Jennings v. Carson.
4 Cranch’s Reports, 2 to 29.

pages 2-13

The owner of a privateer capturing neutral property, is not liable to a decree of restitution, unless the property, or its proceeds, came to his hands. [See note at the end of the case.]

The district courts of the United States are courts of prize; and have power to carry into effect the sentences of the old continental courts of appeals in prize causes. [See note at the end of the case, p. 12.]

In all proceedings in rem, the court has a right to order the thing to be taken into custody of the law; and it is to be presumed to be in custody of the law, unless the contrary appeal.

The thing does not follow the appeal into the superior court, but remains in the court below, which has a right to order it to be sold, if perishable, notwithstanding the appeal. [See note at the end of the case.]

By the judicial act, the district courts of the United States, are also courts of admiralty, and no law has regulatcd their practice. Yet they proceed according to the general rules of the admiralty. [See note at the end of the case.]

It must be supposed that a court of admiralty having prize jurisdiction, and consequently proceeding in rem, and not having its practice precisely regulated by law, would conform to those principles which especially govern thost courts proceeding in rem, and which seem necessarily to belong to the proper exercise of their functions.

A sentence of reversal and restoration, by which property captured on the high seas is again restored to the owners, is not conclusive evidence that the captors were wrong doers.

A belligerent cruiser, who, with probable cause, seizes a neutral and takes her into port for adjudication, and proceeds regularly, is not a wrong doer—the act is not tortious. The order of restoration proves that the property was neutral; not that it was taken without probable cause. [See note at the end of the case.]


APPEAL from the circuit court of Pennsylvania.

In the district court of Pennsylvania, on the 19th of May, 1790, Jennings filed a libel, alleging that he was a subject of the States General of the United Provinces, and an inhabitant and domiciled at the island of St. Eustatius, and the owner of the sloop George and her cargo, captured in the year 1778 by the American privateer Addition, Moses Griffin master, of which Carson was part owner; the George having at the time of her capture been bound to the port of Egg Harbour in the United States, and consigned to merchants residing there. The libel alleged that the George was illegally captured by the privateer Addition, on the prosecution of her voyage, and prayed process for arresting Carson to answer, &c. A supp1emental libel was filed, setting forth the proceedings against the George in the court of admiralty of New Jersey, established by a law of that state.

The George, after her capture, was libelled in New Jersey, and condemned, on the 31st of October, 1778, as lawful prize, by the court of admiralty for the state of New Jersey; from which sentence of condemnation there was an appeal to the continental court of appeals, established under the authority of the old congress, where the sentence of condemnation was, on the 23d of December, 1780, reversed, and restitution ordered, but never obtained. In the mean time, however, the vessel and cargo had been sold by the marshal of the state court of admiralty, for paper money, under an order of the court contained in the sentence of condemnation; and it did not appear what had been done with that money. No measures were taken to enforce the decree of restitution, during the old confederation.

The libel of Jennings did not pray for specific or general relief, but for process of arrest against Carson, so that he should appear to answer to the libellant "in his said complaint, of the wrongs and injuries aforesaid, according to the resolutions of the continental congress, the laws of the United States and of the commonwealth of Pennsylvania, and the laws and usages of nations in this behalf practised, used, and established."

Carson, being taken upon the writ of arrest, appeared and filed his plea and answer; averring the sloop George to have been the property of a subject of the king of Great Britain, at the time of capture, and employed in carrying goods to the British army, and navy; that the goods were imported directly or indirectly from Great Britain, or Ireland, contrary to the regulations of Congress and the law of nations; the king of Great Britain then being at war with the United States.

It admits that Carson was the owner of one-third of the privateer. It admits the capture, the condemnation and sale, the appeal and reversal, and the order of restitution; but denies that any part of the proceeds of the sale ever came to the hands of the owners of the privateer, or either of them, but remained in the hands of the marshal of the court of admiralty of New Jersey, who alone is answerable for the same. It avers, that Griffin, the commander of the privateer, had probable cause for making the capture, and therefore the owners are not liable.

It denies the jurisdiction of the district court of Pennsylvania to take cognisance of the question, the same belonging exclusively to the court of admiralty of the state of New Jersey, and to the court of appeals established by the continental congress. It denies the jurisidiction of the court as a prize court in any case, and especially in cases of capture made during the British war, and avers that it has no authority to carry into effect a decree of either of those courts established under the old government.

