1810 U.S. LEXIS 343
U.S.
1810
Livingston, J.

Considering it, then, as settled that the French tribu* nal had jurisdiction of property.seized under a muni* cipal regulation, within the territorial jurisdiction of the government of St. Domingo, it only remains for me to say whether it will make any difference if, as now appears to have been the case, the vessel were taken on the high seas, or more than two leagues from the coast. If the res can be proceeded-against when not in the possession or under the fontrol of the court, I am not able to perceive how it can be material whether the capture were made within or beyond the jurisdictional limits of France; or in the exercise of a belligerent or municipal right. By a seizure on .the high seas, she interfered with ,the jurisdiction of no other nation, the authority of each bging there concurrent. It would seem also that, if jurisdiction be at all permitted where the thing is elsewhere, the court exercising it must necessarily decide, and that ultimately, or subject only to the review, of a superior tribunal of its own state, whether, in the partii Jar case, she had jurisdiction, if any objection be made to it.. And, although it be now stated, as a réason why we should examine whether a jurisdiction was rightfully exercised ové'r the Sea Flower, that she was captured more than two leagues at sea, who can say that this very allegation, if it had been essential, may not have been urged before the French court, and the fact decided in the negative ? And, if so, why should not its decision‘be as conclusive on this as on any other point? The judge must have had a right to dispose of every question which was made on behalf of the owner of the property, whether it related to his own jurisdiction, or arose out of the law of nations, or out of the French decrees, or in any other way: and, even if the reasons of his judgment should nbt appear satisfactory, it would be no reason for a foreign court to review his proceedings, or not to consider his sentence as conclusive on the property.

In this case, when here before, S from the opinion of the court, because I did not think that the condemnation of a French court at Guadaloupe, of a vessel and cargo lying in the port of anothernation,had changed the property: but this ground, ■which was the only one taken by two of the judges in this case, and by three, in that of Himely v. Rose, and was principally and almost solely relied on at bar, was overruled by a majority of the court, as will appear by examining those two cases, which were decided the same day. I am not, therefore, in determining this cause, as it now, comes up, at liberty to proceed upon it; and such must have been .the opinion, of Judge Chase, on the trial of it, who was one of the court who had proceeded on that principle.

Believing, therefore, that this property was chánged by its condemnation at Guadaloupe, the original owner can have no right to pursue it in the hands of any .vendee under that sentence, and the judgment below must, therefore, be affirmed.

The other judges (except the Chief Justice) concurred.

Marshall, Ch. J.

observed, that, he had supposed , that the former opinion delivered in these cases upon this point had been concurred in by four judges. But in this he was mistaken.

The, opinion was concurred in by one judge. He was still of opinion that the construction then given was correct.

. He understood the expression en sortant, in the arrete, as confining the case of vessels coming out, to vessels taken in the act of coming out. If it included vessels captured on the return voyage, he should concur in the opinion now delivered.

However, the principle of that case (Rose v. Himely) is notv overruled.

Judgment affirmed. *

Notes

*

Todd, J. stated that in the case of Rose v. Himely, at February term, 1808, he concurred in opinion with Judge Johv.soiu

Harper staled that one of the judges of the.court below had doubted whether, when a case is reversed upon a bill of exceptions and remanded, the court below-ought to grant a new trial.

Marshall, Ch. J. If it be upon a special verdict, or case agreed, the court above will proceed to give judgment. But when a verdict in favour of a plaintiff is reversed, on a bill of exceptions to instructions given to the jury, títere must be a new it i»! awarded by the court below.