behalf, or at the instance of the United States, or any other body politic or person.

They aver, that the schooner is not a public vessel, belonging to his imperial and royal majesty, but is the property of the libellants. They deny that she was compelled by stress of weather to enter the port of Philadelphia, or that she came otherwise than voluntarily; and that the property of the libellants in the vessel never was divest ed, or vested in his imperial and royal majesty, within a port of his empire, or of a country occupied by his arms.

The district attorney produced the affidavits of the Sieur Begon, and the French consul, verifying the commission of the captain, and stating the fact that the public vessels of the emperor of France never carry with them any other document or evidence that they belong to him, than his flag, the commission, and the possession of his officers.

In the commission, it was stated that the vessel was armed at Bayonne.

{ *120 ]

On the 4th of October, 1811, the district judge * dismissed the libel with costs, upon the ground that a public armed vessel of a foreign sovereign, in amity with our government, is not subject to the ordinary judicial tribunals of the country, so far as regards the question of title, by which such sovereign claims to hold the vessel.

From this sentence, the libellants appealed to the circuit court, where it was reversed, on the 28th of October, 1811.

From this sentence of reversal, the district attorney appealed to this court.

Dallas, attorney of the United States, for the district of Pennsyl vania, and Pinkney, for the claimant.

Harper and Hare, contrà.

樓

[ * 135 ] MARSHALL, C. J., delivered the opinion of the court, as

follows:

This case involves the very delicate and important inquiry, whe ther an American citizen can assert, in an American court, a title to an armed national vessel, found within the waters of the United States.

Schooner Exchange v. M'Faddon. 7 C.

The question has been considered with an earnest solicitude, that the decision may conform to those principles of [* 136 ] national and municipal law by which it ought to be regu

lated.

In exploring an unbeaten path, with few, if any, aids from precedents or written law, the court has found it necessary to rely much on general principles, and on a train of reasoning, founded on cases in some degree analogous to this.

The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power.

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.

All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.

This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.

The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers.

This consent may, in some instances, be tested by common usage, and by common opinion, growing out of that usage.

A nation would justly be considered as violating its faith, [*137 ] although that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.

This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extra-territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can