After filing his plea and answer, Carson died; and Jennings filed a petition, suggesting the death of Carson, and charging his executors with assets, and praying that the suit may stand revived against them; upon which a citation issued, and the executors appeared and answered generally by a reference to the answer and plea of their testator; and further pleaded, that by the law maritime, the law of the land, and the laws and ordinances of the United States, they, as executors, are not liable to be proceeded against in that court for the several matters set forth in the libel, for that they are not answerable for the wrongs and offences, or the pretended wrongs and offences of their testator; and also, for that courts maritime have not authority to intermeddle with the estates and effects, real or personal, of deceased persons, or to give relief against the same, or to seize or take the same effects or estates in execution, or to imprison the bodies of executors for the default of the testator.

To these pleas and answers there were general replications.

On the 30th of March, 1792, the judge of the district court gave an opinion in favour of its jurisdiction in general cases as a prize court; but on the 21st of September, 1793, he dismissed the libel, on the ground that the district court was not competent to compel the execution of a decree of the late continental court of appeals.(a) This sentence was affirmed in the circuit court on the 11th of April, 1798, but was reversed by this court at February term, 1799, so far as the same decreed that the district court had not jurisdiction to carry into effect the decree of the court of appeals, and the cause was remanded to the district court for further proceedings;

(a) The following learned opinion of the honourable Judge Peters, upon the prize jurisdiction of the district courts of the United States, is too important to be omitted. - Mr. Cranch.

"This is a case in which the general principles are stated in the proceedings and exhibits, and therefore, will appear clear enough by the perusal of them. There are some circumstances, however, not clearly ascertained by those exhibits, which I shall have occasion to mention, in the course of the observations which I shall make on the merits hereafter. The libel complains of the illegal capture of the sloop George, whereof Robert Smith was master, and her cargo, the property of the libellant, then and now a subject of Holland, during the late war, viz. in July, 1778, by the schooner privateer Addition, Moses Griffin, commander, belonging to the testator, Joseph Carson, and others, who are named in the answer of Joseph Carson in his lifetime.

"It is alleged, on the part of the respondents, that the vessel captured was employed in carrying goods belonging to the subjects of Great Britain, contrary to the regulations and laws of the then congress. They rely on the libel and condemnation in the state court of admiralty of New Jersey, the verdict of the jury ascertaining the facts, and the condemnation by the court and order of sale, and for payment of the nett proceeds to the captors.

The sale of the vessel and cargo at vendue, and the moneys being received by the marshal of the court, in whose hands it is said they now remain in depreciated paper, not having been distributed to and among the captors, and of course the respondents, or their testator, received no part thereof and therefore they allege that the marshal only is chargeable to the libellant, and not the respondents or the testator. They insist that there was probable cause of seizure, and therefore the captors are not answerable in damages. They also plead in abatement to the jurisdiction of the court, because they assert that the subject of prize or no prize belongs to the admiralty of New Jersey, and not to this court, which has no cognisance of the question; nor has it power to effectuate its judgment against executors. On the part of the executors particularly, an answer was put in denying their being chargeable for the torts of the testator, which, as well as their consequences, die with his person. But on an explanation on the behalf of the libellant, that he claimed no damages for the tort, merely as a tort, but sought restitution of his property only, the point was abandoned by the advocates for the respondents.

"The libellant, to repel this defence, and denying, in the usual form, the facts as stated, sets forth the reversal of the judgment of the court of New Jersey, by the decree of the court of appeals of the United States, the 23d of December, 1780, which contains a direction to the latter court to make restitution of the property, with costs, but not damages. They also join issue on the point of jurisdiction, and distinguish between a suit commenced in the lifetime of a testator, and one brought in the first instance against the executors.

"Five points were made by the advocates of the respondents: 1st. The tort dying with the person. 2d. The jurisdiction of this court is not competent, as it is not a prize court. 3d and 4th. If a prize court, yet, as the cause originally attached in the court of New Jersey, that was the only court in which the consequences were cognisable, and alone competent to effectuate the decree of the court of appeals. 5th. A capture with probable cause is not a subject of action for damages.

"The first point being waived, brings the question to the competency of jurisdiction, which in order, as well as necessity, should be the first point considered, because, if the court has no jurisdiction, it is nugatory to inquire into the merits of the cause. On this point, as it first struck me, I confess I had doubts. The account given by lord Mansfield of the arrangement of the court of admiralty in England, as detailed in the case of Lindo and Rodney, produced hesitation, and my respect for the opinion of that great character, as well as the arguments of the advocates in the present cause, induced a deliberate consideration of the subject. The division of the court of admiralty into two sides, prize and instance, was new to me, and it is allowed not to have been generally known, if at all, by the common lawyers in England, before that (*continued next page)

the respondent being at liberty to contend before that court, as matter of defence to the merits or to the form of proceedings, that the libel should first have been filed in the district court of New Jersey, but not to make the decision of the judge on that point a ground of excepting to the jurisdiction of the district court of Pennsylvania, and that costs should await the event of the cause.

* case was determined. In this country it never was known, nor does it appear that any new commission was ever transmitted to the colonial judge of the admiralty from Great Britain before the revolution, in cases of wars between that kingdom and its enemies. I have traced from records and other authentic information, the proceedings of the admiralty court of Pennsylvania, for a period exceeding fifty years, and I have the best reason for be1ieving that the practice in other colonies was similar. In all the proceedings, the prize suits are called civil and maritime. During the late war, when we assumed and effected our independence, the proceedings were unaltered in this point. I do not find that there is any such distinction in any other nation, except it should be found in Holland, and of this I much doubt. The authority out of Bynkershock, p. 177, produced by one of the advocates for the respondents, founded on an ordinance of the Earl of Leicester, shows that there is a court there whose authortiy is entirely confined to captures as prize, and it has no jurisdictton even of other maritime cases. This, therefore, is not applicable to a question concerning the powers of a court of admiralty, which is allowed, even in the case of Lindo and Rodney, to possess jurisdiction in all maritime causes, though in England it is said to act under a peculiar (and therefore not generally known) organizaiton. I take it, therefore, for granted, because the contrary has not been shown, that in England alone are these distinct branches of the same court to be found. In all the books of reports in which cases of prohibitions to the admiralty are mentioned, precedent to the case of Lindo and Rodney, these prohibitions are moved for and granted generally to the court of admiralty, and though in a case in Term Reports, (long after the case of Lindo and Rodney,) the distinction is taken, and the prohibitions moved for to the prize court, this very instance shows it to be a novelty in the common law books there, for if it had been known as an old practice, the particular designation of the prize court would have been unnecessary, and the prohibition would have been required to the admiralty generally, as it ever had been in former cases.

"Acting, as we now do, in a national, and not a dependent capacity, I cannot conceive that we are bound to follow the practice in England, more than that of our own or any other nation. Customs purely colonial were parts of our laws, even in the time of our connection with Britain. I need instance only one, viz.: that of the mode of conveyance of feme-coverts' estates, contrary to the laws of England. This is a case at common law, in which we then were and now are particularly called to follow their rule and practice, in general. The admiralty proceeds by a law which considers all nations as one community, and should not be tied down to the precedent of one nation, though it were more clearly ascertained. I shall, therefore, conclude, that if the powers of an admiralty and maritime court are delegated by congress to this court, those of a prize court are mixed in the mass of authority with which it is invested and require no particular specification. They are called forth (if generally delegated) by the occasion, and not by repeated and new interferences of government. Nor do I believe that even in England, any new authority is vested, though a kind of legal and solemn notice is given of a war, in which subjects for the prize authority of the admiralty may occur. It does not begin with their wars, but was pre-existent. It does not end with the commencement of peace, for their books show it to be exercised at any time afterwards. Government never interferes to put an end to it; how then can its power be repeatedly necessary to begin it? The fact is, it is inherent in a court of admiralty, and not lost, but torpid, like other authorities of the court, when there are no occasions for their exercise.

"But here the question arises, have congress, by their judiciary laws, vested this court with general or special admiralty powers? Congress have authority (delegated by the people in the constitution) in "all cases of admiralty and maritime jurisidiction." The words of that part of the judiciary law affecting this subjeat, in which the authorities of the court are described, will be seen in the ninth section of that law. "It shall also have exclusive original cognisance of all [*continued next page]


Upon the second hearings of the cause, on the 2d of April, 1802, the judge decreed in favour of the libellant, for the amount of the sale of the sloop and cargo, deduced by the scale of depreciation, with interest until two months after the order of restitution by the court of appeals; and from the time of the institution of the present suit until the day of final decree; which decree was, on the 10th of May, 1804, reversed by the circuit court, and the libel dismissed with costs. From which sentence, the libellant appealed to this court.

For the appellant it was contended,

1. That if the appellant was entitled to redress, he was right in applying to the district court of Pennsylvania, and was not obliged to resort to that of New Jersey. Upon this point were cited, to show that one court of admiralty is competent to carry into effect the sentence of another court, Douglass 1. 1 Vint. 33. 1 Liv. 267. 6 Vin. 535. 1 Salk. 32. 2 Lord Ray, 935. 3 Dall. 97. 2 Browne’s Civ. & Adm. Law, 120.

2. That if the suit was rightly commenced in the district court of Pennsylvania, that court had authority to decide finally on the case. Authorities. 12 Mod. 639. 1 Vern. 297, 307. 6 Mod. 179. 2 Salk. 588. Cro. Eliz. 209. 11 Mod. 56.

[continued from previous page] *civil causes of admiralty and maritime jurisdiction, including seizures under laws of impost, navigation or trade of the United States." It is said, prize or no prize is a question of a military, not of a civil nature. But I find no such distinction in the books. Blackstone, in his division of courts, does not class that of the admiralty as a military, but a maritime court, and it will appear that the jurisdiction of prize is within its powers, though he points out, in cases of prizes in the then colonies, that appeals were to members of the privy council, and others, in consequence of treaties and domestic arrangements. But he says, "the original court to which this question is permitted in England, is the court of admiralty," without any distinction as to the nature of its powers, whether instance or prize, military or civil. In book iii. p. 108, he mentions the exclusive and undisturbed jurisdiction of the courts of admiralty, in cases of prize; and that court determines, not according to British laws or practice, but "according to the law of nations." Should I confine my attention merely to the inquiry whether this could be classed under the description of a "civil cause," I should think there were grounds to support the idea of its being comprehended. In the case of Acheson and Everett, Cowp. 382, some light is thrown an this view of the subject, because it appears that a civil suit may, in substance, but not in form, partake of criminal ingredients. So, by parity of reason, may a civil cause of admiralty and maritime jurisdiction, be mixed with, or grounded on, transactions of a military nature. But I do not think it necessary merely to fix this point. What is, perhaps, of most consequence, is to ascertain the intention of congress in distributing a power, clearly in them, to their judiciary departments. And what was said by one of the advocates for the libellant, strikes me as being just and proper, viz.: that the construction should be made from all the laws on the subject, in pari materia. "The court shall also have exclusive original cognisance of all civil causes of admiralty and maritime jurisdiction, including," &c. - that is, being invested with criminal powers in certain cases, it shall also have civil powers, as opposed to criminal, in admiralty and maritime cases. By recurring to the twelfth, thirteenth, nineteenth, twenty-first, and thirtieth sections of the judiciary law, it will appear that congress meant to convey all the powers, (and in the words of the constitution,) as they possessed them in admiralty cases; and actions or suits in these cases can originate only in the district courts.

"For the foregoing reasons, and some others which might be added, I am of opinion that this court possesses all the powers of a court of admiralty; and that the question of prize is cognisable before it. I have gone thus far into this discussion of the point, because I believe it is the first time it has been agitated in a federal court.

"I do, therefore, decree, adjudge, and determine, that the plea to the jurisdiction of the court, as not being competent to determine on prize questions, be, and the same is hereby overruled."

3. That if the district court has jurisdiction of the question of prize.

4. That, if the appellant is entitled to redress, his remedy survives against the executors of Carson. Upon this point were cited, 4 Rob. Rep. 293. 1 Dall. 108. 3 Dall. 334. Domat. 605. 607, 608, 609. Cowp. 374, 376. Grotius, b. 2, c. 21, s. 19, 20. Vinnius. 785. 787.

5. That it is immaterial whether there was or was not probable cause for the capture. Cited, Del Col v. Arnold, 3 Dall. 333, 1 Condens. Rep. 150.

6. That the owners of the capturing vessel are liable for the acts of the captors. In support of this position, cited, The Picimento, 4 Rob. Rep. 293. The Venus, 4 Rob. Rep. 292. 1 Dall. 108. 3 Dall. 334. Penhallow v. Doane, 3 Dall. 54, 1 Condens. Rep. 21.


For the appellees it was contended,

That the district court of Pennsylvania had not jurisdiction of the case, the proceeds of the capture not being within the district. Cited, The Flad Oyen, 1 Rob. Rep. 119. 3 Bac. Ab. 33. The Carel and Magdalena, 3 Rob. 53.

The case of the appellant is without merits.

Tilghman and Lewis for appellant. Hare and Dallas for appellees.


Mr. Chief Justice MARSHALL delivered the opinion of the Court.

The privateer Addition, cruising under a commission granted by the congress of these United States during the war between this country and Great Britain, captured the sloop George, brought her into port, and libelled her in the court of admiralty for the state of New Jersey, where she was condemned as lawful prize by a sentence rendered on the 31st of October, 1778, and ordered to be sold by the marshal. From this sentence, Richard D. Jennings, the owner, prayed an appeal, which, on the 23d of December, 1780, came onto be heard before the court of appeals constituted by congress, when the sentence of the court of New Jersey was reversed, and restitution of the vessel and cargo was awarded. Pending the appeal, on the 13th of November, 1778, the order of sale was executed, and the proceeds of sale remained in possession of the marshal. It does not appear that any application was ever made to the court of New Jersey to have execution of the decree of the court of appeals, and this suit is brought to carry it into execution, or on some other principle to recover from the estate of Joseph Carson, who was part owner of the privateer Addition, the value of the George and her cargo.

So far as this bill seeks to carry into effect the decree of the 23d of December, 1780, there is no doubt of the jurisdiction of the court; but the relief granted can only be commensurate with that decree. It is therefore all essential to the merits of this cause to inquire how far Joseph Carson, the testator of the defendants, was bound by the sentence which this court is asked to carry into effect.

The words under which the plaintiffs claim are those which direct the restoration of the George and her cargo. As the captors are not ordered by name to effect this restoration, and as the order bound those in possession of the subject on which it must be construed to operate, it must be considered as affecting those who could obey it, not those who were not in possession of the thing to be restored, had no power over it, and were consequently unable to redeliver it. Had Richard D. Jennings appeared before the court of New Jersey with this decree in his hand, and demanded its execution, the process of that court would have been directed to those who possessed the thing to be restored, not to those who held no power over it, either in point of fact or law.

This position appears to plain to require the aid of precedent; but if such aid should be looked for, the case of Doane v. Penhallow unquestionably affords it. In that case a decree of reveral and restitution was satisfied by directing the proceeds of the sale to be paid; and even the judge who tried the cause at the circuit, concurred with his brethren in reversing his own judgment, so far as it had decreed joint damages, and had thereby rendered the defendant liable for more than he had received. The case of Doane v. Penhallow, therefore, which must be considered as expounding the decree of the court of appeals now under consideration, has decided that Joseph Carson was bound to effect restitution by that decree so far only as he was, either in law or fact, possessed of the George and her cargo, or of the proceeds.

To this point, therefore, the inquiries of the court will be directed.

In prosecuting them it will be necessary to ascertain whether,

1st. The George and her cargo were, previous to the sentence, in the custody of the law, or of the captors.

2nd. Whether the court of admiralty, after an appeal from their sentence, possessed the power to sell the vessel and cargo, and to hold the proceeds for the benefit of those having the right.

It appears that the court of New Jersey, which condemned the George and her cargo as prize, was established in pursuance of the recommendation of congress, and that no legislative act had prescribed its practice or defined its powers. The act produced in court was passed at a subsequent period, and consequently cannot govern the case. But the court cannot admit the correctness of the argument drawn from this act by the counsel for the plaintiffs in error. It cannot be admitted that an act defining the powers and regulating the practice of a pre-existing court, contains provisions altogether new. The reverse of this proposition is generally true. Such an act may rather be expected to be confirmatory of the practice and of the powers really exercised.

Since we find a court instituted and proceeding to act as a court, without a law defining its practice or its powers, we must suppose it to have exercised its powers in such mode as is employed by other courts instituted for the object, and is consonant to the general principles on which it must act.

That by the practice of courts of admiralty a vessel when libelled is placed under the absolute control of the court, is not controverted; but the plaintiffs contend that this power over the subject is not inherent in a court of admiralty, but is given by statute; and in support of this opinion the prize acts of Great Britain have been referred to, which unquestionably contain regulations on this point. But the court is not of opinion that those acts confer entirely new powers on the courts whose practice they regulate. In Browne's Civil and Admiralty Law, in his chapter on the jurisdiction of the prize courts, it is expressly stated that those courts exercised their jurisdiction anterior to the prize acts; and the same opinion is expressed by Lord Mansfield, in the case of Lindo v. Rodney, which is cited by Browne. The prize acts, therefore, most probably regulated pre-existing powers in the manner best adapted to the actual circumstances of the time.

It is conceived that the constitution and character of the court of admiralty, and the object it is to effect, will throw much light on this subject.

Tho proceedings of that court are in rem, and their sentences act on the thing itself. They decide who has the right, and they order its delivery to the party having the right. The libellant and the claimant are both actors. They both demand from the court the thing in contest. It would be repugnant to the principles of justice and to the practice of courts to leave the thing in possession of either of the parties, without security, while the contest is depending. If the practice of a court of admiralty should not place the thing in the custody of its officers, it wou1d be essential to justice that security should be demanded of the libellant to have it forthcoming to answer the order of the court.

If the captor should fail to libel the captured vessel, it has been truly stated in argument that the owner may claim her in the court of admiralty. How excessively defective would be the practice of that court, if, on receiving such a claim, it neither took possession of the vessel, nor required security that its sentence should be performed. Between the rights of a claimant where a libel is filed and where it is not filed, no distinction is perceived, and the court conceives the necessary result of proceedings in rem to be that the thing in litigation must be placed in the custody of the law, and cannot be delivered to either party but on sufficient security.

In conformity with this opinion is the practice of the court of admiralty, not only when sitting for the trial of prizes, and acting in conformity with the directions of positive law, but when sitting as an instance court, and conforming to the original principles of a court of admiralty. In his chapter "on the practice of the instance court," under the title of "proceedings in rem," p. 397, Browne states explicitly, that when the proceeding is against a ship, the process commences with a warrant directing the arrest of the ship. In Browne, p. 405, the course of proceedings against a ship, not for debt, but to obtain possession, is stated at length, and in that case, too, the court takes possession of the ship.

It must be supposed that a court of admiralty, having prize jurisdiction, and consequently proceeding in rem, and not having its practice precisely regulated by law, would conform to those principles which usually govern courts proceeding in rem, and which seem necessarily to belong to the proper exercise of their functions. If in proceeding against a ship to subject her to the payment of a debt, or to acquire the possession of her on account of title, the regular course is that the court takes the vessel into custody and holds her for the party having right, the conclusion seems irresistible, that in proceeding against a ship to condemn her as prize to the captor, or to restore her to the owner who has been ousted of his possession, the court will also take the vessel into custody, and hold her for the party having the right.

This reasoning is illustrated, and its correctness in a great measure confirmed, by the legistation of the United States, and the judicial proceedings of our own country. By the judicial act the district courts are also courts of admiralty, and no law has regulated their practice. Yet they proceed according to the general rules of the admiralty, and a vessel libelled is always in possession of the law.

An objection, however, to the application of this reasoning to the case before the court is drawn from the defectiveness of the record in the original cause, which does not exhibit a warrant to the officer to arrest the George. The first step which appears to have been taken by the court is an order to the marshal to summon a jury for the trial of the case.

The carelessness with which the papers of a court created for the purposes of the war, and which ceased to exist before the institution of this suit, have been kept, may perhaps account for this circumstance. At any rate the court of admiralty must be presumed to have done its duty, and to have been in possession of the thing in contest, if its duty required that possession. The proceedings furnish reasons for considering this as the fact.

The libel does not state the George to have remained in possession of the captors, that thee sale was made for them, or by their means, nor that the proceeds came to their hands. The answer of the defendants avers that on bringing the George into port, she was delivered up with all her papers to the court of admiralty, and, although the answer is not testimony in this respect, yet the nature of the transaction furnishes ample reason to believe that this was the fact and it is the duty of the plaintiff to show that the defendants are in a situation to be liable to his claim. If the process of the court of admiralty does not appear regular, this court, not sitting to reverse or affirm their judgment, but to carry a decree of reversal and restoration into effect, must suppose the property to be in the hands of those in whom the law places it, unless the contrary appears. The George and her cargo, therefore, must be considered as being in custody of the law, unless the contrary appears.

If this conclusion be right, it follows that the regularity of the sale is a question of no importance to the defendants since that sale was the act of a court having legal possession of the thing, and acting on its own authority.

If the reasoning be incorrect, it then becomes necessary to inquire,

2d. Whether the court of New Jersey, after an appeal from its sentence, possessed the power of selling the George and her cargo, and holding the proceeds for the party having the right.

That the British courts possess this power is admitted, but the plaintiffs contend that it is conferred by statute, and is not incident to a prize court.

That the power exists while the cause is depending in court seems not to be denied, and indeed may be proved by the same authority and the same train of reasoning which have already been used to show the right to take possession of the thing whenever proceedings are in rem. Browne, in his chapter on the practice of the instance court, shows its regular course to be to decree a sale where the goods are in a perishable condition.

The plaintiffs allege that this power to decree a sale is founded on the possession of the cause, that the court can perceive no ground for such an opinion. It is supported by no principle of analogy, and is repugnant to the reason and nature of the thing.

In cases only where the subject itself is in possession of the court, is the order of sale made. If it be delivered on security to either party, an order of sale pending the cause is unheard-of in admiralty proceedings. The motive assigned for the order never is that the court is in possession of the cause, but that the property in possession of the court is in a perishable state. A right to order a sale is for the benefit of all parties, not because the case is depending in that particular court, but because the thing may perish while in its custody, and while neither party can enjoy its use.

If, then, the principle on which the power of the court to order a sale depends, is not that the cause is depending in court, but that perishable property is in its possession, this principle exists in as much force after as before an appeal. The property does not follow the appeal into the superior court. It still remains in custody of the officer of that court in which it was libelled. The care of its preservation is not altered by the appeal. The duty to preserve it is still the same, and it would seem reasonable that the power consequent on that duty would be also retained.

On, the principles of reason, therefore, the court is satisfied that the tribunal whose officer retains possession of the thing retains the power of selling it when in a perishing condition, although the cause may be carried by appeal to a superior court. This opinion is not unsupported by authority.

In his chapter on the practice of the instance court, page 405, Browne says, "if the ship or goods are in a state of decay, or of a perishable nature, the court is used, during the pendency of a suit, or sometimes after sentence, notwithstanding an appeal, to issue a commission of appraisement and sale, the money to be lodged, with the registrar of the court, in usum jus habentis."

This practice does not appear to be established by statute, but to be incident to the jurisdiction of the court, and to grow out of the principles which form its law. A prize court not regulated by particular statute would proceed on the same principles—at least there is the same reason for it.

But there is in this case no distinct order of sale. The order is a part of the sentence from which an appeal was prayed, and is therefore said to be suspended with the residue of that sentence.

The proceedings of the court of admiralty, if they are all before this court, were certainly very irregular, and much of the difficulty of this case arises from that cause; but as this case stands, it would seem entirely unjust to decree the defendant to pay a heavy sum of money, because the court of admiralty has done irregularly that which it had an unquestionable right to do.

Since the court of admiralty possessed the power of making a distinct order of sale immediately after the appeal was entered, and this, but for the depreciation, would have been desirable by all, it is not unreasonable to suppose the practice to have been to consider the appeal as made from the condemnation, and not from the order of sale. The manner in which this appeal was entered affords some countenance to this opinion. In the recital of the matter appealed from, the condemnation alone, not the order of sale, is stated.

The court will not consider this irregularity of the admiralty, in ordering what was within its power, as charging the owners of the privateer, under the decree of the 23d of December, 1780, with the amount of the sales of the George and her cargo, which in point of fact never came to their hands, and over which they never possessed a legal control, for the marshal states himself to hold the nett proceeds to the credit of the former owners.

It is, therefore, the unanimous opinion of this court, that the decree of the 23d of December, 1780, does not require that the restoration and redelivery which it orders, should be effected by the captors, but by those who in point of law and fact were in possession either of the George and her cargo, or of the money for which they were sold. As the officer of the court of New Jersey, not the captors, held this possession, the decree operates upon him, not upon them.

On that part of the libel in this case which may be considered as supplemental, and as asking relief in addition to that which was given by the decree of the 23d of December, 1780, the court deems it necessary to make but a very few observations.

The whole argument in favour of this part of the claim is founded on the idea that the captors were wrong-doers, and are responsible for all the loss which has been produced by their tortious act. The sentence of reversal and restoration is considered by the plaintiffs as conclusive evidence that they were wrong-doers.

But the court can by no means assent to this principle. A belligerent cruiser who with probable cause seizes a neutral and takes her into port for adjudication, and proceeds regularly, is not a wrong-doer. The act is not tortious. The order of restoration proves that the property was neutral, not that it was taken without probable cause. Indeed, the decree of the court of appeals is in this respect in favour of the captors, since it does not award damages for the capture and detention, nor give costs in the suit below.

If we pass by the decree, and examine the testimony on which it was founded, we cannot hesitate to admit that there was justifiable cause to seize and libel the vessel.

Upon the whole case, then, the court is unanimously of opinion that the decree of the circuit court ought to be affirmed.

Sentence affirmed.


Marine Trespass.
1 Peters’s Digest, 224, "District Courts of the United States." In a note to the case of Del Col v. Arnold, ante, Vol. I. p. 152, the cases of claims for damages for marine trespass and illegal capture, are collected.

Effect of appeals in cases of admiralty jurisdiction.
1 Peters’s Digest, 224, "Effect of an appeal." In all proceedings in rem, on appeal, the property follows the cause into the circuit court, and is subject to the disposition of that court; but it does not follow the cause into the supreme court, on an appeal to that court. The Collector, 6 Wheat 194.
After an appeal from the district to the circuit court, the former court can make no other order respecting the property; whether it has been sold and the proceeds paid into the court, or whether it remains specifically, or its proceeds remain in the hands of the marshal. Ibid.
In admiralty causes an appeal suspends the sentence altogether, and the cause is to be heard in the appellate court, as if no decree had been pronounced. Yeaton et al. v. The United States, 5 Cranch, 281, post.

Admiralty jurisdiction.
1 Peters’s Digest, 88, "Admiralty." See note to the case of The United States v. Le Vengeance, 1 Condens. Rep. 132, as to the admiralty jurisdiction of the courts of the United States.
The words of the constitution, declaring that "the judicial power shall extend to all cases of admiralty and maritime jurisdiction;" must be taken to refer to the admiralty and maritime jurisdiction of England. 4 Dall. 426. 429.

Probable cause.
3 Peters’s Digest, 380, "Probable cause." Cases in the courts of the United States, as to what will be deemed probable cause of capture and detention, to excuse capture, detention, and proceedings.
If the commander of a public armed vessel seizes and sends in for adjudication, a vessel for violation of a statute, unless there is reasonable cause of suspicion, he will be liable for damages. Murray v. Charming Betsey, 2 Cranch, 64, 1 Condens. Rep. 385.


A doubt concerning the construction of a law may be good ground for seizure, and authorize a certificate of probable cause. United States v. Riddle, 5 Cranch, 311.

Probable cause means less than evidence which would justify condemnation; it imports a seizure made under made under circumstances which warrant suspicion. Locke v. United States, 7 Cranch. 339.

Although probable cause of seizure will not exempt from costs and damages, in seizures under mere municipal statutes, unless expressly made so by the law itself; this principle does not extend to captures jure belli, nor to marine torts generally, nor to acts of congress authorizing the exercise of belligerent rights to a limited extent, such as the piracy act of March 3d, 18l9, c. 487, and May 15th, 1820, c. 631. The Palmyra, 12 Wheat. 1.

A doubt as to the true construction of the law, is as reasonable cause for seizure as a doubt respecting the fact. The Friendship, 1 Gallis. 111.

Probable cause is a sufficient justification for a capture; but such protection may be forfeited by subsequent misconduct or negligence. The George, 1 Mason. 24.

There can be no doubt that where there is prima facie evidence to condemn, or so much question and difficulty as to require further proof, the captors are completely justified; but these are not the only tests of a probable cause for the capture. Ibid.

If there be a reasonable suspicion of illegal traffic, or a reasonable doubt as to the proprietary interest, the national character, or the legality of the conduct of the parties; it is proper to submit the cause for adjudication before the proper prize tribunal; and the captors will be justified although the court should acquit, without the formality of ordering further proof. Ibid.

Probable cause will cause the seizor of a neutral vessel for breach of a municipal regulation; but the ground of excuse ought to be stronger than in a case of the capture of a neutral by a belligerent. Shattuck v. Maley, 1 Wash. C. C. R. 245.

When a seizor shows probable cause, he becomes a bona fide possessor, and is not responsible for the consequences that may result; but where the seizure is wholly without excuse, he is liable for damages which ensue from the seizure. Ibid.


Source: Condensed Reports of Cases in The Supreme Court of the United States Containing the Whole Series of the Decisions of the Court from its Organization to the Commencement of Peters's Reports at January Term, 1827, with Copious Notes of Parallel Cases in the Supreme and Circuit Courts of the United States, Edited by Richard Peters, Counsellor at Law and Reporter of the Decisions of the Supreme Court of the United States. Second Edition in Six Volumes, Vol. II. Philadelphia: Thomas, Cowperthwait & Co, No. 253 Market Street, 1841